According to Tom Ammirato, a spokesman for the group, the tenants will appeal the township's redevelopment designation of the area, simply because, in their opinion, the area is no longer in need of redevelopment and eminent domain status.
"They've already developed a Lowe's [Home Improvement Center] on one side and are building a Target [department store] on the other side," Ammirato said. "When the plan was introduced, both of the properties to the left and right were vacant and the township needed to redevelop those areas, which they now have. But the remainder does not have to be redeveloped, because it is a viable economic entity. It no longer meets the definition of an area in need of redevelopment. There's no better public purpose by replacing the stores that are already there with a Home Depot, directly next door to a Lowe's."
Ammirato said the stores in the shopping plaza, K-Mart, Marshall's, Tonnelle Liquors, Dunkin' Donuts and Wendy's, have rallied their resources in an attempt to keep their businesses afloat and filed an appeal in Hudson County Superior Court with the hope of overturning the eminent domain classification and condemnation of the property.
"This is an illegal taking because it does not further the town's redevelopment goals and it serves no bona fide public purpose," says attorney Thomas Olson of the Morristown law firm McKirdy Riskin, which is representing Tonnelle Liquors and Marshall's in the matter.
Olson says the 10.5-acre tract his client's stores sit on can no longer be considered part of the wider 60.6-acre redevelopment zone originally sketched out by North Bergen in 1999.
However, the property, which is owned by the Shiva Companies of New York, has been earmarked as part of the original plan.
According to Olson, the remaining stores are viable, job producing enterprises that serve the community's needs far better than a Home Depot would.
However, Brian Chewcaskie, the attorney representing the township, disagrees.
"They're just moving to challenge the authority of the condemnation and want to challenge the underlying redevelopment designation," Chewcaskie said. "But that designation was made in 1999 and it's way out of time now. They're going to try to reopen what was determined five years ago. It's not going to work. The time period to challenge the redevelopment has lost its power."
Olson argues that condemning the six stores fulfills no valid public purpose, which is the primary test a government entity must pass in order to take private property.
"Taking these six stores and replacing them with a Home Depot serves the public no better than to allow the stores to remain," said Olson. "In fact, from a public service and a planning perspective it is far better to have six stores offering a variety of goods and services than to have a single store, like Home Depot, selling the same merchandise that is available at the existing Lowe's store."
Olson says the courts have not hesitated to set aside condemnations when the real purpose for the acquisition is to benefit a private party.
In 2000, the town heard original plans from developer Related Retail of North Bergen, a subsidiary of developing giant Related Companies of New York, to build a full-service shopping plaza, originally called "The Commons of North Bergen," that was going to resemble the existing Clifton Commons.
However, that plan was altered dramatically after construction of the Target and the Lowe's Home Improvement Center.
With those two stores now anchoring either end of the redevelopment site, Related went before the town Planning Board last September and won approval for the Home Depot.
According to Olson, Tonnelle Liquors, Marshall's and the other targeted stores have made substantial improvements to their property, which will likely never be recouped under the town's redevelopment plan.
The attorney said the town has failed to comply in any manner whatsoever with its statutory relocation obligations.
"The township has not even contacted the defendants with respect to relocation and no proposed relocation sites have been mentioned," said Olson.
"It is extremely difficult to relocate a liquor store and check cashing business, and it is unlikely my client will find any comparable site in North Bergen in which to operate his business," said Olson. "Essentially, if this redevelopment plan is allowed to proceed, some of these defendants will lose their businesses and their investment."
However, Chewcaskie said the township has already begun the relocation process, called WRAP (Work Relocation Assistance Plan) that has been filed with the state Department of Community Affairs, so he refutes Olson's claim.
"The township believes that its position is strong and we feel the authority to condemn will be upheld in court," Chewcaskie said. "They're trying to raise a smoke screen. We're ultimately going to let the courts decide. This is nothing we haven't seen or heard before."
The next court hearing to examine the situation and the pending litigation is scheduled for April 2.
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