High Court ruling a blow to residents

MTOTSA atty. says issue must be decided on case-by-case basis


Staff Writer

Last week’s decision by the U.S Supreme Court upholding the right of municipalities to condemn private properties to clear the way for private development has left a group of Long Branch residents outraged and disheartened.

“It is a horrible decision for people throughout the country,” William Giordano, whose oceanfront neighborhood is slated for eminent domain, said last week after the Supreme Court ruled 5-4 in favor of local governments in the Kelo v. New London (Conn.) property rights case.

“It is a decision that invites corruption. It puts more power into the affluent and politically connected,” said Giordano, a homeowner on Ocean Terrace.

Giordano is among 36 property owners whose homes are located in the Long Branch Beachfront North, Phase II redevelopment zone.

Plans call for the properties in the three-street neighborhood known as MTOTSA (Marine and Ocean Terraces and Seaview Avenue) to be razed and replaced with upscale townhouses and condominiums.

MTOTSA maintains that the redevelopment represents an abuse of the city’s power to take properties through the process of eminent domain.

Long Branch has six designated redevelopment zones in which eminent domain proceedings have already occurred for redevelopment purposes.

In September when the Supreme Court elected to hear the Kelo v. New London case, members of MTOTSA said they hoped a precedent would be set that would save their homes from demolition.

But the June 23 decision came down in favor of New London by just one vote, in a 5-4 decision.

Justice John Paul Stevens wrote the majority opinion, joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Chief Justice William Rehnquist along with Justices Sandra Day O’Connor, Antonin Scalia and Clarence Thomas dissented from the majority decision.

An excerpt from the Supreme Court opinion written by Stevens states, “The city has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including — but by no means limited to — new jobs and increased tax revenues. As with other exercises in urban planning and development, the city is endeavoring to coordinate a variety of commercial, residential and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts.”

It continues: “To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Because this plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

“In affirming the city’s authority to take petitioners’ properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation.” Stevens wrote.

“I think it is a terrible decision and no one’s property is safe,” Giordano said.

“I thought it would rule in favor of property owners. I was not expecting this.”

Another member of MTOTSA shared Giordano’s sense of outrage.

“I believe in the Constitution of the United States, and I never anticipated this would be the direction the judges would take,” Denise Hoagland, Ocean Terrace, said.

“It is a disgrace to our country and to the men and women who fought for this country. My brother was in Iraq last year fighting for the rights of Iraqis while his sister is being denied her rights in America.

“I am disgusted,” she added.

Attorney Peter H. Wegener, Lakewood, who was retained by MTOTSA in March, said Monday this is not the end for the MTOTSA case.

“I do not view the [Kelo v. New London] case necessarily as being instrumental to the MTOTSA cause,” Wegener said.

“MTOTSA still has a strong case.”

Wegener added that after reading the opinion from Kelo v. New London, Long Branch officials could say that “they can not proceed with [redeveloping] MTOTSA.

He explained that the wording of the concurring opinion by Justice Kennedy, the swing vote, suggests that each eminent domain case is a fact-sensitive situation.

“[Justice Kennedy] does not agree that this is a blanket approval for a government to just go ahead and take any property, just so long as it is cloaked in the language of a redevelopment plan,” Wegener said.

“It is clear that the courts will look at the facts underlying each transfer of development rights to certain private developers,” he said

He added that “[Long Branch] may never file [for eminent domain].”

But Long Branch Mayor Adam Schneider said the city is confident in what it is doing and will continue proceeding with redevelopment plans.

“[Kelo v. New London] is a different case from MTOTSA,” Schneider, an attorney, said. “There are different fact patterns.

“In my reading of the decision, it gave a broader sense of [eminent domain] than what [the city] is using,” he said.

“So the impact of the case will be beneficial to the community.”

Suzette Kelo is a homeowner along the New London waterfront where the New London Development Corp., a private development company, plans to take Kelo’s and the other 15 properties in the neighborhood, according to the Institute for Justice (IJ), a nonprofit law firm based in Washington, D.C. IJ specializes in the protection of private property when eminent domain is being exercised for uses other than public benefit.

Plans call for Kelo’s land to be transferred to a private developer that will construct a hotel, condominiums and office space in place of the existing neighborhood.

The case called on the High Court to interpret property rights under the Fifth Amendment of the U.S. Constitution, specifically what constitutes public use. The Fifth Amendment provides that private property may be taken for public use, which traditionally has been interpreted as public projects such as roadways.

New London held that redevelopment and the economic benefits it brings qualifies as public benefit.

During the course of the case, 25 amicus briefs were filed by organizations ranging from the NAACP to AARP urging the Supreme Court to proscribe eminent domain abuse.

IJ attorneys Scott Bullock and Dana Berliner represented Kelo.

“The court simply got the law wrong today, and our Constitution and country will suffer as a result,” Bullock said last Thursday after the decision was declared.

“With today’s ruling, the poor and middle class will be most vulnerable to eminent domain abuse by government and its corporate allies. The 5-4 split and the nearly equal division among state supreme courts shows just how divided the courts really are. This will not be the last word.”

Bullock said one of the key quotes from the court case was written by Justice Sandra Day O’Connor, who wrote in a dissenting opinion, “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

IJ is currently weighing legal options and may ask for a re-hearing of the case, which is not often granted, according to Steven Anderson, of the IJ Castle Coalition, a national public interest law firm and the nation’s leading legal advocate against eminent domain abuse.

“This is a bad decision by the Supreme Court and it makes everyone’s homes and small businesses up for grabs,” Anderson said.

“This is a difficult case,” he said, “because some Supreme Court cases typically affect a small number of people; this one literally undermines every American except those most politically connected.”

IJ has been asked by MTOTSA to represent the property owners in the event their homes are condemned by the city, and Bullock said the firm has interest in the case, but that it would be premature to commit to the case at this point.