August 23, 2010
CITY OF BRIGANTINE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY BY AND THROUGH ITS MAYOR AND COUNCIL, PLAINTIFF-RESPONDENT,
ANTHONY SENTORE AND EVELYN SENTORE, C/O POST OFFICE BOX 1109, BRIGANTINE, NEW JERSEY, OWNER OF PROPERTY KNOWN AS BLOCK 101, LOT 1.03 ON THE BRIGANTINE TAX MAP AND THE STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2837-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 14, 2010
Before Judges Graves and Harris.
This is an eminent domain action in which the City of Brigantine (the City) condemned a permanent easement over a portion of defendants' vacant beach-front property, which is designated as Lot 1.03 in Block 101 on the City's tax map (the property). The easement allows the City to access a portion of the property for beach maintenance and beach replenishment projects. Defendants appeal from the trial court's refusal to adjourn a jury trial and a judgment entered on March 19, 2009, in favor of defendants in the amount of $1000. Defendants also contend the City's partial taking leaves the remainder of their property with little or no economic value and therefore the City must condemn the whole property. We are not persuaded by defendants' arguments and affirm.
After the City filed a verified complaint and declaration of taking on April 29, 2005, the trial court upheld the City's authority to condemn the easement. Defendants appealed and we affirmed the City's exercise of eminent domain and the partial taking in a prior unpublished opinion, City of Brigantine v. Sentore, No. A-6171-04T3 (App. Div. Jul. 3, 2007). In that decision, we described the proposed beach replenishment project and defendants' property as follows:
The City estimates that for no longer than a four-week period of time, there will be pipes and equipment in the easement area on [defendants' property] in order to facilitate the movement and placement of sand. The [p]roject will involve the pumping of sand from the inlet between Brigantine and the next island north of Brigantine onto the [p]roperty, as well as the 35 block-long stretch of beach.
[Defendants' property] is approximately 100 feet wide running from north to south.
It extends approximately 2,500 feet from west to east into the Atlantic Ocean. The western border of the [p]roperty consists of a public promenade which is known as the Brigantine Seawall. The easement area which the City seeks to acquire by condemnation, consists of 100 feet in width at the boundary of the seawall and extends 750 feet eastwardly in the direction of, and into the Atlantic Ocean. [City of Brigantine v. Sentore, supra, (slip op. at 3).]
Defendants acquired the property in fee simple on August 31, 2000, for $10,000, and they maintain fee simple ownership of the property despite the City's acquisition of the easement. They have never sought approvals to develop the property. There is no residential or commercial use on or associated with the property and it is subject to federal, state, and municipal restrictions, which were in effect prior to defendants' purchase of the property.
Pursuant to N.J.S.A. 20:3-12(b), condemnation commissioners were appointed to determine the compensation to be paid by the City to defendants for the taking of the easement interest. The commissioners' hearing was held on November 24, 2008, and they rendered a report and award on December 9, 2008.*fn1 Defendants appealed the commissioners' decision, and on December 17, 2008, defendants were notified that the matter was scheduled for a jury trial on March 9, 2009.
On February 4, 2009, defendants filed a motion to compel the City to condemn the entire property pursuant to N.J.S.A. 20:3-37. In a letter to the court dated February 17, 2009, defendants' attorney requested an adjournment because "the initial trial date of March 9, 2009 will not provide adequate opportunity for the obtaining of expert reports necessary for a trial of this case." However, during the motion hearing on February 20, 2009, the court denied defendants' request, stating:
This case was sent to me by the assignment judge with the instruction to try it on that date, and that's when I'm going to try it.
I have reconstructed my entire trial schedule for the month of March around this trial, and I did so in December when I was told that it was a March 9th date, so you were told.
The trial court entered an order on February 20, 2009, denying defendants' motion to compel the City to condemn the entire property. In an eight-page written decision, the trial court noted the case was "almost four years old" and for the first time, defendants sought to compel the City to condemn their entire property in fee simple. In denying defendants' motion, the court relied on State v. Orenstein, 124 N.J. Super. 295, 298 (App. Div.), certif. denied, 63 N.J. 588 (1973), which provides as follows:
If there are any issues to be decided other than that of value and damages - be they a challenge to the plaintiff's right to exercise the power of eminent domain or a claim that the condemnor is in fact taking more property and rights than those described in the complaint - those issues must be presented to and decided by the court before it enters judgment appointing condemnation commissioners.
On March 5, 2009, the Appellate Division denied defendants' emergent motion seeking leave to file an interlocutory appeal and a stay of the trial. On March 9, 2009, the court again denied defense counsel's request for an adjournment, stating:
[T]he defendant[s] didn't choose to present evidence at the condemnation proceeding. That's fine, that's their choice, but if they had expert evidence at that time, they could have produced it or they could have identified it to the plaintiff even if they hadn't produced it, so I haven't precluded anybody from presenting any evidence in this trial that wasn't presented or available for presentation during the condemnation proceeding.
That same day, the jury returned a verdict valuing the City's partial taking at $1000.
On appeal, defendants present the following arguments:
WHETHER THE FIRST LISTED TRIAL DATE SHOULD HAVE BEEN ADJOURNED TO PROVIDE DEFENDANT AN ADEQUATE OPPORTUNITY [TO] OBTAIN AN APPRAISAL REPORT AND ANY OTHER NECESSARY EXPERT REPORTS.
WHETHER THE TRIAL COURT ERRED IN NOT REQUIRING THE [ACQUISITION] OF THE PARCEL IN FEE SIMPLE PURSUANT TO N.J.S.A. 20:3-7.
A. THE TRIAL COURT FAILED TO CONSIDER DEFENDANTS' MOTION TO COMPEL THE AMENDMENT ON ITS MERITS.
B. WHETHER THE TAKING OF THE EASEMENT LEAVES THE PROPERTY OWNER WITH AN UNECONOMIC REMNANT.
After considering these contentions in light of the record, the briefs, oral argument, and the applicable law, we are satisfied they are without sufficient merit to warrant extended discussion in a written decision. R. 2:11-3(e)(1)(E). We add only the following comments.
We find no merit to defendants' claim that the court should have adjourned the trial to permit them to "obtain an appraisal report and any other necessary expert reports." As the trial court noted, defendants had ample time to prepare for trial during the period that elapsed since the City filed its verified complaint and declaration of taking on April 29, 2005.
Consequently, defendants' request was untimely. See, e.g., Vargas v. Camilo, 354 N.J. Super. 422, 431 (App. Div. 2002), certif. denied, 175 N.J. 546 (2003) (stating that trial dates must be controlled by the court to ensure that cases are "processed in an orderly and expeditious manner"); State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965) ("The granting of trial adjournments rests within the sound discretion of the trial court. Absent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error."). Moreover, Rule 4:73-11(b) provides that "[o]n appeal to the Law Division [from a commissioners' hearing], the parties shall exchange the name, address and written report of any expert, including but not limited to appraisers, who will be called to testify at least 40 days prior to trial." Thus we perceive no abuse of discretion or reversible error by the trial court.
In their second point, defendants argue the City's taking has resulted in an "uneconomic remnant" under N.J.S.A. 20:3-37, which provides as follows:
If as a result of a partial taking of property, the property remaining consists of a parcel or parcels of land having little or no economic value, the condemnor, in its own discretion or at the request of the condemnee, shall acquire the entire parcel.
As the Court noted in State, by Comm'r of Transp. v. William G. Rohrer, Inc., 80 N.J. 462, 464-65 (1979), when a taking "drain[s] the property of all economic worth . . . it would normally be the better practice for the public condemnor to undertake to condemn the whole property in the first place."
In this case, however, the record does not support defendants' claim that the value of their property was reduced "as a result of" the condemnation of the easement by the City. On the contrary, it is clear from the trial testimony that the property had little value prior to the taking because its use is restricted by state and federal regulations and municipal zoning requirements.
The City's engineer, Edward Stinson, testified the placement of sand on the property during the City's replenishment projects had enhanced the use of defendants' property and benefit normal activities that usually occur on the beach, such as "people that walk on the beach that may sunbathe there . . . fishing and surfing and kite flying":
[T]he activities still occur, but now you have a beach, you have more opportunity to perform those activities . . .
[C]urrently or even before a beach-fill project was undertaken, you couldn't necessarily sunbathe at high tide at the Sentore property, so to the extent that now there's a beach, I think we've enhanced those opportunities.
Similarly, Rick Ricciardi, a professional planner, testified defendants' land is unfit for development: "With the exception of low-intensity recreational uses, the site really shouldn't be built on at all. The DEP would deny any permit to construct housing or commercial uses."
In addition, Ricciardi testified that the value of defendants' property was actually enhanced by the easement:
Q: Have you formed an opinion as to whether or not obtaining the easement by the City of Brigantine affects [defendants'] ability to develop the property?
A: No, it does not. In fact, it enhances it, if anything, because it does permit some utility of that being able to sit on the property and enjoy the ocean when the sand is there.
Finally, Robert Reid, another professional planner, testified the property is located in a zone that prohibits residential and commercial uses, and that the "entire property is in the restricted area of the dune line restriction." He also testified the beach replenishment process "would actually increase the upland portion of the beach, and they could derive a benefit from having that additional beach area to utilize in accordance with the permitted ordinance."
In view of the foregoing, the record does not support defendants' claim that the condemnation of the easement by the City created an "uneconomic remnant" within the purview of N.J.S.A. 20:3-37. Moreover, we are satisfied from our review of the record that the trial court's denial of defendants' request to adjourn the trial did not represent a mistaken exercise of discretion.