Otkens want N.B. to pay legal fees
Some $40,000 may have to be reimbursed to family, U.S. Home
By dave goldberg
Staff Writer
Since North Brunswick’s case of condemnation of the Otken farm was dismissed, the family is requesting the township pay the legal fees.
"We are asking the township to pay for all of the legal work that we have done from May until now under the condemnation proceedings," said Otken family attorney Lawrence Sachs. "The legal work cost in excess of $20,000. There has been a great deal of work involved. The clock started running in May, and the town should be billed since it was not able to provide any basis for the condemnation. The judge has the right to institute this action."
The Otken family went to court in an attempt to prevent the condemnation of their 105-acre farm. The family is seeking legal action against the township of North Brunswick for condemning their land.
Superior Court Judge James Hurley, sitting in New Brunswick, dismissed the case on Sept. 10.
Sachs said that a great deal of the work was the depositions that were very helpful with the family’s case.
"Since May we have been preparing answers, defending motions, and all the research. These are all billable hours," Sachs said. "There were 30 hours of depositions at $250 per hour that will cost $8,000 alone."
Sachs said that US Home is also planning to request that the township pay the full cost of its legal fees as well, which will also be in excess of $20,000.
Ed Otken Jr. said that the town should have to pay because the whole situation was a ridiculous lawsuit.
"The town owes us for this frivolous suit," Otken said. "By the rules of the court they owe us. I think we will get the money. Basically we feel like the town has no idea what to do with this land."
Township Council President Peggy Scarillo does not believe the judge will force the town to pay the legal fees.
"That is not going to fly," Scarillo said. "This is simply ridiculous. The court will not rule in favor of this request."
In February, the Township Council used its eminent domain power to take the Otken family’s farm as open space intended for recreational use.
Despite the dismissal, the township decided to move forward with refiling for condemnation of the farm during an open space committee meeting on Sept. 20.
"We need to move forward with this and get it done," said Councilman Larry Baldini.
Sachs said the township has yet to prove any valid need of the farm.
"I still think that there is no valid basis for the development on my clients’ site," Sachs said. "I don’t think the town has [tried to condemn the land] for any other reason than to stop US Home."
If the township wants the land, Sachs said it would be fair for them to match the offer made by US Home.
"Let them pay the value of the contract," Sachs said. "If the township wants it, they should match the price. Their appraisal doesn’t take the true nature of the property [into account]."
"I have never seen a contract to US Home," Scarillo said. "We went through hours of depositions and no one has ever seen a contract."
Otken is also requesting that the town remove the stakes left in the farm from appraising the land.
"They have to take them out or we will charge them," Otken said.
"Our intentions are not going out and seeking land that is not for sale," Councilman Leo Ryan said. "We should also look at places we can obtain. The availability can be constrained."
Eminent domain is defined as the sovereign right to acquire private property for public use, according to state law, and is a power that is held by individual states and the federal government.
Locally, the power of eminent domain can be carried out by the New Jersey Turnpike, NJ Transit, the Garden State Parkway authority, municipal governing bodies and boards of education.
The Otken family said the contract to US Home specifies that company is planning to build an age-restricted, active adult community on the farm site.
US Home has sought action against the township’s Zoning Board because the company’s Land Development Division had tried to make presentations at two Zoning Board meetings, but claims it was not allowed to.
The 105-acre farm is located off Route 130 just down the street from the Adams Lane area.
The property was put on top of the township’s open space wish list in October after the Recreation and Open Space Plan was released.
According to that plan, the Otken property is an ideal site on which to develop a centralized, multiuse sports complex.
The property is zoned as industrial or I2. That zoning would need to be changed for the land to be developed, according to Ralph Farella, a township code officer.
The town will try to pass a resolution to authorize more money for the attorneys to do new work to restart the condemnation process. Councilman Francis "Mack" Womack said that this is an opportunity for the public to comment on the condemnation proceedings.
"This is the first real chance for the public to come out and give an opinion on the condemnation," Womack said. "We need to know what the people are thinking."