The state can’t seize Atlantic City piano tuner’s house with eminent domain, court rules

ATLANTIC CITY — A New Jersey appellate court has sided with Atlantic City piano tuner Charlie Birnbaum in his long-running fight to keep his family home in the shadow of the Ocean Resort casino from being seized by the state through eminent domain.

His advocates hailed the decision, released in a 29-page ruling Friday, as another salvo in a “nationwide … backlash against the U.S. Supreme Court ruling in the infamous case of Kelo v. City of New London, which allowed the government to take people’s homes for private development."

“Since Kelo was decided, greater judicial and legislative scrutiny of redevelopment-based takings has occurred," the court wrote in Friday’s ruling.

Birnbaum retained the right to keep the home his parents, who were Holocaust survivors, bought in 1969, because the state’s Casino Reinvestment Development Authority could not provide assurance that its plans for the property and surrounding area “would proceed in the reasonably foreseeable future,” the court ruled.

A CRDA spokesperson said the agency would “respect the court’s decision."

When the case was first decided in 2016, the casino, then called Revel, had declared bankruptcy and shut down. It has since reopened as Ocean Resort but is still plagued by financial problems. A New York hedge fund that was one of its largest lenders recently took control from Denver developer Bruce Deifik as losses continued to mount.

The area around casino, once known as Pauline’s Prairie, remains largely undeveloped, though the Boardwalk as it runs by and around it toward the inlet, facing Brigantine, has been handsomely rebuilt and a North Jersey developer is leasing new apartments. Under Gov. Phil Murphy, the CRDA has largely shifted its focus from land acquisition and has sought to auction off some of its tax-exempt holdings.

Birnbaum’s mother, Dora, lived in the house on Oriental Avenue until 1998, when she was killed during a home invasion. Birnbaum, who lives in Hammonton with his wife, rents out the upper floors and uses the first floor for his piano-tuning business.

In a statement, Birnbaum said of the ruling: “This home has been so special to our family, and the fact that it’s standing and still here is enormously important."

The court upheld an earlier decision by Superior Court Judge Julio Mendez, who ruled that the CRDA’s “proposed stockpiling of land for future redevelopment” was not sufficient justification to seize private property such as Birnbaum’s house. The CRDA had offered him $238,000.

"CRDA never had a plan for this home other than knocking it down and then thinking really hard about what they might want to put there instead,” said attorney Dan Alban of the Virginia-based Institute for Justice, which opposes eminent domain cases nationally and represented Birnbaum.

“If that reasoning was enough to let them take this home, it would be enough to let them take literally any home they wanted, for any reason or for none," he said.

Adam Gordon of the Fair Share Housing Center, which filed an amicus brief in the case, praised the ruling and said, “Eminent domain should not be used to displace working families and other low-income communities as part of a wholly speculative development scheme with no demonstrated public benefit.”

Under a state takeover of Atlantic City, the CRDA has recently shifted its focus to help casinos and businesses focus more on issues affecting city residents, nearly 40 percent of whom live in poverty. The original idea for the area around the Ocean Resort included a mixed use of “tourism-focused residential, retail, and commercial uses.”

Eminent domain has a rocky history in Atlantic City, including a successful fight against then-casino owner Donald Trump’s efforts to seize a home owned by Vera Coking. Trump wanted her property to expand a porte cochere of the former Trump Plaza. The land was eventually obtained by Carl Icahn in 2014 through an auction.