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South Washington Avenue, LLC v. Township of Piscataway

May 11, 2011


On appeal from the Department of Community Affairs, Docket No. OCA-311-06.

Per curiam.


Argued: October 25, 2010

Before Judges A. A. Rodriguez and C.L. Miniman.

Petitioner Laurence Halper appeals from final administrative action of the Department of Community Affairs (DCA) denying his motion for reconsideration of earlier final agency action. In the earlier action, the DCA adopted an order of the Office of Administrative Law (OAL) dismissing petitioner's claim against respondent Township of Piscataway (Township) for relocation expenses in connection with the removal of organic top soil from petitioner's condemned property.

Petitioner had at one time lived and conducted farming operations on a seventy-five acre farm owned by him and other members of his extended family.*fn1 The Township filed a condemnation complaint in December 1999 after failed negotiations with the farm's owners. Twp. of Piscataway v. S. Washington Ave., LLC, 400 N.J. Super. 358, 363 (App. Div. 2008). We affirmed the Township's right to condemn the property. Id. at 363, 370. However, while that appeal was pending, the New Jersey Supreme Court "ordered that the stay of the judgment would expire . . . on July 10, 2006, by which time the Halpers were to have left the property." Id. at 365.

On January 4, 2006, the DCA approved an amended Workable Relocation Assistance Plan (WRAP) submitted by the Township.

Under that plan, petitioner would receive $68,060 for relocation of his farming operation and $10,329 for relocation of his residence. In February 2006, petitioner sought relocation assistance from the Township based on three estimates for the cost of relocating his farming operations. Those estimates, which included the cost of moving organic top soil, were approximately ten times the amount of assistance in the approved WRAP. The Township denied this request for an increased WRAP.

On February 27, 2006, petitioner submitted an appeal to the DCA challenging the Township's refusal to pay for the relocation of organic top soil. The DCA referred the matter to the OAL as a contested case. Several months later, petitioner requested relocation assistance for a self-move but, on June 7, 2006 the Township responded that it would not provide any assistance at that time because petitioner was challenging the condemnation. On June 9, 2006, petitioner sought to amend his appeal to include the Township's refusal to provide any assistance at all while the condemnation action was being disputed.

The matter was placed on inactive status for several months at the request of both parties during the summer of 2006. Thereafter, there were several adjournments, settlement efforts were undertaken, and petitioner unsuccessfully requested emergent relief. During this time, there were several changes in petitioner's counsel. One of petitioner's attorneys informed the Administrative Law Judge (ALJ) on October 24, 2008, that he had advised petitioner that he was withdrawing because of "a fundamental disagreement with regard to the actions that should be taken in order to reach a reasonable outcome in this case and the manner we should go about it." The attorney also requested an adjournment of an October 31, 2008, hearing date.

Several days later, the ALJ sent a letter directly to petitioner granting the adjournment and asking him to promptly advise whether he was seeking new counsel or proceeding pro se. The ALJ stated that the matter would be scheduled on her next available date if she did not hear from petitioner by November 10, 2008.

Petitioner sent a facsimile to the ALJ on November 10, 2008, stating that he had been unable to reach his attorney to discuss rescheduling the hearing and would advise the ALJ as soon as he was able to do so. The attorney clarified his withdrawal in a letter sent to petitioner the next day. In that letter, the attorney asked petitioner to let his office know whether he was seeking substitute counsel or proceeding pro se to allow for the timely and appropriate transfer of his file.

On November 25, 2008, the OAL sent a notice directly to petitioner advising that the hearing was scheduled to begin on April 2, 2009. In addition, the ALJ sent petitioner a letter on March 24, 2009, to remind him of the April 2, 2009, hearing date and again sought confirmation regarding whether he would act pro se. Petitioner did not respond, and on April 3 the ALJ dismissed his petition.

The ALJ's initial decision dismissing the appeal for failure to appear stated that exceptions to the decision must be filed with the Commissioner within thirteen days of the date of mailing, which was April 7, 2009. Petitioner filed no exceptions. On May 18, 2009, the DCA Commissioner issued a final decision adopting the initial decision "pursuant to [the] 45 day rule." The final decision was mailed directly to petitioner with a cover letter advising that any appeal must be filed ...

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