Broadway property owners await appeal date Building owners seek right to be redevelopers BY CHRISTINE VARNO Staff Writer LONG BRANCH - Three property owners in the Broadway redevelopment zone are waiting for a court date in their appeal of a state Superior Court ruling that gives the city the go-ahead to condemn their buildings. The property owners are seeking full discovery and a plenary hearing in the appeal, which challenges city ordinances that authorize the use of eminent domain for a $180 million mixed-use redevelopment project. The notice of appeal was filed Aug. 29 in the Appellate Division of the New Jersey Superior Court on behalf of appellants the Rev. Kevin Brown and Gopal and Kavita Panday, who own property on Broadway, and Dr. Carlos Rivera, who owns property on Memorial Parkway. "Our end goal is to be included in the redevelopment project," said Brown Monday. "We want to be allowed to remain and participate in the renaissance of the Broadway redevelopment. "We are fighting to preserve small business owners and to allow property owners the right to develop their own property," he said. The appeal names Long Branch Mayor Adam Schneider and the five City Council members, as well as the city of Long Branch, the state of New Jersey and designated developer Broadway Arts Center (BAC) as defendants. Briefs in the case have not been submitted yet, according to Brown, who said several issues to be raised in the appeal have been outlined in a preliminary appellate document for the court by attorney Michael S. Kasanoff. Kasanoff, of Red Bank, is representing all three property owners in the appeal. "I think I have 110 percent chance of victory," said Brown, who has been trying to establish the Lighthouse Mission Church in the building that he owns and lives in at 162 Broadway. "If the city is trying to take … property and turn it into usable property, then look, I took a blighted property and turned it into a usable property. "Mr. Panday's and Dr. Rivera's properties are not blighted. We are not blighted in a traditional sense," he said, adding, "I think our chances [of winning] are real good." The Pandays own Rainbow Liquors and two additional vacant lots on Broadway. Rivera owns a building where his practice is located along with several other businesses including a restaurant, a realty office and a dental office. "Nobody wants to stop what [BAC] is doing," Brown said. "We just want them to do it in the buildings they own. "If the city wants increased density and it to look different, we are willing to do that," he said. "If we get to stay, we have to bring our buildings up to the proper use and appearance under the city's [plan]," Brown said, adding," So it is a win-win." Kasanoff plans to argue that the appellants have a right to conduct full discovery in preparation for a plenary hearing in the case, according to the preliminary appellate document. "The deprivation of that right contravenes binding appellate precedent, fails to recognize that defendants' misconduct is ongoing and continuing, and further fails to recognize that this case involves important public interests and important and novel constitutional questions," Kasanoff states in the document. Further, Kasanoff will argue that the redevelopment law and the means for determining the just compensation for properties acquired in redevelopment zones is unconstitutional. "The redevelopment law is unconstitutional, including, but not limited to, the portions which exceed the constitutional meaning of blighted area, and the so-called 'necessary and convenient' clause which provides a municipality or redevelopment authority absolute authority to 'do all things necessary or convenient to carry out its powers,' " Kasanoff said in the document. He continued, "The portion of the eminent domain act … which has been used to limit 'just compensation' to the appraisals, rather than taking into account the totality of the circumstances, including true market value, lost profits and the developer's windfall, is unconstitutional, as it denies the property owners just compensation." Superior Court Judge Lawrence M. Lawson ruled in favor of the city on July 20, denying the plaintiffs' request to override city ordinances that permit the use of eminent domain to condemn the Broadway redevelopment zone properties. BAC has acquired 42 of the 48 properties in the zone, according to Patience O'Connor, the managing director of the BAC. She added that of the six property owners who are not willing to sell, three have legal representation and are fighting the taking. In October 2002, the council adopted an ordinance approving a supplementary redevelopment plan for the Broadway Corridor area. In February 2006 the council passed another ordinance authorizing the city to acquire properties in the redevelopment zone, and then again in August 2008 the city amended the ordinance to expand the area to be acquired through eminent domain, according to Lawson's opinion. City Attorney James Aaron wrote on Sept. 10 in a reply to the notice of appeal that the trial court properly dismissed the property owners' claims challenging the ordinances. "The city's power to adopt an ordinance authorizing the use of eminent domain to acquire properties pursuant to a redevelopment plan is expressly authorized by state statute," Aaron said in the reply. Aaron also affirmed the court's decision to not allow discovery and a plenary hearing. "Plaintiffs have failed to set forth any relevant factual disputes with respect to the validity of ordinances," Aaron said. The plaintiffs claimed in the original suit that the ordinances are "arbitrary, capricious, illegal, unconstitutional and contrary to federal and state constitutions," according to the original suit filed by Kasanoff. "The ordinances cannot survive minimum scrutiny and without full discovery and a plenary hearing … there are questions of material fact as to whether Long Branch's redevelopment determination was supported by substantial evidence and whether defendants have substituted one or more private purposes for public purpose," Kasanoff said in the notice of appeal. He added in the notice, "The ordinances authorizing the use of eminent domain against appellants' properties must be stricken because they unconstitutionally encroach upon appellants' fundamental property rights." Brown said that he and the other plaintiffs did not file the original suit to terminate the redevelopment project. "I've been down here for 17 years," Brown said. "I am not looking to stop [BAC]. Under the ordinances, we were being eliminated. "We want to stay. These are our buildings and we should have the right to be here with [BAC]," he said. Plans call for BAC to develop the Broadway corridor, which is the first 9 acres of the entire Broadway redevelopment zone, extending 72 acres from Second Avenue west to the railroad tracks. The corridor extends two blocks from Second Avenue to Memorial Avenue and from Union Avenue to the north and Belmont Avenue to the south. Principals in BAC are the Katz and Siperstein families, who own Siperstein's, which was originally located in the Broadway corridor and relocated to Route 36, and the Pereira family, owners of Pax Construction on Broadway. Plans for the project call for the current properties to be razed and replaced with a mixed-use arts and theater district. The project will consist of commercial space, residential and live/work units, office space and parking garages.