TOWN OF KEARNY v. RLR INVESTMENTS, LLC

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3174-07T23174-07T2

TOWN OF KEARNY,

Plaintiff-Respondent,

v.

RLR INVESTMENTS, LLC,

Defendant-Appellant.

___________________________________

 

Argued May 6, 2009 - Decided

Before Judges Rodr guez, Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5242-07.

Frank E. Ferruggia argued the cause for appellant (McCarter & English, attorneys; Mr. Ferruggia, on the briefs).

Gregory J. Castano Jr. argued the cause for respondent (Castano Quigley, attorneys; Mr. Castano, on the brief).

PER CURIAM

Defendant RLR Investments, LLC (RLR), a real-estate holding affiliate of R & L Carriers, Inc. (R & L), owns property in the Town of Kearny on which R & L operates a commercial motor freight terminal. Kearny has targeted RLR's property, together with adjacent properties, for redevelopment pursuant to the Local Redevelopment and Housing Law (LHRL), N.J.S.A. 40A:12A-1 to 73. In a summary action filed in the Law Division, Kearny sought and gained entry to the property to perform pre-condemnation testing, pursuant to N.J.S.A. 20:3-16 and N.J.S.A. 40A:12A-8(h).

At the time Kearny filed its order to show cause in the Law Division, there was already pending the second of two actions filed by RLR in the United States District Court for the District of New Jersey, in which RLR sought to preclude both the condemnation of its property and any pre-condemnation testing on Fifth Amendment grounds. In opposition to Kearny's action in the Law Division, RLR argued that: (1) Kearny was not entitled to proceed in a summary manner under Rule 4:67; (2) the Law Division should stay the state court action pursuant to considerations of comity because the federal court action had been filed first, see Fantony v. Fantony, 21 N.J. 525, 533 (1956); Am. Home Prods. Corp. v. Adriatic Ins. Co., 286 N.J. Super. 24, 37-38 (App. Div. 1995); and (3) citing Gallenthin Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344, 373 (2007), the property at issue is not subject to pre-condemnation testing or condemnation pursuant to the LHRL because it is not in a "blighted area[]," within the meaning of N.J. Const. art. VIII, 3, 1. The Law Division ordered RLR to permit entry and denied RLR's motion for reconsideration. We denied both RLR's emergent and regular motions for a stay.

Kearny argues that the appeal is moot and should be dismissed. R. 2:8-2. The Law Division's order permitting entry by Kearny to conduct testing expired on April 2, 2008, and all testing has been completed. Kearny no longer has any authority to enter RLR's property to perform pre-condemnation testing. It argues that the case is moot because the testing cannot be "undone or reversed." While conceding that the testing cannot be undone, RLR argues that the appeal is not moot because its challenges to the entry remain unresolved, and because it is still entitled to damages, declaratory relief, or equitable relief. However, RLR filed no counterclaim seeking such affirmative relief in the Law Division.

Generally, an issue is "moot" when an appellate decision "can have no practical effect on the existing controversy." Greenfield v. New Jersey Dep't of Corrections, 382 N.J. Super. 254, 257-58 (App. Div. 2006) (quoting New York Susquehanna & W. Ry. Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax Ct. 1984), aff'd 204 N.J. Super. 630 (App. Div. 1985)). RLR relies on the two-justice concurring opinion in De Vesa v. Dorsey, 134 N.J. 420 (1993), a case involving "senatorial courtesy," and argues that we should consider the merits of its appeal because of the importance of the issues raised in it.

[O]ur courts normally will not entertain cases where a controversy no longer exists and the disputed issues have become moot. See Oxfeld v. New Jersey State Bd. of Educ., 68 N.J. 301, 303-304 (1975). A case is technically moot when the original issue presented has been resolved, at least concerning the parties who initiated the litigation. Id. at 303.

In some circumstances, however, our courts will entertain a case despite its mootness. Specifically, our courts will entertain a case that has become moot when the issue is of significant public importance and is likely to recur. In re Conroy, 98 N.J. 321, 342 (1985); Clark v. Degnan, 83 N.J. 393, 397 (1980). "While we ordinarily refuse to examine moot matters due to our reluctance to render legal decisions in the abstract and our desire to conserve judicial resources, we will rule on such matters when they are of substantial importance and are capable of repetition yet evade review." In re J.I.S. Indus. Serv. Co. Landfill, 110 N.J. 101, 104 (1988) (citations omitted).

[De Vesa, supra, 134 N.J. at 428 (Pollock, J., concurring).]

The concurring justices contended that, although the issue raised on appeal was no longer a "live issue" because the term of the judge whose reappointment was being blocked had expired, "the validity [of the practice] of senatorial courtesy remains an issue of extraordinary public concern. . . . implicating the respective powers and responsibilities of each branch of government over the appointment of judges." Id. at 429 (Pollock, J., concurring).

 
We agree that issues involving the State's eminent domain power in the context of Gallenthin may well be matters of "extraordinary public concern" capable of repetition and might ordinarily qualify for review even if the underlying issues have been resolved. RLR is, however, seeking to have those issues resolved in the District Court action rather than in the Superior Court. The issues RLR would have us resolve on appeal are collateral and, to a large extend, procedural. We have concluded that the issues related to the interplay between Rule 4:67 and Rule 4:73, as well as comity, as presented in this case, do not rise to the level of "extraordinary public concern." In addition, the constitutional issues that RLR seeks to litigate in the District Court are intertwined with the question of comity and, consequently, not easily addressed separately. For those reasons, we decline to address the merits and dismiss the appeal as moot.

Dismissed.

We note, however, that Rule 4.73-1 specifically directs "[a]n action in condemnation shall be brought . . . in a summary manner pursuant to R. 4:67." This issue was raised tangentially at oral argument in the Law Division, but it is not clear that it was briefed in that court.

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A-3174-07T2

June 1, 2009