DELANCO TOWNSHIP v. 325 DELAWARE AVENUE, LLC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2836-07T32836-07T3

DELANCO TOWNSHIP,

Plaintiff-Respondent,

v.

325 DELAWARE AVENUE, LLC,

RIC F. MALIK and KAREN MALIK,

husband and wife,

Defendants-Appellants,

and

SLM FINANCIAL CORPORATION

and THE STATE OF NEW JERSEY,

Defendants.

________________________________________

 

Argued January 27, 2009 - Decided

Before Judges Winkelstein, Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County,

L-3609-05.

Jeffrey I. Baron argued the cause for appellants (Baron, Riefberg & Brennan, P.A., attorneys; Mr. Baron, of counsel and on the brief; Jeffrey M. Brennan, on the brief).

Stacy L. Moore, Jr. argued the cause for respondent (Parker McCay, P.A., attorneys; Douglas L. Heinold, of counsel; Mr. Moore, on the brief).

PER CURIAM

In this condemnation case, Delanco Township (the Township) seeks to condemn a small portion of Lot 5, Block 1208 in order to connect Delaware Avenue with Lot 6. The owner of Lot 5, defendant 325 Delaware Avenue LLC (the LLC), and the owners of Lot 4, defendant Ric F. Malik, a member of the LLC, and his wife, defendant Karen Malik, object to the taking. Defendants contend that the taking is solely to benefit the owner of Lot 6 and hence has no public purpose. In addition, they contend that the Township has incorrectly determined the location of Delaware Avenue, an unimproved road, on their Lots 4 and 5. We reverse and remand.

I

Our explanation of the facts and procedural history begins with a description of the property involved. The lots in question, Lots 4, 5, and 6, Block 1208 on the Township's tax map, are located side by side. An unimproved road runs across Lots 4 and 5, up to Lot 6 where it ends. This unimproved road connects with the improved portion of Delaware Avenue at the beginning of Lot 4, and provides the three lots with access to public streets. The tax map for the Township indicates that the portion of this unimproved road running across Lot 4 and into the middle of Lot 5 is an unimproved portion of Delaware Avenue. However, according to the tax map, Delaware Avenue ends abruptly in the middle of Lot 5, so that Lot 6 has no access to Delaware Avenue.

The Township seeks to take the strip of land on Lot 5 that would connect the unimproved portion of Delaware Avenue to Lot 6. The Township indicates that after the taking, it intends to improve the entire portion of Delaware Avenue that would then run through Lots 4, 5, and 6. This action would bisect defendants' property in a visually and functionally more dramatic manner then the existing unimproved roadway does. According to the Township, it turned its attention to this roadway situation, when defendants threatened to close the roadway, due to a dispute with the owner of Lot 6.

We will not review the involved procedural history, except to indicate that the trial court denied defendants' motion to dismiss the amended condemnation complaint and entered a final judgment dated February 5, 2007, in favor of the Township. The final judgment allowed the Township to exercise "its power of eminent domain for the expansion of Delaware Avenue to a 50' right-of-way as depicted in the Verified Complaint and Declaration of Taking," and appointed commissioners pursuant to N.J.S.A. 20:3-12(b). Defendants appeal the final judgment and the order of December 27, 2007, denying their motion for reconsideration.

In this appeal, defendants contend that the taking must be overturned because the Township is not exercising its power of eminent domain for a public use, but rather the condemnation benefits only a single private person, namely the owner of Lot 6. Defendants further dispute the path of the unimproved portion of Delaware Avenue across Lot 4 and into Lot 5 as provided on the tax map, and argue that the taking will result in the creation of an "island." They contend that other less destructive alternatives are available, and hence the taking is arbitrary, capricious, and unreasonable.

II

The taking of a portion of Lot 5 is for the sole purpose of connecting Delaware Avenue to Lot 6, a lot owned by a private person. Both the United States and the New Jersey constitutions allow the government to take private property for "public use" provided just compensation is paid. U.S. Const. amend. V; N.J. Const. art. I, 20; Texaco, Inc. v. Short, 454 U.S. 516, 523 n.11, 102 S. Ct. 781, 788 n.11, 70 L. Ed. 2d 738, 747 n.11 (1982). A taking of private property "for the purpose of conferring a private benefit on a particular private party" is unconstitutional. Kelo v. City of New London, Connecticut, 545

U.S. 469, 477, 125 S. Ct. 2655, 2661, 162 L. Ed. 2d 439, 450 (2005). A public entity may not "take property under the mere pretext of a public purpose, when its actual purpose [is] to bestow a private benefit." Id. at 478, 125 S. Ct. at 2661, 162 L. Ed. 2d at 450. Defendants in this case maintain that the taking will benefit solely the owner of one lot and hence is for a private purpose, thereby falling within the constitutional prohibition.

New Jersey courts have given condemning authorities a "wide latitude" and utilize "a flexible, deferential standard" in determining whether a particular taking is for a public use. Twp. of W. Orange v. 769 Assocs., L.L.C., 172 N.J. 564, 572 (2002). Deciding whether a particular taking is for a public or private use is considered a legislative determination and will not be overturned by the court "except in the most egregious circumstances." Id. at 576. In the absence of bad faith, fraud, or manifest abuse, the courts will uphold the public entity's decision that the taking is for a public purpose. Id. at 571. Our review here is thus subject to the "manifest abuse of discretion test." See id. at 578.

Public use is an expansive concept and "anything that 'tends to enlarge resources, increase the industrial energies, and . . . manifestly contributes to the general welfare and the prosperity of the whole community'" will be considered a public use. Id. at 573 (quoting Julius L. Sackman, 2A Nichols' The Law of Eminent Domain 7.02[2] (3d ed. rev. 1990)) (alteration in original). "Public benefit," "public advantage," and "public utility" are synonymous with public use. Ibid. (quoting State Highway Comm'r v. Totowa Lumber & Supply Co., 96 N.J. Super. 115, 119 (App. Div. 1967)).

For a taking to be deemed in the public interest it is not necessary that the entire community or even a considerable portion of the community be benefited. Ibid. A use is not considered private solely because "the immediate enjoyment of it is limited to a small group or even to a single person." State Highway Comm'r v. Buck, 94 N.J. Super. 84, 89 (App. Div. 1967) (concluding that a public purpose was served when the State condemned a strip of land to provide access to neighboring private property which would otherwise be left landlocked by the State's taking for highway purposes) (citation omitted), certif. denied, 49 N.J. 359 (1967), appeal dismissed, 389 U.S. 571, 88 S. Ct. 693, 19 L. Ed. 2d 780 (1968). Thus, a taking that benefits a private interest will pass this test provided it serves a public interest as well.

Generally, a public purpose is served when private property is condemned for use as a public road. Twp. of W. Orange v. 769 Assoc., L.L.C., supra, 172 N.J. at 573. Municipalities are expressly allowed by statute to exercise the power of eminent domain for the purpose of making local improvements, which includes the widening or extending of streets. N.J.S.A. 40:56-7 (extending to municipalities the power of eminent domain for improvements); N.J.S.A. 40:56-1(b) (defining local improvements to include the widening and extending of a street). The public purpose of taking private property for roadways has been described as follows:

There can be no dispute of the fact that condemnation of private property for a public highway or road is a proper public use. . . . If a road is to be open for public travel the purpose for which the public may wish to travel is not material, and land may be taken by eminent domain for a road which is intended solely for driving for pleasure and recreation or to furnish a view of beautiful natural scenery. Streets are frequently laid out for the purpose of opening up private land, but if a street is to be open to public travel it is well settled that it is for the public use, although it is of especial convenience or advantage to certain individuals, or even if its sole or principle object is to enhance the value of the land through which it passes[.]

[Twp. of W. Orange v. 769 Assocs., L.L.C., supra, 172 N.J. at 574 (quoting Green v. High Ridge Ass'n, Inc., 695 A.2d 125, 130 (Md. 1997)) (emphasis in original).]

However, the taking of a specific piece of private property for a public street is still subject to the constitutional test that the taking is for a public use. See Id. at 564 (examining whether the taking of land for a roadway qualified as "public use" in accordance with the constitutional limitations on a municipality's power of eminent domain).

In Twp. of W. Orange v. 769 Assoc., L.L.C., the Court addressed whether the taking of private property to create a road to a private developer's project served a public purpose. Id. at 567. The municipality sought to condemn a strip of land along the edge of private property in order to create a public street. Id. at 568. The street was intended to provide access to a proposed development of single family homes on neighboring land. Ibid. Although the development had access to another public street, the municipality determined that the condemned property provided more favorable access. Id. at 569-70. The landowner whose property was being condemned challenged the public purpose of the taking, contending that it merely served a private interest. Id. at 570. The Appellate Division reversed the trial court's entry of a final judgment, concluding that the use was for a private purpose. Ibid. The Court disagreed, concluding that a public use was served by the taking. Id. at 578. Traffic studies showed that the new road would have the benefit of providing access to other properties in the vicinity, that it would serve another existing subdivision, and would link two major roads in the municipality. Id. at 578-79.

In the case at hand, based on the record before us, we do not have a sufficient showing that this particular taking benefits the public. The Township's Ordinance authorizing the condemnation merely states that it seeks "to permanently establish a consistent 50' right-of-way" through Lots 4 and 5 to Lot 6. The Township contends that the condemnation serves a public purpose because it would provide access to the property for the property owner and the public, and that the public road would further the public safety by providing access to police and fire services. Certifications were presented to the trial court indicating that the police, ambulance, and trash collection services gain access to these three lots via Delaware Avenue. Further, the Township maintains the unimproved portion of Delaware Avenue by filling potholes and trimming tree limbs. Defendants challenge these assertions and contend that other alternatives are available to the owner of Lot 6, that Lot 6 is not landlocked, and that access is available from neighboring Second Street.

The record before us is not sufficient to resolve this dispute. The certifications from the Township do not indicate that this extension of Delaware Avenue is necessary in order to provide public services to Lot 6 or that the extension in some way benefits the public. They do not explain how the taking will further the public safety, as the Township argues. The Township needs to present an analysis based on facts to support a finding that the taking serves a public purpose and is not merely intended to provide a private individual access across someone else's land.

Accordingly, we remand in order that a further record may be developed to determine whether this taking merely benefits a private individual or serves the public interest. On remand, plaintiff must show that the taking contributes to the general welfare of the community in some way rather than inures solely to the benefit of the owner of Lot 6. In this effort, consideration may be given to any advantages that the taking will have on traffic flow in the community. See Id. at 576. Consideration may also be given to plaintiff's need to have a reasonable and efficient way to provide municipal services to its residents, including the residents of Lot 6, as well as any other way the taking serves a public purpose.

In evaluating these proofs, the trial court must give due deference to the "wide latitude" given to public entities in determining whether to condemn certain property for public use. Id. at 572. As noted earlier, a public entity's decision to condemn property is considered a legislative decision that will only be overturned "in the most egregious circumstances." Id. at 576. Accordingly, the trial court may not substitute its judgment for that of the public entity. However, the trial court must assure that the public entity's reasons for the taking serve a public interest and are not a mere pretext to benefit a private individual.

III

Defendants argue that the path of the unimproved portion of Delaware Avenue across Lot 4 and Lot 5 reflected on the Township's tax map is incorrect when compared to earlier deeds and plans. As a result, according to defendants, the portion of land the Township seeks to condemn will not connect with Delaware Avenue and hence, the taking is arbitrary, capricious, and unreasonable. Along with their motions for reconsideration, defendants submitted to the trial court a report from a surveyor and engineer setting forth this problem. The trial judge denied the motion for reconsideration, noting that defendants were too late to submit an expert report.

The granting of a motion for reconsideration falls within the discretion of the court, and that discretion must be exercised in the interest of justice. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). See Capital Fin. Co. v. Asterbadi, 398 N.J. Super. 299, 309-11 (App. Div.) (finding that the trial court erred in denying a motion for reconsideration when it failed to consider newly submitted evidence that sought to correct a factual mistake in the trial judge's decision on an issue not earlier raised and that amplified and dovetailed with evidence already in the record), certif. denied, 195 N.J. 521 (2008). Even if defendants should have been more diligent in obtaining the report earlier, we cannot overlook the fact that it raises a critical question, namely whether the proposed taking actually connects with Delaware Avenue. Consequently, the trial court shall consider the report on remand.

 
Reversed and remanded.

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(continued)

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A-2836-07T3

April 28, 2009