Legal Issues

    Appellants respectfully request the court to declare the City of Long Branchs exercise of eminent domain powers unconstitutional with respect to their privately held real property on several grounds.  It is acknowledged, with respect to the applicable standard under the fifth amendment of the United States Constitution, that the takings clause has been interpreted as not requiring a literal public use in order for the taking to satisfy constitutional scrutiny on the other hand, appellants do contend that the facts of the instant case do not satisfy the Supreme Courts public purpose test as set forth in Kelo v. City of New London.  In that case, similar in some ways but clearly distinguishable from the instant case, the Supreme Court outlined the applicable federal constitutional standards for analyzing and resolving eminent domain cases.     

    The Supreme Court began its analysis by clearly noting that eminent domain cases are to be viewed on the merits of their own particular facts and that overarching bright-line rules are not to be applied specifically, the Court stated that Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. (Kelo v. City of New London. 2005, n.p.)  The clear directive, therefore, is that Kelo is to function as a guide and that the resolution of the case must derive from the facts associated specifically with the City of Long Branchs redevelopment plan.  Second, the Supreme Court provided that a municipality could exercise its eminent domain powers on behalf of economic development even if private developers benefited in the process.  The majority opinion argued in this respect that Quite simply, the governments pursuit of a public purpose will often benefit individual private parties. (Kelo v. City of New London. 2005, n.p.)  This does not mean, however, that municipalities can therefore exercise their eminent domain powers simply by alleging that these exercises are in furtherance of a poorly envisioned economic development plan.  Quite the contrary, the Supreme Court demanded a minimum level of factual specificity in order to demonstrate that the envisioned redevelopment plan was both honest and reasonable. The deference in short, is not without all constitutional limits.   In Kelo, this standard was met because the City of New London was pursuing its redevelopment plan in a way that would increase employment opportunities and tax revenues that could be used for public services. 

    In the instant case, the facts are distinguishable from those in Kelo.  In Kelo, the redevelopment plan envisioned the creation of jobs whereas in the instant case the redevelopment plan envisions no such direct form of job creation quite the contrary, the City of Long Branchs redevelopment plan explicitly states as its goals that it desires to recruit possible employees to the area by creating suitable housing.  This is, to be sure, putting the horse before the cart and clearly distinguishes the instant case from Kelo.  No jobs are being created while at the same time the City of Long Branch is planning on increasing its local population the diversified labor pool envisioned is disingenuous because there are no jobs being created in the first place to entice these mythical new employees.  The clear implication is that this redevelopment plan has been designed to benefit private developers of the waterfront and that references to jobs are a red herring.  Additionally, as a matter of sound public policy, the majority of legal scholars have called for restraint in the application of the Kelo precedent.  It is well-established, for instance, that  the reaction was more like an explosion of outrage. This rage was, perhaps, motivated by the public perception that the Supreme Court had stated that all takings were thereafter justifiable if economic development was simply cited as a reason.  As a matter of public policy, and consistent with its prior decisions, this court can assuage such public fears and outrage by ruling that facts matter and that vague allusions to possible economic development do not satisfy the public use standard of the United States Constitution.

  Other leading scholars, echoing the same public policy concerns, have noted that  The Supreme Court did nothing more than restate that baseline for local officials seeking to invoke eminent domain condemnation proceedings HYPERLINK httpwww.questia.comPM.qstaod5034944198(Barkacs  Barkacs, 2007, p. 38)  The facts of the instant case do not meet this baseline, the public uses are far too attenuated to meet constitutional scrutiny, and appellants respectfully request as a matter of constitutional interpretation and public policy that the court find the City of Long Branchs exercise of eminent domain a violation of the fifth amendement.