On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4116-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino and Alvarez.
This appeal concerns another group of property owners whose land and buildings have been condemned by the Town of Harrison for redevelopment purposes. We address the issues posed by appellants here in conjunction with those we decide today in the companion cases of Harrison Redev. Agency v. DeRose, A-0958-06T2 and A-0382-07T2 ("DeRose"), ___ N.J. Super. ___ (App. Div. 2008), and in Harrison Redev. Agency v. Harrison Eagle, LLP, A-4474-06T2 ("Harrison Eagle").
For the reasons noted in DeRose and in Harrison Eagle, we vacate in part the Law Division's February 13 and 14, 2007 orders in this case, denying as untimely appellants' effort to contest, by way of defense, the municipality's designation of their properties as in need of redevelopment. We remand for a merits hearing on that issue, as well as for further development of appellants' contention that the Town's redevelopment agency violated the Open Public Meetings Act with respect to their properties. We reject appellants' remaining contentions.
For over twenty years, the property owners who have brought this appeal operated an automobile sales and repair business in the Town of Harrison. Those property owners are appellants Amaral Auto Center, Inc., Amaral Auto Electric, Inc., Amaral Auto Sales, Fernanda M. Amaral and Manuel V. Amaral (collectively "Amaral" or "appellants").
Amaral's now-condemned properties consisted of two parcels, totaling .813 acres.*fn1 The larger parcel, comprising .574 acres, included a one-story building with an auto showroom and repair shop. The building was about thirty years old and had been renovated several times. The site also included a smaller building, which at one time housed a luncheonette and which appellants eventually converted to offices for their auto business. The second property, comprising .239 acres, was used by Amaral as a commuter parking lot. The lot contained fifty-five parking spaces and also housed a newspaper stand.
In 1997 the Harrison Planning Board retained planning consultants to examine whether about one-third of the Town's area would qualify for redevelopment under the Local Redevelopment and Housing Law ("LRHL"), N.J.S.A. 40A:12A-1 to -49. With respect to Amaral's properties, all of which were located within the area targeted for redevelopment, consultant Susan Gruel offered the following opinions in her report to the Planning Board:
[These] parcel[s] meet criterion d [of N.J.S.A. 40A:12A-5]. The three uses on this property are faultily arranged as they are overlapping and undifferentiated. The unsegregated parking areas makes circulation confusing, and therefore potentially dangerous to pedestrians and vehicles. The fact that the parking areas are not separated from the sidewalk area by either fencing or curbing further exacerbates site circulation and decreases safety.
Gruel did acknowledge that the asphalt of the parking lot was "well maintained," and that the building structures were also maintained. She noted, however, that the parking lot was not landscaped or screened from the street, and that the auto center also lacked on-site landscaping or fencing.
As we describe at length in our companion opinion in DeRose, ___ N.J. Super. at ____, the Planning Board adopted Gruel's recommendations in their entirety at a special meeting on August 7, 1997. No one from Amaral attended that meeting, although the Planning Board did mail a notice of the session to the property owners. The following month, the Mayor and Council of Harrison adopted a resolution designating the area, including the Amaral properties, for redevelopment under the LRHL. It is uncontested that the municipality did not supply Amaral with individual notice of the governing body's designation.
About a year later in November 1998, the Mayor and Council passed an ordinance with a redevelopment plan, again including the Amaral properties. Thereafter in March 1999, the governing body created a new entity, respondent Harrison Redevelopment Agency ("the Agency") to implement the Town's redevelopment plan.
In 2005 the Agency commissioned an appraisal of the Amaral properties, which valued them at $2,575,000 as of December 2005. The Agency then notified Amaral that it was going to exercise its powers of eminent domain and take its properties, relying upon the governing body's blight designation from 1997. Amaral objected to the taking. After negotiations failed, the Agency filed in the Law Division a condemnation action against Amaral in August 2006.
On September 1, 2006, the Law Division entered an order that the Agency could take possession of Amaral's properties after depositing the appraised value with the court. On October 13, 2006, the Agency deposited the funds and filed a motion for possession.
Amaral filed an answer contesting the Agency's verified complaint. By way of defense, Amaral asserted that the Agency did not have authority to condemn Amaral's properties. Amaral argued that its properties were not blighted, and that the Agency's finding to the contrary under the LRHL was not supported by sufficient evidence. Hence, the taking was not based on a legitimate public purpose. Amaral also contended that the Agency had not been lawfully constituted. Eventually Amaral amplified these claims with a contention that the Agency had violated the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21.
Apart from these predicate contentions, Amaral further asserted that (1) the Agency did not conduct bona fide negotiations prior to filing the complaint and had acted in bad faith; (2) the Agency's appraisal was not in accordance with the law; (3) the Agency had offered Amaral no meaningful or effective relocation assistance; and (4) the Agency did not have an adequate plan for dealing with the increase in vehicular traffic that the redevelopment would cause.
On February 13, 2007, the trial judge*fn2 issued a written decision rejecting Amaral's arguments and authorizing the Agency to condemn Amaral's properties and appointing commissioners. Similar to his findings in Harrison Eagle (also decided on February 13, 2007), the judge determined that Amaral's defense of the blight designation was time-barred.
The following day, the judge issued a corresponding order authorizing the Agency to enter Amaral's properties and to take possession of them. The judge ordered Amaral to vacate the premises within ninety days.
Amaral filed a notice of appeal and a motion for a stay pending appeal. After the stay application was denied, Amaral filed a motion to withdraw the deposit that the Agency had made with the court. The Agency, after initially opposing the application, consented to Amaral's withdrawing a $1,565,000 portion of the deposited funds. On July 6, 2007, the trial court entered a consent order to that effect.
On appeal, Amaral renews the contentions that it made in the Law Division, which largely overlap with the arguments raised on appeal by the property owners in DeRose and in Harrison Eagle. Amaral's pivotal argument is that the trial judge erred in rejecting, as time-barred under R. 4:69-6, its defenses to the blight designation. In support of that argument, Amaral stresses the language of the Eminent Domain Act, which states in N.J.S.A. 20:3-5 that the court hearing a condemnation case "shall have jurisdiction of all matters in ...