EMINENT DOMAIN: Belmar decision not applicable in
Long Branch-MTOTSA suit, says lawyer tied to both cases
Impact on Long Branch assessed
Posted by the _Asbury Park Press_ (http://www.app.com/) on 07/12/07
BY _NICK CLUNN_ (mailto:[EMAIL PROTECTED])
STAFF WRITER _Post Comment _
(http://www.app.com/apps/pbcs.dll/article?Date=20070712&Category=NEWS&ArtNo=707120442&SectionCat=&Template=printart#comments)
LONG BRANCH — The lawyer who fended off Belmar and its legal attempt to
force a bakery to go along with a redevelopment plan said a court ruling in
the
conflict will have no bearing on a separate case involving the use of eminent
domain in Long Branch.
Paul V. Fernicola, who represented Freedman's Bakery, said he is in a good
position to make that statement because he is defending the city's use of
eminent domain against the Anzalone family, which has owned a home near the
city's oceanfront for nearly half a century.
Fernicola said the city's argument in support of using eminent domain to
redevelop what he considered a blighted neighborhood is much stronger than
what
was presented by Belmar and deemed insufficient in a state appellate court
ruling made public Wednesday.
While Long Branch's case might be stronger, its redevelopment study fails to
show that the so-called blighted area should be condemned, said Scott
Bullock, a lawyer from the nonprofit Institute of Justice, which is
representing a
group of homeowners there.
"The redevelopment study doesn't meet the state criteria to prove that an
area needs redevelopment," Bullock said.
In the Belmar case, a three-judge panel ruled that Belmar did not show that
the operation of the bakery was a detriment to the public. The borough's
argument — that the bakery should comply because its facilities weren't modern
—
was not enough to win over the judges.
The ruling cited a recent decision in which the state Supreme Court said
Paulsboro could not condemn a property simply because it is not "fully
productive."
While Fernicola said Long Branch has argued to use eminent domain on the
same grounds, he said the city's case is stronger than Belmar's. Furthermore,
the city has presented three other reasons why the use of eminent domain would
be legal in MTOTSA, which is an acronym for the neighborhood in question —
Marine Terrace, Ocean Terrace and Seaview Avenue.
The city wants to clear MTOTSA for the second phase of Beachfront North, a
redevelopment project that includes 185 luxury condominiums and a two-story
public pavilion.
Two challenges to the project — one by the Anzalones and another by a larger
group of homeowners represented by Bullock — are pending before a state
appellate court, which intends to rule on both cases simultaneously.
All sides have submitted briefs to the court. The next step would be the
presentation of oral arguments, a date for which has not been set. The
arguments, Fernicola said, aren't expected to be heard until at least the
fall.
James G. Aaron, who is defending the city against the homeowners represented
by Bullock, said the Belmar case and one involving Long Branch should not be
compared. The Belmar case dealt with a single property, while the Long
Branch case concerns an area.
"The MTOTSA area was found to be part of a redevelopment zone that was
necessary for redevelopment and met the statutes," Aaron said.
Anna DeFaria, an 81-year-old resident of Marine Terrace, said she was not
familiar with the Belmar case, but added that she and her neighbors could use
all the help they can get.
"We're hoping to God that's going to help us because we're in appellate
court now," she said.
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Gov. John Corzine will be at the New Gregory School in Long Branch today at
10 am.
They
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