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Borough of Keyport v. Maropakis

332 N.J. Super. 210, 753 A.2d 154 (App. Div. 2000)

CONDEMNATION; NOTICE—A notice of condemnation hearing that failed to advise a property owner that failure to appear would preclude an appeal was found to violate due process requirements.

A municipality sought to acquire a particular piece of property. The property owner rejected the municipality’s offer and the municipality commenced a condemnation proceeding. Condemnation commissioners were appointed to examine the piece of property. The municipality provided the property owner with a notice giving the name of the Commissioners, the date, time and place of the hearing, and advised the property owner that the “Commissioners will proceed with their duties and fix the compensation to be paid for the land and premises described in the complaint in this action including damage, if any, resulting from the taking to any remaining property.” Neither the property owner nor anyone on the property owner’s behalf appeared at the hearing. The property owner then filed a notice of appeal and the municipality argued that only interested parties who appear before condemnation commissioners have the right to appeal the decision of the commissioners. The lower court agreed, ruling that failure to appear on the part of the property owner constituted a waiver of the right to appeal. In response, the property owner argued that the hearing notice failed to give actual or constructive notice of the alleged consequences of not appearing. The Court, reviewing the statute and the legislative history, determined, essentially from reviewing the statute’s 1971 amendments, that, “by its plain language, the Act limits the class of those eligible to appeal to those parties who have ‘appeared at the hearings of the commissioners, either personally or through an attorney[.]’” Having concluded that the statutory language precluded an appeal, the Court looked to the Fifth and Fourteenth Amendments of the United States Constitution and Article 1, sec. 220 of the New Jersey Constitution. Its analysis was that the critical components of the due process required by those constitutional articles were “adequate notice, opportunity for a fair hearing and availability of appropriate review.” Accordingly, “‘due process of law’ includes reasonable notice of the nature of the proceeding and a fair opportunity to be heard therein.” The Court then reviewed prior case law concerning what constituted due notice and, concluded that the government “has an overriding obligation to deal forthrightly and fairly with property owners in condemnation actions.” Consequently, in light of the intent and purpose of the Act, and in light of the consequences of failure to appeal, the Court found that the form of hearing notice used in this particular case was insufficient because it failed to adequately advise the property owner that if it did not appear at the Commissioner’s hearing, personally or through counsel, it would not be permitted to appeal from the Commissioner’s report. The Court, therefore, reversed and remanded the matter for appeal proceedings.

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