New Jersey Supreme Court Confirms Award of Counsel Fees as Mandatory in Abandonment of Condemnation

In a recent New Jersey Supreme Court decision authored by Justice Virginia Long, the Court confirmed the mandatory nature of attorneys’ fees awards in condemnation actions where the condemnor abandons the the taking. Township of West Orange v. 769 Associates, et als, (A-113-07, April 9, 2009).  The Supreme Court reversed an Appellate Division ruling that limited the award of attorneys’ fees from the time of the filing of the complaint to the time of abandonment.  The Supreme Court held that whenever a condemnation action is abandoned, a fee award is mandatory, regardless of the reason for the abandonment.  It also ruled that fees run from the date the property is “targeted” for acquisition, which in many cases may be months, if not years, prior to the filing of the complaint.  This holding gives full justice to the statutory requirement that the condemnee be reimbursed for all fees and costs “actually incurred.”  The full decision may be found here.  

This is the second time the 769 Associates case has been before the New Jersey Supreme Court.  The prior case, decided in 2002, involved a challenge to the right to take on “public purpose” grounds that was unsuccessful.  Read the 2002 opinion here.  In that earlier opinion, the Court broadly interpreted the “public use” clause of the Constitution, holding that a taking of private property for roadway/access/highway purposes would be upheld even though a private party would be substantially benefitted by the taking.