BY CHRISTINE VARNO
Staff Writer
The city of Long Branch will be filing a trimmed-down version of its opening brief in an eminent domain case after the state Appellate Court rejected the “overlength” 120-page document submitted.
On May 2, the state Appellate Division denied a motion by the city to exceed the 65-page limit for its opening brief that supports the city’s condemnation of oceanfront properties for a private redevelopment project.
The brief was filed in an appeal of a lower court decision brought by attorneys for residents of a beachfront neighborhood that the city has slated for eminent domain proceedings.
The city filed the motion, along with a 120-page brief, April 9, according to Lawrence H. Shapiro, who is representing the city in the appeal.
In its brief, the city argues that its use of eminent domain is not an abuse and that the city exercised eminent domain through a “procedurally correct” process.
The appeal was filed by attorneys representing residents of Marine Terrace, Ocean Terrace and Seaview Avenue, a neighborhood that has come to be known as MTOTSA.
“The court did not give a reason,” said Shapiro last week about the rejection of the brief. “They just give us a piece of paper that says it was denied.”
The court requested that the city file a shorter version of the brief within the next couple of weeks, according to Shapiro.
But Shapiro said he has to consult with city officials to decide what action the city would take.
“We can file a conforming 65-page brief,” he said,” or we can move for the court to reconsider the denial.”
Another option, Shapiro added, is for the city to file a motion to exceed the 65-page limit by a number less than the original requested 55-page extension.
In the legal action, a group of some 18 homeowners in MTOTSA is challenging a June 22 ruling by state Superior Court Judge Lawrence M. Lawson that upholds the city’s right to condemn the homes in the modest beachfront neighborhood.
In the appeal, attorneys for MTOTSA argue that the homeowners are entitled to a plenary hearing based on public use and statutory claims. The attorneys also argue that the city unconstitutionally delegated its power of eminent domain to the private redeveloper of the MTOTSA zone.
The MTOTSA alliance is being represented by Peter H. Wegener of Bathgate Wegener & Wolf, Lakewood, as well as the Arlington, Va.-based Institute for Justice (IJ), a public interest law firm that focuses on property rights, as co-counsel.
“The court does not give a reason for denial on procedure motions that are submitted,” IJ attorney Scott Bullock said. “I think the court just wanted to make it clear that they wanted their rules followed.
“And if the city wanted [the brief] extended, it should have been a more reasonable number,” he said.
IJ and Wegener filed an opening brief in the case in February and filed a reply brief to the city’s now-denied opening brief in April.
Residents Lillian and Louis Anzalone own a home in the MTOTSA neighborhood and are being represented separately by William J. Ward of Carlin & Ward, Florham Park, in another challenge to Lawson’s decision.
Although the cases are separate, they are being tried together, according to Ward.
Shapiro said the city received approval from the court to exceed the page limit in its opening brief for the Anzalone case.
“We filed a 96-page brief in that case,” Shapiro said. “Maybe it was the extra 20 pages in this case that caused the denial.”
The city has also been unsuccessful in two additional motions it has filed in the MTOTSA case.
The city filed a motion in the Appellate Division in November asking the court to deny “pro hac vice” status to IJ. A motion for pro hac vice is required to be filed with the court by out-of-state attorneys seeking to be permitted to practice law in states where they are not licensed.
The court denied the motion on Dec. 4.
The city also filed a motion in February to strike state Public Advocate Ronald K. Chen’s amicus brief from being used to support the MTOTSA residents’ appeal.
On March 5, the state Superior Court Appellate Division rejected the motion and admitted the amicus brief in the case.
Shapiro defended the city’s action to file an over-length opening brief, stating that in the MTOTSA case, at least three amicus, or “friend of the court,” briefs have been filed.
“In the Anzalone case, there were no amicus briefs,” Shapiro said, “and that brief was 96 pages. In this case there are at least three amicus briefs and I think there may even be four amicus briefs. We had to deal with all of that.
“That is why the extra pages,” he said.
Once the city files its opening brief, oral arguments in the case will be scheduled by the court, according to Bullock.
“The ball is in the city’s court now,” Bullock said. “We will have to wait and see what they do and then wait for the oral arguments date.”
Plans for MTOTSA call for designated developer MM Beachfront North II – consisting of Matzel & Mumford, a division of K. Hovnanian, Middletown, and the Applied Cos., Hoboken – to raze the three-street neighborhood and construct 185 upscale condominium units.