Long Branch Homeowners Take Fight Against Eminent Domain Abuse to Appeals Court

John Kramer
John Kramer · August 30, 2006

Arlington, Va.—May courts summarily permit local governments to hand over your home to someone else for private development without even allowing you to first present evidence in your home’s defense?

That is exactly what a New Jersey judge did early this year, and that is the decision homeowners from Long Branch, N.J., who are fighting eminent domain abuse, will appeal today with the help of the Institute for Justice, the nation’s leading opponents of eminent domain for private gain. The Institute for Justice argued last year’s U.S. Supreme Court case, Kelo v. City of New London and in July won a unanimous Ohio Supreme Court ruling striking down eminent domain abuse in that state. In the 1990s, the organization successfully defended the home of Atlantic City, N.J., homeowner Vera Coking when Donald Trump had convinced a State agency to take her land for his private use.

Like thousands of ordinary neighborhoods across the nation, Long Branch’s MTOTSA neighborhood (an acronym for the streets Marine Terrace, Ocean Terrace and Seaview Avenue) is being condemned because a tax-hungry City government arbitrarily labeled the perfectly fine homes “blighted” to justify transferring them to powerful private developers. The City seeks to kick out longtime residents—many of whom are families with small children and retirees in their eighties and nineties—to make way for wealthier people. If the condemnations are allowed, private developers will make windfall profits building oceanfront condos that will sell for between $500,000 and over one million dollars.

Earlier this summer, the Monmouth County Superior Court in Freehold ruled that the City of Long Branch could invoke a bogus “blight” designation as an excuse for using its power of eminent domain to seize the neighborhood for “redevelopment.” This outrageous decision, which breaks sharply from traditional American notions of property ownership, has given Long Branch the green light to replace modest homes with fancier ones, and working-class families and retirees with rich and trendy professionals.

Not only did the Superior Court allow these condemnations, it refused to let the homeowners even present evidence that their homes are not “blighted.”

That’s why on August 30, 2006, the Arlington, Va.-based Institute for Justice joined the MTOTSA homeowners and their attorney Peter Wegener, of Bathgate, Wegener & Wolf, to file an appeal with the Appellate Division of the New Jersey Superior Court. They will ask the court of appeals to declare the condemnation of MTOTSA unlawful under both the U.S. and N.J. constitutions as well as various state laws. They will also ask, at minimum, to be granted an opportunity to return to the trial court to present abundant evidence proving that MTOTSA is not “blighted.”

“What’s going on in Long Branch is one of the most outrageous examples of eminent domain abuse in the country today,” said Scott Bullock, an Institute for Justice senior attorney who argued the Kelo case. “Here, the government is taking poorer folks’ homes to build homes for the wealthy. This unlawful and unconscionable land grab must be stopped.”

Eminent domain is the power of government to take private property. Recognizing its potential for abuse, the Framers of the U.S. and N.J. constitutions expressly provided that eminent domain can only be exercised for a “public use,” which, traditionally, meant a road or public school. Over the years, however, courts have abdicated their constitutional duty to restrict eminent domain to genuine public uses. Now, local governments, like the City of Long Branch, regularly take their citizens’ homes and simply give them to influential developers that use the land for their own private profit. As is the case in Long Branch, private developers typically compensate the City for using eminent domain. Cities like Long Branch in effect “rent out” this fundamental government power to the highest bidder.

The demise of the “public use” clause in the U.S. Constitution culminated in last summer’s Kelo v. City of New London, justly one of the most reviled decisions in U.S. Supreme Court history. The Court ruled that even a remote hope of “public benefits” justifies taking someone’s home and turning it over to another private party its private profit.

The U.S. Supreme Court’s gross disregard for the constitutional property rights of Americans unleashed a nationwide backlash, led by the Institute for Justice. Thirty states have already passed laws reforming the use of eminent domain. State supreme courts are also rediscovering nearly forgotten “public use” language in their respective state constitutions. Just last month, for example, in another Institute for Justice case, the Ohio Supreme Court unanimously ruled that the City of Norwood could not use a bogus blight designation to hand homes over to a multi-millionaire private developer.

“After decades of worsening abuse, the tide has begun to turn against the wrongful use of eminent domain,” said Jeff Rowes, an Institute for Justice staff attorney. “But your right to own your home should not depend on the state in which you live. Homeowners are now safe in Ohio because of that state’s recent supreme court decision, but homeowners remain seriously threatened in New Jersey. We hope the New Jersey state courts recognize that fact and restore constitutional protections for homeowners across the Garden State.”