On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, L-699-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Lisa and Grall.
This is an eminent domain case. Essex Chemical Corporation (Essex), the property owner, appeals from a judgment for possession and the appointment of condemnation commissioners, see N.J.S.A. 20:3-12(b), which constitutes a final judgment declaring that Paulsboro "duly exercised its right to condemn." See N.J.S.A. 20:3-8 and N.J.S.A. 20:3-2(j). Essex opposed entry of the order in the trial court on the grounds that Paulsboro did not engage in bona fide negotiations prior to filing its complaint, as required in eminent domain proceedings. See N.J.S.A. 20:3-6. Essex makes the same arguments before us.
The property is a sixty-seven-acre riverfront tract, with frontage on the Mantua Creek and the Delaware River. It is a former industrial site, which includes a closed seventeen-acre landfill that is encapsulated and is now in its closure and monitoring status, approved by the Department of Environmental Protection (DEP). The landfill is enclosed by a fence and consists of a large mound on the property, which is otherwise flat. In 2002, Essex entered into a forty-year lease with BP Products North America, Inc. (BP), which allows BP to maintain a solar energy facility on the landfill site in exchange for $100 and the obligation to perform monitoring and maintenance activities of the closed landfill in accordance with DEP requirements.
Paulsboro determined that the area encompassing the property is "in need of redevelopment" pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -73. Paulsboro has entered into an agreement with a redeveloper and intends to develop the site as a marine terminal. Essex has not challenged Paulsboro's designation of the property as an area in need of redevelopment, and it has not challenged the redevelopment plan or redevelopment agreement.
Paulsboro engaged the services of Todd and Black, Inc. to perform an appraisal of the property. Utilizing the comparable sales approach to value, the appraiser set the property's value at $1,215,000. Paulsboro offered Essex that amount for acquisition of the property. Paulsboro entered into a separate agreement with BP, by which it agreed to continue the lease for the solar energy facility on the same terms as existed with Essex.
Essex contends that Paulsboro's appraisal and its offer pursuant to that appraisal were not bona fide and did not represent the fair market value of the property because the appraiser did not determine the value of the property "as if remediated." See Hous. Auth. of the City of New Brunswick v. Suydam Investors, L.L.C., 177 N.J. 2, 24 (2003). In particular, Essex presents these arguments on appeal:
PAULSBORO'S FAILURE TO PROVIDE A "BONA FIDE" OFFER IS A JURISDICTIONAL DEFECT REQUIRING DISMISSAL OF ITS COMPLAINT.
CONTRARY TO SUYDAM, THE TRIAL COURT ERRONEOUSLY CONCLUDED THAT THE BOROUGH'S APPRAISAL, WHICH DEVALUED THE PROPERTY FOR ENVIRONMENTAL REASONS, AMOUNTED TO AN OFFER AT FULL MARKET VALUE.
CONTRARY TO KATZ, THE TRIAL COURT ERRONEOUSLY CONCLUDED THAT THE BOROUGH'S APPRAISAL, WHICH FAILED TO ACCOUNT FOR THE $35,000 PER YEAR LEASE, ...