11/23/2006

Appellate Court grants stay of eminent domain: Long Branch NJ Atlanticville, 11/21/06

Judges' order puts condemnation of home on hold, pending appeal

By Christine Varno

A [New Jersey] state Appellate Court has ordered the city [of Long Branch] to hold off on using eminent domain to seize a beachfront home for a redevelopment project.

An order granting a stay of the city's pending condemnation action against Louis and Lillian Anzalone's Ocean Terrace home was signed Nov. 16 by Appellate Judges Jack L. Lintner and Christine L. Miniman.

"This is a very good sign," said the Anzalones' attorney, William J. Ward Monday.

"You do not get a stay granted very often," said Ward, of Carlin & Ward, Florham Park. "They are not routinely granted."

The stay prevents the city of Long Branch from seizing the Anzalones' property while an appeal is pending of a state Superior Court decision that affirmed the city's right to take the property through eminent domain for private redevelopment.

The stay will remain intact while the appeal is pending, Ward said.

"The city cannot take the property until a final decision is made on whether [the city] has the right [to take the homes] is made," Ward said.

"This is a significant victory for the property owners and bodes well for a favorable decision on the merits of the case," Ward said.

"It is not a slam dunk that we will win the appeal," he said, "but it is a very, very positive sign."

City Attorney James Aaron did not return a phone call seeking comment Monday.

Ward explained that the stay order is significant because the property owners must demonstrate a probability of success in the merits of the appeal in order to meet the standard for obtaining a stay.

"The court was obviously satisfied," Ward said.

Institute for Justice (IJ) senior attorney Scott Bullock agreed.

"I think [the stay] is phenomenal news," Bullock said Monday.

IJ is seeking co-counsel status in the appeal to represent a group of city residents in the Anzalones' neighborhood, known as MTOTSA, who are also facing condemnation proceedings.

"This obviously indicates that they are taking the appeal very seriously," he said, adding, "Just like [in the Anzalone case], this same relief could now be granted to all the MTOTSA homeowners."

Ward filed the motion asking the Appellate Court to grant the stay Oct. 25.

Ward is representing the Anzalones in an appeal of a June 22 decision by Superior Court Judge Lawrence M. Lawson who ruled that the city has the right to use eminent domain to take the homes in the Beachfront North, phase II redevelopment zone for a luxury condominium project.

Plans for the area call for developers MM Beachfront North II, consisting of K. Hovnanian, Middletown, and the Applied Cos., Hoboken, to raze the modest beachfront neighborhood and construct three buildings consisting of a total of 185 condominium units in its place.

In Lawson's decision, the initial motion for a stay was denied.

"This time, we have judges with a different perspective," Ward said. "I think what got their attention, although it does not say it in the order, was the conflicts of interests [argued in the brief filed for the stay]."

In the brief, Ward charged that the lower court erred by not granting discovery to obtain facts surrounding allegations of conflicts of interest.

The brief charged conflicts existed between Aaron's law firm, the law firm of Greenbaum Rowe Smith and Davis, Mayor Adam Schneider and the Long Branch City Council, developer K. Hovnanian and the Monmouth Community Bank.

The bank, the brief stated, provided a line of credit to the developer and employed some City Council members who selected the developer.

Ward charged that Arthur Greenbaum was involved in a conflict because his firm represented the city in condemnation proceedings while he was a director and shareholder of developer K. Hovnanian.

Aaron's firm was also involved in a conflict, according to Ward, because while Aaron represented the city, his firm represented K. Hovnanian.

Ward stated in the brief, the relationships between the law firms, the city, the developers and the bank, "create the appearance, if not of actual conflict, to have improperly influenced the city's actions taken in pursuit of the Beachfront North Redevelopment and the condemnation of the subject property."

A group of some 20 residents in the three-street Marine Terrace, Ocean Terrace and Seaview Avenue neighborhood known MTOTSA are also appealing Lawson's decision.

The MTOTSA homeowners are being represented by attorney Peter H. Wegener in the appeal.

The public interest law firm IJ, based in Arlington, Va., has applied for "pro hac vice" status to enter the case as co-counsel with Wegener.

Ward said that the decision for his client is a win for the entire MTOTSA neighborhood.

"Once a stay is granted in our case, then a stay will be granted for MTOTSA, once they file for it," Ward said.

Also on Nov. 16, Appellate Court Judges Lintner and Carmen J. Messano denied a motion from the city to accelerate the appeal.

Ward said he filed a brief on the merits of the appeal last week and the court could possibly schedule oral arguments to begin in the appeal in six months.

The MTOTSA residents are a few steps behind in the appeal, Ward said, because Wegener and the city are still involved in a court battle over the admission of IJ into the case.

"This decision is just positive for my clients and for the rest of MTOTSA," Ward said.

MTOTSA resident Lori Ann Vendetti said Monday that this is the first positive step for the homeowners.

"The appellate division is giving this serious thought," Vendetti said.

"They are not being biased as I felt the Monmouth County court and [Judge] Lawson have been.

"This means they are not shutting the doors on us," Vendetti said, adding, "This is really good news to get just before the holidays."


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