Lawson will decide if blight challenge can proceed

Lawson will decide if blight challenge can proceed
Fuschia Triangle suit hinges on expanding time for legal redress
BY KENNY WALTER Staff Writer

LONG BRANCH — After hearing oral arguments on Oct. 14, a state Superior Court judge will decide whether a challenge to the city's blight designation of a lower Broadway property can be brought 13 years after the fact.

Judge Lawrence M. Lawson will rule on a motion for an enlargement of time filed on behalf of Long Branch property owners by attorney William Potter, of Potter & Dickson, Princeton, who is seeking an enlargement of time in order to argue merits of the blight designation, which dates back to 1996.

Potter, who represents plaintiffs Kevin and Adele Fister, principals in Fuschia Triangle Corp. and Coach Corp., is claiming that the original notice of the blight designation received by the plaintiffs was unconstitutional.

"We are here looking at whether the notice was sufficient to the property owner," he said during the Oct. 14 oral arguments in front of Lawson. "Here we are looking for your honor to grant us the ability to move forward and challenge the constitutionality of the designation."

Long Branch City Attorney James Aaron is opposing Potter. Potter's law partner Pete Dickson also appeared at court.

The property in question is located in the Broadway-Gateway redevelopment zone and is composed of commercial properties made up of five contiguous lots bounded by North and South Broadway, Long Branch Avenue and Ocean Boulevard. The city designated the site blighted and "an area in need of redevelopment" in 1996.

The time frame for challenging the city's blight designation was 45 days, and Potter is seeking to expand that window, arguing that his clients were made aware of the designation but remained uninformed about just what the ramifications were.

"Yes, they knew of the redevelopment designation, but, no, they did not know of the significance of it," Potter said. "Yes, they welcomed it because they were under the misimpression that it was beneficial, and the misimpression was conveyed over and over again by city officials.

"They could not have known what was in store for them," he added.

Potter cited the precedent-setting case, which he successfully argued, Harrison Redevelopment v. DeRose (2008), as a case that is similar in ways.

Potter said the property owners in that case, whose properties were taken by eminent domain, were in a different situation because they received compensation.

"My clients have taken very difficult steps to get here," he said. "They are actually in far worse situation than the property owners in Harrison versus DeRose.

"That property was actually taken by eminent domain, and money was deposited into escrow," he added. "They still had the money available to them."

Potter went on to say that the property in Long Branch has not been taken and this has been a hardship on the property owners.

"They have been tied up for 13 years," he said. "They have been unable to sell their property; they've come very close.

"Each time it's fallen through because this cloud of blight designation hangs over their property," he added. "They are in an even worse situation.

"In Harrison versus DeRose, it was a taking with compensation," he continued. "Here we have a de facto taking without compensation."

However, he argued, the fact that the lower Broadway property is intact makes it easier because nothing physically needs to be reversed.

"It's actually much easier [to base it on] the merits than it was in Harrison versus DeRose," Potter said. "We aren't talking about digging up something that's been done."

In his July 26 motion for enlargement, Potter cited criteria the courts have used to grant enlargements, including substantial and novel constitutional questions and an important public, rather than a private, interest that requires adjudication or clarification as exceptions the courts have used for granting enlargement.

"All the courts have found that if the plaintiff meets one of the categories, then we go to the merits," Potter said. "You don't have to meet all of them.

"When a plaintiff meets at least one category, courts have not looked at whether or not they could have challenged then," he added.

"Here we are challenging the constitutionality," he continued. "Your Honor, in the interest of justice, the enlargement is necessary."

Aaron argued that the exceptions should not always be used.

"The exceptions are just that—exceptions. They are to be used sparingly," he said.

Lawson asked Potter multiple questions during the arguments, including, "When does it end?" regarding the length of the 13-year delay and the possibility that future cases could be sought from further back than 1996.

Aaron contended that the longer the wait, the less of a case for an enlargement.

"The longer a party waits to mount its challenge, the less it has a case for an enlargement," he said.

Aaron argued that through some of the property owners' actions, the plaintiffs were well aware of what the redevelopment designation was well before the 13 years have passed by.

"Courts also consider the length of the delay and the reason for the delay," he said. "It is also appropriate to look at the previous actions or inactions of the plaintiff.

"You have to look at what the parties did or didn't do to make the decision whether or not to enlarge time," he added. "Counsel argues 'My client didn't understand what was going to happen to my property.' "

Aaron stated that the plaintiffs came to the city in 1999, and if they were unhappy with the ruling they should have challenged then.

"Between 1998 and 1999 they actually came to a recommendation to devise a plan that the city would accept," Aaron said. "Suddenly that plan is changed, the city would not accept.

"Why not challenge the plan in 2000/2001?" he asked. "Why not challenge then if you're being harmed by the municipality? Silence is the answer."

Aaron cited the history between the plaintiffs and the city in which they met with city officials to discuss planning for a period around the year 2000 and then were not heard from after that, he said.

Aaron also said that the city was willing to work with the property owners.

"The city has never once said your property is at risk and if you don't do it our way your property is going to be taken," he said. "Never once. The city has been saying we want you to develop it, we want to help you develop it."

Aaron reiterated his point that the plaintiffs should have challenged years ago if they were being harmed.

"There is no basis for this court to reopen what the city did 13 years ago," he said. "To come to the court with the pretense of 'We didn't know what was happening' simply doesn't jibe with the facts.

"If you didn't know, then when did you know?" he added. "It may not be the 13-year delay, it may be the seven-year delay.

"Thirteen years later, after an extensive relationship with the city — good, bad or indifferent — they want to challenge this," he continued.

Lawson agreed that the property owner could have challenged before now.

"What you're asking me to do is expand," he said. "They could have challenged then [2000]."

Potter argued that what has happened during the 13-year period isn't relevant.

"What did or did not happen between 1996 and 2008 has no bearing on anything," he said. "We don't need to go there. I realize the city wants to go there."

Potter also claimed that the city's response to the brief filed on behalf of the Fisters is irrelevant to the request for enlargement.

"What does the city argue in the rebuttal?" Potter asked. "They tried to shift the focus. They tried to simply say 'Mr. Fister, it is all your fault.'

"They want to have a trial on something Mr. Fister did or did not say in 2000-2001," he added. "That is totally irrelevant. It really doesn't make any sense. We'd have to depose witnesses from 1996. We don't need to go there."

As the arguments closed, Lawson said he would reread all the briefs and arguments and rule on the enlargement. No timetable was given.

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, one of the city's six redevelopment zones.

The lawsuit claims that in July 2008, a Notice of Tort Claim was filed in an effort to obtain just 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."

Contact Kenny Walter at

kwalter@gmnews.com.