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Essex County Improvement Authority v. RAR Development Associates

323 N.J. Super. 505, 733 A.2d 580 (Law Div. 1999)

CONDEMNATION; ABANDONMENT—Abandonment of condemnation may be achieved by mutual consent which may be either express or implied and acceptance of an abandonment may be implied from silence where the accepting party would have been expected to raise an objection to the abandonment.

County Freeholders authorized condemnation of a tract of land, by eminent domain, for construction of a park. The county improvement authority had the property appraised and investigated for environmental purposes. It then made two written offers to the property owner for acquisition of the property. Having made those offers, it learned of environmental contamination at a different, related property. As a result, it no longer needed to acquire the subject property. Consequently, by resolution, the County Freeholders rescinded its authorization for the acquisition of the subject land. Notwithstanding the rescinding resolution, the county improvement authority contended that it still had the authority to acquire the land by eminent domain. It contended that there had never been an abandonment of the condemnation of the property and put forward an interpretation of the rescinding resolution that condemnation of the property remained viable. The property owner contended that the improvement authority was acting in bad faith and presented numerous arguments to why the authority should not be permitted to continue its condemnation efforts. Nonetheless, the Court found it necessary only to deal with the question of “abandonment.” Under New Jersey statute, a condemning authority has two methods of effectuating abandonment; one unilaterally, and one by mutual consent. In this case, the option of unilaterally abandoning the condemnation proceedings was unavailable to the improvement authority because it had already filed a declaration of taking which, by statute, bars unilateral abandonment.

The Court found no prior cases to assist it in determining whether the condemnation proceedings had been terminated by mutual consent. Therefore, it looked to the definition of abandonment, which has two elements: the intent to abandon and the performance of a voluntary external act giving effect to the intent. Intent to abandon may be accomplished by the passage of a resolution or a repeal of the initial ordinance that commenced the condemnation action. In the alternative, the actions, conduct or declarations of the parties may demonstrate the intent needed to establish abandonment. Abandonment of condemnation may be either express or implied. In reaching the conclusion that the condemnation proceedings had, in fact, been abandoned, the Court pointed to a letter from the authority to the property owner to the effect that the authority had determined “that it is no longer necessary to acquire the property ... [the authority] hereby withdraws that offer ... and provides you with notice of the abandonment of its intention to acquire this property by eminent domain.” The language of that letter was held to clearly depict the authority’s state of mind as to its intention to abandon. The property owner’s silence after receiving the letter was evidence of its acquiescence to the abandonment of the condemnation action. Although silence does not ordinarily manifest assent, the relationship between the parties or other circumstances may justify the offeror’s expecting a reply and, therefore, assuming that silence indicated assent to its proposal. To the Court, if the property owner did not agree to the abandonment of the condemnation action, it would have objected to withdrawal of the offer to purchase the property when it received the letter. Instead, it asked about reimbursement for its expenses as permitted by New Jersey statute. The improvement authority also argued that it never filed a notice of abandonment. The court held, however, that the technicality of not filing a notice does not prevent the abandonment from taking place. The authority, “having mutually consented to the abandonment,” could argue that the filing requirement was anything more than a ministerial act. Essentially, according to the Court, “[g]iven the nature of the facts of this case, and the evidence presented to the court, there will be a significant miscarriage of injustice if the abandonment is not effectuated. To prevent this injustice from occurring, the use of the doctrine of estoppel in pais is appropriate.” That doctrine may be used against a government entity to prevent frustration of justice to the non-government party as long as the function of government is not hindered by the application of the doctrine. Lastly, where there has been an abandonment of the condemnation action by a public body, the landowner is entitled to reasonable attorney’s fees.


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