Annotate this Case






DOCKET NO. A-1076-04T1












Third-Party Defendants.

















Third-Party Defendants.



Argued January 25, 2006 - Decided April 6, 2006

Before Judges Wefing, Wecker and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, L-4979-03

and L-5197-03.

Sam Maybruch argued the cause for appellant

H.D. Dunn Associates, Inc. (Maybruch &

Zapcic, attorneys; Mr. Maybruch and Nicholas P.

Milewski, on the brief).

Stephen J. Edelstein argued the cause for

appellant Asbury Park Board of Education

(Schwartz Simon Edelstein Celso & Kessler,

attorneys; Mr. Edelstein, of counsel; Nuris E.

Portuondo and Danielle Disporto, on the brief).

James Aaron argued the cause for Defendant/Third-

Party Plaintiff-Respondent City of Asbury Park

(Ansell Zaro Grimm & Aaron, attorneys; Barry M.

Capp, on the brief).

Martin Borosko argued the cause for Intervenor/

Defendant-Respondent, Defendant/Third-Party

Plaintiff-Respondent Asbury Partners, LLC

(Becker Meisel, attorneys; Daniel J. O'Hern

and Amanda L. Schultz, on the brief).


These appeals involve related questions of law and fact and were calendared before us back-to-back. We consolidate them for purposes of this opinion. Asbury Park Board of Education ("Board") and H.D. Dunn Associates, Inc. ("Dunn") each filed a complaint in lieu of prerogative writs challenging ordinances adopted by the City of Asbury Park authorizing the acquisition, by eminent domain, of property owned by the Board and by Dunn. The trial court eventually granted summary judgment in favor of the City and Asbury Partners, LLC, the city's designated redeveloper, who intervened in the actions. The Board and Dunn appeal from those summary judgments. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The ordinances at issue were passed pursuant to the City's amended waterfront redevelopment plan, approved by the City on June 5, 2002. Various aspects of that redevelopment plan were challenged by a number of affected parties in prior litigation and were upheld by the same trial court that handled these matters. This court recently upheld the validity of the plan in D & M Asbury Realty v. City of Asbury Park, Nos. A-3022-03, A-3239-03, A-3240-03 (App. Div. Jan. 24, 2006).

Within that opinion, we traced the history of the City and its various efforts at redevelopment. There is no need to restate that history here; we incorporate it by reference.

Both the Board and Dunn own property within the area slated for redevelopment. The Board's property is identified as Lots 4, 5, 6 and 8 in Block 118, located at 407 Lake Avenue. It is a one-story structure that the Board uses as its central administration headquarters. No classes are held there, and students do not use the building.

Dunn owns Lot 7 in Block 118, located at 104 Grand Avenue, a two-story commercial office building. Dunn uses the building to conduct its janitorial business.

Asbury Park's amended waterfront redevelopment plan divided the city into three areas for purposes of redevelopment: Wesley Lake Village, Ocean Avenue and North Shore. The subject properties are located in the area denominated Wesley Lake Village, the southeastern end of Asbury Park, adjoining the municipality of Ocean Grove. Also located within this section are the Palace Amusement Building and the Casino, buildings that played a significant role in Asbury Park's earlier years but which have fallen into substantial disrepair.

Block 118, upon which both properties are located, is bounded by Grand, Cookman, Summerfield and Lake Avenues. Because the two subject properties are in such close proximity to each other, Dunn concedes that the success of its challenge is dependent upon the success of the Board's; that is, if the Board does not succeed, Dunn cannot succeed either. Conversely, the Board concedes that if it cannot condemn the Board's property, neither can it take Dunn's.

Of the four lots owned by the Board, three are paved for parking. The Board's building is located on the remaining lot. It is a one-story masonry block building, constructed in approximately 1940 and containing nine thousand square feet. Dunn's building is a two-story masonry block building containing three thousand square feet.

The properties are located near the eastern terminus of Lake Avenue, which runs into Asbury Avenue. Asbury Avenue runs between the Atlantic Ocean and the Garden State Parkway. Because of its strategic location, the amended waterfront redevelopment plan characterizes Asbury Avenue as an "arrival street," the redevelopment of which is intended to create an impression of a historic, Victorian area. The plan states as the first design principle for this area the "[u]pgrad[ing of] the landscape, street furnishings, street trees and lighting along Asbury Avenue to make a grand entryway into the City . . . ."

In the Board's appeal, it raises a number of contentions, some of which have been foreclosed in light of the decision of the United States Supreme Court in Kelo v. City of New London, ___ U.S. ___, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005), in which the Court upheld a municipality's exercise of the power of eminent domain for economic development and by our decision in D & M Asbury, supra, in which we upheld the City's amended waterfront redevelopment plan. The issues which remain before us are whether the City may, by eminent domain, take property owned by another public entity and devoted to a public use, whether the Board may be deemed an "alter ego" of the State and whether the Board's status as an Abbott district, Abbott v. Burke, 100 N.J. 269 (1985) (Abbott I), required joinder of the State Department of Education and, finally, whether the procedure utilized by the trial court unfairly prejudiced the Board. Dunn has raised these same issues in its brief on appeal.

We deal first with the plaintiffs' contention revolving around the prior public use doctrine, under which the power of eminent domain may not be exercised to take property devoted to an existing public use "unless the authority to do so has been expressly given by the Legislature or must necessarily be implied." Weehawken v. Erie R.R. Co., 20 N.J. 572, 579 (1956). The underlying rationale for the doctrine is the recognition that if one entity possessing the power of eminent domain could take the property of another such entity, the latter could act to take the property back by eminent domain. Ibid.

We are satisfied, for two reasons, that the prior public use doctrine is not an obstacle to the City's acquisition of these properties. First, Asbury Park adopted its amended waterfront redevelopment plan pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -73. N.J.S.A. 40A:12A-8 authorizes a municipality carrying out a redevelopment plan to "[a]cquire, by condemnation, any land or building which is necessary for the redevelopment project, pursuant to the provisions of the 'Eminent Domain Act of 1971' . . . ." Significantly, the Eminent Domain Act specifically recognizes that public property devoted to a public use may be taken through eminent domain. N.J.S.A. 20:3-6.

The prior public use doctrine, moreover, is not self-executing; that is, a public entity is not entirely precluded from taking by eminent domain property held by another such entity. The power of eminent domain "encompasses even the taking of lands devoted to another public use, if the taker's use is necessary to accomplish a public purpose, and that purpose is paramount, either by express language of the statute or by necessary implication therefrom." Texas E. Transmission Corp. v. Wildlife Preserves, Inc., 48 N.J. 261, 267 (1966). See, Linda A. Sharp, Construction and Application of Rule Requiring Public Use for Which Property is Condemned to be "More Necessary" or "Higher Use" than Public Use to Which Property is Already Appropriated, 49 A.L.R. 5th 769 (1997).

The prior public use doctrine requires a principled analysis of the competing public interests served by permitting or precluding the exercise of the power of eminent domain. We concur entirely with the trial court that in the present situation, the greater public interest is served by permitting the City to proceed with its exercise of eminent domain against these two properties.

Several factors support this conclusion. Only administrative functions are performed at the Board's offices on Lake Avenue; no actual instruction is conducted there. And while we recognize that relocation to another office will inevitably involve some disruption, that assertion could be made by any party whose property is taken through eminent domain. We are confident that sound planning can minimize such disruption significantly. The Lake Avenue location, moreover, is essential to the success of this redevelopment plan. If the Board, and by extension Dunn, were permitted to remain at their current sites, their buildings would be an incongruity among the new low-rise residential and retail use envisioned for the immediate surroundings. We noted earlier that we did not deem it necessary to restate in this opinion the history of Asbury Park's efforts at redevelopment. Those prior efforts have, for a variety of reasons, failed; we decline to place such a substantial obstacle in the City's current path, particularly when we cannot perceive a countervailing benefit.

We turn now to the plaintiffs' argument that reversal is required both because the Board constitutes an "alter ego" of the State and because Asbury Park is a "special needs" district under Abbott, supra. We are satisfied that reversal is not appropriate under either theory.

We agree with the trial court that the Board is not an alter ego of the State. Rather, a board of education is a local body corporate, N.J.S.A. 18A:10-1, and a separate political entity. Otchy v. City of Elizabeth Bd. of Educ., 325 N.J. Super. 98, 109 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Courts have consistently recognized that a local board of education is a local governmental unit. Botkin v. Mayor & Borough Council of Borough of Westwood, 52 N.J. Super. 416, 425 (App. Div. 1958); Kaveny v. Bd. of Comm'rs of the Town of Montclair, 69 N.J. Super. 94, 101 (Law Div. 1961). Further, the amount of funding the Board may receive from the State as an Abbott district, and the extent of the supervision to which it is subject in terms of its financial decisions, are, in our judgment, fundamentally immaterial to the legal question before us.

In connection with their assertion that the Board is an alter ego of the State, plaintiffs point to N.J.S.A. 40A:12-4(a), under which property owned by the State or any of its agencies may not be acquired without its express consent. That statutory argument is misplaced, however. Not only is the Board not an agency of the State, the City is not acting under N.J.S.A. 40:12-1 to -38, the Local Lands and Buildings Law, but under N.J.S.A. 40A:12A-1 to -73, the Local Redevelopment and Housing Law, which does not contain a comparable provision.

Plaintiffs' remaining position is that the procedures adopted by the trial court were fundamentally unfair to them. The trial court held a telephone conference with counsel and set forth the parameters of the parties' cross-motions for summary judgment. According to the transcript of that telephone conference, the trial court and counsel agreed that the trial court would initially decide the legal question whether the City had the authority to condemn this property, and only if the trial court answered that question in the affirmative, would the parties proceed to discovery on the proper balancing of the competing interests. After receipt of the parties' briefs and oral argument, however, the trial court proceeded to decide both aspects, without any further notice to the plaintiffs.

While the procedure utilized by the trial court in this instance is facially troubling, we are satisfied that it does not provide a basis for further proceedings. We questioned counsel closely at oral argument as to what facts they would seek to establish through discovery that might have led to a different result. Having reviewed the record in this matter, we are satisfied that the essentials of that information were, in fact, before the trial court. Just as the plaintiffs in D & M Asbury, these plaintiffs "have not provided any particulars as to how additional discovery will demonstrate why the City's decision to include properties was arbitrary . . . ." D & M Asbury, supra (slip op. at 48).

We are also cognizant, moreover, that the trial court that handled these matters was intimately familiar with the background, the scope and the details of the amended waterfront redevelopment plan. It is the nature of the plan itself, with its focus on block-by-block redevelopment, that mandates inclusion of these two parcels.

The order under review is affirmed.






April 6, 2006