Skip to main content



Township of Pemberton v. Berardi

378 N.J. Super. 430, 876 A.2d 287 (App. Div. 2005)

CONDEMNATION; DECLARATIONS OF TAKING—Should a municipality fail to file a declaration of taking with respect to a property that it intends to condemn, under the New Jersey Eminent Domain Act, the property owner has a right to have a court order the municipality to either file a declaration of taking or abandon the condemnation proceedings.

A shopping center was located next to a vacant property. The vacant property was owned by a relative of the shopping center owner and was considered part of the shopping center. The shopping center was old and in need of renovation. The municipality in which the shopping center was located adopted a redevelopment plan. As part of the plan, the municipality sought to acquire the shopping center. It presented its owner with a property appraisal and offered compensation for the property. The owner refused to accept the compensation and the municipality filed an order to show cause and complaint for condemnation pursuant to the New Jersey Eminent Domain Act. In addition, it filed a notice of lis pendens against the property. In an attempt to stop the condemnation proceedings, the shopping center owner filed an application with the municipal planning board for site plan approval to renovate the property. Nevertheless, the lower court appointed commissioners pursuant to the Act. They determined the fair market value of the property. The owner appealed the commissioners’ decision. At the time, the municipality had not filed a declaration of taking. The owner filed a motion to compel the municipality to either file a declaration of taking or abandon the condemnation proceedings. The lower court denied the motion, but ordered the municipality to deposit the fair market value of the property with the court. The municipality deposited the funds as required. Three months later, the municipality had still not filed a declaration of taking. The owner once again filed a motion to compel the municipality to file the declaration or abandon the proceedings. The lower court denied the owner’s motion and the owner appealed. On appeal, the owner argued that the plain meaning of the Act requires the municipality to file a declaration of taking or abandon the proceedings. He asserted that the municipality’s failure to proceed with the condemnation action was causing him hardship by interfering with his business relationships with the shopping center tenants. In response, the municipality contended that the Act did not require it to file a declaration of taking within a definite period of time. In support of its case, the municipality cited Borough of Tenafly v. Centex Homes Corporation, 139 N.J. Super. 490 (Law Div. 1975), where the court held that under the Act, the court has the discretion to order a municipality to file a declaration of taking or forego the condemnation proceeding, but that it is not required to order the municipality to do so.

The Appellate Division reversed the lower court’s determination. In reaching its decision, the Court analyzed the legislative intent behind the condemnation statutes. It found that the purpose behind the statutes was to protect property owners in condemnation proceedings from undue hardship, such as being left in limbo until a municipality files a declaration of taking. It overruled the court’s prior decision in Borough of Tenafly v. Centex Homes Corporation by holding that the Act requires a court to order the municipality to either file a declaration of taking or abandon the proceedings to protect the interests of the property owner.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com