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City of Asbury Park, A Municipal v. Springwood Lake

March 26, 2012

CITY OF ASBURY PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SPRINGWOOD LAKE, LLC, DEFENDANT-APPELLANT, AND JCP&L AND/OR NEW JERSEY BELL TELEPHONE CO., CITY OF ASBURY PARK, DEFENDANTS.
CITY OF ASBURY PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VINCENT H. GIFFORD, DEFENDANT-APPELLANT, AND CITY OF ASBURY PARK, CITY OF ASBURY PARK SEWERAGE AUTHORITY, DEFENDANTS. CITY OF ASBURY PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TL PROPERTIES, INC., VINCENT H. GIFFORD, COASTAL JERSEY PROPERTIES, INC., DEFENDANTS-APPELLANTS, AND CITY OF ASBURY PARK, CITY OF ASBURY PARK SEWERAGE AUTHORITY, DEFENDANTS.
CITY OF ASBURY PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VINCENT H. GIFFORD, DEFENDANT-APPELLANT, AND CITY OF ASBURY PARK, CITY OF ASBURY PARK SEWERAGE AUTHORITY, DEFENDANTS.
CITY OF ASBURY PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
COASTAL JERSEY PROPERTIES, INC., DEFENDANT-APPELLANT, AND TRANSAMERICA BUSINESS CREDIT, CRUSADER SERVICING CORP., CITY OF ASBURY PARK SEWERAGE AUTHORITY, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-3212-08, L-3215-08, L-3213-08, L-3214-08, and L-3216-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 29, 2012

Before Judges Graves, J. N. Harris and Koblitz.

These five consolidated condemnation appeals present identical issues relating to the Eminent Domain Act of 1971 (the Eminent Domain Act), N.J.S.A. 20:3-1 to -50. Appellants are aggrieved by the City of Asbury Park's abandonment of eminent domain proceedings and the Law Division's refusal to order the municipality to re-commence them. In addition, appellants claim that they were entitled to more than the $88,261.59 in attorneys' fees and costs awarded in their favor by the Law Division pursuant to N.J.S.A. 20:3-26(b). We affirm.

I.

For nearly three decades, Asbury Park has endeavored to redevelop its waterfront along the Atlantic Ocean. In 1984, a Waterfront Redevelopment Plan (the Plan) was adopted by the City, which provided a comprehensive framework for the overall redevelopment of properties located within the confines of a defined area in need of redevelopment. The Plan was amended from time to time, but it remains to be fully implemented.

In June 2002, Ordinance 2607 was enacted by the City, which made further amendments to the Plan. Appellants own five properties located in the Prime Renewal Area as designated by the 2002 amendments.

On October 28, 2002, the City and Asbury Partners, LLC (Asbury Partners) entered into an Amended and Restated Redeveloper and Land Disposition Agreement (the Redeveloper Agreement), which designated Asbury Partners as the exclusive master developer of the Plan. Section 3.12 of the Redeveloper Agreement stated that the parties agreed that "City blocks, within the Redevelopment Area" would be acquired either by the master developer directly or through eminent domain. Section 17.2 of the Redeveloper Agreement, entitled "No Condemnation/Without Consent," stated:

The City agrees not to condemn or take title by exercise of its eminent domain powers any portion of the . . . Prime Renewal Area without [Asbury Partners's] consent. [Asbury Partners] agrees to take title to all property it requests be condemned upon the execution of a Declaration of Taking and placing of a deposit with the Court.

Starting in June 2006, Asbury Partners engaged in negotiations with appellants in an effort to negotiate an amicable acquisition of each of their properties. Asbury Partners indicated in writing that if the parties could not "come to terms as to the acquisition of [the] property," it would request the City "to commence eminent domain condemnation proceedings of [the] property so as to acquire title."

Appellants and Asbury Partners were unable to satisfactorily negotiate the sale of the properties. On May 9, 2007, they entered into an agreement obliging all parties to facilitate the City's expected condemnation actions. Among the provisions of the agreement were (1) the promise by Asbury Partners to update all appraisals for each of the affected properties and to request the City to institute condemnation proceedings; (2) the waiver by appellants of "any and all objections to the City's authority to acquire title" to their properties and their waiver of "any objection . . . that the City failed to engage in bona fide negotiations" for the properties; and (3) the agreement by Asbury Partners that within sixty days "from the date upon which [the court] confers jurisdiction upon the City to acquire any of the [p]roperties," it would provide the City with the necessary funds to make a deposit into court in connection with the filing of a declaration of taking and it would request that the City promptly file such a declaration of taking.

On April 11, 2008, Asbury Partners sent the City a letter requesting that it "kindly utilize [the agreement] as a basis for an Ordinance permitting these properties' acquisition to be introduced to the City Council." On June 4, 2008, the City adopted Ordinance 2873, which authorized the initiation of condemnation proceedings against appellants' properties. The preamble (in the fourth whereas clause) of the Ordinance acknowledged that Asbury Partners and appellants had entered into an agreement regarding the acquisitions of the properties and stated that the "agreement is annexed hereto and made a part hereof (copy available in the City Clerk's Office)." The Ordinance specifically authorized the City "to enter into negotiations and to acquire, by eminent domain if necessary, [the properties]."

The condemnation proceedings were commenced in early July 2008. In October 2008, appellants moved for a determination, pursuant to N.J.S.A. 20:3-30, of an earlier date of valuation for each property. The City's appraisals had valued the properties as of July or December 2007. Appellants sought a judicial declaration that the date as of which just compensation shall be determined was either in March 2005 (when the Redeveloper Agreement was filed in the Monmouth County Clerk's Office) or in ...


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