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Township of Edison v. Filcrest Realty

July 28, 2009

TOWNSHIP OF EDISON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FILCREST REALTY, INC., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2173-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2009

Before Judges Stern and Espinosa.

The trial court entered judgment in this summary proceeding, declaring that plaintiff Township of Edison (the "Township") duly exercised its power of eminent domain to condemn a.48 acre strip of property across the property of defendant Filcrest Realty for a riverfront walkway project. Defendant appeals from this judgment, contending that a plenary hearing was required. We affirm.

The Township entered into an agreement with Middlesex County (the "County"), dated September 15, 2005, in which the County agreed to provide $550,000 in funding "for the construction of riverfront walkway, boardwalks, pedestrian bridge, wetlands enhancement and signage and related improvements" along the Raritan River ("the walkway project"). The agreement noted the County's finding that the project met the purposes for which its "Open Space, Recreation and Farmland and Historic Preservation Trust Fund" was established pursuant to N.J.S.A. 40:12-15.1.*fn1 The proposed walkway was to run from the Edison boat basin to the end of a portion of property owned by defendant. The Department of Environmental Protection granted the Township a permit for the construction in January 2006. There was, however, a special condition to the permit that prohibited the Township from commencing construction "until an agreement is reached with [defendant] concerning the construction...." In April 2006, the Township's environmental special counsel wrote to defendant's counsel to obtain such agreement.

The Township's efforts to secure defendant's agreement coincided with defendant's efforts to secure cooperation from the Township in order to satisfy its obligations under a consent decree it entered into with the United States Environmental Protection Agency, dated October 18, 2005. The consent decree resolved claims against defendant and others associated with the clean-up of the Kin-Buc Landfill. The Kin-Buc Landfill is an environmental superfund site partially located on property owned by Kin-Buc, Inc.,*fn2 which is adjacent to the property owned by defendant where the easement was sought. In addition to paying a civil penalty to the EPA Hazardous Substance Superfund, defendant was required to convey thirty-three lots comprising one hundred acres owned by Transtech to a conservation organization called the Clean Land Fund ("CLF"). Because the property to be conveyed was interspersed with lots owned by the Township, it was anticipated that the CLF would approach the Township in an effort to convince the Township to have its lots become part of defendant's project to preserve the area as a salt water estuary (the "Regional Wetlands Project").

The parties met during April 2006 and thereafter to discuss these issues but negotiations proved to be unsuccessful.

The Township obtained an appraisal of the proposed riverfront walkway easement that determined that $15,000 was just compensation for the easement. The manner in which this amount was calculated was fully disclosed in a report prepared by the appraiser.

The Township's Council passed Ordinance No. 1610-2008 on February 27, 2008, authorizing the payment of $15,000 to purchase the property. The ordinance also authorized the Township to institute condemnation proceedings in the event that an agreement with the property owner could not be reached.

On March 20, 2008, the Township filed a Verified Complaint pursuant to the Local Lands and Buildings Law, N.J.S.A. 40A:12-1 to -30, instituting a condemnation proceeding to acquire an easement over a.48 section of the property owned by defendant. An order to show cause was filed thereafter. Defendant filed an answer and certifications of the president of Transtech, along with exhibits, in opposition. The Township filed the certification of its attorney as well as exhibits in support of its position. At oral argument, defense counsel urged the court to conduct a plenary hearing. However, when the court asked what further evidence would be presented if a hearing were held, defense counsel responded that "the gist" of all the evidence was contained in the certifications that had been supplied to the court. The trial court declined to hold a plenary hearing and entered final judgment in favor of the Township, finding that the Township "is authorized to and has duly exercised its power of eminent domain as to the property and rights described and depicted in the Verified Complaint," and appointing commissioners in accordance with N.J.S.A. 20:3-12(b).

On appeal, defendant raises the following arguments:

POINT I

A PLENARY HEARING WAS REQUIRED PRIOR TO CONDEMNING FILCREST'S PROPERTY BECAUSE THE CERTIFICATIONS SUBMITTED BY THE PARTIES CREATED MATERIAL ISSUES OF FACT THAT COULD NOT BE APPROPRIATELY DECIDED IN THE ABSENCE OF A FULL HEARING WITH THE ...


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