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Township of Haddon v. Morgan Brothers

October 30, 2008

TOWNSHIP OF HADDON, PLAINTIFF-RESPONDENT,
v.
MORGAN BROTHERS, INC., A NEW JERSEY CORPORATION, AND CAMDEN COUNTY MUNICIPAL UTILITIES AUTHORITY, DEFENDANTS, AND M.D. SASS MUNICIPAL FINANCE PARTNERS II, L.P. AND WACHOVIA BANK, N.A. COLLATERAL AGENT FOR SASS MUNI IV, L.L.C., DEFENDANTS-APPELLANTS, AND WACHOVIA BANK, N.A. COLLATERAL AGENT FOR SASS MUNI V, L.L.C., DEFENDANT/INTERVENOR-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-5318-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2008

Before Judges Winkelstein, Gilroy and Chambers.

This appeal presents the question of whether the holders of tax sale certificates on condemned property are entitled to payment from condemnation proceeds being held for environmental remediation. Both sides agree that the case presents no disputed issues of fact, but presents a question of law. Hence our review is de novo. Paradise Enters. Ltd. v. Sapir, 356 N.J. Super. 96, 102 (App. Div. 2002), certif. denied, 175 N.J. 549 (2003).

Defendants M.D. Sass Municipal Finance Partners II, L.P. and Wachovia Bank, N.A. Collateral Agent for Sass Muni IV, L.L.C. and Intervenor, Wachovia Bank, N.A. Collateral Agent for Sass Muni V, L.L.C. (Sass defendants) are the holders of four tax certificates on property located at 202-212 Highland Avenue in the plaintiff Township of Haddon (Township). The Township, seeking to use the property in its redevelopment project, brought this condemnation proceeding pursuant to the Eminent Domain Act, N.J.S.A. 20:3-1 to -50. When the Township filed its declaration of taking, it deposited with the court $280,000, representing its determination of the fair market value of the property as if remediated. The commissioners, appointed pursuant to N.J.S.A. 20:3-12(b), thereafter determined that the fair market value of the property was indeed $280,000, as if remediated.

The Sass defendants, as holders of tax sale certificates on the property, moved to intervene and sought $125,000 in disbursement from the deposited monies; the $125,000 represented the then current value of their tax sale certificates. The estimated cost of remediation, however, was determined to be between $1.3 and $2.8 million, thereby vastly exceeding the value of the property and the amount deposited with the court. While the trial court granted the application to intervene, it denied the application for disbursement of funds.

On appeal, the Sass defendants raise the following issues:

POINT I A CONDEMNING AUTHORITY MAY NOT CONSTITUTIONALLY SEIZE OR RESTRAIN THE ASSETS OF AN INNOCENT LIENHOLDER TO SATISFY GOVERNMENTAL CLAIMS AGAINST A FEE SIMPLE OWNER.

POINT II ENVIRONMENTAL COSTS ARE NOT TRANSACTIONAL COSTS AND CANNOT BE SURCHARGED TO INNOCENT LIENHOLDERS SIMPLY FOR THE CONVENIENCE OF THE CONDEMNOR.

POINT III A CONDEMNOR RETAINS A REMEDY AGAINST POTENTIALLY RESPONSIBLE PARTIES WHILE A TAX CERTIFICATE HOLDER LOSES ITS REMEDY FOREVER.

THUS, TO THE EXTENT THAT CASINO REINVESTMENT DEVELOPMENT AUTHORITY V. TELLER PREVENTS M.D. SASS FROM BEING PAID, IT WAS DECIDED IN ERROR.

POINT IV COMPARISONS TO OTHER AREAS OF LAW DEMONSTRATE THAT HOLDERS OF SENIOR LIENS CANNOT BE ...


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