Appeal of eminent domain ruling set

Institute takes up Long Branch case
Asbury Park Press 08/30/06

Some residents of the Marine Terrace-Ocean Terrace-Seaview Avenue area in Long Branch will file an appeal today in their case against the city's plan to use eminent domain to take their properties for redevelopment.

Scott G. Bullock, senior attorney for the Institute for Justice, and Jeff Rowes, a staff attorney with the Arlington, Va.-based nonprofit group, announced the appeal — and said the institute was formally joining the case — during a meeting Tuesday with the Asbury Park Press editorial board.

Bullock said the institute has decided to focus on two major eminent-domain cases out of the six to seven in which it is involved. Those cases are the one in Long Branch and another in Riviera Beach, Fla. The institute is coming off a major win in July in which the Ohio Supreme Court rejected arguments laid out in last year's U.S. Supreme Court decision regarding Suzette Kelo's fight to save her Connecticut home.

In the Kelo case, the federal court ruled eminent domain could be used for economic development. Bullock, who argued the case before the U.S. Supreme Court, said the decision was "the most universally despised Supreme Court case in decades" and provoked a backlash that has resulted in eminent-domain legislative reform in 30 states.

In the Ohio case, the state's Supreme Court ruled that state courts must apply a "heightened" level of scrutiny in cases where eminent domain is used, especially when the property is taken from one private party and transferred to another.

In a related development, a panel of the Appellate Division of New Jersey's Superior Court sided with a property owner against Bloomfield officials who had contended the site was underutilized and a threat to public health, safety or welfare. The judges, in upholding the trial judge in Essex County, ruled there was not enough evidence submitted by Bloomfield to demonstrate that eminent domain should be used to take title to the property.

"What's the lesson in the Bloomfield case?" asked William J. Ward, one of the attorneys who argued for the property owner. "You can fight city hall and win."

Ward — who represents other property owners in the three-street Long Branch area, dubbed MTOTSA — said Louis and Lillian Anzalone, two of his clients, have decided to appeal. Their motion will be filed this week.

Ward also said he would move immediately for a stay of Judge Lawrence M. Lawson's June 22 decision that upheld Long Branch's right to take certain homes in the neighborhood, which consists of 38 properties. Lawson at the time denied the stay, but Bullock and Rowes said their interpretation of the law indicates a stay of the decision, which would allow the owners to stay in their homes while the appeal is pending, should have been automatically granted.

Ward does not agree the stay is automatic.

The Institute for Justice, meanwhile, announced it has entered into a co-counsel arrangement with Peter H. Wegener, senior partner with Bathgate, Wegener & Wolf, a Lakewood-based law firm. Wegener represents about 18 of the MTOTSA clients.

Bullock and Rowes said they will pursue a similar arrangement with Ward of Carlin & Ward, Florham Park, but Ward said Tuesday he would not agree to it, at his clients' request.

"One of the things they've asked for is that people who are part of the group not speak to the press," Ward said. "My client, Lou Anzalone, feels very strongly about being able to talk to the press."

City still negotiating

Bullock and Rowes suggested that Long Branch has not moved forward to evict the affected property owners — which Lawson's ruling gives the city the power to do — because of weaknesses in the city's case.

But Mayor Adam Schneider disagrees.

"I'm glad that they are mind readers but that isn't why we haven't done it," Schneider said. "We're still trying to negotiate. There are a few people who are negotiating so we chose to do that first."

Bullock and Rowes said they will represent MTOTSA on the constitutional issues, while Wegener will handle other aspects of the case, such as allegations of conflict-of-interest and whether bona fide negotiations took place between the owners and the city.

The institute will not charge the MTOTSA owners for any work it does, and Wegener is charging a reduced rate, Bullock said. At the very least, institute lawyers hope to convince an appellate court to authorize Lawson to conduct evidentiary hearings about whether the homes truly are blighted. He said the judge used "twisted logic" to rule in the city's favor.

"It is not a public use," Bullock said of the planned oceanfront condo development in Long Branch. "The blight designation has to be supported by substantial evidence."