MTOTSA set to appear in appeals court in April IJ: New Jersey court rulings over past year support property owners BY CHRISTINE VARNO Staff Writer Agroup of Long Branch homeowners have been given their day in court to continue a legal battle to save their oceanfront neighborhood from condemnation. Members of Marine and Ocean terraces and Seaview Avenue, known as the MTOTSA alliance, are scheduled to appear in court on April 23, according to Institute for Justice (IJ) attorney Scott Bullock. The case will be heard in the Superior Court of New Jersey Appellate Division in Trenton, according to Bullock, who said the date could be postponed. "It is scheduled, as of right now, for April 23 at 10:30 a.m.," Bullock, who is acting as cocounsel for MTOTSA, said Monday. Attorney Paul V. Fernicola, who has been representing the city in the case, notified the court that he will be out of the country on April 23, according to Bullock. Fernicola could not be reached for comment by deadline Tuesday. "I do not know what Mr. Fernicola has requested," Bullock said. "We have been given alternative dates [by the court] of April 30 and May 7. "If Mr. Fernicola requests [the case to be postponed], we will ask for the April 30 date," Bullock said. Agroup of some 18 homeowners inMTOTSA are being represented by Peter H. Wegener, of Bathgate Wegener and Wolf in Lakewood, in the appeal. IJ attorneys Bullock and Jeff Rowes are acting as co-counsel in the case. The attorneys are appealing the Superior Court ruling of Judge Lawrence M. Lawson that permits the city's use of eminent domain to condemn the properties in the beachfront MTOTSA neighborhood. The MTOTSA residents have been waiting to have their day in court for over a year, according to IJ attorneys, who said the opening brief in the appeal was filed on Feb. 8, 2007. In the interim, Bullock said, there have been several eminent domain court rulings in favor of property owners that support the MTOTSA case. "There has been a clear and unmistakable trend in the New Jersey Supreme Court and the appellate courts toward a greater recognition for the rights of homeowners when faced with eminent domain for private development," Bullock said. "We think these trends bode very well with the MTOTSA homeowners," Bullock said, adding, "We are very much looking forward to presenting this case in the Appellate Division." One court decision that supports the MTOTSA case is the Gallenthin Realty Development Inc. v. Borough of Paulsboro case, according to Bullock. "The Supreme Court made it very clear in its ruling [in the Gallenthin case] that it will not rubberstamp the decision of a city council when it comes to redevelopment," Bullock said. "And that is exactly what Judge Lawson did in the MTOTSA case," he said. "He did not give us a trial. He did not allow for any discovery of evidence. "He decided to rubberstamp the decision of the [Long Branch] City Council," Bullock added. Another example is the Harrison Redevelopment Agency v. DeRose case, which was decided on Feb. 25. In a published opinion, the appeals panel held that the "government has an overriding obligation to deal forthrightly and fairly with property owners," according to a press release from New Jersey Public Advocate Ronald Chen's office. Chen said the ruling guarantees property owners greater protections when their property is targeted for condemnation so it can be redeveloped by another private party. Under the New Jersey Constitution, a municipality may take private property from one owner and transfer it to another for redevelopment only if it is in a "blighted area." The "public purpose" of such a taking is to stop the spread of the deterioration and clear up the blight, according to the press release from the Public Advocate's Office. In the Harrison case, the court held that if a municipality wants to settle the legality of a blight designation earlier in the redevelopment process, it must go beyond the requirements of the current statute governing redevelopment and provide individualized written notice to all owners in the targeted area, according to the release. The ruling applies to any challenge to eminent domain that is still active in the court system and could lead to reopening disputes over blight designations in other pending cases, according to the release. The Township of Harrison, like many other municipalities around the state, had argued that property owners lose the right to make such a challenge years earlier, around the time when the area is declared to be blighted or "in need of redevelopment," according to the release. "The ruling essentially requires local officials to be up-front and honest with property owners when they target an area for private redevelopment," Chen said in the release. "The appeals panel recognized that it needed to level the playing field. "Current law is flawed because it does not require clear notice to property owners that the town could take their property against their will," Chen said. Plans for MTOTSA call for designated developer MM Beachfront North II - consisting of Matzel & Mumford, a division of K. Hovnanian and the Applied Cos., Hoboken - to raze the neighborhood and construct three buildings with 185 upscale condominium units. The IJ is a public interest firm based in Arlington, Va.