Wednesday, July 11, 2007

Appellate court rules Belmar can't take Freedman's Bakery for redevelopment

BREAKING NEWS: Appellate court rules Belmar can't take Freedman's Bakery for redevelopment
Posted by the Asbury Park Press on 07/11/07

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BELMAR — Freedman's Bakery is not "blighted'' and cannot be forced to participate in the borough's planned downtown redevelopment project, putting at risk a $500 million proposal to virtually remake the downtown, a state appellate court has ruled.

"Freedman's Bakery is not a blighted area even if its design is not optimal for its
commercial purposes,'' the court ruled in a 10-page unanimous decision issued by Judges Ariel Rodriguez, Donald G. Collester Jr. and Thomas N. Lyons.

The decision was distributed to attorneys Tuesday and made public today. Freedman's had argued that the borough, "performed no analysis that the internal operation of Freedman's Bakery was a detriment to the public health safety and welfare.'' The court agreed, saying the borough had made insufficient showing that the criteria had been met.

The borough has pinned its future economic hopes on the downtown redevelopment plan, where an increasing number of vacant storefronts have become an all-too-familiar sight along Main Street. Freedman's is located at the corner of Eighth Avenue and Main Street.

Paul Fernicola, an attorney for Bowe and Fernicola in Red Bank, represented Freedman's in the case and said the Belmar Planning Board had made up its own definition of blighted in order to execute its redevelopment agreement with Gale Co. of Florham Park, the borough's master developer.

"What was the public detriment? When you really focus on what they said, their argument was that the internal production facilities weren't up to modern design standards,'' Fernicola said. "Modern design standards? Because the plant isn't producing 150 doughnuts per second? Seriously, the Borough of Belmar is going to tell the Freedman family how to do conduct their business?''

Mayor Kenneth E. Pringle said he is not surprised about the Appellate Court decision in light of the recent Paulsboro decision, but said he would not comment in detail until he had a chance to read the decision.

Indeed, the Paulsboro was cited in the court's decision Wednesday. Last month, the state Supreme Court unanimously ruled that property not being "fully productive'' does not alone satisfy the criteria to condemn it as "blighted'' and take it under eminent domain power delineated in the state's 1992 redevelopment law.

The court ruled against Paulsboro, which had deemed 63 acres alongside a creek was not used to full economic potential and condemned the land so a builder could buy it to use one small corner as part of Paulsboro's larger redevelopment plan. New Jersey's constitution "does not permit government redevelopment of private property solely because the property is not used in an optimal manner,'' the state's high court ruled.

State Public Advocate Ronald K. Chen noted in a friend of the Paulsboro court brief that Drumthwacket, the governor's mansion, qualifies for redevelopment under the broad interpretation of not fully productive that Paulsboro - and Long Branch - have been using. The justices agreed, saying that "blight,'' according to the constitution, is "deterioration or stagnation that negatively affects surrounding areas.''

Pringle said the borough's attorney believed the borough could set a standard that would meet the legal threshold to meet the blighted criteria, but he acknowledged that the Paulsboro case had made the borough's argument more difficult.

When asked if this decision would adversely impact the borough's overall redevelopment plans, Pringle answered: "I don't think so.''

Belmar downtown redevelopment project, known as the Belmar seaport village plan, is an ambitious proposal, which involves razing and rebuilding much of Belmar's downtown from 10th Avenue along Main Street and the Shark River.

Fernicola said his client is not opposed to Belmar's redevelopment plans and wants to be a willing partner, but that in negotiations with the Gale Co., the master developer always behaved as if they had the upper hand.

Fernicola said there is no doubt in his mind that Belmar would have used eminent domain to take his client's property if the courts had permitted the borough's definition of blight to stand.

"We were coming to the table with Gale, but when they sat down with us, they presented appraisal reports with this attitude, "we have the redevelopment designation, we have the redevelopment agreement with the borough,'‚'' Fernicola said.

"They just don't have the ability to condemn property .‚.‚. Now, the playing field is
level,'' Fernicola said.

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