Lawyer Loses Challenge To Rule Limiting The Amount Of Time He Could Speak At City Council Meeting

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

There is a lawyer joke in here somewhere about lawyers suing to get more time to speak or how someone should sue to force lawyers to talk less. Potential jokes aside, the issue in Feld v. City of Orange was an interesting one. In Feld, plaintiff challenged a municipal ordinance that reduced, from ten minutes to five minutes, the time members of the public could speak on certain matters at city council hearings. Plaintiff claimed that this ordinance violated his First Amendment right to free speech. Spoiler Alert: He lost. But the issue and the decision are nonetheless interesting.

Feld was the latest chapter in litigation that has been raging between plaintiff, a lawyer, acting on behalf of himself and his parents' business, and the City of Orange for years. (In a prior decision, the Appellate Division noted that plaintiff considered himself a "zealous gadfly" and a "radical barrister.") At some point during this long-running battle, the city adopted an ordinance "that reduced the time from ten minutes to five that individual members of the public could speak at City Council meetings on general issues, agenda items or second readings of ordinances before adoption." The city council claimed the change was necessary because "council meetings can extend late into the evening or early into the next day" and this "discourages, if not precludes[,] a fair opportunity to be heard by other members of the public." The city council further claimed that, "without appropriate and rational limitations, the rights of all public speakers [would be] curtailed and undermined." The city council also noted that other municipalities limited the time for speaking during public meetings to five minutes.

The underlying issue in Feld involved plaintiff's objection to the city council's adoption of a resolution that allowed the mayor to sign a lease and option to buy a building owned by the YWCA of Orange, which was in bankruptcy. He challenged the resolution when it was before the city council, and, after it passed, filed a 257 paragraph complaint in lieu of prerogative writs seeking to have it invalidated. As part of this complaint, he also challenged the rule reducing the amount of time members of the public could speak at city council hearings. After filing his complaint, plaintiff filed an order to show seeking, among other things, to restrain the city from enforcing the five-minute rule while the lawsuit was pending. The trial court heard oral argument on the order to show cause, and took testimony from a witness on behalf of the city, who testified that the rule was necessary to "administer the Council meetings more efficiently," and that it was an attempt to "make sure that all of the comments are heard and that everyone gets a chance to talk."

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Moratorium Extended On COAH Non-Residential Development Fees

by: Lawrence A. Calli

On August 24, 2011, Lt. Governor Guadagno signed legislation extending relief to developers from the previously implemented COAH 2.5% non-residential development fee requirement. The relief places an additional 2-year moratorium on the non-residential development fee requirement, and will apply retroactively to approvals obtained as of July 2010. Developers who obtain land development approvals prior to July 1, 2013 (and obtain building permits by December 31, 2015) will receive protection under the fee moratorium. A mechanism is also in place by which developers who previously paid a development fee may be entitled to a refund. Click here for additional information.

“Put Your Makeup On, Fix Your Hair Up Pretty, And Meet Me Tonight In Atlantic City.”

by: Peter J. Gallagher

Apparently there is more than fist bumping (pumping?) going on "down the Shore." The PropertyProf Blog has an interesting story about what it calls "A Non-Taking On The Jersey Shore." If nothing else, the story gives me a work-related reason to go down to Atlantic City. I don't really want to go down to the casinos, I have to do it for the sake of the blog . . .

The article tells the story of a tiny lot sandwiched in between Trump Plaza and Cesar's Palace. It is zoned for gambling, which the post notes "doesn't exactly seem like the highest and best use." But, the lot has some history, as it was at the center of a high-profile takings case from the early days of the once booming (now not really booming) gambling mecca:

Vera Coling and her husband bought the property in 1961, when Atlantic City was still a thriving beachtown. A decade later, as the city fell into decline, it made the drastic decision to legalize gambling and welcome big-time casino development. The prime location of Coking's three-story house quickly attracted the interest of the real estate industry. In 1983, for example, Bob Guccione (the founder of Penthouse), offered to purchase the house for $1 million to build a casino. Coking said no.

Soon enough, the property attracted the attention of another tycoon – Donald Trump. Unlike Guccione, Trump had the local redevelopment agency attempt to acquire the property through eminent domain for $250,000, a much reduced price. Coking sued Trump and the redevelopment agency, claiming that the taking was not for a public purpose. The Superior Court in New Jersey agreed with Coking. It ruled that because there were few restrictions on what Trump could do with the property, there were "no assurances that the public interest will be protected."

The post notes that the arguments raised in the case are "[o]f historical interest for property profs" and other folks interested in takings, because it was "the Institute for Justice's first test case for the theories it later advanced in Kelo [v. City of New London]," the controversial eminent domain/takings case decided by the U.S. Supreme Court a few years back.

Also of historical interest is the interview with Donald Trump embedded in the post, which presents a much younger, pre-Apprentice, less coiffed, but no less pompous, version of the Donald.

Finally, in case you are interested, the property is for sale. Here is the listing. It can be yours for only $5 million, or slightly less than what this guy took from the Tropicana in a marathon gamling session a few weeks ago.