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September 17, 2009

EMINENT DOMAINIA: Jersey Shore homeowners win

We've been following one of the more egregious cases of eminent domain abuse brewing down in Long Branch, NJ, where the town was kicking homeowners out of their seaside bungalows in favor of a new condo development. According to the US Supreme Court, the move was legal, but the NJ courts saw it differently.

NJEminentDomain.com, Settlement ends eminent domain saga for Long Branch MTOTSA homeowners

One of the lawyers involved in the case reports the good news on his blog:

City of Long Branch v. Anzalone, and its companion cases, were reversed and remanded to the trial court in part on August 7, 2008. Today's settlement, which resulted from lengthy negotiations and mediations with Judge Thomas W. Cavenaugh, dismisses the eminent domain complaints against all defendants. In addition, the city of Long Branch and the developer are paying aproximately 60 percent of the legal fees and costs of the defendants. The property owners are now free to continue to live in their homes, or to rebuild in compliance with the amended redevelopment plan. If they choose to rebuild, they can be designated as redevelopers and receive the same tax benefits as the designated developers did for Phase I of the Beachfront North project. This is a big win for the property owners and property rights advocates.

Asbury Park Press, Settlement could come today in Long Branch eminent domain case
Here's an outline of the terms of the agreement:

According to the settlement, the city will pay $435,000 to settle the legal fees of the MTOTSA property owners. Although the Institute for Justice, the Virginia-based nonprofit law firm took the case for free, the residents were also represented by private attorneys Peter H. Wegener and William J. Ward.

In other terms, the city agrees to dismiss all the condemnation complaints against the MTOTSA property owners "and abandon eminent domain proceedings without any costs'' to the property owners "for the life of the Beachfront North Redevelopment Plan or any subsequent redevelopment plan.''

The city will do all it can to help the property owners redevelop or improve their own properties and the property owners will be allowed to act as redevelopers for that process. Property owners also will receive five-year tax abatements for any improvements they make to their properties.

The city will repave their streets by December 2011 (the road will be opened multiple times as some property owners make improvements, which accounts for the advanced date) and the city agrees to work with Jersey Central Power & Light Co. to get new street lights for the community.

The city agrees to move promptly on demolition of any buildings that are structurally unsound. The developer already owns 13 buildings in the community.

The property owners will have to comply with current property maintenance codes under the settlement.

The Star-Ledger, Long Branch residents win battle to keep homes

Long Branch had moved to seize three dozen homes in the north end of its oceanfront -- on Marine Terrace, Ocean Terrace and Seaview Avenue -- as part of a massive luxury oceanfront development that has dramatically changed the face of the once-faded Shore town.

Residents complained the city declared the entire area blighted without taking into consideration their well-maintained modest bungalows, where many had lived for more than 40 years.

Last year a state appeals court ruled Long Branch had failed to prove the homes met standards for "blight" and returned the case to court, where it was assigned to Cavanagh as a mediator.

The Institute for Justice, Victory for Homeowners in Long Branch, N.J. Eminent Domain Battle

From the Institute for Justice's press release:

The developer must also clean up the damage it caused to the neighborhood. The developer-owned homes in MTOTSA were abandoned and boarded-up, causing decline and posing safety and crime problems. Under the agreement, the developer must start work on demolition of the abandoned homes immediately, with all the developer-owned homes being demolished by April 2, 2010. The developer plans on eventually building new homes in the area. The court will maintain jurisdiction over the agreement to ensure that its terms are enforced.

In some states where the legislature has failed to act to curb the abuse of eminent domain, the judiciary has helped to even the playing field:

Although New Jersey politicians have failed to act, the New Jersey courts have started to rein in eminent domain abuse. In August 2008, a three-judge panel of the New Jersey Appellate Division unanimously reversed the 2006 decision of Superior Court Judge Lawrence Lawson, which had allowed Long Branch to condemn MTOTSA for a luxury condominium development. After the case was sent back to the trial court and the city announced that it was willing to drop the eminent domain actions, the parties began discussing how to resolve the remaining issues in the case, leading to the agreement announced today.

The actions of the New Jersey courts follow a broader trend in state courts since the Kelo decision. While many state supreme courts follow the lead of the U.S. Supreme Court, the exact opposite has happened with regard to the use of eminent domain for private development. Since Kelo, four state supreme courts have so far rejected the decision while not one has adopted it.

NoLandGrab: Who knows, maybe NY will make it five — the state's highest court, the Court of Appeals, has already agreed to hear the appeal of a lower-court ruling in the Atlantic Yards eminent domain case.

Posted by lumi at September 17, 2009 4:50 AM