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CANDELIERE v. U.S.A.

June 29, 1992

Re: Frank S. Candeliere, Jr., et al
v.
U.S.A., et al



The opinion of the court was delivered by: NICHOLAS H. POLITAN

 ORIGINAL ON FILE WITH CLERK OF THE COURT

 Dear Counsel:

 This matter comes before the court on plaintiff's motion to enforce the settlement of this action. Plaintiff has proceeded by Order to Show Cause for relief from the apparent determination of the Mayor of the City of Orange Township to refuse payment on the settlement of Frank Candeliere, t/a Modern Iron Works, and originally Samuel Candeliere, now deceased. For the reasons outlined herein, plaintiff's motion to enforce the settlement is GRANTED.

 FACTS

 Samuel S. Candeliere and Frank S. Candeliere, Jr. were iron and steel fabricators in business at 408 Tompkins Street, Orange, New Jersey as Modern Iron Works ("Modern"). In 1975 the City of Orange applied for and ultimately entered into an agreement with the United States Department of Housing and Urban Development ("HUD") to accept a Community Development Block Grant ("CDBG") pursuant to and subject to the Housing and Community Development Act of 1974, 42 U.S.C. § 5301, et seq. On November 22, 1977 the City Council of the City of Orange Township ("City Council" or "Council") adopted an ordinance which provided for the redevelopment of a section of the city designated as the I-280 Economic Development District. This area encompassed the Candelieres' property. The ordinance blighted the Candelieres' neighborhood pursuant to N.J.S.A. § 40:55-21.7 and adopted a Redevelopment Plan for the neighborhood pursuant to N.J.S.A. § 40:55-21.10.

 The Redevelopment Plan was to be funded, at least in part, through the CDBG program. The city ordinance and grant agreement with HUD further provided that all property owners would be relocated in compliance with all applicable provisions of the of the Uniform Relocation Assistance and Real Property Acquisitions Policy Act of 1970. See 42 U.S.C. 4601 et seq. On March 10, 1978, the Candelieres were notified that their property would be acquired by the city.

 Following Modern's eviction, the Candelieres filed a claim with the city for relocation benefits. Hearings on that claim commenced before the Council in 1983. The Candelieres did not participate in the hearings, arguing that the City Council was without legal authority to conduct hearings on the claim. The Council nevertheless made findings and awarded Modern $ 1,368.48 in relocation benefits and an additional $ 12,000.00 for moving expenses.

 Modern appealed the award to HUB. HUD, in January 1984, issued a decision that upheld most of the Council's findings, but also concluded that Modern was entitled to compensation for four additional items: (1) installation of relocated machinery with proper utility connections and concrete pads; (2) installation of an overhead monorail system; (3) the cost of necessary licenses or permits; and, (4) expenses incurred in moving personal property not in the trailers.

 Modern then filed an action against the City and many of its officials, Candeliere v. City of Orange Township, Civil No. 84-4351, challenging the Council's authority to hold hearings on the relocation claim. On August 19, 1985, the Honorable H. Lee Sarokin, U.S.D.J., granted the Council's summary judgment against Modern, holding that there was "no just basis for plaintiffs' dogged contention that the City Council was without power to adjudicate their claim, or that the Mayor was the sole appropriate official to take action on their claim." Id., bench op. at 12 (D.N.J. August 19, 1990). The court further determined that Modern was required to exhaust that administrative remedy prior to bringing an action in district court. Id. Judge Sarokin's ruling was affirmed by the Third Circuit on July 30, 1986 and the matter was then returned to the City Council.

 On May 5, 1987 the City Council Acting as the Redevelopment Agency denied Modern's request to reopen its relocation claim. The Council declared that Modern had forfeited any entitlement to further relief by its protracted refusal to recognize the authority of the City Council as the Redevelopment Agency to pass on the claim. HUD upheld this determination on December 18, 1987.

 In March 1989 the present action was filed against HUD and the Municipal Council of Orange, Acting as a Redevelopment Agency, challenging that decision. Evidently in response to Judge Sarokin's ruling that "The City Council is properly constituted to adjudicate plaintiff's claim," Candeliere v. City of Orange Township, bench op. at 12, no other defendants were named in the complaint. *fn1"

 On September 24, 1990 I heard cross motions for summary judgment and remanded the relocation claim to the "the City Council as the Redevelopment Agency," to complete the hearing process to which plaintiffs were entitled. Candeliere v. United States of Am. Dept of Housing and Urban Dev., et al., Civil No. 89-934, transcript of proceedings at 11 (D.N.J. Sept. 24, 1990). The hearing process was begun on March 27, 1991, but was thereafter repeatedly postponed.

 On February 24, 1992, this court conducted a conference among counsel for the parties. At that conference, I directed the Council, sitting as the Redevelopment Agency, to appear in court on February 26, 1992 for the purpose of resuming the postponed hearing on Modern's relocation claim. All Members except the Council Chairman, who was excused, appeared, in the presence of their Counsel, Mr. Millichap, duly appointed attorney for the Council, sitting as Redevelopment Agency. The members in attendance were James Brown, Mims Hackett, Jr., Marian Silvestri, William Lewis, Louise Corvino, and Dwight Mitchell. With six of the seven members of the City Council present, the Court informed all parties that the hearing would begin immediately and continue every day until a determination was reached.

 Prior to commencement of any hearings on February 26, 1992 the parties, through counsel, entered into settlement negotiations. These negotiations resulted in an agreement between the Council, sitting as the Redevelopment Agency, and plaintiff to settle the relocation claim for $ 285,000. The Council members, in open court voted unanimously in favor of the settlement. This settlement was embodied in the Consent Order signed by the court and filed on March 12, 1992. The Consent Order provided that "the Municipal Council shall at their regularly scheduled meeting to be held on March 3, 1992 adopt the appropriate and necessary legislation to appropriate the funds to pay the agreed upon sum to plaintiff and shall in all respects cause said funds to be paid to plaintiff in an expeditious manner."

 Apparently on the advice of the city's Corporation Counsel, not special counsel Millichap, the Council deferred the March 3, 1992 vote, and thereafter failed to take action at its next meeting on March 17, 1992.

 On March 23, 1992 plaintiffs received correspondence from Jean D. Barrett, Esq., purporting to represent Robert L. Brown in his capacity as Mayor of the City of Orange Township. In that letter Ms. Barrett indicated Mayor Brown's consideration to withhold authorization of the payment of the settlement on the basis of alleged violation of the open Public Meetings Act ("Sunshine Law"), and because of an alleged failure to budget for the settlement. In discussions before the court, the Mayor orally asserted his contention that the City Council, sitting as a Redevelopment Agency, did not have authority to settle the relocation claim without the Mayor's active participation in and approval of the negotiation of any settlement on behalf of the Redevelopment Agency. For this proposition the Mayor indicated he was relying upon the Faulkner Act.

 Frank Candeliere, brought this motion requesting the following relief:

 1. to join as a party defendant, if necessary to implement the settlement, the Mayor of the City of Orange Township as a City Officer to the extent he is responsible for and authorized to implement the terms of the Consent order, and to execute any settlement check;

 2. to join as a party defendant, to the extent necessary and as its interest may appear, the City of Orange Township as the entity responsible for and authorized to implement the terms of the Consent Order and to pay any settlement of this matter;

 3. to order and direct, under penalties of Contempt of Court, the enforcement of the settlement set forth in the Consent Order; and

 4. the imposition of such other and further sanctions as the court finds just to make whole the plaintiff for the unjustified and improper delay in the completion of the settlement of this matter.

 A brief in opposition to plaintiff's application for Order to Show Cause was filed on behalf of Mayor Robert L. Brown and the City of Orange Township. The opposition maintains that the settlement must be set aside on essentially two grounds: (1) the settlement was approved at a meeting held in violation of the Open Public Meetings Act, and (2) the settlement does not include indispensable parties.

 At an open public meeting of the City Council, Acting as the Redevelopment Agency, on April 7, 1992, Councilman Lewis indicated that the March 3, 1992 meeting failed to produce any action because "a discussion and debate arose relative to the method of payment, not the judiciousness of it, but simply the method of payment." In the Matter of: A Special Meeting of the City Council # 84-92 Modern Iron Works, transcript at 10 (The City of Orange Township City Council Meeting, April 7, 1992).

 At the April 7th meeting, the Council reconvened as the Redevelopment Agency. Assistant Corporation Council Vena addressed the Council at first in open session. He told the Council:

 
What has been filed as of today is an application on behalf of the City of Orange Township and its mayor to set aside that settlement on the grounds that it was entered into illegally and in an ultravires manner, as it is the position of the City Attorney and City of Orange Township ...

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