Attorneys ask court to allow advocate's brief Move counters city's attempt to block Chen's amicus brief BY CHRISTINE VARNO Staff Writer Scott Bullock LONG BRANCH - Attorneys representing Long Branch homeowners filed papers in court last week supporting the admission of the state Public Advocate's friend of the court brief in their case against the city's eminent domain plans. Attorney Peter H. Wegener and attorneys with the Institute for Justice (IJ) filed a letter brief in the state Appellate Division Feb. 13, in response to the City of Long Branch's motion to strike an amicus curiae brief and appendix filed by the state Public Advocate from being used in the case. "The city's motion . . . is a blatant attempt to prevent this court from considering an important and relevant perspective on the use of eminent domain under New Jersey's redevelopment laws to take homes for new private development projects," the response brief states. It continues, "The motion is totally baseless and should be denied by this court." Public Advocate Ronald K. Chen filed the amicus brief in the state Appellate Division of the Superior Court in January to support the legal fight by residents of a beach front neighborhood to block the city from taking their homes for a private redevelopment project. The residents of Marine Terrace, Ocean Terrace and Seaview Avenue, whose neighborhood is known as MTOTSA, are appealing a June 22 Superior Court decision that affirmed he city's right to condemn their oceanfront properties. Wegener, of Bathgate Wegener and Wolf, Lakewood, and IJ, a public interest law firm based in Arlington, Va., as co-counsel, are representing some 20 property owners in the appeal. The city previously tried to block IJ from entering the appeal as co-counsel. The city filed a motion in November to disqualify IJ from being admitted pro hac vice to the MTOTSA case. A pro hac vice motion is required for out-of-state attorneys in order to be permitted to practice law in a state where they are not licensed. The Appellate Division ruled in favor of IJ, granting it the status on Dec. 4. In the response brief filed Feb. 13, Wegener said Chen's brief and appendix meet all the requirements of an amicus curiae, such as being filed on a timely basis. Wegener also contends that Chen, as an advocate for all the citizens in the state, will provide an important perspective on the issue of eminent domain for private development. "Moreover, the city will not be prejudiced by the brief because it will have ample time to respond to the Public Advocate's arguments in its own brief," Wegener said in the brief, adding that the city's brief is not due until April. The city argues in its brief that the entire amicus brief should be stricken because a single argument made by Chen in his brief was not raised in the appeal. Chen had stated in the advocate's amicus brief that a lack of sufficient notice of the pending condemnation to the property owners is a due process violation. Although Wegener acknowledges in the response brief that the claim is "arguably not specifically raised" in the appeal, he contends that all the other arguments in the brief made by Chen are directly at issue in the appeal and should not be dismissed due to one claim. Wegener additionally argued that even the single due process claim should be admitted in the appeal. In the appeal, Wegener said he argues that the MTOTSA residents were never notified when the status of their homes was changed from infill housing to condemnation in the redevelopment plan. "This fact serves as vital evidence for their public use claim and their claim that the change to the redevelopment plan was arbitrary and capricious," Wegener states in the brief. "The Public Advocate's discussion of due process is in keeping with the very same claims and arguments. . .," he said. The city further challenges that Chen's brief should be stricken because two-thirds of the information in Chen's appendix was never before the trial court. "Most of the materials contained in the Public Advocate's appendix are also a part of the record in the case," Wegener states in the brief. "The other materials to which the city objects are documents that are part of the public record and easily available to this court." "The city is grasping at straws to try to prevent this court from hearing the broadcast range of viewpoints concerning the vital constitutional and statuary issues at stake in this case . . . ," he said. According to the city, an amicus brief in support of the city is expected to be filed by the League of Municipalities. Wegener said he has no plans to file an objection to it.