1/28/2007

Line drawn in the sand on eminent domain: Newark NJ Star-Ledger, 1/22/07

Heavy hitters join legal fight on Long Branch use of property takeover for development

By Maryann Spoto

The backlash against towns seizing small businesses and houses to further large-scale, private development has been gaining strength nationwide, but in New Jersey the use of eminent domain appears to be coming to a head in the oceanfront resort of Long Branch.

A group of homeowners has been fighting the city's effort to take their land in court for about three years, but in recent weeks powerful forces joined the battle and have turned it into a legal showdown.

State Public Advocate Ron Chen - with the firm support of Gov. Jon Corzine - took the side of the property owners. The state League of Municipalities, which frequently points to Long Branch as a shining example of the good eminent domain can do - is weighing in on the city's side.

As a result, the state may wind up with a definitive court decision on the use, or misuse, of a powerful redevelopment tool.

Chen entered the case two weeks ago, filing legal papers objecting to the seizure of two dozen private houses to make way for an expansion of an upscale condominium development.

"These condemnation cases against the owners of small seaside houses in Long Branch raise serious issues about the fairness, thoroughness and legality of the process by which longtime residents may lose their homes to private development," Chen said. "The homeowners contesting the condemnation are asking for full discovery and a hearing, and we are urging the court to grant their request."

Supporters say the project begun in 1991 has transformed a seedy waterfront into a vibrant community with hundreds of condominiums, townhouses and rental units built over restaurants and stores.

William Dressel of the state League of Municipalities insists towns need the flexibility to seize property that stands in the way of progress - and he said this week his group also intends to enter the case, on the side of Long Branch.

"If we lose that economic redevelopment tool, we're really going to lose the battle in trying to improve the quality of life in our communities," he said. "It's unfair, and it's a slap in the face to responsible governance to say that eminent domain is bad."

Chen is not the only one who has raised concerns, however, about the overuse of eminent domain by towns eager to move large-scale development projects forward. Critics have accused towns of allowing politically connected developers - some of them contributors to local election campaigns - to run roughshod over longtime residents.

Towns have long used powers of eminent domain to seize private property to further public projects like roads, schools, tunnels and bridges. But in recent years, they have seized homes and businesses and turned the property over to private developers seeking to build large-scale redevelopment projects.

In June 2005, the U.S. Supreme Court ruled such a plan in New London, Conn., could go forward, infuriating property rights activists nationwide and prompting dozens of states to consider reforms.

In submitting his "friend of the court" brief to the Appellate Division, Chen could lend extra muscle to the appeal already filed by the homeowners' private attorneys and the Washington-based Institute for Justice.

The appellate judges could side with Chen and the homeowners and give the residents the hearings they want, or they could allow the city to continue its condemnation process.

Chen has looked at eminent domain matters in at least a dozen communities but has only gotten involved in two so far.

In his 65-page brief, he claimed the residents of Marine Terrace, Ocean Terrace and Seaview Avenue were never given adequate notice their homes could be taken through eminent domain. He maintained Superior Court Assignment Judge Lawrence Lawson, sitting in Freehold, should have ordered a hearing on that issue.

He also argued Lawson should have ordered another hearing to determine whether there was merit to residents' allegations that three city council members had conflicts of interest in the redevelopment project.

Chen also argued city officials failed to do a thorough enough inspection of the properties and had "insufficient evidence" to support the blight determination needed to start the eminent domain process.

The strongly worded filing prompted an angry response from Mayor Adam Schneider, who argued it was wrong to use public money in a bid to overturn a decision local officials made in good faith.

"He's not supposed to be representing 10 property owners on the oceanfront," Schneider said. "He's supposed to be representing all the homeowners in the state of New Jersey."

Schneider accused Chen of failing to listen to the city's side of the story and said the city meticulously followed the redevelopment law when it used eminent domain. He accused him of trying to grab the spotlight to further his own political career.

"It's a hot-button issue; it's gotten a lot of publicity," Schneider said. "I think he wants to be in the middle of it."

Chen, who was serving as the dean of academic affairs at Rutgers University School of Law-Newark when Corzine tapped him to resurrect the post of public advocate, denied he has any aspirations to hold political office.

"We are choosing cases that raise larger public issues of how eminent domain is applied," said Chen, who made detailed recommendations last year to a legislative panel studying ways to end abuses of the practice.

Those hearings led to a bill the Assembly overwhelmingly passed in June, but the reform effort has since languished in the Senate. A spokesman for Corzine, who strongly condemned eminent domain abuses during the gubernatorial campaign, said he is eager to see a reform bill pass.

"It's clear to us the Long Branch situation is an abuse of eminent domain, and we're glad the public advocate has filed his brief," Corzine spokesman Brendan Gilfillan said.

Eminent domain needs to be reformed, he added, "to protect homeowners and increase transparency in a process which can serve as an important tool when it's appropriately applied."


Newark NJ Star-Ledger: http://www.nj.com