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City of Asbury Park v. U.S. Appliance Recyclers Inc. of New Jersey

December 16, 2008

CITY OF ASBURY PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT, AND ASBURY PARTNERS, LLC, PLAINTIFF/INTERVENOR-RESPONDENT,
v.
U.S. APPLIANCE RECYCLERS INC. OF NEW JERSEY, DEFENDANT-APPELLANT/CROSS-RESPONDENT, AND COMMUNITY BANK OF NEW CRUSADER SERVICING CORP. AND THE CITY OF ASBURY PARK SEWERAGE AUTHORITY, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-611-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2008

Before Judges Lisa and Alvarez.

This is an appeal by defendant property owner, U.S. Appliance Recyclers, Inc. of New Jersey, from a jury verdict in a condemnation case. Defendant claims that the trial court's admission into evidence of a supplemental structural engineering report was an abuse of discretion, and that the jury award of $400,000 should be set aside as a miscarriage of justice. We affirm.

The property at issue is Block 132, Lots 2 and 3 (the Property) in the City of Asbury Park (the City). The City is the plaintiff-condemnor. Plaintiff/intervenor Asbury Partners, LLC (Asbury Partners), is the redeveloper for the City's waterfront redevelopment plan, the project for which the Property was acquired by the City. The Property consists of 19,600 square feet, approximately half an acre. Situated upon the Property is a significantly deteriorated steel skeleton of a building, previously a parking garage and a warehouse. At the time of condemnation, the structure was not in use. The central dispute between the parties is whether the structure increases or decreases the value of the Property.

The City adopted its waterfront redevelopment plan by resolution on November 7, 1984. In August 2001, the City and Asbury Partners entered into a memorandum of understanding (MOU), setting forth the parameters for redevelopment of the blighted waterfront area.

On September 23, 2004, defendant filed a complaint in lieu of prerogative writs against the City, asserting that as a result of amendments made in 2002 to the original redevelopment plan, it could neither sell the Property nor engage in renovations that would put the structure located on the Property to a beneficial use. Defendant alleged that the amended redevelopment plan created such significant restraints on the Property that it constituted a taking. As a result of the action in lieu of prerogative writ, the parties agreed that the City would authorize the institution of condemnation proceedings no later than February 15, 2005.

Accordingly, on February 15, 2005, the City filed a verified condemnation complaint seeking to acquire the Property. On February 17, 2005, the City was ordered to deposit with the Clerk of the Court $360,000, the amount estimated by the City to constitute just compensation based on its appraisal. Commissioners were appointed, and commissioners' hearings were conducted on September 1, 2005 and March 8, 2006. The commissioners determined that compensation should be paid to defendant in the amount of $686,000. Both parties subsequently appealed. The trial date was postponed on several occasions, and trial eventually commenced on July 24, 2007, and ended on August 7, 2007. The jury's verdict totaled $400,000.

At the September 1 commissioners' hearing, the City presented an appraisal report prepared by Donald Moliver and Associates on March 6, 2003, which states:

The subject property was originally constructed as a parking garage and used by the City of Asbury Park.... The current owner purchased the building and used it for a time as a warehouse. Sometime in 2000, the owner began converting the structure into a showroom/office but ceased construction later that year. Existing on site is a decaying steel skeleton frame with no exterior walls, roof, or mechanical systems. The existing structure is three stories high, with a lower level and contains approximately 52,500 square feet. In its present condition, the property is not utilized.

The report opined:

Considering the current local and national economic conditions, the abundance of vacant and boarded up properties in the market place and the slowing economy, it is unlikely that development of the site at this time would be feasible. Therefore, the highest and best use of the ...


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