High court asked to review blight case

LONG BRANCH — More than a dozen homeowners on the Long Branch oceanfront filed briefs with the state Supreme Court seeking an end to what has become a controversial high-profile eminent domain case.

The Marine and Ocean terraces and Seaview Avenue homeowners, known as the MTOTSA group, are asking the high court to review an Aug. 17 decision of the Appellate Division that declared the City of Long Branch's redevelopment project illegal.

The case was sent back to the trial court to give the city a chance to offer new evidence justifying blight designation and eminent domain use in the MTOTSA area.

"We won, and it is time to end this case," said Scott Bullock, a senior attorney with the public interest law firm Institute for Justice (IJ), based in Arlington, Va., who is representing a group of the homeowners.

"This case is tailor-made for the Supreme Court. Most courts in New Jersey close the case when property owners win, but some courts give the government a second bite at the apple," Bullock said.

"The state Supreme Court will usually get involved when there is this kind of judicial confusion on an issue so important that it affects, literally, every home and business owner in New Jersey," he added.

IJ is representing some 17 homeowners, acting as co-counsel in the case with Peter Wegener of Bathgate Wegener & Wolf of Lakewood. William J. Ward of Carlin & Ward of Florham Park is also representing one MTOTSA family in the case.

Although the Supreme Court agrees to hear only a small number of cases each year, the homeowners' petition should merit review, according to Bullock.

"First, there is sharp disagreement among New Jersey lower courts over what a judge should do when a property owner wins a blight case by showing that the blight designation was illegal," Bullock said.

"Second, this case presents a question of enormous public importance because winning blight cases will be meaningless if courts then just restart litigation to give the government a second try," he added.

The homeowners filed briefs with the high court as a cross-petition in the wake of briefs filed by the city with the Supreme Court seeking that the Appellate Division's ruling be overturned.

In its briefs, the city refers to the Gallenthin Realty Development Inc. v. Borough of Paulsboro case, which reaffirmed a finding of actual blight before private property can be taken by redevelopment.

The city calls the Appellate Division's reading of the Gallenthin decision "erroneous" resulting in "an undefined heightened level of evidence that goes against firmly established principles of judicial review based upon some 60 years of precedent," according to the briefs.

"The Appellate Division actively sought out fault [in the city's] evidence, ignored evidence that was responsive to its criticisms, and applied unsupportable legal interpretations," the city argues in its petition to the Supreme Court.

"It is respectfully submitted that this court never intended its succinct, well-reasoned and narrow holding in Gallenthin to direct the courts to effectively adopt a presumption of invalidity to municipal action in the redevelopment context and to review all such actions with an eye toward reversal, absent impeccable and virtually un-debatable evidence and conclusions.

"On the contrary, in Gallenthin this court clearly recognized … that at times, reasonable minds can differ as to whether a particular area qualifies as blighted and when the question is debatable, the court must defer to the municipal determination rather than substitute its own judgment," according to the city's briefs.

During the past 10 years, there have been 12 eminent domain cases in New Jersey in which the homeowners won, according to IJ. In 10 of those cases, the courts closed the cases, finalizing the homeowners' victories.

In two of those cases, including the recent appeal court victory by the Long Branch homeowners, the cases were remanded back to the lower court.

Although last summer's landmark unanimous opinion from the state Supreme Court in Gallenthin clarified that New Jersey law protects property owners against bogus blight, according to IJ, the Supreme

LONG BRANCH Court did not specifically address the remedy that winning property owners deserve.

"In Gallenthin, the Supreme Court closed the case when the property owner won, but there is no clear rule on this, and lower courts have done things differently," said Jeff Rowes, a staff attorney with IJ.

"The Supreme Court needs to make clear that a win is a win, because rights are useless when courts treat a citizen's victory as a mistake that has to be corrected by starting the case over again," he said, adding, "As the New Jersey Supreme Court said long ago, 'a right without a remedy is a mere shadow.' "

Wegener added, "If the high court takes the case, it will be part of a larger trend in New Jersey courts looking at blight designation with a skeptical eye."

Briefing on the homeowners' petition for review and on the city's own petition for review are expected to be completed by mid- October, according to Bullock.

The Supreme Court should then make a decision about hearing the case in a matter of weeks thereafter, he explained.

"The appeals court ruling demanded that the government demonstrate substantial evidence to prove a piece of property is blighted," Bullock said. "Courts in New Jersey and elsewhere are no longer rubberstamping the government's claim about blight.

"Judges are judging, and that's a good thing if you care about the protection of constitutionally enshrined rights," he added.

Contact Christine Varno at aville@gmnews.com.