JERSEY CITY REDEVELOPMENT AGENCY v. ISMAEL SADEK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3191-07T13191-07T1

JERSEY CITY REDEVELOPMENT

AGENCY, a Body Corporate

and Politic of the State

of New Jersey,

Plaintiff-Respondent,

v.

ISMAEL SADEK, MRS. ISMAEL

SADEK,

Defendants-Appellants,

and

JANE GOLDBERG, CITY

OF JERSEY CITY, a Municipal

Corporation of the State of

New Jersey, and JERSEY CITY

MUNICIPAL UTILITIES

AUTHORITY, a Body Corporate

and Politic of the State of

New Jersey,

Defendants.

 
________________________________________________________________

Submitted December 8, 2008 - Decided

Before Judges Carchman and Simonelli.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Docket No. L-5343-07.

Barry, McTiernan & Wedinger, attorneys

for appellants (Sean P. Del Duca, on

the brief).

John J. Curley, LLC, attorney for respondent

(Mr. Curley, of counsel; Jennifer J.

Bogdanski, on the brief).

PER CURIAM

In this condemnation case, defendant Ismael Sadek appeals from a January 24, 2008 order of the Law Division entering final judgment in favor of plaintiff Jersey City Redevelopment Agency (JCRA) and appointing commissioners to value his property.

The subject property, 220-222 York Street, Jersey City, is located within the "Majestic II Redevelopment Area," an area designated by resolution of the City Council of the City of Jersey City as "an area in need of redevelopment (blighted)." The resolution, dated March 22, 2006, followed a March 14, 2006 resolution of the Jersey City Planning Board recommending such action.

Plaintiff filed an order to show cause and condemnation complaint on October 29, 2007. Defendant's challenge to the blight designation first arose when he filed an answer to the complaint on December 31, 2007, asserting by way of defense that plaintiff had failed to comply with N.J.S.A. 40A:12A-1 to -73 (Local Redevelopment and Housing Law), and N.J.S.A. 20:3-1 to -50 (Eminent Domain Act of 1971). Defendant also claimed that plaintiff failed to provide appropriate notice of the redevelopment proceedings. On the return day of the order to show cause, the Law Division judge concluded that defendant was properly noticed of the blight resolution but declined to address the merits of the designation, determining that defendant's challenge was out of time and barred. The judge opined that defendant was obligated to challenge the designation in writing, N.J.S.A. 40A:12A-6, and then file an action in lieu of prerogative writ within forty-five days thereafter. Ibid. The judge then entered judgment, and defendant appealed.

Subsequent to the entry of the judgment and order appointing commissioners, we rendered our opinion in Harrison Redev. Agency v. DeRose, 398 N.J. Super. 361 (App. Div. 2008). In DeRose, we held that the challenge to the blight designation was cognizable in the condemnation action notwithstanding the apparent limitation of N.J.S.A. 40A:12A-6. We said:

We hold that, unless a municipality provides the property owner with contemporaneous written notice that fairly alerts the owner that (1) his or her property has been designated for redevelopment, (2) the designation operates as a finding of public purpose and authorizes the municipality to acquire the property against the owner's will, and (3) informs the owner of the time limits within which the owner may take legal action to challenge that designation, an owner constitutionally preserved the right to contest the designation, by way of affirmative defense to an ensuing condemnation action. Absent such adequate notice, the owner's right to raise such defenses is preserved, even beyond forty-five days after the designation is adopted.

[DeRose, supra, 398 N.J. Super. at 367-68.]

Defendant asserts and plaintiff concedes: 1) the notice provided to defendant does not meet the strictures of DeRose; and 2) as plaintiff urges in its brief "[i]n light of the DeRose decision, JCRA is requesting that the Appellate Division remand this case to the trial court for Sadek's challenge to be adjudicated."

We agree with both parties that the appropriate resolution here is to remand the matter to the Law Division so that defendant may assert his claims as to the bona fides of the blight designation. At such proceeding, plaintiff may amplify the existing record consistent with our comments in DeRose, supra, 398 N.J. Super. at 420.

Reversed and remanded.

 

Although the caption in the original complaint identifies the property owners and Ismael Sadek and Mrs. Ismael Sadek, only the former has filed an appeal. This does not affect the ultimate result in this appeal.

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A-3191-07T1

December 31, 2008