City opposes expanding time for blight challenge

City opposes expanding time for blight challenge
BY KENNY WALTER Staff Writer
The city of Long Branch is asking a state Superior Court judge not to allow a legal challenge to the city's blight designation of the Fuschia Triangle property 13 years after the lower Broadway site was slated for redevelopment.

City Attorney James Aaron filed an objection to the plaintiffs' motion for an "enlargement" of the time in which the pending Fuschia Triangle lawsuit could be filed against the city.

Oral arguments on the motion are slated for Oct. 14 before Superior Court Judge Lawrence Lawson in Freehold.

The city's action seeks to offset a brief filed by attorney William Potter on July 26 asking the court to allow an extension of the time in which the legal challenge of the 1996 blight designation of the Fuschia Triangle, or Broadway Gateway, could be brought.

Potter, of Potter & Dickson, Princeton, represents plaintiffs Kevin and Adele Fister, as well as their businesses, Fuschia Triangle Corp. and Coach Corp.

"It's because the timeliness of the complaint was immediately identified as the threshold issue at the case management conference with Judge [Lawrence] Lawson," Potter said in an email.

In the motion, Potter cites multiple court cases where an "enlargement" of time was granted, including Borough of Princeton v. Mercer County (2000) and Brunetti v. New Milford (1975).

The motion states that the Fisters were led to believe they would benefit from the designation put in place in 1996 and had no reason to bring a lawsuit.

"Only gradually — painfully and expensively — did the Triangle plaintiffs come to the awful realization that the city had no plans to allow them to redevelop their properties, nor any plan to purchase or to take their property through eminent domain which — upsetting as it would be — at least would require the city to pay 'fair market value,' " the brief states.

"We all agreed that this was the first issue to resolve due to the presumptive 45-day rule for challenging the blight designation from 1996," he said.

However, Aaron is requesting that the judge hold the plaintiffs to the letter of the law.

In the brief, Aaron argues that "no action in lieu of prerogative writs shall commence 45 days after the accrual of the right to review, hearing or relief claimed."

Aaron argues that there may be an exception to the rule "only where it is manifest that the interest of justice so requires."

Aaron also refutes each of the enlargement cases cited as precedents in the plaintiffs' motion, claiming that the courts do not regularly grant enlargement of time in lieu of prerogative writs.

The objection also states that the city gave the plaintiffs adequate notice of the redevelopment designation.

"As early as January 1996 and the latest May 1996, the plaintiffs knew that the property had been deemed an area in need of redevelopment," it states.

The city's brief cites public hearings, ordinances and resolutions passed in 1996 and a redevelopment report issued as the basis for the objection to the claim that the property owners were unaware of the blight designation.

In the brief filed last month by Potter, he states that if the property owners had been properly notified of what the zoning entailed, a lawsuit would have been filed at that time.

"If the city's notice in 1996 had warned of the drastic consequences of a redevelopment area designation," the motion states, "if the Planning Board had not consumed most of the one public hearing trying to placate public fears of the drastic consequences that could befall property owners, suit would have been filed promptly, but none of this occurred.

"Had any of these occurred, then there would have been no need for Fuschia Triangle and Coach to bring this case 13 years after the contested designation," the motion continues. "But nothing of the sort happened."

Potter argues that the court has the authority to enlarge the time for the plaintiffs to challenge the city's designation of the property as in need of redevelopment.

"New Jersey Court Rule 4:69-6(c) empowers the court to enlarge the time for the plaintiffs to challenge the City of Long Branch's unconstitutional designation of their property as 'in need of redevelopment,' a euphemism for 'blighted,' " the brief states.

"This appeal presents an abundance of "novel or substantial constitutional issues" that the Supreme Court has held justify enlargement of time for the court to reach the merits.

"The city designated [the Fisters' lower Broadway] property as 'blighted' in 1996 based on uninformative, misleading notice that does not come close to meeting the constitutional standard of 'due process' notice," the 42- page brief argues.

Yet, the city has never moved to purchase the 1.8-acre commercial property, name a redeveloper nor permitted the plaintiffs to redevelop their property, the brief states, and the designation has deterred buyers from purchasing the property.

Potter cites precedent-setting cases in the brief, including Harrison Redevelopment v. DeRose, a 2008 Appellate Court decision, relating to the standard for "due process" notice, and Gallenthin Realty Development v. Borough of Paulsboro (2007).

"Based on facts far less compelling than these, the courts have enlarged the time for appeal so the courts may adjudicate important public or constitutional issues," the brief states.

The brief goes on to say that the blight designation has affected the plaintiffs' ability to sell the property.

"There can be no doubt that a declaration of blight ordinarily adversely affects the market value of property involved," the brief states. "This is unfortunate because in so many instances the physical taking of the property does not occur for a number of years."

The brief also states what the plaintiffs are ultimately seeking.

"At this stage of the litigation, the Triangle plaintiffs seek only minimal 'due process,' " it states. "They want the right to be heard" by the court.

"They want to present evidence and argument that the city's 'area in need of redevelopment' designation of their property — and that of others caught in the same predicament — was unconstitutional. In this way, they hope to lift the cloud that has hung over their property for more than 13 years," the brief continues.

In the lawsuit filed against the city on April 8, Potter argues that the Fisters have exhaustively pursued alternative courses of action and failed to gain the city's approval of any plans to develop the Fuschia Triangle.

The lawsuit notes that in July 2008, a Notice of Tort Claim was filed in an effort to receive fair compensation for the "de facto" taking of the Fuschia Triangle property.

The lawsuit seeks to overturn the blight designation of the Fuschia Triangle and asks the court for 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."

The lawsuit challenges the blight designation of the plaintiffs' property and the city's entire redevelopment study area.

The city filed a response to the suit on May 13, claiming that the allegations levied against the city were baseless.

Contact Kenny Walter at

Kwalter@gmnews.com.


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