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Long Branch property owners cross-petition NJ Supreme Court in eminent domain cases

By William J. Ward

William J. Ward, Esq. of Carlin & Ward; Peter H. Wegener of Bathgate Wegener & Wolf and Scott Bullock of the Institute of Justice, representing the Long Branch property owners, have cross-petitioned the New Jersey Supreme Court today in the City of Long Branch v. Anzalone and its companion case, City of Long Branch v. Brower et al. Long Branch petitioned the New Jersey Supreme Court to grant certification to review the August 7 decision of the Appellate Division. The city's notice of petition was served on the defendants on August 26.

The cross petition is for the limited purpose of affirming the Appellate Division’s finding that “there was not substantial evidence of blight," and dismissing the condemnation complaints outright. See R. 2:12-3(b). The theory for dismissal of the complaints is simple: Since there is no evidence of blight under Article VIII, Section III, paragraph 1 of the New Jersey Constitution and the Local Redevelopment Housing Law, N.J.S.A. 40A:12A-5, there can be no eminent domain action sustained. There simply is no support in the statute or redevelopment law for the trial court to conduct additional hearings on blight in these cases.

The appellate court in the Anzalone case misread the Harrison v. DeRose cases to require a further hearing before the law division as follows:

However, as we will discuss in this opinion, substantial activity has occurred in implementing the redevelopment plan. Although we attribute to these cases pipeline retroactivity of the Gallenthin holding, fairness dictates that the matter be remanded to afford the City an opportunity to amplify the record in an effort to meet the Gallenthin standard. (Harrison Redevelopment Agency v. DeRose, 398 NJ Super, 361, 420 (App. Div. 2008)

The Harrison v. DeRose case required further proceedings before the trial court because of the notice provisions which the appellate division found were not adequate to assure the property owners due process.  In Gallenthin, Justice Zazzalli noted that the municipality could revisit the blight process, but that contemplates a new proceeding before the muncipal planning board, not a hearing before the trial court. The planning board is the entity charged under the LRHL  N.J.S.A 40A:12A-6(a):

No area of a municipality shall be determined a redevelopment area unless the governing body of the municipality shall, by resolution, authorize the planning board to undertake a preliminary investigation to determine whether the proprosed area is a redevelopment area according to the criteria set forth in section 5 of P.L. 1992, c.79 (C.40A:12-5). Such determination shall be made after public notice and public hearing as provided in subsection b. of this section. The governing body of a municipality shall assign the conduct of the investigation and hearing to the planning board of the municipality

 See our blog post on the Harrison cases.    [Download Harrison v. DeRose here]

The case of ERETC LLC v. Perth Amboy, 381 NJ Super 268 (App Div 2005) hold that the planning board, not the Superior Court, is the proper venue for additional hearings regarding blight determination. Thus, there is a conflict in the appellate decisions regarding the appropriate remedy in this type of situtation, and the Supreme Court should grant certification to reconcile its opinion in Gallenthin with these two appellate division cases.  [Download the ERETC case here]

The Anzalone case does not need a hearing to develop a record. This process, the finding of blight, took place in 1996 before the Long Branch Planning Board, which is where it belongs. The Superior Court Law Division is not empowered to make additional factual findings beyond what was established in 1996.  Anything further would give the city of Long Branch a second bite at the apple.  The Beachfront North Phase I project, as envisioned by the Thompson Design Group in 1996, has been built. The project is complete. It’s over—dismiss the complaints!

Once the complaints are dismissed, the only remaining issue is for the court to award the property owners reasonable costs and attorneys’ fees. N.J.S.A. 20:3-26(b) provides:

If the court renders final judgment that the condemnor cannot acquire the real property by condemnation or, if the condemnation action is abandoned by the condemnor, then the court shall award the owner of any right, or title to, or interest in such real property, such sum as will reimburse such owner for his reasonable costs, disbursements and expenses actually incurred, including reasonable attorney, appraisal, and engineering fees.

See our blog post on West Orange v. 769 Associates. [Download the case here]

Attorneys for the property owners expect to receive the city’s brief no later than September 9 and will make the city's position available to the public on this blog upon receipt. Briefs in support of the property owners will also be published here, on or before September 14, 2008. It is expected that the League of Municipalities will continue to support Long Branch. The Public Advocate has indicated they will support our position as they did in the Appellate Division.
 

Full post as published by New Jersey Eminent Domain Blog on September 04, 2008 (boomark / email).