--- In AsburyPark@yahoogroups.com, "bluebishop82" <[EMAIL PROTECTED]>
wrote:
>
> Let me take a stab at the contrary argument to keep the
conversation
> going.
>
> The City already decided to use eminant domain, and went through
the
> procedural steps to use it, way back in the 1980's when they
> formally blighted the area by designating it an area in need of
> redevelopment. The sovereign decision was exercised back then.
>
> Accordingly, the subsequent contract with Asbury Partners is not
> putting the power of emeinant domain or the decision to use it in
> the hands of a private company. The contract with Partners is
> really only about timing and order (not if to use ED, only when
and
> as to which property first).
>
> Therefore the City would have to live up to it's agreement.
However
> if there were a default by the Partners, then... ... ...
>
Sorry Tom, blighting an area is a step in ONE process to use eminent
domain. It is not exercising it either. It is only exercised when
the sovereign commences whatver actions it must in the jurisdiction
to take title. Anything short of that is not an exercise of the
power. It is sort of like sex, you can think about, talk about, but
you're not doing it until you actually do it.
I still maintain that there could be no breach of contract by not
condemning a parcel called for in the agreement. I am not saying
that the city extended its power to Partners, although it acts as
though it does and THAT has been repeatedly frowned upon by the
courts. What I am saying is that for sovereign to contractually
limit ONE of its ssovereign powers is impossible and against public
policy and thus, an unenforceable provision of the agreement. As an
attorney you know very well that the courts will not enforce a part
of contract that is against public policy. Furthermore, you must
think of eminent domain as just one of the sovereign powers, such as
zoning, police powers, etc. The city could not contractually agree
to limit or exercise those powers and you would not argue that there
would be a breach of contract if such action was called for in an
agreement and the city didn't live up to it. The courts simply would
not enforce that provision.
FInally, EVEN IF a breach of contract was considered to occur,
Partners would have to prove damages. What damages couldoccuror
could they prove if the Baronet or another property were not
condemned? Partners could certainly not base their damages upon the
loss in profits on the resale (to a subdeveloper) for that parcel
since theoretically it would have to buy the parcel at market value
(just compensation) and seel it at market value. Should be a wash
no? Of course that is not true and we know they get to only pay a
fraction of the properties' worth and resell it for a substantial
profit. But that would uncover this wholesale robbery that is going
on. Partners would be left to prove damages on the basis of how the
loss of that parcel hurt the wholeproject. Since Partners is only a
middleman and only resells parcels that the city condemns for it and
does not develop on its own, it will be no easy task to prove
damages. I've given great thought to the entire issue. I'd pull the
trigger in a heartbeat. I think I could get Partners out in 2 years
or less.
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