On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket Nos. L-4040-04 and L-4044-04.
The opinion of the court was delivered by: Lihotz, J.T.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2007
Before Judges Weissbard, Payne and Lihotz.
Defendants, Artaki, LLC (Artaki), Michael Tzezairlidis, Alexandros Tzezairlidis and Katrina Tzezairlidis, appeal from the denial of their joint motion to consolidate two condemnation actions initiated by the Union County Improvement Authority (UCIA), seeking condemnation, for the public purpose of redevelopment, of five contiguous properties located in the City of Linden (City). Defendants argue consolidation is proper because "there is unity of title, unity of use and physical contiguity among all the parcels in question." The trial court determined that the corporate entity, Artaki, was sufficiently distinct from the individual owners, to defeat unity of ownership, making consolidation inappropriate. We reverse and remand.
UCIA filed two complaints. The first, UCIA v. Artaki, LLC. et. als., Docket No. UNN-L-4040-04, sought to acquire by condemnation under the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 to -50, land owned by Artaki, located at Block 449, lots 9 and 10, on the Official Tax Map of the City, commonly known as 133 and 137 South Wood Avenue. The property contains a two-story 4,146 square foot mixed-use building, which includes ground floor retail space and a second floor residential apartment.
The owners of Artaki are: Alexandros, twenty-five percent; Katina, twenty-five percent; Michael, twenty percent; John Tzezairlidis, twenty percent; and George Tzezairlidis, ten percent. Alexandros and Katina are the parents of Michael, John and George.
The second complaint, UCIA v. Michael Tzezairlidis, et. als., Docket No. UNN-L-4044-04, sought to acquire four parcels by condemnation: one property solely owned by Michael, located at Block 449, Lot 14, on the Official Tax Map of the City, commonly known as 109 South Wood Avenue, improved with a two-story 1,806 square foot residential apartment building; and three properties jointly owned by Michael, Alexandros and Katina, including: Block 449, Lots 1 and 15, on the Official Tax Map of the City, commonly known as 103, 105, and 107 South Wood Avenue, improved with two attached buildings used for a mixture of retail, industrial and residential apartment space; Block 449, Lot 2, on the Official Tax Map of the City, commonly known as 16 East Linden Avenue, improved with a one-story building containing approximately 3,750 square feet of industrial warehouse space; and Block 449, Lots 11, 12, and 13 on the Official Tax Map of the City, commonly known as 113, 115, and 127 South Wood Avenue, which contains a vacant 3,985 square foot two-story, mixed-use building, that, historically, was used as retail and residential space.
Defendants' properties are located within a section of the City that was designated as an area in need of redevelopment, pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -49. The area was re-zoned in accordance with the City's redevelopment plan, and the City authorized the execution of an Interlocal Services Agreement designating UCIA as the redevelopment agency for the area. UCIA designated Verge Properties Urban Renewal, LLC (Verge) as its redeveloper. Verge received approvals*fn1 from the City's Planning Board to develop the entire site in accordance with the newly established zoning plan and to construct 15,000 square feet of retail space and sixty-eight residential condominiums.
The trial court entered orders concluding that the UCIA properly exercised its eminent domain powers to condemn the subject properties and appointing commissioners to determine the just compensation to be paid to defendants. On October 12, 2005, the appointed commissioners rendered reports in each lawsuit, valuing each parcel separately. Defendants appealed to the Law Division, N.J.S.A. 20:3-12; R. 4:73-6(a), arguing the valuations failed to provide "just compensation for the property taken." State v. Caoili, 135 N.J. 252, 260 (1994); N.J. Const. art. I, ¶ 20. There is no challenge to the exercise of authority by the UCIA. The issue remaining for disposition is the value of the properties subject to condemnation.
On November 4, 2005, UCIA filed a motion to consolidate the two condemnation matters for trial. Defendants joined in the request. UCIA then withdrew its motion, and consolidation was denied by order dated March 14, 2006. Defendants did not file for reconsideration or appeal of that order. On June 2, 2006, defendants initiated their own motion for consolidation of the two actions, which was opposed by UCIA. The motion was denied on June 23, 2006. Upon our leave granted, R. 2:2-4, defendants filed this interlocutory appeal.
We first briefly address the question of whether defendants' motion to consolidate should have been denied because it was an untimely request for reconsideration of the March 14, 2006 order denying consolidation. Plaintiff argues that denial of defendants' motion for consolidation, not filed until June 2, 2006, was warranted on the procedural basis that it was filed out of time. See R. 4:49-2 (requiring motions for reconsideration to be filed within twenty days of date of court order).
In exercising his discretion to consider the June 2, 2006 motion, the motion judge stated:
[T]echnically this is a motion for reconsideration of my original decision with a . . . little different argument.
Number one, it is out of time really . . . .
The plaintiff is accurate in terms of this rule. It has to be done within 20 days of the original decision . . . . I won't hang my hat on just that, quite candidly, ...