MTOTSA holdouts sue city for damages

MTOTSA holdouts sue city for damages
BY KENNY WALTER Staff Writer
At least two of the MTOTSA property owners who refused to sign a settlement with the city of Long Branch have moved forward with complaints against the city.

Lee and Denise Hoagland Lee and Denise Hoagland The suits were filed by Lakewood attorney Peter Wegener, of Bathgate, Wegener & Wolf, in state Superior Court in Freehold on behalf of Denise and Lee Hoagland and the estate of Albert Viviano.

All but six property owners in the MTOTSA (Marine and Ocean terraces and Seaview Avenue) neighborhood reached a settlement in September in their longstanding battle over the city’s condemnation of their homes.

Wegener, along with the public interest law firm Institute for Justice, Washington, D.C., led the legal team for the MTOTSA residents.

The Hoagland complaint, which is dated June 1, stems from the city’s attempt to acquire their Ocean Terrace home in 2005, a taking that was granted in 2006 by Judge Lawrence Lawson. The property owners appealed the decision in August 2006, and it was overturned by the Appellate Division of Superior Court in 2008.

Albert Viviano Albert Viviano The Hoaglands refused to waive the right to sue for damages, which many of their neighbors agreed to in a settlement with the city in September 2009.

The current complaint states that the city’s actions have caused the Hoaglands significant financial damage.

“The plaintiff has incurred significant appraisal and legal expenses and disbursements,” the complaint states.

“As a … result of defendant’s actions, plaintiffs suffered damages, including but not limited to, the difference between the value of the property as of the date of the taking and the value on the date of the settlement,” the complaint continues.

The three-count complaint is seeking just compensation for the period of the temporary taking, actual damages, compensatory damages, costs of bringing the suit, interest and further relief the court deems necessary for all three counts.

Denise Hoagland said in an interview this week that the city should be held accountable.

“Our intention really was to take this to the next level and have precedence set and the city be held responsible for their actions,” she said. “For me, the lawsuit is definitely about saying what they did was wrong and they shouldn’t get away with it.”

Hoagland said the decision to not settle with the city was a difficult one for her family, reached after much deliberation.

“We spent months not sleeping; it was a very difficult decision for us to not settle,” she said. “In the settlement, there really was no benefit.”

Hoagland said she made her final decision not to settle about a month before the settlement was announced.

“I didn’t go to the last mediation because I knew we were not going to settle,” she said. “We had made the decision before that, which I believe was August. It took us a long time to make the decision.

“We didn’t make that decision because we wanted to sue. We made that decision because what the city had done was wrong and we wanted to set precedent. We didn’t spend 10 years of our lives fighting not to set precedent.”

One of the major sticking points in the settlement was the stipulation that residents who signed on agreed to waive their right to sue the city for compensatory damages.

In return, city officials agreed to take eminent domain off the table in the neighborhood and to allow property owners the right to improve their homes.

As part of the 14-point deal, the city agreed to pay $435,000 in legal fees for MTOTSA property owners who agreed to the settlement; to have the developer demolish all boarded-up houses in the neighborhood; and within two years pave the roads and fix the lighting conditions in the area. Another benefit to the property owners is that they are now eligible for five-year tax abatements.

The complaint filed on behalf of the Viviano estate comes after the city exercised the use of eminent domain in 2006 on the Marine Terrace home. The property was abandoned and condemned in 2009 after Viviano’s February 2007 death.

The five-count complaint includes reimbursement for attorney fees and appraisal fees, compensation for the period of the temporary taking, actual damages, compensatory damages, costs of bringing suit, interest, and further relief the court deems necessary for the loss of property value, payment of principal taxes, and the value of an option for the period of the temporary taking.

The settlement between the city and the MTOTSA property owners pre-empted a legal battle in which MTOTSA attorneys challenged the city’s blight designation of the neighborhood enabling the city to use eminent domain to take the homes.

In June 2006, Lawson ruled in favor of the city’s right to use eminent domain in MTOTSA, but attorneys for MTOTSA appealed the decision, and the appellate court remanded the case back to Lawson to give the city the opportunity to expand the record in an attempt to prove that its redevelop- ment plan met the heightened blight standard.

Both MTOTSA and the city petitioned the state Supreme Court to hear the case, but

the court denied both requests.

The two sides held mediation sessions, and the city announced on Sept. 16, 2009, that an agreement had been reached with all but six of the MTOTSA property owners.

A few hours after the signing of the agreement, the City Council held a special meeting to adopt two resolutions authorizing the settlement order and amending the redevelopment agreement for the Beachfront North Phase II redevelopment zone.

MTOTSA is one of six zones slated for redevelopment and is located in the city’s Beachfront North Phase II redevelopment zone. Also labeled as redevelopment zones are Beachfront South, Pier Village, Hotel Campus, Broadway-Gateway and Broadway Corridor.

Contact Kenny Walter at

kwalter@gmnews.com.