March 11, 2010
MOHAMMAD SHAIKH, PLAINTIFF-APPELLANT,
CITY OF JERSEY CITY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3203-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 24, 2010
Before Judges Axelrad and Sapp-Peterson.
Plaintiff Mohammad Shaikh appeals from summary judgment dismissal of his complaint alleging breach of contract and seeking specific performance arising out of his winning bids at public auction on two lots owned by defendant, Jersey City. We affirm.
Although the City's governing body accepted plaintiff's $1500 bid on a property on Liberty Avenue*fn1 and transferred title to him, it rejected his $10,000 bid on a property on Eastview Court. It is undisputed that at the time of the bid, April l8, 2007, plaintiff did not meet the conditions of the City's Resolution 07-209, adopted March l4, 2007, which authorized the sale of City owned property not needed for public use, as he was delinquent in taxes and had code violations on property he owned there. See ¶ 19 (c) and (d) (stating that no person shall be permitted to bid for any property to be sold by the City if such person is delinquent in taxes or municipal charges on city property or such person owns property in the city that has any outstanding Property Maintenance or Uniform Construction Code (UCC) violations). It is also undisputed that plaintiff submitted an affidavit with his bid which stated to the contrary, and that such affidavit was submitted "with the express purpose of inducing the City to sell [Eastview Court] to [him] knowing full well that the City relies on the truth of the representations contained herein." At the April 25, 2007 meeting, City Council withdrew the Eastview Court property from those properties confirmed for public sale under Resolution 07-297, without explanation.
On June 22, 2007, plaintiff filed a complaint against the City asserting breach of contract and seeking damages and specific performance, alleging the City failed to deliver title to the Eastview property to him as the highest bidder. Plaintiff did not file an action in lieu of prerogative writs challenging the reasonableness of the bid conditions in Resolution 07-209 or Council's action as to his bid. See R. 4:69-1 to -6 (providing generally for a forty-five-day time limitation for challenging municipal action). The City filed an answer. While the case was pending, City Council sent a letter to plaintiff's attorney, informing him that the decision to reject the bid would be reconsidered at a December l9, 2007 Council meeting. Plaintiff's attorney made a presentation before Council, after which it adopted Resolution 07-932, affirming the rejection of plaintiff's bid. Council expressly found that plaintiff was not a qualified bidder at the time of sale due to his failure to comply with the conditions of Resolution 07-209 because he was delinquent in the payment of taxes and had existing UCC violations at the property he owned at 4 Bidwell Avenue in Jersey City.
Prior to trial, the City filed a motion for summary judgment, which was granted by Judge Iglesias following oral argument on December 5, 2008, and memorialized in an order of that date. Plaintiff appealed.
Plaintiff asserts the following arguments on appeal:
DEFENDANT FAILED TO COMPLY WITH N.J.S.A. 40A:12-13(a) GOVERNING THE SALE OF REAL PROPERTY NOT NEEDED FOR PUBLIC USE.
PLAINTIFF WAS ENTITLED TO NOTICE AND A HEARING WHEN THE DEFENDANT SOUGHT TO REJECT HIS SUCCESSFUL BID.
A. PLAINTIFF WAS NOT GIVEN NOTICE OF THE APRIL 27, 2007 COUNCIL MEETING AND WAS DENIED A HEARING WHEN HIS SUCCESSFUL BID WAS REJECTED.
B. PLAINTIFF WAS GIVEN NOTICE OF THE DECEMBER 19, 2007 COUNCIL MEETING BUT WAS DENIED A MEANINGFUL HEARING WHEN HIS SUCCESSFUL BID WAS REJECTED.
THE BIDDING CONDITIONS WERE UNREASONABLE AND ARE THEREFORE UNENFORCEABLE AS CONDITIONS OF THE CONTRACT.
DEFENDANT WAIVED THE BID CONDITIONS WHEN IT ACCEPTED PLAINTIFF'S BID AND DELIVERED THE DEED FOR THE LIBERTY AVENUE (INSIDE) PROPERTY.
DEFENDANT SHOULD BE REQUIRED TO DELIVER THE DEED FOR THE EASTVIEW COURT PROPERTY SINCE THE BEST INTEREST OF THE PUBLIC WILL BE SATISFIED.
THE COURT SHOULD HEAR AND DECIDE THE CASE AS AN ACTION IN LIEU OF PREROGATIVE WRITS IN ADDITION TO A BREACH OF CONTRACT/SPECIFIC PERFORMANCE ACTION.
After reviewing the record and considering the applicable law, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), we are not persuaded by any of plaintiff's arguments. We affirm substantially for the reasons articulated by Judge Iglesias in his comprehensive oral decision. We add the following brief comments.
As plaintiff argued to the trial court, there are instances where the statutory deadline for filing a prerogative writs action may be extended; however, plaintiff did not file a prerogative writs action. Instead, he filed a breach of contract claim. Nevertheless, even though plaintiff did not assert in his complaint a challenge to the bidding conditions of Resolution 07-209, the court addressed this issue and found that the conditions of sale were reasonable and supportive of a lawful public purpose. We agree. A municipal ordinance, or in this instance a resolution, is "accorded a presumption of validity which can only be overcome by an affirmative showing that [it] is arbitrary or unreasonable." Taxpayers Ass'n of Weymouth Twp., Inc. v. Weymouth Twp., 80 N.J. 6, 20 (1976), cert. denied, 430 U.S. 977, 97 S.Ct. 1672, 52 L.Ed. 2d 373 (1977). See also McGovern v. Bor. of Harvey Cedars, 401 N.J. Super. 136, 146 (App. Div. 2008). Plaintiff has not articulated a basis upon which to challenge the reasonableness of these conditions. To the contrary, requiring potential purchasers to be compliant with taxes and codes on properties they own in the City clearly serves the public purpose and protects the residents of Jersey City because it avoids the potential circular problem of having the lots that have been sold become a burden on the tax base or an eyesore or building hazard.
We are also satisfied, as the trial court noted, that even if plaintiff were entitled to a hearing under Paragraph 12 of Resolution 07-209, he was afforded one, albeit late. We do not have the transcript of that hearing so we do not know what plaintiff's attorney argued, but even if he asserted, as plaintiff did to the trial court, that he executed the affidavit under the good faith belief that he was compliant with the conditions of the bidding resolution, the fact remains that he was not. As plaintiff was not a qualified bidder as required by Resolution 07-209, City Council was within its rights to reject plaintiff's bid to purchase the Eastview Court property.
It is undisputed that City Council did approve the sale of the Liberty Avenue parcel to plaintiff, perhaps through inadvertence or otherwise. However, plaintiff fails to assert any legal basis for his contention that by doing so, the City waived the delinquent real estate taxes and outstanding code violation bidding conditions on the Eastview property, and was contractually compelled to sell it to him.