LONG BRANCH — The attorney for a group of MTOTSA residents said last week he will file an appeal of a judge’s decision to dismiss their lawsuits against the city.
“We’ll be filing the appeal within 45 days of the judge’s ruling,” attorney Peter Wegner said last week. “We were disappointed with [the judge’s] opinion.
Wegener, of Bathgate, Wegener & Wolf, Lakewood, said the cases were consolidated for purposes of discovery and he would attempt to have them consolidated for purposes of the appeal.
State Superior Court Judge Linda Grasso Jones ruled in anAug. 18 opinion against the plaintiffs Wegener represents: the estate of Albert Viviano; Alan Cook and Lucy Hunter; Karin Kandur and Patricia Taylor; and Lee and Denise Hoagland.
In a Sept. 8 email, Denise Hoagland said the judge’s ruling did not come as a surprise.
“If you remember correctly, we have been thrown out of Monmouth County courts before, so it does not surprise me that this decision would take the same course,” she said. “It seems that when it comes to eminent domain in this county, to get a fair judgment you have to go to the state.
“What the city and mayor did to the homeowners was wrong as many elderly and families suffered great financial and emotional loss,” she said, adding that she expects to continue the fight against the city.
The Hoaglands filed a lawsuit in June 2010; the other plaintiffs were added in August 2010. The suits stem from the city’s attempt to acquire their properties through eminent domain in the Beachfront North Phase II redevelopment zone in 2005, a taking that was granted in 2006 by Superior Court Judge Lawrence Lawson.
The property owners, who were part of the MTOTSA Alliance (Marine Terrace, Ocean Terrace, Seaview Avenue), appealed the decision in August 2006, and the ruling was overturned by the Appellate Division of the Superior Court in 2008.
In 2009 the city reached a settlement with some property owners in MTOTSA, but the four plaintiffs refused to sign the settlement.
One of the major sticking points about the settlement was the stipulation that residents who signed agreed to waive their right to sue the city for compensatory damages.
In return, city officials agreed to take eminent domain off the table and to allow property owners the right to improve their homes.
As part of the 14-point deal, the city agreed to pay $435,000 in legal fees for MTOTSA property owners who agreed to the settlement; to have the developer demolish all boarded-up houses in the neighborhood; and within two years pave the roads and fix the lighting conditions in the area. Another benefit to the property owners is that they are now eligible for five-year tax abatements if they rebuild.
In case of the Viviano estate, the judge ruled the estate could file an application for attorney fees and other costs associated with the litigation.
The three-count complaint filed on behalf of the MTOTSA plaintiffs sought just compensation for the period when their homes were under threat of eminent domain.
The ruling granted the city’s motion for summary judgment of the complaint, with Grasso Jones stating that the city did not actually exercise its power to take the properties.
“The city identified plaintiffs’ properties as being located in an area in need of redevelopment and did institute condemnation proceedings but did not file a declaration of taking and ultimately the condemnation proceedings against all of the properties were abandoned,” the ruling states.
“Plaintiffs would be entitled to compensation only if an actual taking of their property had occurred.”
CityAttorney James Aaron said in an interview that he is pleased with the ruling.
“We think that the decision is consistent with the law as it exists now and has existed for the last 40 years,” he said.
Aaron explained the difference between the four homeowners who refused to sign the release with the city and the ones who did.
“[Homeowners who did not sign] kept their homes and they continue to keep their homes, but they do not have any development rights at this point in time,” he said. “Everybody else who signed the settlement and gave the city releases has the right to improve their property in accordance with the development guidelines.”
The settlement between the city and the MTOTSA property owners pre-empted a legal battle in which MTOTSA attorneys challenged the city’s blight designation of their neighborhood, which would have enabled the city to use eminent domain to take the homes.