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City of Brigantine v. Sentore

A-3872-08T2 (N.J. Super. App. Div. 2010) (Unpublished)

CONDEMNATION; EASEMENTS — In an eminent domain dispute, the issues to be decided, other than those of value or damages, must be presented to and decided by a court before it appoints commissioners, and if a partial taking would not result in the parcel of land having little or no economic value, the condemnor is not required to acquire the entire parcel.

A municipality condemned a permanent easement over a portion of a property owner’s vacant beachfront property. This was to allow the municipality to access a portion of the property for beach maintenance and replenishment projects. The property owner had never sought approvals to develop the property, and there was no residential or commercial use on, or associated with, the property. The property was subject to federal, state, and municipal restrictions, all in effect prior to the property owner’s purchase of the property.

The appointed condemnation commissioners held a hearing and rendered a report and their award on December 9, 2008. The property owner appealed the decision, and on December 17, 2008 the property owner was notified that a jury trial was scheduled for March 9, 2009. On February 4, 2009, the property owner filed a motion to compel the municipality to condemn the entire property, and in a letter to the court dated February 17, 2009, a request for an adjournment was made because the initial trial date did not provide adequate time to obtain necessary expert reports. The lower court denied both the adjournment request and the motion to compel, noting this was the first time in four years that the property owner had sought to compel the municipality to condemn the entire property in fee simple. The lower court relied on an Appellate Division precedential holding that such issues must be presented to, and decided by, the court before a judgment appointing condemnation commissioners could be entered.

On March 5, 2009, the Appellate Division denied the property owner’s emergent motion for leave to file an interlocutory appeal and for a stay of the trial. On March 9, 2009, the lower court again denied the property owner’s request for an adjournment, holding that the property owner was precluded from presenting any evidence at trial that was not presented during the condemnation proceeding. That same day, the jury returned a verdict valuing the municipality’s partial taking at $1,000.

On further appeal, the property owner argued that it was error not to adjourn the first listed trial date to provide adequate opportunity to prepare, and that the lower court was incorrect in not requiring the municipality to condemn the entire parcel in fee simple. The Appellate Division, however, affirmed the lower court’s decision, finding the property owner’s request for adjournment to be untimely because it had ample opportunity to prepare for the trial. The Court stated when a taking drains the property of all economic worth, it would be the better practice for the municipality to condemn the whole property. However, the record did not support the property owner’s claim that its property was reduced “as a result of” the condemned easement. The property had little value prior to the taking because its use was restricted by applicable regulations and zoning requirements. Several experts testified that the land was unfit for development, and the condemned easement actually enhanced the value and use of the property. Therefore, the Court disagreed with the property owner’s claim that the easement created an “uneconomic remnant” requiring condemnation of the whole parcel. As a consequence, the Court affirmed the lower court’s rulings in all respects.


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