Before Judges Skillman, Newman and Fall.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
In this condemnation appeal, we examine application of the appeal- preclusion provision contained in N.J.S.A. 20:3-13(a) to a property owner who has failed to appear at the hearing of the appointed condemnation commissioners. We conclude that a property owner or other interested party (condemnee) who fails to appear, personally or through counsel, at the scheduled and noticed hearings of the condemnation commissioners is precluded from appealing to the Law Division from the report issued by the commissioners concerning the amount of compensation to be paid to the condemnee by the condemning authority. However, we also hold that the notice to the condemnee of the hearing of the condemnation commissioners, required by N.J.S.A. 20:3-12(c), must fairly apprise the condemnee of the appeal-preclusion consequence of the condemnee's failure to appear at the hearing. Here, we conclude the notice given to defendant, Stylianos Maropakis, failed to properly advise him that his failure to appear at the commissioners' hearing would prevent him from appealing to the Law Division from their report.
This appeal arises from the following undisputed facts and procedural history. On or about March 6, 1990, defendant purchased real property located at 62-66 West Front Street, in Keyport, for $195,000. On March 20, 1992, defendant applied for site plan approval to develop the property for commercial use, and submitted a revised application on May 10, 1993. During the pendency of the application, plaintiff, Borough of Keyport, expressed an interest in acquiring the property for public use. In or around 1994, defendant began negotiating with plaintiff regarding the sale of the property. Defendant offered to sell the property to plaintiff for $260,000 and then for $200,000. Plaintiff rejected these offers. Plaintiff had the property appraised, resulting in a value of $73,000. Plaintiff then offered to purchase the property for the appraised value, and defendant refused. Plaintiff had the property appraised again on January 6, 1997, also resulting in a value of $73,000. Plaintiff again offered defendant $73,000 for the property, and defendant again refused.
On June 17, 1997, plaintiff filed a verified complaint, declaration of taking, and an order to show cause in the Law Division, seeking an order authorizing plaintiff to commence a preliminary entry upon the property. The trial court entered an order on June 30, 1997, allowing the preliminary entry upon defendant's property. On November 21, 1997, plaintiff filed an amended verified complaint, naming all other persons with an interest in the property as defendants and seeking condemnation of the property. That same day, the court entered an order for payment of $73,000 for the property to be paid to the court and authorized plaintiff to take immediate possession of the premises. On January 9, 1998, the trial court entered an order for judgment, vesting with plaintiff the power of eminent domain to acquire the property and appointing condemnation commissioners to examine and appraise the property. The commissioners' hearing was scheduled for March 10, 1998, and on February 13, 1998, plaintiff provided all defendants, including Maropakis, with notice of same. The notice, in its entirety, provided, as follows:
Your are hereby given notice of a meeting of the Commissioners appointed in this action, to be held at the office of Commissioner, Adrienne H. McComber, Esq., McComber & McComber, 54 Shrewsbury Avenue, Red Bank, New Jersey 07701, on Tuesday, March 10, 1998 at 10 AM at which time the Commissioners will proceed with their duties and fix the compensation to be paid for the land and premises described in the complaint in this action including damage, if any, resulting from the taking to any remaining property.
However, neither defendant Maropakis, nor anyone on his behalf, appeared at the noticed hearing. At the hearing, plaintiff submitted the appraisal of $73,000 for the property. On March 18, 1998, the appointed commissioners, after hearing plaintiff's expert testimony and representations, recommended compensation be paid by plaintiff to defendant Maropakis in the amount of $87,375 as just compensation for the property.
On April 8, 1998, defendant filed a notice of appeal with the Law Division from the commissioners' recommended award within the time prescribed by R. 4:73-6(a). On April 15, 1998, plaintiff filed a motion to dismiss defendant's appeal, contending his failure to appear at the commissioners' hearing precluded his appeal, pursuant to N.J.S.A. 20:3- 13(a). On May 19, 1998, defendant filed a cross-motion seeking an order denying the motion to dismiss and vacating the condemnation commissioners' award.
The trial court heard the motions on July 24, 1998. On December 21, 1998, the motion judge issued a written opinion denying defendant's motion to appeal the commissioners' decision. In denying defendant's motion to appeal, the judge stated, in pertinent part:
The issue before the court is whether a property owner's failure to appear before the commissioners at the condemnation hearing precludes the owner from appealing the valuation decision entered by the commissioners. Simply stated, the issue is whether N.J.S.A. 20:3-13, which allows an interested party who appears before the condemnation commissioners the right to appeal the decision of the commissioners, should be construed in the instant matter, to preclude [defendant] from appealing since he failed to appear at the hearing.
I find that [defendant] has not complied with the statute and hereby deny his motion to appeal the commissioners' valuation decision. His failure to appear before the condemnation commissioners at their valuation hearing, constituted a waiver of his right to appeal. [Defendant] could have and should have appeared before the commissioners even if he chose not to actively participate. See Com'r of Transp. v. Siris, 191 N.J. Super. 261, 271 (Law Div. 1983). This is a prerequisite to the right to appeal. See N.J.S.A. 20:3-13(a). Moreover, I find no compelling reason why I should circumvent the statute and allow the appeal to go forward. To do so would be to allow the defendant a "second bite at the apple."
That opinion was memorialized in an order entered on February 17, 1999, denying defendant's motion "to set aside and vacate the within action and thereby appeal the decision of the condemnation commissioners[.]" The judge further ordered plaintiff to pay $87,375 to defendant, ...