On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3342-02.
The opinion of the court was delivered by: Holston, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Newman, Axelrad and Holston, Jr.
Defendant, Rocco Berardi, owner of a strip mall named the "Browns Mills Shopping Center" in the Township of Pemberton (Pemberton), and defendant, Antonia Berardi, owner of an adjacent vacant piece of land, also considered part of the shopping center, appeal the Law Division's August 6, 2004 order denying defendants' motion for an order compelling Pemberton to file, record and serve a declaration of taking or otherwise abandon the proceedings pursuant to N.J.S.A. 20:3-25.*fn1
We are called upon to decide whether, in a condemnation action where an application is made by a condemnee pursuant to N.J.S.A. 20:3-25 for an order compelling a condemnor to either file a declaration of taking and make the required deposit of compensation offered the condemnee or abandon the proceedings, the court is mandated to grant the relief sought or has discretion to determine whether the declaration of taking is warranted. We hold that the statutory provision requires the court to grant the application.
Pemberton, an entity duly authorized and empowered to acquire real property for public use by condemnation pursuant to the provisions of the Eminent Domain Act of 1971 (the Act), N.J.S.A. 20:3-1 to -50 and N.J.S.A. 40A:12-5(a)(1) and N.J.S.A. 40A:12A-8c of the Local Redevelopment and Housing Law (LRHL), adopted a redevelopment plan pursuant to the LRHL to acquire a fee simple interest in part of the lands owned by the Berardis and designated as Block 775, Lots 18 and 19 on the tax map of the Township of Pemberton (the property), based on Pemberton's contention that the property had long been plagued with an outdated and unappealing facade and obsolete parking and circulation arrangements characterized by patched pavement and potholes. Pemberton thereafter, by ordinance, authorized the acquisition of the property for redevelopment in accordance with the redevelopment plan that it had previously adopted.
As required by N.J.S.A. 20:3-6, Pemberton attempted but was unable to acquire the property through bona fide negotiations with the Berardis. Pemberton had presented the Berardis with an offer for the property, accompanied by a complete copy of an appraisal made by a qualified real estate appraiser by regular and certified mail. The amount offered by Pemberton was $1,621,000, conditioned on the property being free of any material environmental contamination.
On September 30, 2002, Pemberton filed an order to show cause and complaint for condemnation pursuant to the Act against the Berardis and the named tenants occupying the shopping center. Simultaneous with the complaint, Pemberton filed a notice of lis pendens against the two parcels of property owned by the Berardis.
Shortly after the filing of the condemnation complaint, in January 2003 newly-elected Pemberton officials continued discussions with the Berardis to resolve issues concerning the property and its potential acquisition. Those discussions resulted in no action being taken by the Berardis to remedy the conditions at the shopping center that constituted the reason for the adoption by Pemberton of its redevelopment plan.
At or about the time that the condemnation complaint was filed, the Berardis filed an application for preliminary and final site plan approval with the planning board for the purpose of making several improvements to the property. That application included new pad sites for an expansion of one of its primary tenants, Rite-Aid, as well as for a new tenant, Dunkin' Donuts. Significant on-site improvements were also to be made for the other tenants, most of whom had been leasing premises in the shopping center for a substantial period of time due to its location in the town center of Browns Mills.
On June 23, 2003, the court appointed commissioners pursuant to N.J.S.A. 20:3-12. On November 6, 2003, the parties participated in a Commissioners' Hearing, and a Commissioners' Report was filed on or about November 10, 2003. Fair market value was determined by the commissioners to be $2,270,000. On November 18, 2003, the Berardis filed an appeal of the commissioners' decision.
During the two years that have elapsed from the beginning of negotiations between Pemberton and the Berardis to March 11, 2004, Pemberton has never filed a declaration of taking. Therefore, on March 11, 2004, the Berardis filed a motion to compel Pemberton to file a declaration of taking or abandon the proceedings pursuant to N.J.S.A. 20:3-25. On April 30, 2004, the trial court denied the motion to compel but ordered Pemberton to deposit the fair market value of $2,270,000 as determined by the commissioners with the Clerk of the Superior Court within thirty days. On May 18, 2004, Pemberton deposited $2,270,000 into the Superior Court Trust Fund Account as required by court order.
On June 22, 2004, more than three months after the date of its March 11, 2004 application for a declaration of taking, defendants renewed their motion to compel Pemberton to file a declaration of taking or abandon the proceedings pursuant to N.J.S.A. 20:3-25. On August 6, 2004, the trial court again denied defendants' application. The court, however, certified its decision as a final order on the declaration of taking issue pursuant to Rule 4:42-2. This appeal followed.
The statute at issue, N.J.S.A. 20:3-25, states:
If within 6 months from the date of appointment of commissioners, the condemnor fails to file a declaration of taking, the court, upon application of any condemnee, and on notice to all parties in interest, may require the condemnor, at its election, to either file a declaration of taking and make the deposit hereinabove provided, or abandon the proceedings pursuant to section 35 hereof. For good cause and upon terms, the court may extend the time for the filing of such declaration of taking, but not more than 3 months after the commencement of the action. [N.J.S.A. 20:3-25 (footnote omitted) (emphasis added).]
The Berardis argue the plain and ordinary meaning of the words of N.J.S.A. 20:3-25 require Pemberton to file a declaration of taking or abandon the proceedings. The Berardis contend that the condemnation action has interfered with business relations between themselves and their various tenants of the property. The Berardis claim that hardship also arises from the uncertainty as to Pemberton's intentions regarding the property. The Berardis assert that they, therefore, sought recourse by making the application provided to a condemnee by N.J.S.A. 20:3-25. They filed two separate motions to compel Pemberton to file a declaration of taking or abandon the proceedings. The court, however, in relying on the decision in Borough of Tenafly v. Centex Homes Corp., 139 N.J. Super. 490 (Law Div. 1975), denied both motions.
Pemberton argues that employing the fundamental concept of statutory interpretation of giving the statutory language its plain meaning sustains the trial court's ruling on the motion. The critical word subject to interpretation is the Legislature's use of the word "may" in both sentences of the statute. Pemberton contends that for the court to adopt the position urged by the Berardis, the word "may" must be interpreted as being mandatory and not permissive. Pemberton argues that if the Legislature intended the language to be mandatory, it would have been so stated. Pemberton claims that the word "shall" would have been used rather than the word "may" to avoid ambiguity. Applying the statute's permissive language to the interpretation, Pemberton contends, would provide a reasonable result.
Pemberton suggests that the following is the correct interpretation of the statute: First, the condemnee has the right to file an application to require the condemnor to file a declaration of taking if the condemnor does not do so within a timeframe that is set forth in the first sentence of the statute. The court is then called upon to decide, in its discretion, whether the declaration of taking "may" be warranted on the facts of the particular case that is presented to it. The second sentence of the statute provides the court with further discretion with respect to the filing of the declaration of taking. Specifically, that discretion is directed to whether the declaration of ...