I found this column about an Asbury family on an eminant domain
website.
Does anyone know the Orlando family and know if these numbers are
correct?
The guy who wrote the column is a land use lawyer who represents
condemnees.
Here is his column:
Eminent Domain in Asbury Park: An offer you can refuse
The dictionary defines goniff as a Yiddish word for a ¡§thief.¡¨
Having received an offer for their property from Asbury Partners
LLC, the designated developer for the Asbury Park beachfront, Thomas
and Donna Orlando now know the meaning of that term.
The Orlandos purchased a fully renovated three-family house located
two blocks from the beach for $575,000 in September 2004. In
December 2005, the Orlandos received the offer and appraisal from
Asbury Partners in the amount of $330,000, premised on the appraisal
of Donald Moliver. This offer is significantly less than the first
mortgage on the property.
Under normal circumstances, we would expect Mr. Moliver and Asbury
Partners would consider the sale of the subject property and the
fact that the beachfront real estate has increased since 2004, not
only in Asbury Park but in New Jersey in general. Therefore, a
reasonable starting point would be at least ten percent over the
purchase price or approximately $630,000.
Under normal circumstances, a homeowner would not need a lawyer in
an eminent domain action of this sort, because a recent arms-length
sale of the subject property is the best evidence of value. But this
transaction, like others we¡¦ve seen in Long Branch and Asbury Park,
is driven by greed. The developers are dictating the terms, and
their objective is to buy the property as cheaply as possible. The
municipality is complicit in this arrangement as they will institute
eminent domain proceedings to acquire the owner¡¦s site, absent an
agreement with the owner. This scenario, while outrageous, is by no
means unusual where the unholy alliance is at work., i.e. developers
and compliant politicians.
The settled rule in New Jersey and other states is that any increase
or decrease of the market value of the property acquired or caused
by the project of the condemning authority should be factored out of
the market value determination. See the following cases:
X Jersey City Redevlopment Agency v. Kugler, 58 N.J. 374, 379 (1971);
X Housing Authority, Atlantic City v. Atlantic City Expo., 62 N.J.
322 (1973)
X Jersey City Redevlopment Agency v. Mack Properties Co. No. 3, 280
N.J. Super. 553, 568-69 (App. Div. 1995);
X State, Dept. of Environmental Protection v. S. Nalbone Trucking
Co., Inc., 128 N.J. Super. 370, 377 (App. Div. 1974);
X United States v. Miller, 317 U.S. 369, 375, 87 L.Ed. 251, 63 S.
Ct. 276 (1943).
The Moliver appraisal perverts this rule by claiming that all market
increases are attributable to projects of the City of Asbury Park
and Asbury Partners LLC. This position is unsupported by the reality
of prior abortive redevelopment efforts undertaken by Asbury Park.
The entire beachfront has been blighted since January 1984. The
initial redevelopment efforts by Carabetta and Vaccaro were stopped
as a result of Carabetta¡¦s bankruptcy in 1992.
Asbury Partners LLC, using money from M.D. Sass Company, purchased
Carabetta¡¦s rights in the bankruptcy proceeding and paid the City of
Asbury Park $6.5M for tax liens on the properties. These funds were
desperately needed by the City of Asbury Park to stave off its own
pending insolvency. For these payments Asbury Partners took over
Carabetta¡¦s project and developed a new plan. Carabetta, it should
be noted, never completed anything. He left a rusting structural
steel monument at Ocean Avenue and Second Street for the last
fifteen years. Asbury Partners LLC also have not completed anything,
although they have grandiose plans. Where then is the enhancement to
the real estate market which they claim in Moliver¡¦s appraisal to be
attributed to their project?
It¡¦s not there. Rather, value in the market in Monmouth County in
general and in beachfront properties in particular have dramatically
increased in the last ten years. Properties like Mr. Orlando¡¦s ¡V two
to three blocks from the beach - are difficult to find. The
Orlando¡¦s property is in a quiet residential area, adjoining second
Avenue and the lake. This property is valuable because of its
location. Asbury Partners LLC, and their ¡§project¡¨ such as it is,
have had little impact, yet they use the ¡§scope of the project" rule
to argue Orlando¡¦s property is worth $330,000 as of December 2005.
This is $245,000 less than the Orlandos paid for the property in
2004.
Last week, the Appellate Division in the case of DM Asbury Realty
LLC et al v. The City of Asbury Park and Asbury Partners LLC
unanimously, in a 65-page opinion issued by Judges Conley,
Weissbard, and Winkelstein, decided that the property owners
numerous issues raised on appeal were without merit. The opinion
affirms an earlier unreported opinion by Judge Lawson, A.J.S.C.
Monmouth County, who similarly dismissed all of the arguments raised
by the property owners. The appellate panel concluded that the law
division judge properly granted summary judgment on each of the
plaintiff¡¦s claims. Download the opinion.
The issues raised included:
1. Whether the plan¡¦s failure to permit property owners to develop
their own properties, except with the approval of the designated
developer constituted a taking
2. Whether the City improperly ceded its legislative authority to
the designated developer, a private entity;
3. Whether the plan placed an illegal 30-year moratorium on private
development within the redevelopment area
4. Whether the manner in which the properties were chosen for
redevelopment violated plaintiffs equal protection rights
5. Whether the City had improper motives for including certain
properties in the plan
6. Whether the City¡¦s reliance on an unlicensed planner rendered the
passage of the ordinance invalid and
7. Whether plaintiffs were denied adequate discovery.
Unless this case is granted certification by the New Jersey Supreme
Court, which is unlikely, the municipality and the developer are now
free to prepare their appraisals and make acquisition offers to the
affected property owners. In all likelihood, if Moliver has been
hired to do all the appraisals for the Asbury Park beachfront
project, a skewed approach to market value will be evident to all
property owners once they receive their offers. But unlike an offer
from the Godfather, this is an offer you can refuse.
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