The opinion of the court was delivered by: Honorable Joseph E. Irenas
IRENAS , Senior District Judge:
This action initially arose due to Defendant Borough of Palmyra ("Palmyra") issuing a resolution closing Plaintiff National Amusement, Inc.'s ("National") flea market to the public. Palmyra now moves for summary judgment.
Some of the facts, and inferences drawn from those facts, are disputed. The Court resolves those discrepancies in favor of National.
During, and shortly after World War II, Palmyra owned National's property. ( See National's Counter Statement of Facts ¶ 1). During that time, Palmyra authorized the United States Army to test munitions. ( Id. ) The former impact zone of that weapons testing is located where National operated the flea market. ( See Towey's Cert. Ex. I, Dkt. No. 4) *fn1
In November of 1955, National's predecessor, M.E.S. Realty, Inc.,
purchased the 65.4 acre parcel. ( See id. ¶¶ 3-5)
On August 21, 1986, M.E.S. Realty, among other entities, merged
leaving National as the surviving corporation. ( Id.
at Ex. B)
In the intervening years, National has used the property for a variety of commercial purposes including as a drive-in movie theater and as an open air flea market. ( See Palmyra's Statement Uncontested Facts ¶ 4; Towey's Cert. ¶¶ 3-5, 7) Beginning in January of 1976, National operated the lawful open-air flea market on the weekends using twenty-five acres of the property.
( See Towey's Cert. ¶ 7) "This use, although non-conforming pursuant to current Palmyra land use ordinances, is grandfathered under state law." (National's Counter Statement of Facts ¶ 45) In furtherance of the business, National has made certain improvements including a concession stand and a paved parking lot. ( See Towey's Cert. at ¶¶ 11-12)
The flea market was successful and contained approximately 458 vendor spaces and flocks of customers. ( See Towey's Cert. ¶ 9; Palmyra's Statement of Uncontested Facts ¶¶ 6-7) *fn2 At times, the traffic from the flea market badly congested local roads. ( See Palmyra's Statement of Uncontested Facts ¶ 7) Although National employed police officers to control the crowds and direct traffic, the operation of the flea market caused tension between National and Palmyra. ( See Towey's Cert. ¶ 12)
Beginning in 2002, Palmyra began evaluating an economic redevelopment project that would span 186 acres including National's property. ( See Palmyra's Statement of Uncontested Facts ¶¶ 1-2) In September of 2003, Palmyra designated several properties, including National's parcel, a Brownfield Redevelopment Area under New Jersey State Law. See N.J.S.A. 40A:12A-1 et seq. ( See Towey's Cert. ¶ 18)
In connection with this designation, Palmyra contracted with Environmental Resources Management, Inc. ("ERM") to conduct a required environmental study. ( See Palmyra's Statement of Uncontested Facts ¶ 10) These inspections uncovered the possibility of unexploded munitions and contaminated lands. As a result, ERM contracted with Munitions Management Group, LLC ("MMG") to investigate possible unexploded munitions and safely dispose of them. ( See Towey's Cert. ¶¶ 21-22)
ERM submitted a work plan to the New Jersey Department of Environmental Protection ("NJDEP") to address the munitions disposal on National's property in October of 2007. ( Id. at ¶ 26) Neither ERM nor MMG consulted with National or visited National's property before submitting the work plan. ( Id. at ¶ 27)
In attempting to avoid unnecessary disruption to its business, National attempted to negotiate with ERM and MMG a schedule that would permit the continuing operation of the flea market. ( Id. at ¶¶ 65-66) On January 11, 2008, National, ERM and MMG entered into the Access Agreement. ( Id. at Ex. C) The parties agreed, inter alia , that work would not be performed on the weekends or disrupt National's quiet enjoyment of the property. ( Id. ) Palmyra, however, did not sign the agreement. ( Id.
On March 10, 2008, during the course of the munitions disposal operations, MMG observed a munition flush with the asphalt surface of the parking lot. ( Id. at ¶ 47) The presence of a highly explosive munition at, or just below, ground level was particularly concerning because vendors at the flea market used stakes to secure tables and tarps. (National's Counter Statement of Facts ¶ 38) If a stake was driven into a live munition, the munition could detonate and cause serious injury or death. (Palmyra's Statement of Uncontested Facts ¶¶ 20-21)
Furthermore, the risk at any given time is unpredictable. Munitions can change their subsurface depth due to frost heaving - a phenomenon in which subsurface ice forms and pushes objects towards the surface. ( Id. at ¶ 17) MMG informally reported this information to Palmyra on March 10, 2008.
In response to this "imminent threat to public safety," on March 10, 2008, Palmyra drafted a resolution authorizing Police Chief Richard Dreby to request National to voluntarily close their operations or, if National refused, to exercise his emergency powers to restrict the public's access to National's property. ( Id. at Ex. I) Although the redevelopment area encompassed neighboring properties, including two gas stations and the Palmyra Cove Nature Park, no other properties were affected by the resolution. ( See National's Counter Statement of Facts ¶ 14)
Upon Chief Dreby's request, National refused to close the flea market voluntarily. ( See Palmyra's Statement of Uncontested Facts ¶ 32) National contended that the flea market had been operating without incident for more than three decades and Palmyra was attempting to use the munitions as a pretext to ...