July 3, 2007
CITY OF BRIGANTINE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, BY AND THROUGH ITS MAYOR AND COUNCIL, PLAINTIFF-RESPONDENT,
ANTHONY SENTORE AND EVELYN SENTORE, C/O POST OFFICE BOX 1109, BRIGANTINE, NEW JERSEY, OWNER OF PROPERTY KNOWN AS BLOCK 101, LOT 1.03 ON THE BRIGANTINE TAX MAP AND THE STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2837-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 13, 2007
Before Judges Kestin, Graves and Lihotz.
On April 29, 2005, the plaintiff, City of Brigantine (City), obtained an order to show cause requiring defendants Anthony Sentore and Evelyn Sentore to show cause why it was not authorized to exercise its power of eminent domain to obtain an easement over a portion of defendants' vacant beach-front property, which is designated as Lot 1.03, in Block 101 on plaintiff's tax map. Both parties filed briefs and exhibits prior to the return date of the order to show cause on June 6, 2005. Defendants appeal from an order entered on June 20, 2005, granting the City "an irrevocable, perpetual, permanent and assignable easement" over a portion of defendants' property for "beach nourishment/re-nourishment, maintenance or replenishment projects." The order also appointed condemnation commissioners to "fix the compensation to be paid by the plaintiff for the taking of said easement interest." After reviewing the record and applicable law in light of the contentions advanced on appeal, we affirm.
In a comprehensive thirty-one page written decision, the trial court determined the easement was necessary "to complete a beach nourishment project" in conjunction with the State of New Jersey and the Army Corps of Engineers. The court found that the City had participated in various beach protection and preservation projects with state and federal authorities in an attempt to fortify the beach in the area of defendants' property. The court also stated a "significant portion" of defendants' property "extends into the Atlantic Ocean and is underwater. The land portion of [defendants' property] is comprised of a public seawall, and a beach which although privately owned by the Sentores, is used and traversed by the public." Finally, the court described the proposed beach replenishment project and the easement area as follows:
The City estimates that for no longer than a four-week period of time, there will be pipes and equipment in the easement area on [defendants' property] in order to facilitate the movement and placement of sand. The [p]roject will involve the pumping of sand from the inlet between Brigantine and the next island north of Brigantine onto the [p]roperty, as well as the 35 block-long stretch of beach.
[Defendants' property] is approximately 100 feet wide running from north to south. It extends approximately 2,500 feet from west to east into the Atlantic Ocean. The western border of the [p]roperty consists of a public promenade which is known as the Brigantine Seawall. The easement area which the City seeks to acquire by condemnation, consists of 100 feet in width at the boundary of the seawall and extends 750 feet eastwardly in the direction of, and into the Atlantic Ocean.
On appeal, defendants present the following arguments:
THE TRIAL COURT ERRED IN HOLDING THAT THE CITY'S FAILURE TO COMPLY WITH THE STATUTORY PREREQUISITES SET FORTH IN THE EMINENT DOMAIN ACT, N.J.S.A. 20:3-16 AND N.J.S.A. 20:3-6, WERE TECHNICAL VIOLATIONS NOT WARRANTING DISMISSAL OF THE VERIFIED COMPLAINT.
THE TRIAL COURT ERRED IN HOLDING THAT THE APPRAISAL REPORT PREPARED FOR THE CITY BY MICHAEL J. LANGE WAS NOT SO WILFULLY OR PATENTLY INADEQUATE OR DISTORTED SO AS TO VIOLATE THE BONA FIDE NEGOTIATIONS REQUIREMENTS OF EMINENT DOMAIN ACT.
THE TRIAL COURT ERRED IN HOLDING THAT THE CITY OF BRIGANTINE HAD PROPERLY EXERCISED THE POWER OF EMINENT DOMAIN DESPITE NOT HAVING ADOPTED AN ORDINANCE AUTHORIZING SAME UNTIL APRIL, 2005.
THE TRIAL COURT ERRED IN NOT DISMISSING THE VERIFIED COMPLAINT AS THE CITY WAS NOT PROPERLY VESTED WITH THE AUTHORITY TO CONDEMN DUE TO ITS F[AI]LURE TO ENGAGE IN BONA FIDE NEGOTIATIONS AS REQUIRED BY THE EMINENT DOMAIN ACT.
THE TRIAL COURT ERRED IN DENYING THE SENTORES' REQUEST FOR REASONABLE ATTORNEYS' FEES AND COSTS OF SUIT.
It is clear, however, defendants are not entitled to an award of counsel fees and costs (Point V) because the court did not render a final judgment in their favor, and the condemnation action has not been abandoned. N.J.S.A. 20:3-26(b). Moreover, defendants' remaining arguments (Points I through Point IV) were carefully considered, but rejected, by the trial court, and we are convinced that the record amply supports the court's findings and conclusions.
In our view, the trial court correctly concluded that the City's technical violations of N.J.S.A. 20:3-16 and N.J.S.A. 20:3-6 did not prejudice defendants and did not require dismissal of the action; the City's appraisal report was not so deficient or inadequate that it could not serve as a basis for bona fide negotiations; the ordinance adopted by the City prior to the filing of its verified complaint "was consistent with all statutory requirements"; and the City engaged in bona fide negotiations concerning the value of defendants' property prior to the commencement of the condemnation action as required by N.J.S.A. 20:3-6. In short, we find no merit in any of defendants' allegations, and we affirm substantially for the reasons set forth in Judge Armstrong's well-reasoned written decision rendered on June 16, 2005.
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