June 3, 2008
THE ESTATE OF PASQUALE M. VACCARO, BY ITS CO-EXECUTORS, HENRY A. VACCARO AND PATRICK H. VACCARO, PLAINTIFF-APPELLANT,
THE CITY OF ASBURY PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-3783-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 12, 2008
Before Judges Parrillo, S.L. Reisner and Gilroy.
Plaintiff Estate of Pasquale M. Vaccaro appeals from an August 28, 2007 order of the trial court, dismissing on summary judgment plaintiff's § 1983 action against the City of Asbury Park. We affirm.
This case is one of two pieces of litigation concerning plaintiff's property, a vacant lot in Asbury Park. In 2002, the City adopted a redevelopment plan for an area that included plaintiff's property and designated a redeveloper. An ordinance adopted in 2004 authorized the City to acquire plaintiff's property. Negotiations to acquire plaintiff's property were not successful. The City offered $310,000; plaintiff demanded approximately $1.3 million.
On August 18, 2006, plaintiff filed a complaint under 42 U.S.C.A. § 1983, seeking to require the City to commence a condemnation action and seeking damages for the City's delay in instituting the condemnation proceedings. Plaintiff also contended that it was deprived of the opportunity to develop the property between 2002 and 2006. Shortly thereafter, on September 19, 2006, the City filed a condemnation complaint seeking to acquire plaintiff's property by eminent domain.
The City then filed a motion for summary judgment in the § 1983 action. At plaintiff's request, Judge Lawson reserved decision on the motion until the commissioners had rendered an award in the condemnation action. After the commissioners rendered their award in the amount of $649,800,*fn1 Judge Lawson issued his ruling on the summary judgment motion.
In a written opinion dated August 14, 2007, Judge Lawson concluded that plaintiff's § 1983 action was partially moot, because the City had filed a condemnation action. Judge Lawson next addressed plaintiff's claim for damages for the delay in institution of the condemnation proceedings. This claim was based on plaintiff's assertion that its property lost "value and marketability" between the adoption of the redevelopment plan in 2002 and the date of condemnation in 2006, a loss plaintiff claimed would not be addressed by the commissioners' condemnation award.
As to that claim, Judge Lawson concluded that plaintiff's reliance on Washington Market Enterprises v. City of Trenton, 68 N.J. 107 (1975), was misplaced. In Washington Market, the defendant city had declared the plaintiff's neighborhood blighted, but had then abandoned its redevelopment project without condemning plaintiff's property. In that context, the Court found that in some circumstances the threat of condemnation might have "such a substantial effect as to destroy the beneficial use that a landowner has made of his property" and thus give rise to a constructive taking entitling the owner to compensation. Id. at 122. However, Judge Lawson concluded that Washington Market was not on point, because Asbury Park had in fact instituted condemnation proceedings through which plaintiff would be justly compensated for its property. He also observed that
[t]he fact that the subject property in Washington Market was never condemned by the City was a crucial factor in the Court's decision in the matter. The plaintiff was seeking relief in one of two ways, either direct "the defendant to condemn [the plaintiff's] property, or in the alternative [award plaintiff] damages for its loss in value." Id. at 123. The plaintiff was not looking for both forms of relief; the plaintiff wanted one or the other. In this instance, the Estate of Vaccaro is seeking both forms of relief; damages and just compensation. Such relief was not contemplated by the Court in Washington Market and there is no indication from any other case law provided by Plaintiff that this court should provide both forms of relief.
Judge Lawson further reasoned that if plaintiff claimed that, between 2002 and 2006, the redevelopment plan had "substantially affected [its] use and enjoyment of the property" within the meaning of the condemnation statute, N.J.S.A. 20:3- 30(c), plaintiff's remedy was to seek a 2002 valuation date in the condemnation action.
Plaintiff is essentially contesting the valuation date. N.J.S.A. 20:3-30(c) states that "[j]ust compensation shall be determined as of the date of the earliest of the following events . . . (c) the date on which action is taken by the condemnor which substantially affects the use and enjoyment of the property by the condemnee." See Twp. of West Windsor in County of Mercer v. Nierenberg, 150 N.J. 111 (1996); Mount Laurel Twp. Stanley, 185 N.J. 320 (2005).
The condemnation proceedings provide Plaintiff with the opportunity to contest the date as of which compensation shall be determined. The opportunity for such an argument comes at the commissioner's hearing, not through a § 1983 claim. If Plaintiff believes that the property was actually taken when the area was [declared] in need of redevelopment, that argument should have been made to the Commissioners.
Again, if Plaintiff disagrees with the Commissioners' valuation date, such can be appealed to a trial court, where a jury trial will take place.
Accordingly, Judge Lawson dismissed plaintiff's complaint, and this appeal followed. While this appeal was pending, the City filed a declaration of taking in the condemnation action and deposited a sum equal to the City's estimate of the property's fair market value.
Plaintiff raises the following appellate arguments for our consideration:
POINT I: DAMAGES SUSTAINED BY THE PROPERTY OWNER PRIOR TO SEPTEMBER 9, 2006 ARE COGNIZABLE AS A MATTER OF LAW.
A. The Court Below Erred By Maintaining This Action As Separate From The Condemnation Action And Then By Combining The Two Actions Via Its Judgment.
B. The Court Below Erred Because The Damages Claimed In This Action Are Not Subsumed By A Condemnation Action.
C. The Court Below Erred Because The Value Of The Property As Of The Condemnation Date Does Not Compensate Plaintiff For The Deprivation Of The Right To Develop Its Property.
D. The Plaintiff Sustained Losses That Are Not Compensated By Valuing The Property In "Condemnation."
E. The Court Below Erred By Assuming That The Property Has Been Condemned.
Our review of a trial court's grant of summary judgment is de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Having reviewed the record, we conclude that plaintiff's appellate arguments are all either moot or without merit, Rule 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated in Judge Lawson's cogent opinion. We add the following comments.
Plaintiff argues that it is entitled to damages for the "loss of use" of the vacant lot from 2002 to 2006, contending that the City in effect regulated its property into inutility in 2002. We agree with Judge Lawson that plaintiff's appropriate remedy for such alleged damage was to seek an earlier valuation date, pursuant to N.J.S.A. 20:3-30(c). We also agree with Judge Lawson that Washington Market is inapplicable here because in that case, "in addition to the declaration of blight, other related activities together with the passage of time are said to have shorn [the] property of literally all or most of its value," and yet the city there had abandoned its plan to condemn the property. 68 N.J. at 115. Here, the City has instituted condemnation proceedings.
We also note that plaintiff has abandoned its claim that the property lost value between 2002 and the date in 2006 when the condemnation complaint was filed. At oral argument, in response to our question, defendant's counsel conceded that the City would likely not object if plaintiff sought to amend its claim in the condemnation case to seek a 2002 valuation date. However, when questioned about that same issue, plaintiff's counsel responded that plaintiff was satisfied with valuing the property as of 2006. Counsel explained that, in plaintiff's opinion, post-2002 zoning changes had increased the value of the property, a contention as to which we express no view.*fn2
Insofar as plaintiff is seeking a refund of taxes paid on the property between 2002 and 2006, we note that plaintiff did not attempt to invoke its State law remedies by filing a tax appeal challenging that assessment. See General Motors Corp. v. City of Linden, 143 N.J. 336, 343 (1996)(§ 1983 cause of action unavailable if plaintiff has an adequate State law remedy). Plaintiff might have pursued that remedy if it genuinely believed its property had been rendered worthless or that its value had been significantly compromised.
Finally, plaintiff's speculation that it might still suffer uncompensated damages if the City abandons the condemnation action has been rendered moot. As noted above, during the pendency of this appeal, the City filed a declaration of taking and deposited its estimate of just compensation. Having done that, the City is precluded by the condemnation statute from unilaterally abandoning its condemnation action. N.J.S.A. 20:3-35 ("[N]o such action shall be abandoned after the filing of a declaration of taking pursuant to Article V hereof, or after the vesting of title in any condemnor pursuant hereto."); see also Twp. of Piscataway v. South Washington Ave., LLC, ___ N.J. Super. ___ (App. Div. 2008)(slip op. at 12).