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Borough of Rockaway v. Donofrio

Decided: October 25, 1982.

BOROUGH OF ROCKAWAY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARGARETE DONOFRIO AND FRED G. DONOFRIO, HER HUSBAND; DOROTHEA ALLEN AND MR. ALLEN, HER HUSBAND; AND ROBERT ALLEN AND MRS. ALLEN, HIS WIFE, DEFENDANTS-APPELLANTS



On appeal from the Superior Court, Law Division, Morris County.

Milmed, Morton I. Greenberg and Furman. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.

Greenberg

The issue raised on this appeal under the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 et seq., has not been specifically decided in any reported opinion. Should a condemnation action be dismissed if the condemnor does not comply with the requirements of N.J.S.A. 20:3-6 before instituting a condemnation action?

The procedural history of this case is somewhat complicated. On February 15, 1980 plaintiff borough's administrator sent a letter to the Estate of Carrie Allen. The letter recited that it was plaintiff's intention to acquire for a public purpose a portion of Block 13, Lot 3. It is not clear from the record why the letter was sent to the Estate of Carrie Allen. We assume the property assessment was carried that way. The letter indicated that plaintiff had engaged an appraisal firm to arrive at a fair and equitable consideration for the acquisition and that the amount it recommended was $3,500. Plaintiff offered to acquire the land for that price.

This letter did not lead to an out-of-court acquisition. On July 18, 1980 plaintiff filed a condemnation complaint against defendants. Plaintiff alleged that defendants owned the property, that it desired to acquire the property for street improvements, including drainage, that it had attempted to acquire it in negotiations with defendants; that it had offered defendants $3,500 and that it had been unable to acquire the property. Consequently, plaintiff sought the appointment of commissioners to value the property.

Defendants filed an answer to the complaint on November 5, 1980. They admitted that they owned the property and that plaintiff had offered to purchase it for $3,500. Defendants asserted as a separate defense that plaintiff had not complied with N.J.S.A. 20:3-1 et seq. and particularly had failed to satisfy the requirements of N.J.S.A. 20:3-6 before bringing the action. Specifically, defendants asserted that plaintiff had failed to give them information concerning the projected use of the property

by plaintiff. This allegation charged a significant omission since plaintiff proposed only a partial taking. Thus, defendants wanted to know the impact of the taking on the remaining property. The answer further indicated that plaintiff had failed to specify the elevation of the improvements and what the access would be to the remaining property. Defendants claimed that because of the lack of information given them, plaintiff had not made a bona fide offer for the property. Defendants further pleaded that plaintiff had not accurately described the property to be taken.

Defendants filed an affidavit of Barry J. Krauser, a licensed real estate broker, with their answer. He indicated that after reviewing the map of the proposed taking and the proposed acquisition sketch he found it impossible to make any determination concerning the impact of the taking on the remainder. Consequently, he could not assess the damage to the remaining property. On November 13, 1980, Harry J. Riskin, defendants' attorney, filed a certification in which he stated that he had attempted to get further information from plaintiff in order to assist Krauser in making his appraisal. Specifically, he tried to discover the elevation of the road to be constructed. Riskin indicated that he could not obtain reliable information.

A pretrial conference was held November 14, 1980. Among the issues listed to be decided at the trial was whether plaintiff had complied with N.J.S.A. 20:3-1 et seq.; whether plaintiff had made an appropriate offer under N.J.S.A. 20:3-6, whether defendants were given the opportunity to accompany plaintiff's appraiser on the property during his inspection, as required by N.J.S.A. 20:3-6; whether plaintiff made a reasonable disclosure of the manner it calculated the offer under N.J.S.A. 20:3-6, and whether plaintiff's alleged failures rendered the matter jurisdictionally defective. A plenary hearing was scheduled for December 12, 1980. Since the parties agreed there were no facts in dispute, no testimony was taken at that time. Plaintiff's attorney at the hearing stipulated that his client had not complied with N.J.S.A. 20:3-6 since it did not notify defendants that an

appraiser was going to the property. Thus, defendants did not have the opportunity which N.J.S.A. 20:3-6 required that they be given, to accompany the appraiser to the property. Because of this omission defendants urged that the action be dismissed. The judge, however, determined to allow plaintiff to attempt to cure the defect. Thus, he did not dismiss the action. Rather, he stayed the case pending appointment by plaintiff of a new appraiser. He required that defendants be given notice of an opportunity to accompany the appraiser on the property during his inspection. Plaintiff was given until January 19, 1981 to give defendants the appropriate notice. A formal order evidencing this ruling was filed on December 24, 1980. The order provided that if plaintiff did not comply with its terms, the action would be dismissed upon defendants' request if their attorney filed an ex parte affidavit reciting the noncompliance.*fn1

It appears that plaintiff complied with the order of December 24, 1980. In any event, the action was not dismissed. On April 28, 1981 an order was signed that plaintiff was to amend its complaint to enlarge the description of the property being condemned. On the same day the matter came on on defendants' ...


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