GCIA v. Gallenthin Realty Development, Inc.

Public Use Abuse Brief of Landowner Defendant Gallenthin

by George Gallenthin, III, Esq.
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The Bill of Rights, which consists of the first ten amendments to the United States Constitution, was designed to guarantee the basic principles of individual liberty by limiting the power of the federal government and enumerating the rights of American citizens. With recent memories of the many British violations of civil rights, the writers of the Constitution and the Bill of Rights recognized their obligation to protect Americans from the immense powers of the federal government. The right to own private property and specifically the right to own a business is fundamental to the legal underpinnings and traditions of the United States. Theories of democracy and freedom regard this right as basic and unassailable. The founding fathers, however, did understand the necessity of an eminent domain “takings power” in cases in which the federal and state government would need to acquire privately owned property for “public use.” Although the constitutionality of this power is irrefutable, it is not unconditional. With this in mind, a portion of the Fifth Amendment to the Constitution was specifically written to safeguard the rights of property owners with the words, “nor be deprived of property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S.C.S. Constitution, Amendment V. The Fourteenth Amendment extended this power to the states. U.S.C.S. Constitution, Amendment XIV. See also Township of West Orange v. 769 Associates, L.L.C., 172 N.J. 564, 572 (2002) (affirming that the power of eminent domain is “subject to several important constitutional limits” including the protection that “no person shall be deprived of his or her property without due process of law.”)

Further, it is important that the New Jersey State Constitutional terrain upon which this right to private property is found be understood. Specifically, since “the powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people” (U.S.C.S. Constitution. Amendment X), New Jersey’s private property owners are not only protected by the U.S. Constitution, but also by the New Jersey Constitution as a limited contract with its real property owners. N.J. Const. art I, ¶ 1 declares that among the inalienable rights secured is the right of “acquiring, possessing, and protecting property.” While this right is subject to the police power, see, e.g., Jones v. Haridor Realty Corp., 37 N.J. 384 (1962), it is not a right to be easily overridden by the outright taking of property based on the minimal evidence and excessive deference shown here and in other cases. In Gallenthin Realty Development, Inc. et al v. Paulsboro et al, 191 N.J. 344 (2007), (“Gallenthin 1”) the New Jersey Supreme Court respected and defended the private property owner’s State and Federal Constitutional right to own private property but for “public use and/or blight”. Therefore, the U.S. Constitution and the New Jersey Constitution both individually and mutually constitutionally protect the rights of private property owners within New Jersey’s judicial jurisdiction. In the instant matter, it is argued the Trial Court deprived the Defendant of private property without due process of law, i.e. the Trial Court denied the Defendant’s plenary hearing that allows: 1.) discovery; 2.) presentation of evidence; and, 3.) cross-examination of evidence on Defendant’s eight (8)issues joined below in the summary action in the Trial Court. Most specifically, the failure to allow the Defendant a plenary hearing violates the Defendant’s substantive and procedural due process rights under the U.S.C.S. Constitution 5th Amendment’s “takings clause” and New Jersey rule of law. In Ocean County v. Stockhold 67 N.J. 104 (1974) (citing Yarnell, supra, 64 N.J. 211) (Reversing Ocean County v. Stockhold 129 N.J. Super 286 (1974), the Appellate Division held that county had authority to initiate condemnation proceedings, that decision to condemn was not arbitrary, and that matter was determined properly without a plenary hearing). Also, R. 4:73-1. “An action in condemnation shall be brought in the Superior Court in a summary manner pursuant to R. 4:67”- Summary Actions, not as the Trial Court asserted under R. 4:46-1 Summary Judgment standard of review in Brill v. Guardian Life Insurance Company of America, 142 N.J. 520 (1995). Argued further, the Trial Court constitutionally lacks subject matter jurisdiction over Defendant’s Category II railroad/yard. Title 49 U.S.C. § 10501(b)(2); State by DEP v. J.P. Rail, Inc., U.S.D.C. 2006-cv-01603, and State of NJ v. J.P. Rail, Inc., U.S.D.C. 2006-cv-05457.

The fatal defects in the Plaintiff's complaint and pre-complaint actions set forth therein in addition due to the pre-textual nature of the Taking demonstrate that dismissal of this action on appeal is warranted.

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Reference Info: Appellate Brief | State, 3rd Circuit, New Jersey | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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