ROCCO and ANTONIA BERARDI, Plaintiffs-Appellants/ Cross-Respondents,
TOWNSHIP OF PEMBERTON, Defendant-Respondent/ Cross-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 26, 2013
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2535-08.
Peter H. Wegener argued the cause for appellants/cross-respondents (Bathgate, Wegener & Wolf, attorneys; Mr. Wegener, on the brief).
John C. Gillespie argued the cause for respondent/cross-appellant (Parker McCay, P.A., attorneys; Mr. Gillespie, on the brief).
Before Judges Alvarez, Waugh and St. John.
Plaintiffs Rocco and Antonia Berardi appeal an August 5, 2011 order of partial summary judgment dismissing their claim against the Township of Pemberton for damages arising from the temporary taking of their property. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
The record discloses the following facts and procedural history.
In Township of Pemberton v. Berardi, 378 N.J.Super. 430, 448 (App. Div. 2005) (Berardi I), we held that a condemnor, on a condemnee's application to the court, pursuant to the New Jersey Eminent Domain Act (Act), N.J.S.A. 20:3-1 to -50, must either (1) file a declaration of taking and make the required deposit of compensation offered the condemnee pursuant to N.J.S.A. 20:3-18 or (2) abandon the proceedings pursuant to N.J.S.A. 20:3-35. We incorporate the facts and procedural outlined in Bernardi I by reference.
After we issued our opinion in Berardi I, Pemberton filed a Notice of Abandonment of Proceedings. In November 2005, the trial judge ordered that Pemberton be returned the $2, 270, 000 it had deposited with the court. On August 18, 2008, the Berardis filed a complaint against Pemberton, "seeking the recovery of fees, costs and damages resulting from the abandonment of the antecedent condemnation case." Count Four of the complaint sought damages for the "temporary taking" of the Berardis' lots. Pemberton filed a motion for partial summary judgment, seeking dismissal of Count Four of the complaint, and the Berardis filed a cross-motion for partial summary judgment on that count. A hearing on the cross-motions for summary judgment took place before the motion judge and she granted partial summary judgment in favor of Pemberton, dismissing Count Four of the Berardi's complaint. Thereafter, a consent order and final judgment granting attorneys' fees and disbursements to the Berardis was entered on November 14, 2011.
The Berardis asserted that Pemberton's exercise of eminent domain temporarily deprived them of their property rights. Especially affected was the ability to rent space in the Browns Mills Shopping Center, owned by Rocco Berardi, including a retail store representing thirty-six percent of the shopping center that stood empty at the time the proceedings began. In addition, the adjacent vacant lot owned by Antonia Berardi "remained undevelopable and unsaleable." The Berardis contended that as a result of the actions taken by Pemberton they lost rental income, business opportunity, and opportunity to expand. According to their appraisal report, "just compensation" for the thirty-four month taking would be $1, 161, 000. The report further indicates that they realized $368, 751 in rental income from the properties in 2002, $316, 978 in 2003, $293, 019 in 2004, and $319, 654 in 2005.
The motion judge, in an August 5, 2011 order of partial summary judgment accompanied by a comprehensive written opinion, decided that Pemberton did not take the Berardi's property requiring just compensation under the Act, the Federal Constitution, or the ...