WEST WINDSOR TOWNSHIP v. RAJESHWAR SINGH YADAV

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5179-11T3

WEST WINDSOR TOWNSHIP,

Plaintiff-Respondent,

v.

RAJESHWAR SINGH YADAV and

ROOPA YADAV,

Defendants-Appellants.

___________________________________

May 24, 2013

Argued February 26, 2013 - Decided

Before Judges Alvarez, Waugh, and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-985-10.

Rajeshwar Singh Yadav, appellant, argued the cause pro se.

Michael W. Herbert argued the cause for respondent (Herbert, Van Ness, Cayci & Goodell, attorneys; Mr. Herbert, of counsel and on the brief).

PER CURIAM

Defendants Rajeshwar Singh Yadav and Roopa Yadav appeal the Law Division's April 16, 2012 order setting the value of an easement through their property for construction of a sidewalk by plaintiff West Windsor Township (Township). They also appeal the June 15, 2012 order denying their motion for reconsideration. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

The Yadavs purchased Lot 20, Block 11.06, which is located on North Post Road in the Township, in February 1983. The property has been the subject of extensive litigation brought by the Yadavs against the Township concerning zoning and variances. All of the prior actions have been dismissed.

In December 2006 and February 2007, the Township applied to the New Jersey Department of Transportation for grants to enable it to extend sidewalks for pedestrian and bicycle access to a nearby school, library, municipal complex and train station. Both applications included the proposed sidewalk crossing the Yadavs' property. The Township was awarded a $200,000 grant in September 2007.

The Township commissioned an appraisal that valued the easement across the Yadavs' property at $33,000. The Township made an offer to purchase the easement at that price in a letter dated February 19, 2010. The Yadavs did not directly respond to the letter, but shortly thereafter filed a complaint in the Law Division, challenging the Township's authority to condemn the property for the easement. That complaint, Docket No. MER-L-439-2010, was dismissed. We affirmed and the Supreme Court denied certification. Yadav v. Twp. of W. Windsor, No. A-5314-09 (App. Div. Jan. 10, 2012), certif. denied, 212 N.J. 287 (2012).

On April 19, 2010, the Township adopted an ordinance authorizing acquisition of the easement and the commencement of an eminent domain action to acquire the easement across the Yadavs' property for the purpose of constructing the sidewalk. The Township's mayor approved the ordinance on April 20. The ordinance was to be effective on May 10, 2010.

On April 21, the Township filed its condemnation complaint, seeking to acquire the easement and requesting the appointment of a three-member commission to appraise the value of the land and fix compensation. The Township filed a declaration of taking on May 6.

In September, the trial judge issued an order appointing three commissioners. The judge held an evidentiary hearing on January 25, 2011, concerning the route of the sidewalk. The commissioners' hearing took place on March 15, after which the commissioners found that the value of the easement was $33,000. The Yadavs requested a trial on the issue of valuation. See N.J.S.A. 20:3-13(a).

The two-day bench trial took place in April 2012. Testimony at the trial focused on the size of the Yadavs' property and whether the Township's exercise of eminent domain would limit their ability to subdivide the property, resulting in two rather than three developable lots. The trial judge credited the testimony of the Township's experts, and found that the Yadavs owned at most two developable lots both before and after the condemnation of the property for the easement. The judge set the value of the easement at $33,000. He also sanctioned the Yadavs $500 for trial delay. The judge denied the Yadavs' motion for reconsideration on June 15. This appeal followed.

II.

The Yadavs raise the following issues on appeal:

POINT I

TAKING WAS UNCONSTITUTIONAL/ILLEGAL. THE LOWER COURT MADE AN ERROR OF LAW WHEN IT TOOK JURISDICTION OF THE MATTER PRIOR TO THE EFFECTIVE DATE OF THE ORDINANCE THEREFORE [THE] COMPLAINT MUST BE DISMISSED AS A MATTER OF LAW.

POINT II

TOWNSHIP FAILED TO COMPLY WITH THE PRE-LITIGATION REQUIREMENTS OF THE CONDEMNATION STATUTE THEREFORE [THE] COMPLAINT MUST BE DISMISSED AND YADAVS MADE "WHOLE."

POINT III

TOWNSHIP'S POWER TO ZONE IS NOT UNFETTERED THAT IT AUTHORIZES TOWNSHIP TO IGNORE NORMS OF DUE PROCESS, PROCEDURAL FAIRNESS AND MANDATES OF EMINENT DOMAIN ACT.

POINT IV

TOWNSHIP WILLFULLY VIOLATED N.J.S.A. 20:3 TO MASK ITS PLANS TO DEVALUE THE PROPERTY BY ABUSING ITS ZONING POWER, AND PROHIBIT THE SUBDIVISION/IMPROVEMENT OF YADAVS' PROPERTY. THEREFORE THE COMPLAINT MUST BE DISMISSED.

POINT V

LOWER COURTS' EVALUATIONS OF TOWNSHIP'S INTENT, SCHEMES, VIOLATIONS OF STATUTES, CONSTITUTIONS DOES NOT COMPORT WITH THE N.J. LAW AND WERE UNSUPPORTED BY ANY FINDINGS OF FACTS AND CONCLUSIONS OF LAW. THEREFORE THE COMPLAINT MUST BE DISMISSED.

POINT VI

LOWER COURTS MADE ERRORS OF LAW ON BOTH PROCEDURAL AND SUBSTANTIVE GROUNDS SO COMPLAINT MUST BE DISMISSED AND YADAVS MADE "WHOLE."

A. [The assignment judge] abused her discretion in taking jurisdiction of the matter. After taking the jurisdiction of the matter, [she] abused her discretion by refusing to dismiss the complaint as was required by N.J.S.A. 20:3.

B. [The trial judge] abused his discretion in discarding the mandate that in condemnation cases condemnees must be protected against willful aggressor's failure to respect the constitution and law in exercising its authority.

Most of the arguments raised on appeal, which seek to reargue issues that have been decided in connection with the Yadavs' other suits, will not be addressed in this opinion. Instead, we will focus our discussion on issues directly related to the condemnation action.

The Yadavs argue that the trial judge did not have jurisdiction over the condemnation action because the complaint was filed prior to the effective date of the ordinance authorizing the exercise of eminent domain. Although the complaint was filed before the effective date of the ordinance, we disagree with the Yadavs' conclusion that the Law Division lacked jurisdiction for that reason.

A municipality is authorized to acquire real property, including by condemnation, through the adoption of an ordinance. N.J.S.A. 40A:12-5(a)(1). A condemnation action is commenced by the filing of a verified complaint. N.J.S.A. 20:3-8. Here, the ordinance was adopted on April 19 and approved by the mayor on April 20, 2010. The complaint was filed the following day. The Yadavs argue, correctly, that the ordinance had not taken effect when the complaint was filed. See N.J.S.A. 40:69A-181(b) ("[n]o ordinance . . . shall take effect less than twenty days after its final passage by council and approval by the mayor"). In addition, the ordinance itself contained an effective date of May 10, 2010.

The Yadavs contend that the filing of the complaint prior to the effective date of the ordinance was a jurisdictional defect that invalidated the entire condemnation proceeding. Although we have not addressed the issue, the Law Division has stayed a condemnation action that was filed without the enactment of an authorizing ordinance so that the municipality could comply with the statutory requirement by enacting an ordinance, thereby curing the defect. Twp. of Hillsborough v. Robertson, 260 N.J. Super. 37, 44 (Law Div. 1992).

Our courts have required strict compliance with certain procedures of the Eminent Domain Act, N.J.S.A. 20:3-1 to -50. For example, courts have strictly enforced the requirement of N.J.S.A. 20:3-6 that

no action to condemn shall be instituted unless the condemnor is unable to acquire such title or possession through bona fide negotiations with the prospective condemnee, which negotiations shall include an offer in writing by the condemnor to the prospective condemnee . . . setting forth the property and interest therein to be acquired, the compensation offered to be paid and a reasonable disclosure of the manner in which the amount of such offered compensation has been calculated . . . .

Town of Kearney v. Disc. City of Old Bridge, Inc., 205 N.J. 386, 406 (2011); Borough of Rockaway v. Donofrio, 186 N.J. Super. 344, 354 (App. Div. 1982), certif. denied, 95 N.J. 183 (1983); Casino Reinvestment Dev. Auth. v. Katz, 334 N.J. Super. 473, 480-82 (Law Div. 2000).

The requirement that the condemnor engage in good faith negotiations with the property owner before filing a condemnation action, N.J.S.A. 20:3-6, is part of the Eminent Domain Act and serves the important public purpose of avoiding unnecessary litigation. Borough of Rockaway, supra, 186 N.J. Super. at 353. However, the requirements that municipalities pass ordinances to authorize the acquisition of property, N.J.S.A. 40A:12-5(a)(1), and that there be at least a twenty-day period between passage of an ordinance and its effective date, N.J.S.A. 40:69A-181(b), are general requirements applicable to municipal governance and not part of the statutory scheme established in the Eminent Domain Act.

Although the Township acted in reliance on the ordinance before its effective date, there is no question that the ordinance was in effect by June 25, 2010, the return date of the Township's initial order to show cause seeking a declaration that the pre-filing requirements had been met, and also seeking the appointment of the commissioners. At that time, the assignment judge determined that the Township had "complied with pre-litigation notice" and that its exercise of eminent domain "was for a public purpose." Because there was a question concerning the route of the sidewalk, the judge temporarily deferred the appointment of the commissioners. Consequently, we are satisfied that, as of June 25, any defect resulting from the premature commencement of the condemnation, if there was one, had been cured. See Twp. of Hillsborough, supra, 260 N.J. Super. at 44.1

We have reviewed the remaining issues in light of the facts in the record and the applicable law, and find them to be without merit and not warranting discussion in a written decision. R. 2:11-3(e)(1)(E). We note only the following.

The Yadavs allege that the Township's notice of lis pendens was invalid based upon the fact that it identified the Township of Hopewell as the entity paying compensation for their land. We reject that contention because the notice clearly identified the Yadavs and the address of their land, and the caption of the notice identified the Township as the party bringing the action.

We are also satisfied that the trial judge's decision with respect to the valuation is fully supported by the record before us. When reviewing a decision resulting from a bench trial, "[t]he general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings of the trial judge unless we are "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484) (internal quotation mark omitted); see also Beck v. Beck, 86 N.J. 480, 496 (1981).

Finally, in Yadav v. Township of West Windsor, Docket No. A-5314-09, supra (slip op. at 1-2), in which we affirmed the dismissal of the action the Yadavs initially filed in apparent response to the Township's offer to purchase the sidewalk easement, we noted that, as of January 2012, the Yadavs had

initiated ten lawsuits against defendant West Windsor Township in both federal and state courts regarding their unsuccessful efforts to subdivide their 4.47-acre property in the Township, while challenging zoning changes in the Township that they claim have decreased the value of their property. The Yadavs have maintained for thirty years that they are entitled to subdivide their property into seven lots, despite zoning laws requiring larger lot sizes. They have also argued that the Township council unconstitutionally enacted changes to the zoning code, which were implemented without required due process, and prejudicial to the value of their property. The Yadavs have not won any of their previous lawsuits. Consequently, they have been barred from litigating their contentions any further in federal court and . . . must seek permission to file additional actions in state court.

We decline to address the additional issues raised on this appeal that were raised in all the prior actions on grounds of res judicata, collateral estoppel, and lack of merit.

Affirmed.

1 We note that the Yadavs did not raise the issue of timing until this appeal, and that they have not alleged any specific prejudice arising from the filing of the complaint prior to the effective date of the ordinance. We see no such prejudice, although there would be clear prejudice to the Township if it were required to begin the process anew.