Court rules blight challenge is too late

Court rules blight challenge is too late
Fuschia Triangle attny. and clients weigh appeal
BY KENNY WALTER Staff Writer

Astate Superior Court judge ruled last week that time has run out for a legal challenge to Long Branch's designation of a property as blighted, or in need of redevelopment.

After a month and a half of deliberation, Judge Lawrence M. Lawson, sitting in Freehold, denied a motion to allow a legal challenge to the city's blight designation of the lower Broadway property known as the Fuschia Triangle 13 years after it was slated for redevelopment.

"It appears that plaintiffs, after over a decade of owning property in the city, have changed their position on the city's redevelopment plan. Such a change of heart does not justify this court's review of a designation of property over 13 years old," Lawson wrote.

"As early as January 1996 and at the latest May 1996, plaintiffs knew that the Triangle had been deemed 'an area in need of redevelopment,' " Lawson's Nov. 30 decision states. "The court cannot agree with plaintiffs that the circumstances of this case warrant the enlargement of time for the plaintiffs to bring an action in lieu of prerogative writs."

The decision came after an Oct. 14 hearing where attorney William Potter, of Potter & Dickson, Princeton, argued on behalf of plaintiffs Kevin and Adele Fister, principals in Fuschia Triangle Corp. and Coach Corp.

Potter said in an email that he was disappointed by the decision.

"Naturally, we are very disappointed by the court's ruling, which rejected our motion to enlarge the 45-day time to contest the obviously unconstitutional designation of their property as 'in need of redevelopment,' a euphemism for 'blighted area,' " he said.

As expected, Long Branch City Attorney James Aaron said he is pleased with the decision.

"The city's position was affirmed by the court," he said.

"I was cautiously optimistic that would be the outcome," he said. "I thought with the history of the activity that the Fuschia Triangle principals went through that the court would be able to substantiate not giving them a break after 13 years."

The Broadway-Gateway redevelopment zone is composed of commercial properties, with the Fuschia Triangle 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 "in area in need of redevelopment" in 1996.

The time frame for challenging the city's blight designation was 45 days, and Potter sought to expand that window, arguing that his clients were made aware of the designation but not informed about the ramifications.

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.

Lawson ruled that the plaintiffs' challenge comes too long after the designation of their property.

"The plaintiffs have sat on their rights for far too long," the decision continues. "They were well aware of the ongoing redevelopment process in the city, as evidenced by their initial willingness to work in conjunction with the city to redevelop the Triangle. In the early phases of the redevelopment process the city announced its desire to work with property owners to better utilize under developed properties rather than resort to condemnation.

"There is no evidence in the record to suggest that the city intends to initiate condemnation proceedings to acquire the triangle.

"Even after plaintiffs became concerned that the city would not accept any development plans they submitted, plaintiffs did not attempt to challenge the blight designation," the decision continues.

Potter said that Lawson's decision has far-reaching consequences for other properties in the city as well.

"Other property owners within Long Branch should also be concerned," he said. "If not reversed, the court's decision means that no property owner within an area that was unconstitutionally designated as blighted will have his or her day in court, if the city doesn't commence eminent domain.

"Since Long Branch has said it will not use eminent domain, all such properties could remain trapped within the city's 'land bank' for as long as the city wants them there," he added. "In my view what we have here is the 'freezing' of a property within a blighted area without compensation or judicial review."

Potter said he and the plaintiffs are weighing whether to challenge Lawson's ruling.

"We are examining options for appeal and soliciting the interest of the Public Advocate's Office, which was helpful for the MTOTSA residents and in similar cases," he said. MTOTSA refers to the beachfront neighborhood of Marine and Ocean terraces and Seaview Avenue, which battled the city over the taking of their property through eminent domain.

In the lawsuit filed against the city on April 8, Potter argued 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 sought to overturn the blight designation of the Fuschia Triangle and asked the court for compensatory and punitive damages for the de facto taking of the Fuschia Triangle resulting from the city's blight designation and its failure to condemn and take the property.

Potter said, "We look forward to the next part of this case, which seeks damages from the city for the 'inverse condemnation' that has occurred and continues to occur."

Lawson set a Jan. 12 date for a conference on the remaining counts of the complaint.

In the motion for enlargement, Potter cited several precedent-setting cases, which he successfully argued, including Harrison Redevelopment v. DeRose (2008), which Lawson rejected as backing up the motion.

"The Appellate Division's decision in Harrison allows a second bite at the apple to defendants in a condemnation action who were not provided constitutionally adequate notice of the initial blight designation," the decision states. "It does not wholly abandon the 45-day time limitations … .

"The instant matter must be distinguished from Harrison because there has been neither the initiation of condemnation proceedings to acquire the Triangle nor does the record reflect any suggestion that the threat is looming."

Aaron said that the decision does not change the city's intent to reach an equitable resolution with the property owners.

"Despite the decision, the city, through the mayor, has communicated to the plaintiffs that the city really wants to work with them," he said. "If they are serious about wanting to put together a project, the city will continue to work with them to get that approved as a developer, even today."