Institute for Justice, NJ join MTOTSA appeal
BY LAYLI WHYTE
Staff Writer

A group of Long Branch homeowners gained powerful allies this week when the Institute for Justice (IJ) and state Public Advocate Ronald K. Chen announced they would officially join the legal battle to save their homes from being taken by the city through eminent domain.

Scott Bullock, senior attorney for IJ, a public interest law firm based in Arlington, Va., that focuses on property rights, said Tuesday the firm will be co-counsel in the appeal of a lower court decision, which said the city has the right to condemn the homes in a modest beachfront neighborhood to advance its redevelopment plans.

According to a press release from Chen's office on Tuesday, the Public Advocate's Office will be among the parties filing amicus briefs with the state Appellate Court in support of the residents' fight to save their homes.

Chen issued a report in May calling for major reforms to the laws governing the use of eminent domain for private redevelopment in New Jersey communities such as Long Branch.

The announcement of both IJ and Chen's official involvement in the legal action on behalf of 38 residents was to be made yesterday at a press conference in the MTOTSA neighborhood threatened by redevelopment, IJ staff attorney Jeff Rowes confirmed.

As co-counsel, IJ joins attorney Peter H. Wegener, who represents residents and property owners in MTOTSA, a three-street neighborhood of homes on Marine Terrace, Ocean Terrace and Seaview Avenue, in the appeal of a state Superior Court decision that stated Long Branch's use of eminent domain was permitted under the state Constitution.

Bullock said a notice of appeal would be filed yesterday with the state Appellate Court. The notice would ask the court to overturn the lower court finding or direct the lower court to allow the residents to present testimony in support of their efforts to have the condemnation of their homes declared illegal.

"We see what's happening in Long Branch as one of the premier examples of eminent domain abuse," Bullock said in an interview Tuesday.

IJ's work on the case will come at no cost to the residents, said Bullock, but the legal costs of the city are being covered by the developer.

"We're just leveling the playing field," he said.

Having just won an appeal in Ohio in a case similar to Long Branch where eminent domain was being used to condemned homes to be sold to a private developer, Bullock said IJ will now devote its time and energy to fight the many abuses of eminent domain in the state of New Jersey.

"There are two trends in eminent domain abuse," said Bullock. "One is if the property has a nice view, such as waterfront property, such as happens in New Jersey. It's what developers want. The other targeted areas are those with access to major transportation systems. That's what we saw in Ohio."

Bullock said that New Jersey is one of the worst offenders when it comes to abuse of eminent domain.

"Eminent domain abuse runs so rampant in New Jersey," he said. "New Jersey municipalities have been on an eminent domain binge. It is truly one of the worst states for eminent domain being used for private development in the country. That's why this case is so important."

Rowes said that IJ is seeking another eminent domain case to bring before the U.S. Supreme Court after its loss in the Kelo vs. New London case, but it is not clear if Long Branch and the MTOTSA group will offer that option. For now, said Bullock, IJ will file the notice of appeal, which will put the city on notice that an appeal is coming, and briefs will be filed within 45 days.

"We will be asking that the condemnations be declared unlawful," said Rowes, "or that the case be sent back to trial court."

The motion to stay the city's condemnation proceedings was heard by state Superior Court Administrative Law Judge Lawrence Lawson last spring.

In Lawson's decision, released in July, he stated that the city had acted within the parameters of the state Constitution when it called for the use of eminent domain in condemning property along the beachfront for sale to a private developer for the explicit purpose of demolishing the existing modest, single-family homes and replacing them with high-end condominiums.

"The judge gave way to twisted, pretzel-like logic," Bullock said. "The trial court decision was blatantly wrong and is crying out for appeal."

Bullock said that IJ's briefs must be filed by mid-October, and expects that arguments before the three-judge Appellate Court panel will take place early next year.

Bullock said most likely, if the Appellate Court decides in favor of the appellants, the case will be returned to trial court and could end up back in Lawson's court.

"It would be a plenary hearing," said Rowes, "where we would be able to present evidence and testimony. If it goes back to trial court, no matter what, someone will be unhappy, and someone will appeal."

Rowes said that IJ will be arguing two main constitutional points in the appeal.

"The most important constitutional argument," he said, "is that the taking of nonblighted homes from nonblighted neighborhoods to give to a private party is not public use. The other constitutional argument is that the government can't rent out, contract away or give up its power of eminent domain to a private party."

Rowes said that IJ will also be arguing one statutory point, which would be that state law requires that blight designations show substantial evidence of blight.

"MTOTSA is just not blighted," said Rowes. "The city is looking at blight in one part of the city to justify condemning property in another part. The city shouldn't be able to piggy-back blight from one part of the city to another."

Rowes said that Wegener is expected to address the conflicts of interest the appellants claim exist in the city's redevelopment plans.

Those include the fact that Arthur Greenbaum, of the law firm Greenbaum, Rowe, Smith, Raven, Davis & Himmel, represented the city in condemnation proceedings while Greenbaum was a director and shareholder of developer Hovnanian Enterprises, which is the contract purchaser of the properties being taken for redevelopment.

"Both the U.S. Constitution and the New Jersey Constitution," said Rowes, "clearly say that the government cannot take property but for public use and with just compensation. The definition of public use becomes broader and broader."

Rowes said that the MTOTSA case is an example of how the definition of "public use" is being misinterpreted to allow government to remove people from their homes in favor of higher property taxes on higher value homes.

"If we decide that the only value a citizen has is how much that citizen can be taxed," he said, "then we're not running the type of constitutional government we should be. The local government has become untethered from constitutionality, and it's gone too far. That's why we have constitutions, so that isolated minorities cannot be exploited."

Bullock said that there's more at stake in the eminent domain abuse cases than tangible property.

"It's about the right to home ownership," he said. "It's about the right to own a small business. It's about the ability of people to pursue the American dream. Too long have we seen the erosion of rights through the combination of governmental and corporate power."

Bullock said IJ hopes the outcome of the eminent domain battle is a return to the original intent of the framers of the Constitution that eminent domain be used solely for public projects.

"Some of the big changes we would like to see," he said, "is to get back to what eminent domain is designed for - as a limited tool used for necessary public projects, not for private development."