Atlantic County Superior Court Judge Julio Mendez ruled Monday that the Casino Reinvestment Development Authority can force Charles Birnbaum to sell his Oriental Avenue property for a fair market price.
“We’re pleased that the court upheld CRDA’s power to take property when necessary,” said Stuart Lederman, an attorney with New Jersey-based Riker Danzig, which represented the organization. “This will allow CRDA to continue its mission to revitalize Atlantic City. The court recognized that the promotion of tourism in the Tourism Act is a valid public purpose.”
However, the ruling doesn’t mean the piano-tuner’s long-time family home will be immediately sold. Dan Alban, an attorney representing Birnbaum, said the ruling will be appealed.
“I look at this as a huge part of my history,” Birnbaum said. “To see it this close to coming to an end, it really hurts. Maybe fresh eyes can take a look and perhaps see the merits of our case.”
The property, located at 311 Oriental Ave., is part of Atlantic City’s Tourism District, created by the legislature in 2011 to promote local tourism and help the gaming industry.
The CRDA argued the act allows it to use eminent domain to claim properties within the district’s boundaries. The CRDA says it will use Birnbaum’s property for the South Inlet Mixed Use Redevelopment Project, which it put aside $8.6 million for in 2012.
“Because CRDA is acting pursuant to this direct legislative mandate,” the CRDA argued in a brief, Birnbaum’s property would be taken for “a valid public purpose.”
In his ruling, Mendez agreed. He found that the Tourism District Act “establishes an abundantly appropriate public purpose that passes both Federal and State constitutional muster,” and that the CRDA “is duly authorized to exercise the power of eminent domain for the taking of the Birnbaum property.”
“We’re obviously very disappointed by the ruling. We think the court got it wrong, and we think the court will be reversed on appeal,” said Alban, an attorney at the Virginia-based Institute for Justice, which represented Birnbaum.
Birnbaum’s attorneys focused on the fact that the CRDA has not identified a specific use for the property.
Robert McNamara, another Institute for Justice attorney, had argued that, without an established plan, the CRDA couldn’t prove it would use the land for the public good. It was just as likely, he said, that it would be used for private gain.
McNamara claimed a ruling in favor of the CRDA would allow the organization to “take any piece of property in Atlantic City for absolutely any reason.”
Lederman, the CRDA attorney, countered that the agency couldn’t present specific proposals until it firmly established what land it had to work with. CRDA officials declined to comment Monday evening.
In his ruling, Mendez sided with the CRDA. The organization's plans, he reasoned, when taken in their totality, provide “a sufficient level of specificity for the public use of the Birnbaum property and are consistent with the statutory mandates in the Tourism District Act and the public purpose of promoting tourism and assisting the ailing gaming industry.”
However, Mendez also wrote that “the CRDA acknowledges that they have not identified the specific structure that will be placed on the subject property.” Alban said that finding contradicted Mendez’s other assertions regarding specificity.
“I think it’s a very puzzling conclusion,” he said. “It’s simply not a public use until you identify some specific use for the property.”
The case also explored whether the state could use eminent domain to seize well-maintained properties, like Birnbaum’s, which had not been found by a court to be “blighted.”
Birnbaum’s attorneys argued New Jersey Supreme Court precedent established that only blighted properties could be forcibly taken for use in economic development projects.
But Mendez agreed with the CRDA’s argument that the precedent cited didn’t apply. The property was not being taken “for blight remediation or for purposes of economic redevelopment,” he wrote.
“The Atlantic City Tourism District, as the name suggests, is about promoting tourism and promoting the ailing gaming industry,” he wrote. “The Tourism District Act has nothing directly to do with a plan to redevelop a stagnant and depressed area that is devastating an older city.”
Alban said Mendez had ignored the core legal issues raised by the case.
“The opinion seems to neglect to consider the Constitutional limitations on what the CRDA can do, and instead only looks at statutory authority,” he said. “The Constitution trumps statutes, and the legislature can’t give the CRDA any more power than the Constitution allows.”
Birnbaum’s family purchased the house in 1969. His mother, Dora, survived the Holocaust, but was murdered there along with her caretaker, Beatrice Cabarrus, during a 1998 robbery. That development, however, failed to shake Birnbaum’s commitment to the property. He still runs his piano tuning business out of the first floor, and rents the top two floors to tenants.
Birnbaum has already rejected an offer from the CRDA of $238,500 for the property.
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