July 15, 2008
STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-RESPONDENT,
ALBERT J. WEITE, A/K/A ALBERT J. WEITE, III, INDIVIDUALLY AND AS EXECUTOR AND TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF ALBERT J. WEITE, JR., DECEASED, DEFENDANT-RESPONDENT, AND CAROL HILL, INDIVIDUALLY AND AS EXECUTOR AND TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF ALBERT J. WEITE, JR., DECEASED, EDDIE TORRES, BOROUGH OF WEST PATERSON, AND TOWNSHIP OF LITTLE FALLS, IN THE COUNTY OF PASSAIC, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANTS.
EVERGREEN TREE ESTATES, INC., SUSSEX PROPERTIES, INC., AND ARROW'S ROUTE 46 AUTO MALL, T/A BOB CIASULLI AUTO GROUP. INTERVENORS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2203-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 13, 2008
Before Judges Coburn, Fuentes and Chambers.
Appellants Evergreen Tree Estates, Inc., Sussex Properties, Inc, and Arrow's Route 46 Auto Mall, Inc., t/a Bob Ciasulli Auto Group ("Ciasulli") appeal from the order of June 22, 2007, denying the application to intervene in this condemnation case. Ciasulli sought to intervene in order to contest the settlement reached between the State and defendants Albert J. Weite, also known as Albert J. Weite, III, and Carol Hill,*fn1 individually and as Executors and Trustees under the Last Will and Testament of Albert J. Weite, Jr., deceased ("Weite"). Under the terms of the settlement, defendants would receive a parcel of land as compensation for property taken from them by the State of New Jersey through the Commissioner of Transportation ("the Commissioner"). Ciasulli maintains that it should have had an opportunity to bid on the parcel of land. We reject this argument and affirm since the settlement constituted a permissible exchange of land, and Ciasulli had no interest in the property in question that would allow intervention in the case.
This dispute arises out of the condemnation of lands needed by the State to improve the interchange of Route 46 and Browertown Road (the "Project"). In connection with the Project, the State condemned the property of three landowners for use by the New Jersey Department of Transportation ("NJDOT"). Specifically, the State condemned all of the property owned by 46 Wendy's, L.L.C., at this location. In addition, a portion of Ciasulli's property, contiguous and to the east of the Wendy's property, was condemned. A portion of Weite's property, contiguous and to the west of the Wendy's property, was also condemned. Thus, Weite's and Ciasulli's properties were not adjacent to each other, but rather were separated by the Wendy's property in the middle.
NJDOT divided the Wendy's land into four parcels. One of those parcels, identified as Parcel VXR15B2 and shown in yellow on the maps submitted with this appeal (the "yellow parcel"), is the subject of this appeal. The yellow parcel shares a border with Weite's property but does not share a border with the Ciasulli property.
On April 12, 2002, the State filed a verified complaint to condemn a portion of Weite's property. On May 2, 2002, the State deposited $87,000 with the court and filed a declaration of taking. At this point, the State acquired legal title to the property. N.J.S.A. 20:3-21(a). However, the matter of Weite's compensation was still unresolved, so the condemnation action remained open. By Judgment and Order for Withdrawal of Funds dated July 26, 2002, the court permitted Weite to withdraw the $87,000 plus any accumulated interest. However, the judgment expressly provided that the withdrawal was subject to repayment under N.J.S.A. 20:3-23, which allows for payment of estimated compensation and provides for repayment with interest in the event of an overpayment. Paragraph three of the order states that "[e]ntry of this judgment shall not affect or prejudice the final determination of the amount of compensation payable for the taking hereunder."
At some point, NJDOT determined that once the project was completed, it would no longer need the yellow parcel for staging and storage for the Project.
On November 7, 2003, a consent order for final judgment was entered setting forth the settlement reached between Weite and the State in the condemnation action. In accordance with the terms of the settlement, the State was to convey the yellow parcel to Weite provided that Weite returned the $87,000 to NJDOT within thirty days after the State notified Weite that the Project was concluded. Thus, once the $87,000 was returned to NJDOT, the yellow parcel was to be Weite's sole compensation for the portion of his property taken. The consent order recites that the just compensation for the Weite property taken "is equivalent to the value" of the yellow parcel. If Weite failed to return the $87,000 to NJDOT in accordance with the consent judgment, that sum would be Weite's full compensation for the taking.
Since Ciasulli was not a party to the Weite condemnation action, it did not receive notice of the proposed settlement, nor were any public notices given offering the yellow parcel for sale. As a result, Ciasulli did not learn of the settlement between the State and Weite regarding the yellow parcel until it made inquiries about the Wendy's property in late 2006.
On March 27, 2007, Casiulli moved to intervene in the Weite condemnation action in order to invalidate the portion of the consent judgment allowing transfer of the yellow parcel to Weite without a public sale. That application was denied on June 22, 2007, and this appeal followed.
Ciasulli raises the following issues on appeal:
AS A NEIGHBORING PROPERTY OWNER INTERESTED IN PURCHASING THE SUBJECT PARCEL, CIASULLI HAS A SIGNIFICANT INTEREST IN THE ENFORCEMENT OF THE STATUTORY SCHEME GOVERNING DISPOSITION OF DOT PROPERTY NO LONGER NEEDED FOR HIGHWAY USE WHICH REQUIRES A PUBLIC SALE TO THE HIGHEST BIDDER BECAUSE THE TRANSACTION CONTEMPLATED IN THE WEITE CONSENT ORDER IS NOT AN "EXCHANGE" OF PROPERTY.
A. State Property No Longer Needed for Highway Use Can Only Be Disposed of By Public Sale To the Highest Bidder Unless The Transaction Qualifies As An "Exchange" of Property.
B. The Private Sale Contemplated In the Weite Consent Order Is Not An "Exchange of Property" Because the State Already Owned All of the Properties in Question.
C. The Terms of the Weite Consent Order Create an Option for Weite to Purchase The Subject Property for $87,000 and Do Not Envision or Create an "Exchange of Property."
THE PROPOSED CONVEYANCE AUTHORIZED BY THE WEITE CONSENT ORDER VIOLATES THE STATUTORY PROVISION UNDER N.J.S.A. 27:12-1.1 REQUIRING THE STATE TO SELL THE PROPERTY TO THE HIGHEST BIDDER AMONG ALL CONTIGUOUS PROPERTY OWNERS.
THE PRIVATE CONVEYANCE AUTHORIZED BY THE WEITE CONSENT ORDER IS VOID DUE TO THE DOT'S FAILURE TO OBTAIN APPROVAL OF THE STATE HOUSE COMMISSION FOR THE DISPOSITION OF PUBLIC PROPERTY NO LONGER NEEDED FOR PUBLIC USE.
BECAUSE CIASULLI CLEARLY HAD A SIGNIFICANT INTEREST IN THE ENFORCEMENT OF STATUTORY RESTRICTIONS UPON THE DISPOSITION OF STATE PROPERTY NO LONGER NEEDED FOR PUBLIC USE, THE TRIAL COURT ERRONEOUSLY CONCLUDED THAT CIASULLI DID NOT HAVE A SUFFICIENT INTEREST TO SUPPORT INTERVENTION.
CIASULLI WAS NOT ON NOTICE OF THE PRIVATE CONVEYANCE IN THE WEITE CONSENT ORDER AND TIMELY FILED THE APPLICATION TO INTERVENE FOLLOWING THE REVELATION OF THAT PRIVATE ARRANGEMENT WHICH VIOLATES THE STATUTORY PROVISIONS GOVERNING DISPOSITION OF PUBLIC PROPERTY NO LONGER NEEDED FOR PUBLIC USE.
THE RECORD DOES NOT ESTABLISH THAT WEITE TIMELY PAID THE PURCHASE PRICE TO THE STATE AND, THUS, THE STATE'S OBLIGATION TO CONVEY PARCEL VXR15B2 HAS BEEN EXTINGUISHED UNDER THE TERMS OF THE WEITE CONSENT ORDER.
In order to intervene in an action as of right, an intervenor must make a timely application and show that it has "an interest relating to the property" and "is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest." R. 4:33-1. The rule is not discretionary and the application to intervene must be granted if the criteria in the rule is satisfied and the application is timely. Am. Civil Liberties Union of N.J., Inc. v. County of Hudson, 352 N.J. Super. 44, 67 (App. Div.), certif. denied, 174 N.J. 190 (2002). Permissive intervention is permitted where the intervenor's claim has a question of law or fact in common with the main action. See R. 4:33-2. The decision on a motion for permissive intervention falls within the discretion of the trial court, see City of Asbury Park v. Asbury Park Towers, 388 N.J. Super. 1, 12 (App. Div. 2006), and is "subject to the abuse of discretion standard." Pressler, Current N.J. Court Rules, comment 1 on R. 4:33-2 (2008).
Ciasulli contends that as a contiguous property owner, it was entitled to have the property placed up for bidding among the contiguous property owners under N.J.S.A. 27:12-1.1. Further, Ciasulli maintains that as a neighboring property owner, it had a significant interest in assuring that the property the State no longer needed was disposed of in accordance with the statutory scheme under N.J.S.A. 27:12-1.
Ciasulli asserts that N.J.S.A. 27:12-1.1 required the State to sell the yellow parcel to the highest bidder among all contiguous property owners. That statute provides that when the Commissioner determines that real property meeting the requirements of the statute and acquired for a highway project is no longer needed, the property must first be offered for sale to "the owner of the real property whose frontage is contiguous to the real property being sold." N.J.S.A. 27:12-1.1. If more than one owner has contiguous property, then the property must be "sold to the highest bidder from among all such owners." Ibid. However, any sale pursuant to the statute may not be for less than the fair market value of the property. Ibid. Ciasulli maintains that it should have been allowed to bid for the yellow parcel as a contiguous landowner.
This argument fails because Ciasulli's property is not contiguous*fn2 with the yellow parcel. Admittedly, Ciasulli's property was contiguous to the Wendy's property that was condemned, and the yellow parcel was part of the Wendy's property. Ciasulli maintains that due to this circumstance it should be deemed a contiguous landowner. However, since Ciasulli's property does not share a common border with the yellow parcel, it was not contiguous to that parcel, and thus Ciasulli had no statutory right to bid for it.
Ciasulli also contends that the yellow parcel should have been sold to the highest bidder at a public sale pursuant to N.J.S.A. 27:12-1(c). The statute sets forth four ways in which the Commissioner may dispose of property acquired for use in a State highway construction project and which is no longer needed. The first two ways deal with dispositions involving municipalities. N.J.S.A. 27:12-1(a), (b). The last two, at issue here, allow the Commissioner to dispose of such unneeded property by a "public sale to the highest bidder" or an "[e]xchange for other lands." N.J.S.A. 27:12-1(c), (d). Ciasulli argues that the transaction here did not involve an exchange of lands and hence a public sale should have taken place with the property sold to the highest bidder.
The State maintains that the transaction involved was indeed an exchange permitted by both N.J.S.A. 27:12-1(d) and N.J.S.A. 27:12-4. This latter statute provides that the Commissioner may dispose of lands unneeded for highway purposes by exchange or private sale "for the purpose of acquiring other lands required for highway purposes." N.J.S.A. 27:12-4.
We first consider whether the transaction here involved an exchange of land. The statutes provide no definition of exchange. However, at common law, an exchange was viewed to be "a mutual grant of equal interests, the one in consideration of the other." Suburban Golf Club of Elizabeth v. State Highway Comm'r, 92 N.J. Super. 125, 133 (Law Div. 1966) (quoting Haber v. Goldberg, 92 N.J.L. 367, 369 (E. & A. 1918)). A transaction in which the State pays money and conveys land and in return receives other lands is considered a sale rather than an exchange, due to the fact that part of the consideration involves the payment of money. See id. at 131-33.
Here although Weite must pay the NJDOT $87,000 before receiving the State lands, that payment is not consideration for the State lands, but rather is the return of the monies Weite received from the State. Reduced to its essence, the consent judgment in this case undid the $87,000 payment by the State to Weite, and provided for an exchange of lands once that payment was undone. Since the amount that the State owed Weite for the lands had not been finally resolved and thus the condemnation action had not been concluded, the payment of $87,000 was a temporary and not a final payment. Indeed, as noted above, the payment was subject to adjustment by statute, either with the State being required to pay more or Weite being required to return monies, depending on the final resolution of the condemnation action. See N.J.S.A. 20:3-23. The net result of the transaction under the consent judgment is that the sole compensation that Weite will receive from the State for his lands is the yellow parcel, and the sole consideration that the State will receive for the yellow parcel is Weite's land. This is an exchange.
We note that even if this transaction were considered a private sale rather than an exchange, the sale would be authorized pursuant to N.J.S.A. 27:12-4, which permits the Commissioner to sell land unneeded for highway purposes at a private sale "for the purpose of acquiring other lands required for highway purposes." Here, the Commissioner no longer needed the yellow parcel once the project was finished. Thus, the statute gave him the authority to sell the yellow parcel in order to acquire other lands needed for highway purposes. The record is undisputed that the Commissioner needed a portion of the Weite land for highway purposes.
Further, N.J.S.A. 27:12-1.1, discussed earlier, expressly authorizes the Commissioner to sell real property no longer needed for a State highway to the owner of contiguous property at a private sale. Accordingly, the statutes authorized this transaction, regardless of whether it is viewed as a sale or an exchange.
Ciasulli also contends that the transaction between Weite and the State is void because it was not approved by the State House Commission*fn3 pursuant to N.J.S.A. 52:31-1.1 to -1.3a. We reject this argument because this State House Commission statute does not govern the transaction involved in this case.
This State House Commission statute grants the head or principal executive of any State department, with the governor's approval, authority to sell State land "upon such terms and conditions as the State House Commission shall determine to be in the best interests of the State." N.J.S.A. 52:31-1.1. Sales under the statute "shall be by public auction to the highest bidder unless the commission shall otherwise direct." Ibid. The statute applies to the State's real property with "a value of $500,000 or less and to easements that have a value of $100,000 or less." N.J.S.A. 52:31-1.3(a). The statute further provides:
Notwithstanding any other provision of law to the contrary, the sale or conveyance by the head or principal executive of any State department of all or part of the State's interest in any real property and the improvements thereon or the grant of an easement in or across such property shall require the approval of the State House Commission without regard to the value of the property or easement or to the means by which the property was acquired by the State, unless the sale or conveyance or grant is a disposition of public lands for recreation and conservation, farmland preservation, or any other public purpose. [N.J.S.A. 52:31-1.3a.]
Most significantly, the statute expressly provides that its provisions supplement any powers under other statutes to sell State property, and "shall not be deemed to be in derogation of such existing authority." N.J.S.A. 52:31-1.3(b).
Thus, the statute should not be read in derogation of the Commissioner's power to dispose of lands unneeded for highway projects under N.J.S.A. 27:12-1(d) (permitting an exchange of lands) or N.J.S.A. 27:12-4 (authorizing the Commissioner to "exchange or sell at private sale and convey said lands for the purpose of acquiring other lands required for highway purposes"), both of which were enacted before the State House Commission statute noted above. While N.J.S.A. 27:12-1.1 (providing for sale to contiguous property owners) was enacted after the State House Commission statute, it expressly provides that its provisions govern "[n]otwithstanding . . . any other law to the contrary."
To superimpose the State House Commission statute onto these specific statutory provisions dealing with disposition of surplus highway land would either render these latter statutes a nullity or make them superfluous. Property subject to State House Commission approval must be sold at public auction to the highest bidder unless the State House Commission determines otherwise. N.J.S.A. 52:31-1.1. The statutes in question governing the disposition of property unneeded for highway purposes expressly allow the Commissioner, in limited circumstances, to dispose of lands by means other than by public auction. Requiring a public auction would deprive the Commissioner of the ability to exchange lands as permitted by N.J.S.A. 27:12-1(d). It would deprive him of the ability to dispose of unused lands at an exchange or private sale as permitted by N.J.S.A. 27:12-4. Disposing of the lands at a public auction would also deprive contiguous landowners of the right to purchase lands under N.J.S.A. 27:12-1.1, thereby rendering that statute a nullity. Arguably, since the State House Commission is authorized to permit disposition of public lands by means other than by public auction, it could allow private sales or exchanges as permitted by N.J.S.A. 27:12-1(d), 27:12-1.1 and 27:12-4. However, such an argument still renders these three statutes largely unnecessary.
When interpreting a statute, our "overriding goal" is to "determine the Legislature's intent." Young v. Schering Corp., 141 N.J. 16, 25 (1995). If the statutory language is clear and unambiguous, we are bound by its plain meaning. O'Connell v. State, 171 N.J. 484, 488 (2002). When considering the interplay of statutory provisions, we should read the provisions together in a way that reasonably gives meaning to all provisions if possible. See 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 46:5 at 221-223 (7th ed. 2007). More specific provisions will prevail over more general ones.
Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail . . . unless it appears that the legislature intended to make the general act controlling.
[Lewis v. Bd. of Trs., Pub. Employees' Ret. Sys., 366 N.J. Super. 411, 417 (App. Div.) (quoting 2A Norman J. Singer, Sutherland Statutory Construction § 51.5 at 244-57 (6th ed. 2000)), certif. denied, 180 N.J. 357 (2004).]
Applying these principles, we thus conclude that the more specific provisions allowing the Commissioner to dispose of unneeded lands under the terms of N.J.S.A. 27:12-1(d), -1.1 and -4 prevail, and approval by the State House Commission was not needed for this transaction.
The balance of the arguments raised by appellant are either rendered moot by the decision set forth above or are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).