On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3076-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2012
Before Judges Messano and Lihotz.
Defendants, St. Mary's Church Gloucester and the Diocese of Camden, New Jersey (collectively St. Mary's), appeal from the Law Division's June 23, 2011 order for final judgment in favor of plaintiff, State of New Jersey by the Commissioner of Transportation (the State), authorizing condemnation by eminent domain of defendants' property and appointing commissioners.*fn1
The judge subsequently stayed the judgment pending this appeal.
N.J.S.A. 20:3-6 provides in relevant part:
Whenever any condemnor shall have determined to acquire property pursuant to law, . . . but cannot acquire title thereto or possession thereof by agreement with a prospective condemnee, . . . the condemnation of such property and the compensation to be paid therefore . . . shall be governed . . . by this act; provided, however, that no action to condemn shall be instituted unless the condemnor is unable to acquire such title or possession through bona fide negotiations with the prospective condemnee, which negotiations shall include an offer in writing by the condemnor to the prospective condemnee . . . setting forth the property and interest therein to be acquired, the compensation offered to be paid and a reasonable disclosure of the manner in which the amount of such offered compensation has been calculated, and such other matters as may be required by the rules. Prior to such offer the taking agency shall appraise said property and the owner shall be given an opportunity to accompany the appraiser during inspection of the property. . . . In no event shall such offer be less than the taking agency's approved appraisal of the fair market value of such property. [(Emphasis added).]
On appeal, defendants argue that the State failed to fulfill its statutory obligation prior to filing the condemnation complaint. In particular, St. Mary's argues that the motion judge erred by concluding the State did not have to disclose during pre-litigation negotiations a "review appraisal" it had obtained. Additionally, St. Mary's contends that the judge "erred in not addressing" other claims made in its motion to dismiss, specifically: the State did not engage in bona fide negotiations because it failed to provide specific plans and information and because its offer was based on a "stale appraisal"; the State failed to address claims for potential damages caused by a permanent easement that was part of the taking; and the State failed to make a "bona fide offer" that valued all the interests acquired by the taking. We have considered these arguments in light of the record and applicable legal standards. We affirm.
St. Mary's owns certain property in the Borough of Bellmawr (the property) upon which it has operated, for more than fifty years, one of the larger open-air cemeteries in the Diocese of Camden. The State sought to acquire certain interests in the property as part of the Route 295 Direct Connection project (the project) designed to improve various roadways in the area. On May 20, 2008, the State offered $1.856 million as just compensation for the proposed taking.
The offer was expressly based upon an appraisal report prepared by Anthony S. Graziano (the Graziano report) that was served upon St. Mary's with the State's offer. The Graziano report was prepared on April 3, 2007, with an "effective date" of March 15, 2007. At the same time, the State served a second appraisal it had commissioned from Stephen D. Dinklage (the Dinklage report). The Dinklage report was dated February 5, 2007 and valued the property to be taken at $3.45 million as of January 5, 2007.
St. Mary's responded by letter on June 11, 2008 posing six specific questions and requesting the production of documents in seventeen categories. St. Mary's noted that the State's offer "was made 14 months" after the effective date of the Graziano report, which, by its terms, "include[d] revisions and modifications as per an [a]ddendum [m]emo dated February 4, 2008." St. Mary's requested copies of the addendum memo. It also "requested production of "[a]ll [a]ppraisal [r]eports obtained by the State" and "[a]ll instructions provided by [the State] to its [a]ppraisers . . . ."
The State answered by letter dated June 17, advising that it was "looking into answering the questions . . . posed, as well as supplying . . . all legally permissible information." In a July 15 follow-up letter, St. Mary's posed two additional questions regarding: 1) demolition of an existing structure as part of the taking and the State's commitment to replace it; and
2) a permanent access easement that was part of the taking. On August 14, the State responded to these two questions. On February 20, 2009, St. Mary's rejected the State's offer and made a counter-offer ...