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Estate of Vaccaro v. City of Asbury Park

June 3, 2008

THE ESTATE OF PASQUALE M. VACCARO, BY ITS CO-EXECUTORS, HENRY A. VACCARO AND PATRICK H. VACCARO, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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