New Jersey Eminent Domain Law Blog

In a unanimous per curiam opinion issued yesterday, July 15, 2008, the Appellate Division affirmed a lower court decision by Chancery Court Judge Vincent J. Grasso denying an injunction to the New Jersey Department of Environmental Protection (NJDEP) to compel beach front property owners on Long Beach Island to grant easements for beachfront replenishment. NJDEP requested easements from the property owners in order to construct a 21-foot sand dune on the affected properties along the oceanfront. The court held that NJDEP was improperly relying on N.J.S.A. 12:6A-1 which deals with access for emergent situations.

In this case, Milgram v. Ginaldi, NJDEP sought to acquire a permanent easement to construct and maintain the sand dunes. In order to do this, the court ruled, NJDEP must comply with the Eminent Domain Act, N.J.S.A. 20:3-1, et seq. and its provisions regarding acquisitions of land for a public purpose. Specifically, N.J.S.A. 20-:3-6 requires that

Whenever any condemnor shall have determined to acquire property pursuant to law, including public property already devoted to public purpose, but cannot acquire title thereto or possession thereof by agreement with a prospective condemnee, whether by reason of disagreement concerning the compensation to be paid or for any other cause, the condemnation of such property and the compensation to be paid therefor, and to whom payable, and all matters incidental thereto and arising therefrom shall be governed, ascertained and paid by and in the manner provided by this act.

The court concludes:

...the trial court correctly dismissed NJDEP's cause of action, because, under these circumstances, a demand for a perpetual easement from these defendants amounted to a taking of private property without just compensation. To accomplish this apparently legitimate public purpose, NJDEP was required to comply with the procedural requirements of the Eminent Domain Act.

This case is precedent for other municipalities on Long Beach Island seeking to acquire similar easements. The township of Harvey Cedars, for example, is about to engage in such an effort, and they clearly will have to comply with the Eminent Domain Act of 1971 and all of its requirements regarding land acquisitions.  Download the opinion in Milgrim v. Ginaldi.

Also see today's Star-Ledger article, "Court sides with residents in beach battle."

Last Thursday’s meeting of the Senate Community and Urban Affairs Committee ended shortly after it began. With no quorum and two of the Democrats missing, Senator Rice withheld the eminent domain reform bills until the next meeting which, he said, the would be in a few days. “This legislation will continue to come up until we can determine what the real problem is with Democrats -- in terms of not appearing…or in terms of the vote. This bill has been compromised so much, and every issue that was raised by Senator Sweeney and Assemblyman Burzichelli in their communications to me, dated May 12, has been addressed one way and another, most of them ended up in compromises, so I know that everyone had every opportunity to read all the changes, the amendments, etc.”

The previous Thursday, June 8, the committee was supposed to discuss the most recent iteration of S-757. That hearing was postponed.  Here is the June 1, 2008 version of S-757. The bill proposes changes to the Local Redevelopment Housing Law, the Eminent Domain Act of 1971 and the Relocation Assistance Act.

The Halper family has had a long, tortuous history with the township of Piscataway regarding the acquisition of their farm. The township condemned the 75-acre farm for open space on December 10, 1999. Piscataway offered $4.326 million as its estimate of just compensation pursuant to N.J.S.A. 20:3-6. The jury awarded awarded $17.9 million as of September 3, 2004  -  the date of the filing of the declaration of taking and the deposit with the Superior Court Trust Fund. The initial deposit of $4.326 was withdrawn immediately.

On May 14, 2008, Appellate Division Judge Donald S. Coburn issued an opinion, approved for publication, affirming the jury verdict in the Township of Piscataway v. South Washington Avenue LLC; Ruth Halper, Lawrence Halper, et al. Download the opinion here. There are two important issues in this case: first, the Halpers appeal regarding their objection to the right to take their property; and second, the date of valuation per N.J.S.A. 20:3-30.

As to the first issue, the court ruled in favor of Piscataway, noting that once the deposit is withdrawn, the condemnee waives any rights other than those related to the amount of compensation:

We are satisfied that Piscataway's interpretation of N.J.S.A. 20:3-27 is sound, particularly when it is construed in light of the fundamental common law rule that "a litigant who voluntarily accepts the benefits of a judgment is estopped from attacking it on appeal." Tassie v. Tassie, 140 N.J. Super. 517, 524 (App. Div. 1976) (citations omitted). We also noted in Tassie, that

[t]he rule that a litigant cannot seek appellate review of a judgment under which he has accepted a benefit is but a corollary to the established principle that any act upon the part of a litigant by which he expressly or impliedly recognizes the validity of a judgment operates as a waiver or surrender of his right to appeal therefrom.
[Id. at 525 (citations omitted).]

I would note that this holding seems to be at odds with the recent decisions of the Appellate Division in the Harrison cases. All three cases were reversed and sent back to Hudson County Assignment Judge Maurice Gallipoli for further action. There are serious complications in one of the companion cases, Harrison Redevelopment Agency v. Amaral: Mr. Amaral withdrew the deposit, the buildings on the property have been demolished, and he has relocated his business to Lyndhurst, New Jersey. If Judge Gallipoli follows the courts reasoning in the Halper case, Mr. Amaral has achieved a pyrrhic victory and the only issue remaining for him is the argument over compensation.

The Appellate Division heard three hours of arguments from the assembled attorneys representing Long Branch property owners and the city of Long Branch. The argument before the media and a standing room crowd of spectators included the property owners, their families, and interested parties to the eminent domain issues. This case is the most important eminent domain case in the appellate pipeline, and could very well go to the New Jersey Supreme Court, depending on the outcome of the Appellate decision, which is expected in the early fall.

Download today's coverage in The Asbury Park Press and The Star-Ledger. 

MEDIA ADVISORY: City of Long Branch v. Anzalone

The Appellate Division of the Superior Court will hear oral arguments tomorrow in two eminent domain cases, City of Long Branch v. Anzalone and City of Long Branch v. Brower, on the 5th floor of the Richard J. Hughes Justice Complex, 25 Market Street, Trenton, New Jersey. The arguments are before Judges Joseph Lisa, Richard Newman, and Paulette Sapp-Peterson (Panel G). The Appellate Division has issued a revised media advisory.

Louis and Lillian Anzalone, who in their nineties are the eldest residents of the MTOTSA (Marine Terrace, Ocean Terrace, Seaview Avenue) neighborhood, are represented by William J. Ward of the law firm of Carlin & Ward in Florham Park and Brian Weeks of the Office of the Public Advocate, amicus in the case. The bulk of the MTOTSA residents are represented by Peter Wegener of Bathgate, Wegener, & Wolf in Lakewood and Scott Bullock and Jeff Rowes, attorneys with the Institute for Justice in Arlington, Virginia. The IJ argued the Kelo case before the U.S. Supreme Court.

The homeowners appealed the June 22, 2006 decision of Monmouth County Assignment Judge Lawrence Lawson, who ruled that the property owners were not entitled to a hearing or discovery on the “right to take” and dismissed the owners objections to the appointment of condemnation commissioners -- a final judgment on the right to take issue. This decision, issued a day before the first anniversary of the Kelo case, would allow the condemnation suits regarding the various properties to go forward. The Anzalones obtained a stay at the inception of the appeal.

The chief issues to be addressed by the court will be:
I. Conflicts of Interest and the Local Government Ethics Law as it applies to municipal officials and their legal representatives
II. Blight and its definition in light of the New Jersey Supreme Court’s decision in Gallenthin v. Borough of Paulsboro
III. Notice and Due Process regarding the redevelopment plan where the status of the properties in the neighborhood was changed from residential infill to properties to be acquired by condemnation.

The property owners seek a reversal of Judge Lawson's 2006 decision. In light of recent case law, attorneys representing the property owners will ask the court to dismiss the condemnation cases outright. At the very least, the matter should be remanded to the trial court for discovery and a full evidentiary hearing.

The Anzalones will be in court tomorrow for the proceedings. Louis Anzalone, a veteran of World War II and a former engineer with Lionel Trains, has always maintained that he wanted to stay in his home. "I don't want their money," he told the Public Advocate. "I want my house. From my back porch, I have a panorama of the whole ocean. It's heaven on earth."  

A rally is scheduled for 8:20 a.m. in front of the Hughes Justice Complex. 

Tomorrow May 5 at 10 a.m., the Senate Community and Urban Affairs Committee will take up S-757, the latest version of eminent domain reform, sponsored by Senator Ronald Rice. To read the most recent amendments, download bill S-757. The meeting  will take place in Committee Room 7 on the second floor of State House Annex, Trenton, New Jersey.

Rice is desperate for a second to move the bill, and committee affirmation, so that the bill can be put before the full Senate for action. This belies a critical question: How will this bill be reconciled with other pending bills - A1492, S559, and S1020, by Assemblyman Burzichelli, Senators Sweeney and Weinberg respectively – which also propose reform to the current version of the New Jersey Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq. Burzichelli’s bill passed the assembly in June 2006, ironically on the same day that Judge Lawrence Lawson issued his decision in the MTOTSA cases - City of Long Branch v. Brower and Anzalone.

Once again, the forces of eminent domain reform have been summoned to Trenton to testify and demonstrate for change. We expect the League of Municipalities to reiterate what they have said before: The courts have clarified the existing law in the Gallenthin and DeRose cases regarding the requisite substantial evidence required for blight determination and all-important notice provisions to affected property owners. Simply put, their position will be that the recent case law is all that needs to be memorialized in the statutes. We have yet to hear from Senate President Codey or Governor Corzine regarding the progress of eminent domain reform.

In a significant case, widely anticipated by the eminent domain bar, the Missouri Supreme Court overturned a lower court ruling which would have blocked communities from using eminent domain for private development supported by tax concessions on March 18, 2008. Meanwhile, the city has attacked the defendants in the press for defending themselves in the courts when the city condemned their property, as reported by Timothy Sandefur of the Pacific Legal Foundation (PLF). On April 1, 2008, The Pacific Legal Foundation filed a motion for reconsideration with the Missouri Supreme Court.

The issue in the case was whether a provision in the Missouri Constitution that allows so- called charter cities to use eminent domain also prevents non-charter cities from taking private property.  A charter city is defined as a municipalilty which had a minimum of 5,000 people at the time of
its incorporation and whose residents approved a local constitution.

The case, City of Arnold v. Tourkakis, was brought to the court by Dr. Homer Tourkakis, a dentist who practices in the city of Arnold, Missouri. Tourkakis challenged Arnold’s attempt to seize his property through eminent domain proceedings. In a 6-1 decision written by the Hon. Mary Rhodes Russell, the Supreme Court ruled in favor of Arnold, saying the state constitution gives the legislature the power to allow cities to use the power of eminent domain for redevelopment purposes. The court agreed with Arnold, and reversed the lower court.

The Supreme Court said that condemnation is authorized to Arnold for redevelopment of blighted areas under the Tax Increment Financing Act (TIF). The lower court sitting in Jefferson County had distinguished Arnold from constitutionally charter cities, or third-class cities,  with regards to the use of eminent domain to achieve economic development.  There are 37 charter cities in Missouri.

"They're going to put up some fence, and it's going to be in Eagle Pass just to make an example of the mouthy mayor of Eagle Pass." – Mayor Chad Foster, as quoted in the Houston Chronicle.

The Bush administration’s decision to move forward with condemnation to acquire the necessary easements for the construction of the border fence makes very little sense. "I think the way that the Bush administration is going about this, filing eminent domain actions against landowners and municipalities makes no sense," Senator Hillary Clinton said in a recent debate with Senator Obama held at the University of Texas in Austin.

In any taking such as this – a partial taking – the affected property owners will have a claim for the value of the land taken as well as damage to the remainder. The Texas Constitution provides compensation for any property taken or damaged as a result of an acquisition for public use in Article I, Paragraph 17:

TAKING, DAMAGING, OR DESTROYING PROPERTY FOR PUBLIC USE; SPECIAL PRIVILEGES AND IMMUNITIES; CONTROL OF PRIVILEGES AND FRANCHISES
No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities, shall be made; but all privileges and franchises granted by the Legislature, or created under its authority shall be subject to the control thereof.

The border fence project certainly falls within that provision and the damages to the remainder will in all likelihood be a larger issue than the taking itself. We posted earlier that the DHS wanted access to the properties for up to 6 months and the right to remove structures in the way of surveyors and engineers, and each landowner would receive $100 and be reimbursed for any damage to the property. See Don't fence me in with eminent domain (January 24, 2008).

NOTICE: YOUR PROPERTY MAY BE CONDEMNED.  If you own a property in an "area in need of redevelopment," (a.k.a blighted area") you would expect to see those exact words at the top of the notice you receive from a municipality. The notice issue was first discussed on this blog in a commentary about the Shennett case, when the Passaic Redevelopment Agency justified taking Charlie Shennett's land and said they did what they were legally required to do. I wrote then: This is not enough. The notice requirement does not spell out in the text what the ultimate outcome will be: in this case, condemnation and acquisition of the property through eminent domain proceedings. How is this due process?

Yesterday the Appellate Division of the New Jersey Superior Court decided the due process issue in three cases. Writing for the court, Judge Jack Sabatino issued an 88-page opinion, approved for publication, in Harrison Redevelopment Agency  v. De Rose v. Town of Harrison, et al. The companion cases are Harrison Redevelopment Agency  v. Amaral and Harrison Redevelopment Agency  v. Harrison Eagle.

The court ruled that the 45-day limit to file suit against a municipality's effort to blight property for redevelopment is constitutional only if the owner received notice that the action contemplated by the redevelopment may result in the condemnation of their property. The court said:

We hold that, unless a municipality provides the property owner with contemporaneous written notice that fairly alerts the owner that (1) his or her property has been designated for redevelopment, (2) the designation operates as a finding of public purpose and authorizes the municipality to acquire the property against the owner's will, and (3) informs the owner of the time limits within which the owner may take legal action to challenge that designation, an owner constitutionally preserves the right to contest the designation, by way of affirmative defense to an ensuing condemnation action. Absent such adequate notice, the owner's right to raise such defenses is preserved, even beyond forty-five days after the designation is adopted.

Three's a charm.  New Jersey's promised eminent domain reform enters its third year after many iterations of the bill, passed by the Assembly in 2006, failed in the Senate Community and Urban Affairs Committee in 2007, and reintroduced and referred on January 8 to the Assembly Commerce and Economic Development Committee as A1492.  The new eminent domain reform legislation (download the PDF) is the latest attempt by New Jersey legislators (sponsors John J. Burzichelli, Nilsa Cruz-Perez, Douglas H. Fisher,  and Pamela R. Lampitt) to amend the Local Redevelopment Housing Law (LRHL, N.J.S.A. 40A:12A-1 et seq.). The companion bill introduced to the Senate Community and Urban Affairs Committee is S559, sponsored by Senators Steven M. Sweeney, Barbara Buono, and Loretta Weinberg.

The public hearings, drafts of legislation, and testimony for interested parties on all sides of this contentious issue have continued without resolution.  Governor Corzine promised voters during his gubernatorial campaign in 2005 that eminent domain reform would be accomplished early in his administration.  Last year, at one of his public forums in Union Township, the governor said he would sign a bill by the fall of 2007.  The public is still waiting.

Note: Kevin Moore of Sills Cummis and William J. Ward of Carlin & Ward will discuss the current bill, its merits and shortcomings, and the status of eminent reform at the Eminent Domain in New Jersey  Lorman Education Seminar on April 17, 2008, in North Brunswick. For more information about the agenda, faculty, and continuing education credit, click here.