EDWARD TEMPESTA, et al. v. CITY OF JERSEY CITY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3811-04T33811-04T3

EDWARD TEMPESTA, INDIVIDUALLY

AND AS PRESIDENT OF TEMPESTA &

SON COMPANY, INC., EDWARD TEMPESTA,

INC., trading as ARROW RECYCLING,

and TASCO REALTY, INC., RICHARD

TEMPESTA, INDIVIDUALLY AND AS VICE

PRESIDENT OF TEMPESTA & SON COMPANY,

INC., EDWARD TEMPESTA, INC., trading

as ARROW RECYCLING, and TASCO REALTY, INC.,

Plaintiffs-Appellants,

v.

CITY OF JERSEY CITY, MAYOR AND COUNCIL

OF THE CITY OF JERSEY CITY, JERSEY CITY

FIRE DEPARTMENT, MICHAEL REGAN, INDIVIDUALLY

AND AS AN OFFICIAL OF THE JERSEY CITY

BUILDING DEPARTMENT, JERSEY CITY BUILDING

DEPARTMENT, ANTHONY LAMBIASE, DIRECTOR OF

THE DIVISION OF ZONING OF THE DEPARTMENT

OF HOUSING & ECONOMIC DEVELOPMENT OF THE

CITY OF JERSEY CITY, JERSEY CITY ZONING

BOARD OF ADJUSTMENT, ALICE SCHEMM,

INDIVIDUALLY AND AS THE ACTING DIRECTOR

OF THE JERSEY CITY DIVISION OF COMMERCE,

Defendants-Respondents,

and

MARTIN VALENTI, INDIVIDUALLY AND AS AN

OFFICIAL OF THE JERSEY CITY INCINERATOR

AUTHORITY, JERSEY CITY INCINERATOR

AUTHORITY AND MAZTEC ENVIRONMENTAL, INC.

d/b/a MAZTEC ENVIRO,

Defendants.

________________________________________

 

Submitted April 25, 2006 - Decided August 15, 2006

Before Judges Hoens, R. B. Coleman and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Hudson County,

L-1562-01.

Diktas Neiss Schandler Gillen, attorneys for

appellants (Arthur M. Neiss, Christos J. Diktas and Christine Gillen, of counsel; Mr. Diktas, on the brief).

William C. Matsikoudis, Corporation Counsel,

attorney for respondents (Carmine J. Scarpa,

Assistant Corporation Counsel, on the brief).

PER CURIAM

Plaintiff appeals from the dismissal of its complaint for damages resulting from what it characterizes as the negligent decision to demolish a building owned by it and for an inverse condemnation said to have occurred when it was prevented from rebuilding and renewing the licenses necessary for the businesses conducted in the building. We affirm the dismissal of the inverse condemnation claim; and reverse and remand the dismissal of the negligent demolition claim.

The litigation has its genesis in a March 8, 2001, fire that partially destroyed plaintiff's property on which was conducted a recycling and junk business. We take the following recitation of facts from the testimony produced at a jury trial before the trial judge dismissed the claims.

The businesses conducted by plaintiff were non-conforming uses at the time of the fire, which began in the early evening of March 8, 2001. The Jersey City Fire Department responded to the fire at approximately 9:45 p.m. Dennis Peters, the Fire Battalion Chief, was the first commander on the scene and he directed the measures to combat the fire. William Sinnott, Fire Department Deputy Chief, arrived at the scene and assumed command shortly thereafter. Frederick Eggers, the Fire Chief, arrived at approximately 11:00 p.m., although he left Sinnott in command. Throughout this time, Sinnott did not perceive any threat that the building might collapse.

The fire was brought under control at approximately 2:00 a.m. on March 9, 2001. While it was still burning, it was neither spreading nor threatening to spread. Peters relieved Sinnott of command at 2:00 a.m. and began fighting small scattered pockets of fire after the main body of the fire had been put out. Peters never made a determination that the building had been damaged to the point that it was unsafe. James Pierro, a Fire Department Battalion Chief, relieved Peters at 8:00 a.m. and determined that it was safe to enter the building. Pierro opined that the building did not have to be demolished to finish the "mop-up" operation. Indeed, plaintiff's employees were in the building, removing debris on March 9, 2001.

Ed Ciolko, a municipal building inspector with no training in structural engineering, opined, apparently to Pierro although the record is not clear in this respect, that the building was unsafe. He did so even though he recognized that only an engineer could determine if it was structurally unsound. When Eggers returned to the site at about 9:00 a.m. on March 9, 2001, Steven Schneider, a structural engineer employed by plaintiffs, had viewed the property and concluded that the building was structurally sound.

Nevertheless, on March 9, 2001, Michael Regan, the Jersey City Building Inspector, issued a notice, apparently drafted by Ciolko, to plaintiff:

Your building had suffered substantial damage from a fire--leaving this structure unsafe and unoccupiable. This is an unsafe structure N.J.A.C. 5:23-2.32. This structure is not to be repaired or occupied until an engineer provides us with a detailed structural analysis and files plans based on same for our approval.

He also sent a memo to Norman Guerra, the Executive Director of the Jersey City Incinerator Authority (JCIA), the agency charged with conducting the demolition:

As per my conversation with the local Fire Department and their position regarding the current fire underway at the above captioned site, it has been determined that to adequately put out the fire the building must be dropped for the Fire Department to fight the fire. This is your authorization to proceed and to drop the building as required by the Captain or the Chief at the site.

None of the fire department officials admitted giving an order to demolish the building or suggested that such demolition was necessary. Indeed, Peters and Pierro specifically denied directing the demolition of the building. Peters testified that a fire chief on site would not order a demolition without consultation; if he thought that structural integrity might be a problem and that the building might be unsafe, he would consult with the building department, but Peters did not do so.

Pierro authored a contemporaneous note that, while he was in command, the "building department [had been requested] to come down and render an opinion on the building structure." He remembered an individual, whom he did not recognize, from the building department appearing at the scene. It was reasonably inferable that this individual was Ciolko. Nevertheless, Pierro denied ordering the demolition.

Eggers recalled speaking with Regan on March 8. During their conversation, Eggars testified, he told Regan that, "[t]he building department said that the building will come down." Regan, explaining the need for his memo, said, "[i]t was inferred (sic) to me via the telephone call from the fire department that in order for us to fight this fire, we needed to drop the building and parts of the building." Regan then issued his memo and contacted the JCIA, which, in turn, contracted for the demolition.

Regan, however, also conceded that he did not know if there was any immediate danger that the building would collapse on March 8 or 9, 2001. He had not seen the building and no one on his staff had inspected the building on those days. In any event, he testified, his normal procedure would have been to obtain an outside consultant to analyze the structural integrity of the building. The standard procedure for removal of a building was to dispatch an inspector at the request of the fire department. If demolition is necessary, "we'll order the owner to remove it . . . . And if the owner doesn't remove it, then the City of Jersey City, in the interest of public safety [will] remove the building."

When plaintiff learned of the proposed demolition, it advised the people on site that its engineer, who was present, had certified that demolition was not necessary. By that time, however, thirty percent of the building had been demolished. Further demolition was avoided by a consent order entered on May 17, 2001.

The plaintiffs, through their engineer, prepared plans to rebuild the property without increasing the non-conformity of the use. The plans were filed with the building department on April 5, 2001. On May 3, 2001, defendant, Anthony Lambiase, Jersey City's Zoning Director, advised plaintiff that the building could not be reconstructed for use as a Recycling Facility.

He said that a "visual inspection" led him to determine that "more than fifty percent" of the property had been destroyed. He advised plaintiff that Chapter 345, Article V, Section 30 of the applicable municipal ordinance prevented rebuilding "as a recycling facility due to the extensive damage [i.e. more than 50%] and the [zoning ordinance]." Plaintiff produced testimony that Lambiase refused to accompany plaintiff's engineer to the site to verify the extent of destruction and failed to participate in the mechanism provided by the ordinance for resolving disputes concerning the extent of damage. On June 18, 2001, on Lambiase's recommendation, defendant Alice Schemm, Jersey City's Commerce Director, denied plaintiff's application for renewal of its junkyard license.

This complaint was filed on March 12, 2001, seeking injunctive relief against further demolition and for damages. After Lambiase's May 3, 2001, advice that the building could not be reconstructed for use as a recycling facility and Schemm's June 18, 2001, denial of the license renewal, plaintiff amended the complaint to add claims for negligent destruction of the building and for damages resulting from "inverse condemnation."

Thereafter, a judge invalidated the municipal ordinance prohibiting the reconstruction of a building more than 50% destroyed, because it conflicted with N.J.S.A. 40:55D-68, permitting reconstruction of a building "partially destroyed." The question of whether the building was "partially destroyed" was remanded to the Zoning Board, which determined, on October 25, 2001, that it could be rebuilt.

Lambiase, nevertheless, refused to issue a building permit, claiming that site plan approval was necessary before he could do so. Plaintiff challenged that decision and a motion judge agreed that site plan approval was necessary. Plaintiff then applied for and, on February 26, 2002, received the required approval. Both the Zoning and Planning Board approvals were granted over the objection of Lambiase. On January 4, 2002, plaintiff had been allowed to continue the junkyard business and Schemm was ordered to issue a license.

As the result of summary judgments and settlements, plaintiff tried only the issues of negligent destruction of the building against the City and Regan and inverse condemnation against the City. Before plaintiff presented its last three witnesses, defendant moved to dismiss the inverse condemnation claim. That motion was granted. The trial judge then raised a question of the sufficiency of proofs regarding the negligent destruction claim. After argument, the judge dismissed the negligent destruction claim.

Before dealing with plaintiff's appeal, we note our agreement with plaintiff's argument that the judge should not have dismissed the case before all proofs had been adduced. See Perth Amboy Iron Works, Inc. v. American Home Assurance Co., 226 N.J. Super. 200, 215 (App. Div. 1988), aff'd o.b. 118 N.J. 249 (1990). Nevertheless, plaintiff has been unable to explain, either before the trial judge or before us, the relevance of the testimony expected from the remaining witnesses. Accordingly, we view the exclusion of the plaintiff's last three witnesses as harmless error, incapable of producing an unjust result. See R. 2:10-2.

We turn then to the substantive aspects of the appeal. Because the judge dismissed the complaint at the end of plaintiff's proofs, we may affirm only if "the evidence, together with the legitimate inferences therefrom, could [not] sustain a judgment in plaintiff's favor." R. 4:37-2(b). We review the judge's action applying the same standard as does the motion judge, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) certif. denied, 154 N.J. 608 (1998), without affording any special deference to the judge's interpretation of the law. Manalapan Realty L.P. v. Twp. Committee of Manalapan, 140 N.J. 366, 378 (1995). We thus look to determine if, accepting all of plaintiff's favorable evidence, a reasonable person could find in favor of plaintiff. Dolson v. Anastasia, 55 N.J. 2, 5 (1969).

We consider first the claim for inverse condemnation. That claim was dismissed because the judge believed that "there cannot be an inverse condemnation claim for the City's actions in the zoning ordinance which was declared invalid." He relied upon Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282,

cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002). We agree with that result.

"Both article I, paragraph 20 of the New Jersey Constitution and the [f]ifth and [f]ourteenth amendments to the United States Constitution prohibit the government from taking property without paying just compensation. The protections afforded under both constitutions are coextensive." Littman v. Gimello, 115 N.J. 154, 161, certif. denied, 493 U.S. 934, 110

S. Ct. 324, 107 L. Ed. 2d 314 (1989). "An unconstitutional taking occurs not only when the state actually physically occupies private property for public use, it also occurs when the government's excessive use of police powers results in a denial of all economically beneficial use of the property." Pinkowski v. Twp. of Montclair, 299 N.J. Super. 557, 575 (App. Div. 1997) (citations omitted).

"Inverse condemnation is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted. It is a remedy afforded to a landowner whose property has been taken de facto." Rieder v. State of New Jersey, Dept. of Transp., 221 N.J. Super. 547, 553 (App. Div. 1987) (citations and internal quotation marks omitted).

To sustain a claim of inverse condemnation, plaintiff was required to show that the governmental agency failed to pay compensation for an "otherwise proper interference amounting to a taking." Pheasant Bridge Corp. v. Twp. of Warren, supra, 169 N.J. at 296 (quoting First English Evangelical Lutheran Church of Glendale v. County of L.A., 482 U.S. 304, 315, 107 S. Ct. 2378, 2385, 96 L. Ed. 2d 250, 264 (1987)).

Plaintiff here failed to show either an "otherwise proper interference" or an interference sufficiently severe to demonstrate a taking. The interference asserted was the application to plaintiff of the municipal ordinance prohibiting rebuilding by virtue of destruction of more than 50% of the construction. That ordinance was subsequently declared invalid. Accordingly, the "interference" by virtue of the application of an invalid ordinance was not "proper." Pheasant Bridge, supra, 169 N.J. at 297.

Moreover, plaintiff was required to show a sufficiently serious interference with the use of its property. "[H]aving been subjected to an invalid ordinance during the time it took to challenge successfully the ordinance's application[]" does not constitute even a temporary taking. Ibid. Finally, plaintiff would have been required to show that the use of its property had been impaired. This requires, in turn, a showing that that plaintiff was deprived of all economic use of its property or that the regulation substantially interfered with "distinct investment-backed expectations . . . ." Mansoldo v. State, 187 N.J. 50, 59 (2006). Plaintiff's evidence failed to demonstrate any of the elements necessary to support a claim of inverse condemnation; no reasonable mind could have found in plaintiff's favor; and the claim was properly dismissed.

We cannot conclude, however, that the dismissal of the negligent destruction claim was correct. To sustain a claim of negligence, plaintiff was required to show a breach of a duty proximately causing injury. Weinberg v. Dinger, 106 N.J. 469, 484 (1987). The municipality will be responsible for the negligence of its employees acting within the scope of their employment to the same extent as would a private employer. N.J.S.A. 59:2-2a. Plaintiff asserts that Regan's authorization to demolish the building was negligent, and we agree that a reasonable factfinder might have determined, without being compelled to do so, that the order constituted a breach of his "obligation to exercise due care in performing his municipal duties."

Although there was some testimony that demolition was necessary to combat the fire, there was substantial evidence that it was not. The only engineer to have inspected the structure deemed it to be structurally sound. With the exception of Eggers, every commander believed the structure was physically safe. Eggers, although he initially did not believe demolition was necessary, later commented to the contrary to Regan. Those comments, however, a reasonable factfinder might determine, were based upon the opinions of Ciolko, who was unqualified to render them. Moreover, the evidence would have supported a finding that the authorization was issued without any inspection, contrary to Regan's policy. Although not compelled, a reasonable factfinder might conclude that these facts establish a failure to exercise proper diligence before authorizing demolition.

When he dismissed the negligent demolition claim, the judge explained:

All of the testimony presented thus far in this case indicates that no fire chief or captain ever gave the order to demolish the building. In fact, it's totally to the contrary. In reviewing my notes, every fire official that has testified in this case has indicated they did not feel the building needed to be demolished. Since plaintiff has indicated there will be no further proofs submitted that could impose liability to the demolition against the City, the Court at this time will grant the City's motion to dismiss the remaining count as to demolition of the building.

We think the judge's belief that plaintiff was required to identify the individual fire chief or captain ordering the demolition is mistaken. A reasonable factfinder might simply reject the denials of the fire officials even though they were not contradicted. See D'Amato by McPherson v. D'Amato, 305 N.J. Super. 109, 115 (App. Div. 1997) ("[a] case may present credibility issues requiring resolution by a trier of fact even though a party's allegations are uncontradicted."); Ferdinand v. Agricultural Ins. Co. of Watertown, N.Y., 22 N.J. 482, 494 (1956) ("[w]here men of reason and fairness may entertain differing views as to the truth of testimony, whether it be uncontradicted, uncontroverted or even undisputed, evidence of such a character is for the jury.").

If the factfinder determined that one or more of the fire officials ordered the demolition without reason to believe it necessary, a negligence verdict would be supportable. It would not be necessary to identify the particular official giving the order if a reasonable inference is available that one such official gave the order. On the other hand, if the jury accepted the denials, the jury might, although not required to, conclude that the City allowed demolition in the absence of an order by an authorized individual. Such a finding would also support a verdict for plaintiff.

Without further argument or reference to authority, defendants contend that Regan is immune under N.J.S.A. 59:3-2(a), exercising judgment; N.J.S.A. 59:3-6, issuing an authorization; and N.J.S.A. 59:3-7, failing to inspect or negligent inspection; and that the City is immune from liability for Regan's action under N.J.S.A. 59:2-1(a), general immunity; N.J.S.A. 59:2-5, issuing an authorization; and N.J.S.A. 59:2-6, failing to inspect or negligent inspection.

Defendant had previously asserted immunity as a basis for a summary judgment before two other motion judges. Both judges denied the motion without analysis and the trial judge did not address the issue when he dismissed the complaint. Contrary to plaintiffs' argument, the trial judge's failure to address immunity does not preclude defendants' argument. A correct decision must be affirmed, even when its basis is incorrect. Isko v. Planning Bd. of Twp. of Livingston, 51 N.J. 162, 175 (1968). Accordingly, if defendants were entitled to immunity, the dismissal would have been correct. While defendants failed to cross-appeal the denials of their summary judgment motions, they may "argue any point on the appeal to sustain the trial court's judgment." Chimes v. Oritani Motor Hotel, Inc., 195 N.J. Super. 435, 443 (App. Div. 1984).

The public entity has the burden of proving that it is immune under the Tort Claims Act. Bilgen v. Jersey City Hous. Auth., 131 N.J. 124, 128 (1993). Defendants have failed to meet this burden. N.J.S.A. 59:3-2(a) exculpates a public employee from liability for injury "resulting from the exercise of judgment or discretion vested in him." The immunity must rest on the exercise of vested discretion, but Regan had no authority to authorize demolition. If the fire was still burning at the time Regan authorized demolition, he usurped the function of the chief of the fire department who has "the sole authority with . . . with respect to all firefighting operations relating to the protection of lives and property endangered by such fire

. . . ." N.J.S.A. 40A:14-54.1. If the fire had been declared to be out, see N.J.S.A. 40A:14-54.1, demolition may not commence without forty-eight hours notice to the owner. N.J.A.C. 5:23-2.32(b)(2). N.J.S.A. 59:3-2(a) affords no immunity.

N.J.S.A. 59:3-6 exculpates a public employee from liability for injury caused by his issuance of any "approval, order or similar authorization where he is authorized by law to determine whether or not such authorization should be issued." The same considerations that prevent immunity under N.J.S.A. 59:3-2(a) apply here as well. Regan simply had no authority to permit demolition under the circumstances here.

N.J.S.A. 59:3-7 exculpates a public employee from liability for injury "caused by his failure to make an inspection, or by reason of making an inadequate or negligent inspection." The claim advanced by plaintiff, however, does not relate to the failure to make an inspection. It is the issuance of an authorization to demolish, without any foundation, that supports plaintiff's claim. N.J.S.A. 59:3-7 is simply inapplicable.

Accordingly, we conclude that the negligent destruction claim was dismissed improperly and must be remanded for a new trial on that claim alone.

Affirmed in part; reversed in part and remanded.

 
 

The corporate plaintiffs are related entities, some of which owned real estate on which others conducted "junk" and "recycling" businesses. For convenience we have referred to all plaintiffs in the singular.

The suit against JCIA was dismissed after the complaint against the City and Regan had been dismissed.

(continued)

(continued)

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A-3811-04T3

 

August 15, 2006