Long Branch Sued Again for it's development process...

Broadway- Gateway blight challenged
BY KENNY WALTER Staff Writer

Alawsuit filed against the city of Long Branch charges that the process used by the city to designate properties as "in need of redevelopment" in the Broadway Gateway redevelopment zone was unconstitutional and should be overturned.
The suit filed in state Superior Court in Freehold April 8 on behalf of lower Broadway property owners seeks to overturn what it alleges is the city's "unconstitutional designation of private property as blighted" and asks for "damages and injunctive relief against the mayor and the council of the city of Long Branch."
Filed by Princeton attorney R. William Potter on behalf of the owners of the property known as the Fuchsia Triangle, in the Broadway-Gateway redevelopment zone, the complaint names the city of Long Branch and the City Council, the city's designated redevelopment authority, as defendants.
Plaintiffs are the Fuschia Triangle Corp., 71 Broadway; Coach Corp., 80 Broadway; and Kevin A. and Adele Fister, principals in the corporations, whom the suit charges have been denied "their lawful right to own, use, enjoy, develop, redevelop or sell their property" in what amounts to the "loss of their property" due to the city's "de facto" condemnation of the commercial properties made up of five contiguous lots bounded by North and South Broadway, Long Branch Av enue and Ocean Boulevard.
"Their property remains 'frozen,' private in name but 'de facto' condemned for future use and without just, or indeed, any compensation," reads the complaint, which asks for a jury trial.
Potter, of Potter and Dickson, said Monday the suit advances two main arguments.
"One, we are filing that the original designation of property was unconstitutional. Two, we are arguing that the long standing failure for the city to use eminent domain resulting in a significant to almost complete loss of value of the property" which "has remained frozen for more then a decade.
"The thrust of the case is to get justice for Kevin and Adele Fister," Potter said.
"They have been trying for years to develop the land in a manner where the city would embrace. We are hoping that this is a wake up call to the city. Not only do we want the city to lift the cloud of the blight designation, now they must compensate for the loss of value."
He continued, "This lawsuit is coming only after extraordinary efforts by the Fisters to find a common ground with the city. We are still open to find a common ground. Fister still has a current proposal to develop the land."
Potter said he expects other legal actions to be filed.
"I expect similar cases to follow," Potter said.
"We are not trying to drain the city's20resources, we are seeking just compensation for the loss of value to the property."
City attorney James Aaron could not be reached for comment Monday. The city has 30 days after being served with the suit in which to respond to the filing.
According to the complaint, the city's unconstitutional actions date to the mid- 1980s with initial efforts to redevelop leading to a preliminary investigation by the Long Branch Planning Board into whether large sections of the city, including the Fuschia Triangle, were blighted under the 1992 Local Redevelopment and Housing Law (LRHL).
The suit claims the city used the terms "area in need of redevelopment" and "redevelopment area" while actually applying standards of "blighted" property or area that were rejected by the New Jersey Supreme Court in a 2007 case, Gallenthin Realty v. Borough of Paulsboro, which Potter successfully argued.
According to the complaint, the city designated the Fuschia Triangle as "in need of redevelopment" making the property and surrounding area subject to the LRHL; using the law to prevent the plaintiffs from developing their own property; to designate another redeveloper and to acquire the property through eminent domain.
However, the complaint states, the city for more than a decade has not exercised the power of eminent domain to acquire the Fuschia Triangle or to pay just compensation nor have any of the city's chosen redevelopers purchased it.
At the20same time, the owners have been subject to property taxes that do not take into account "the extreme loss of value and use" resulting from the city's actions, the complaint states.
Because the property could be subject to eminent domain, the suit argues potential purchasers or developers have been unwilling to invest in the property "despite its prime location … at the gateway to Broadway."
The filing of the legal action comes after the owners have exhaustively pursued alternative courses of action and failed to gain the city's approval of any plans to develop the Fuschia Triangle, the complaint states.
It notes that last July, a Notice of Tort Claim was filed in an effort to receive fair compensation for the "de facto taking" of the property.
"Therefore, this lawsuit seeks to overturn the blight designation of the Fuschia Triangle … and to obtain compensatory and punitive damages … for the inverse condemnation 'taking' of the Fuschia Triangle that has resulted from the city's ongoing pattern and practice of 'freezing' the Fuschia Triangle in place for some ill-defined future use or redevelopment purpose that may never transpire."
As an alternative, the suit asks the court to order the city to purchase the Fuschia Triangle property within 30 days and end the "legal limbo which has prevented the Fisters from making profitable use of their property for more than a decade."
The complaint alleges t hat the unconstitutional process of designating the Fuschia Triangle a redevelopment area dates to August 1995 when the City Council directed the Planning Board to investigate whether the Broadway-Gateway area and other areas met the criteria for designation as redevelopment areas.
In January 1996, the Planning Department issued a Redevelopment Report, and property owners were noticed that there would be a public hearing would be held on Jan. 16. However, the complaint states that the Planning Board failed to inform property owners that designation as 'in need of redevelopment' or 'redevelopment area' were the legal equivalent of declaring the property or the area as blighted and could result in condemnation. Nor did the board explain other consequences including that the city was empowered to designate a person other than the owner to be the redeveloper of the Fuschia Triangle and could prevent the plaintiffs from developing their property.
Because of the failure to explain the consequences of the redevelopment area designation, the complaint argues, "The city failed to provide the constitutionally necessary and sufficient notice of the investigation as mandated by the court" in three 2008 decisions.
The Redevelopment Report concluded that the Oceanfront North and Broadway corridor met the statutory criteria for "areas in need of redevelopment." However, the complaint charges the Redevelopment Report did not provide "the constitutionally required substantive evidence of actual blight of any of the properties" as mandated by the Supreme Court in Gallenthin and recently in Long Branch v. Anzalone.
Specifically, the suit charges the report failed to examine building interiors within the study area to determine if there were any severe structural, safety or health hazards or illegal activity; if the property was uninhabitable or dangerous or abandoned or in a state of disrepair beyond restoration, among other criteria.
"In short, there was no actual, credible or reliable evidence that the plaintiffs' property or the property of any other property owner within the study area was in a condition of blight and part of a blighted area," the complaint states.
"The Redevelopment Report relied upon and employed unconstitutional standards of what is a blighted property or area in that it was not based on objective factual evidence of severe and continuing detriment or harm to other property or the public."
Instead, the report was based on "a contrived and subjective 'rating' system of properties and assumed that any property deemed … to be 'underutilized' by comparison to some assumed future and potentially more profitable use is a sufficient basis … to render the properties blighted in direct contravention of the Supreme Court's enunciation of constitutional standards," the complaint states.
As a result, the Redevelopment Report amounts to "an unreliable and misleading net opinion which cannot form the substantial evidence basis which is required to support a constitutionally sustainable blight designation," the suit argues.
As a result, the board and the city failed to rely on the standard of substantial evidence required to support a redevelopment area or blighted area designation.
Citing the Gallenthin ruling, the complaint notes: "The Supreme Court ruled that the substantial evidence standard is not met if a municipality's decision is supported, as here, by only the net opinion of an expert or consultant."
The council adopted the Planning Board's findings and directed the board to develop a redevelopment plan for the area including the Fuschia Triangle. The council voted to adopt the Oceanfront-Broadway Redevelopment Plan in May 1996.
However, the complaint argues, since the blight designation for the Fuschia Triangle and the Gateway area did not meet standards set forth in the New Jersey Constitution, "it follows that the Redevelopment Plan is null and void and cannot supersede local zoning, nor may the city utilize the Redevelopment Plan to prevent plaintiffs from developing their property."
For the same reasons, the suit states, the city lacked the authority to designate the City Council as the redevelopment agency for the area and the council has "no power to determine who will be the redeveloper of the Fuschia Triangle unless it is the rightful owners."
The complaint also addresses the impact of the city's "inverse condemnation" of the Fuschia Trian gle.
The complaint notes the prolonged delay in the city exercising eminent domain diminished the value of the property. It states that for more than a decade, the city engaged "in a consistent pattern and unlawful practice of delaying action" to acquire the property and of denying the owners the right to develop their property, rejecting numerous redevelopment proposals. At the same time, purchase or lease offers have fallen through due to the "cloud of potential eminent domain that has been hanging over the property since 1996."
The suit seeks a declaratory judgment that the Fuschia Triangle "is not, nor has it ever been, lawfully properly designated as an area in need of redevelopment or blighted." Also, it asks the court to issue preliminary and permanent injunctions directing the city to discontinue and nullify the designation of the property as blighted or in a redevelopment area.
As an alternative, the suit asks the court to order the city to initiate the acquisition of the Fuschia Triangle within no more than 30 days and to empanel a jury to determine the value of the property during the period in which it was taken through inverse condemnation and to assess damages including compensation for the financial losses and pain and suffering experienced by the Fisters.