On appeal from Superior Court of New Jersey, Law Division, Civil Part, Essex County, L-238-98.
Judges Petrella, Braithwaite, and Wells.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
As amended September 6, 2001
This is an appeal from a ruling that a condemnation proceeding by plaintiff Township of West Orange (Township) was appropriate and served a public purpose. Defendant 769 Associates, LLC (Associates) argues that the condemnation of a portion of its property was designed to serve a private interest and that there was no valid public purpose warranting the condemnation. Defendant seeks a reversal of the motion judge's ruling and the dismissal of the Township's condemnation action.
Associates owns property at 769 Northfield Avenue in West Orange, consisting of a medical office building and a parking lot that services the building. Approximately 2,000 feet north of Northfield Avenue and 2,000 feet west of Pleasant Valley Way, lies 58.70 acres of land on which Nordan Realty Corp. (Nordan), a private developer, intends to construct a relatively high-density housing development, consisting of ninety-five single-family market value homes, to be known as Northfield Village.
To the north of Nordan's site is another proposed development, designated as Bel-Aire at West Orange, where approximately 198 single-family homes are planned for development. West of Nordan's site is a single-family home. Southeast of Nordan's property is a 52-acre tract owned by the Township, consisting of vacant woodlands and zoned for residential use. On the east, Nordan's property abuts South Mountain Reservation, an Essex County Park.
On March 5, 1986, the West Orange Planning Board (Board) passed a resolution granting preliminary site plan approval to Nordan for Northfield Village. Access to the site was originally contemplated by use of Cedar Avenue to Pleasant Valley Way. Cedar Avenue, shown as a roadway on various maps, borders the northern side of the Nordan property and extends west from Pleasant Valley Way to the border of Livingston Township. The roadway is in a hilly area of the Township, as the Nordan and Bel-Aire properties appear to be. Currently, Cedar Avenue is a gravel and dirt road, for some part, that is not fully improved and contains slopes that slightly exceed those allowed in the Township ordinance. Although the roadway requires utilities, drainage, curbing, pavement, and sidewalks, it is a dedicated street and is considered a public right-of-way.
Opposition to the proposed Cedar Avenue access was raised, beginning in the late 1980s, by persons residing near Cedar Avenue who formed the Oldstead Residential Association and appeared at Planning Board hearings to object to the proposed development of the roadway. Herbert Waldman, who was a member of that Association and one of the residents that opposed the Cedar Avenue access, also served as councilman from 1990 to 1998, and voted, as a councilman and as a member of the Planning Board, on the project as well as the access that was subsequently proposed, which resulted in institution of condemnation proceedings against private property owned by Associates. Associates has asserted political motivation, without specifically arguing conflict of interest.*fn1
Eventually, it was determined that an alternate means of access to the Nordan property via Northfield Avenue should be studied. The Township commissioned a traffic study by Hamal Associates, Inc., paid for by Nordan, to consider alternate access to Nordan's property. On December 9, 1991, Hamal presented its report, which proposed, as an alternative to the Cedar Avenue access, the construction of a new roadway parallel to and west of Pleasant Valley Way, and aligned to meet with Northfield Avenue near the point where it curves to meet Pleasant Valley Way.*fn2 The proposed roadway would utilize a twenty foot wide right-of-way owned by Nordan, as well as property acquired, partially through condemnation, from adjacent property owners, including a strip of land of approximately one-half acre on the western edge of Associates' property within a couple of feet of Associates' medical office building.
On July 24, 1992, Nordan and the Township entered into a Developer's Agreement providing that the Township Council "shall determine access and egress to Northfield Avenue not inconsistent with" the December 9, 1991, Hamal Associates Traffic Study. The Agreement also provided that Nordan was to negotiate with the adjoining property owners to secure the necessary right-of-way to access its property. If the negotiations were successful, Nordan was to bear the cost of constructing the right-of-way. However, if the right-of-way could not be acquired through negotiations after a reasonable period of time, the Township was obligated under the Agreement to use its eminent domain powers to acquire the property, with Nordan reimbursing the Township for all legal fees, professional fees, court costs, acquisition costs and reasonable attendant costs incurred by the Township.
Amendments to the Developer's Agreement were made in April 1993 and July 14, 1994, under which the Township agreed to an additional single-family lot in consideration for Nordan's donation of $10,000 to the West Orange Community House. Moreover, Nordan was to pay the Township an additional $40,000 upon receiving subdivision approval and a certificate of occupancy. Finally, Nordan was required to make a series of payments totaling $500,000 to the Township.*fn3
On July 11, 1995, the Township Council adopted Ordinance No. 1342-95, authorizing the Township to condemn and acquire, through its eminent domain power, an easement across Associates' property "to facilitate the development of the Nordan Tract and bring new ratables to the Township." This ordinance was repealed by Ordinance No. 1386-96 "to facilitate a more orderly and equitable transition period for the ...