Victory: At Long Last

October 1, 2008

The brave homeowners of Long Branch, N.J., who have fought so long and so hard to keep their cherished homes along the Jersey Shore, are finally getting justice.  This past August, a three-judge panel of the New Jersey Appellate Court unanimously reversed the June 2006 decision of the trial court, which would have allowed the city to condemn a charming seaside neighborhood to make way for a luxury condominium development.

This ruling builds on and reinforces last summer’s landmark New Jersey Supreme Court decision in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, in which the state’s high court held that the government cannot declare an area “blighted” and seize property simply because the government wants to engage in economic development.

The unanimous three-judge panel wrote in the Long Branch case, “We agree with appellants that, in light of the principles laid down in Gallenthin, the City did not find actual blight under any subsection of [New Jersey’s blight law], that the record lacked substantial evidence that could have supported the New Jersey Constitution’s standard for finding blight, and that the absence of substantial evidence of blight compels reversal.”

For years, New Jersey cities have been on an eminent domain spree, making the state perhaps the most aggressive abuser of eminent domain in the nation.  And while more than 40 states reformed their eminent domain laws in the wake of the Supreme Court’s infamous Kelo decision in 2005, New Jersey has done absolutely nothing.  The state’s redevelopment industry—made up of city officials, planners, developers and the law firms who represent them—has an iron grip on the New Jersey Legislature.  Even modest attempts at reform have been squelched.


Valiant longtime fighters and now survivors of eminent domain abuse in Long Branch, Lee and Denise Hoagland.


But since the Kelo decision, New Jersey courts have stepped up and are starting to protect the rights of home and small business owners faced with eminent domain abuse.  The Long Branch decision is the latest in a series of major decisions from New Jersey courts, including the state Supreme Court, recognizing that state law and the New Jersey Constitution place real limits on the power of government to condemn property for private development.  The eminent domain fight in New Jersey underscores the vital role that courts play in the protection of individual rights, serving, in the words of James Madison, as “impenetrable bulwark[s]” against encroachments on liberty by the executive and legislative branches of government.

New Jersey citizens are also fortunate to have Ron Chen as the state’s Public Advocate, an appointee of the governor who serves as the citizens’ advocate within New Jersey government.  Although it is exceedingly rare to find a government official who actually sides with the individual in disputes over the proper role of government, Mr. Chen and his office have made challenging eminent domain abuse a signature issue.

The Public Advocate filed an amicus brief in the Long Branch case, as it has in several other eminent domain disputes, and even appeared alongside me in the oral argument in this case, asking the appellate court to rule in favor of the homeowners.  Although Chen has been excoriated by Long Branch and other city officials in New Jersey for his championing of home and small business owners in eminent domain cases, he has courageously stood his ground.

Stung by its loss at the appellate court, Long Branch filed a petition to the New Jersey Supreme Court asking the court to reconsider or clarify its Gallenthin ruling from last year.  IJ, too, appealed to the state Supreme Court, but our request goes to the remedy in the case.  Because we met our burden and established that the neighborhood is not blighted, the court should have ordered the condemnation actions dismissed outright rather than sending the case back to the trial court.  If the court does not take up the appeal, the next step in the case will take place in the trial court.  Under the appellate court’s ruling, unless the city can produce some type of secret file containing substantial evidence of blight in the neighborhood, its efforts to bulldoze modest homes for a private developer must fail.

IJ Staff Attorney Jeff Rowes, co-counsel in the case, recently attended a victory celebration in the heart of the neighborhood in the home of our clients, the Vendettis.  Although much work on this case remains before victory is final, Jeff related that the homeowners’ usual sense of optimism in the face of great adversity had been transformed into a sense of triumph.  For the first time in years, the shadow of eminent domain seemed truly to have retreated from the neighborhood, and the clients are once again entertaining concrete plans for the future, to enjoy what is rightfully theirs.

The relief was most evident in the eyes of our elderly clients, for whom the threat of displacement was especially dire, though this was tempered with regret for homeowners like Anna DeFaria and Al Viviano who passed away before the court made its decision.  All of the clients expressed tremendous gratitude to IJ for our commitment to them and the liberty they champion.  We will not rest until victory is complete for all of the homeowners.

Scott Bullock is an Institute senior attorney.

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