NJ Appellate Court Affirms Right To Condemn

by Joseph Grather New Jersey Condemnation Law

Last week, the appellate division affirmed a trial court decision that rejected a property owner’s request to dismiss a condemnation action on the grounds that the State failed to engage in bona fide negotiations. State, DOT v. St. Mary’s Church (Docket A-5448-10T1).  The property owner argued that dismissal was warranted because the State failed to follow the correct pre-complaint procedures required for an entity to exercise eminent domain; i.e. produce a copy of an “addendum memo” authored by its appraiser when it made its offer, and for DOT’s failure to produce an internal “review appraisal.  The “addendum memo” was ultimately disclosed to the property owner, but the State refused to disclose the internal “review appraisal.”  After positing the issue as:  ”Does the failure to provide the addendum memo in the first instance require this court to dismiss the complaint… ?” The trial court found that it did not, and denied the property owner’s challenge.

The Appellate Division affirmed, and its reasoning is set forth in the following paragraph:

“In this case, Judge Millenky concluded that Black’s review appraisal was part of a deliberative process employed by the State to confirm the validity of the original appraiser’s report. The review appraisal added no new information that the State in turn used to “calculate[e] the amount if would offer” to St. Mary’s. Ibid.  Indeed, the original appraiser’s report fully set forth the method utilized in making the pre-litigation offer and incorporated comments and suggestions made by Black before it was served upon St. Mary’s. Additionally, St. Mary’s had another report which, utilizing a different method of calculation, set the fair value of the taking at a far greater amount. Together, these two appraisals were sufficient to “permit a reasonable, average property owner to conduct informed and intelligent negotiations.” Carroll, supra, 123 N.J. at 321. Judge Millenky held that the review appraisal was not subject to pre-litigation disclosure, and the failure by the State to serve it before filing the complaint was not a failure to engage in pre-litigation “bona fide negotiations.” N.J.S.A. 20:3-6. [Slip op. at 14].

These types of cases are highly fact sensitive, and the merits of each such case should be weighed closely before investing the substantial time and expense needed to mount a challenge to a condemnor’s right to take.

Originally published by New Jersey Condemnation Law; republished with permission

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