On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-2308-10, L-2750-10, L-2808-10 and L-3358-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2012 -
Before Judges Axelrad, Nugent and Haas.
This case returns to us after remand proceedings directed by our previous opinion. See City of Long Branch v. Anzalone, Nos. A-0067-06T2, A-0191-06T2, A-0192-06T2, A-0195-06T2, A-0196-06T2, A-0197-06T2, A-0198-06T2, A-0654-06T2 (App. Div. August 7, 2008), certif. denied, 199 N.J. 134 (2009). On remand, the City of Long Branch (City) abandoned its condemnation actions and agreed to pay litigation expenses to the affected property owners. The current plaintiffs, however, sought additional compensation based upon their contention that the condemnation actions had constituted a "temporary taking" of their properties. Plaintiffs appeal the trial court's August 18, 2011 Order granting the City's motion for summary judgment.*fn1 We affirm.
We begin by referencing the essential background facts as set forth in our earlier opinion. The defendants in that matter, which included some, but not all, of the plaintiffs in the present appeal, were homeowners in a neighborhood in Long Branch which the City had declared to be in need of redevelopment. (slip op. at 5). The City adopted a redevelopment plan in 1996. Ibid. In 2005 and 2006, the City filed condemnation actions against the defendants, who filed motions to dismiss. Ibid. The trial court denied the motions and granted judgments in favor of the City, appointing condemnation commissioners. Ibid.
The trial court had decided these cases prior to the Supreme Court's decision in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007), which reaffirmed that the New Jersey Constitution requires a finding of actual blight before private property may be taken for purposes of redevelopment. (slip op. at 6). Therefore, we reversed the judgments appointing commissioners and remanded the matter to afford the City the opportunity to amplify the record to meet the Gallenthin standard. (slip op. at 6-7).
On remand, the trial court appointed a mediator and settlement discussions ensued. On September 16, 2009, a Consent Order of Settlement was entered. The City agreed to dismiss all of its condemnation complaints against all of the defendants, to abandon the eminent domain proceedings, and to pay defendants' litigation costs.*fn2
There were two classes of defendants who settled, those who executed releases of their claims for further compensation from the City and those who did not. Under the settlement, only the releasing defendants were permitted to seek redeveloper status with the City and to obtain tax benefits if they were successful. The non-releasing defendants, however, retained the right to file new actions against the City to seek compensation for the alleged "taking" of their properties as a result of the City's now-abandoned condemnation actions.
Plaintiffs in this action were non-releasing defendants in the prior condemnation actions. In 2010, plaintiffs filed a series of complaints against the City alleging they were entitled to "just compensation" for the "temporary taking" that had occurred as a result of the abandoned condemnation actions. Plaintiffs argued a "taking" of their properties occurred when the City filed its condemnation actions in 2005 and 2006, and that this taking continued until the litigation was settled in 2009. Even if the filing of the condemnation actions did not, in and of itself, constitute a taking, plaintiffs alleged the trial judge nevertheless ruled that a taking had actually occurred. Assuming there was no taking by operation of the Eminent Domain Act, N.J.S.A. 20:3-1 to -50, (Act), plaintiffs also contended a taking occurred because their properties lost value and because they were unable to develop, mortgage, or sell them during the pendency of the litigation. They sought actual and compensatory damages, a refund of the property taxes they had paid during the period of time the matter was being litigated, interest, and attorneys' fees and costs.
Plaintiffs' complaints were consolidated by the trial court and the City moved for summary judgment. After oral argument, the trial judge issued a written opinion granting the City's motion as to all plaintiffs and finding that no compensable taking had occurred. This appeal followed.
When a party appeals a trial court's grant of summary judgment, we review de novo whether summary judgment was proper. Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 427 (App. Div. 2004). Accordingly, we must first decide whether there was a genuine issue of fact, and then, if there was not, whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In performing our appellate function, we consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational ...