NJDOT Complaints Dismissed for Failure to Engage in Bona Fide Negotiations with Property Owners
The Bergen County Assignment Judge recently dismissed condemnation complaints filed by the New Jersey Department of Transportation (“DOT”) after its appraiser failed to consider the impact that the loss of access would have on business’s operating on the Route 46 Circle in Little Ferry, as well as potential flooding issues caused by the installation of a pump station. The State planned to change the Route 46 Circle into a regular 4-way intersection and engaged in discussions with the property owners. The property owner’s counsel repeatedly informed the State that the properties would be denied access during the construction period which would affect the operating commercial businesses. Additionally, the State was informed that the State’s plans for a pump station would destroy the development potential of one of the parcels identified in the project.
The trial court’s opinion extensively outlined both the procedural history and substantive law. The court first concluded that the State failed to engage in bona fide negotiations because it failed to consider the impact of a temporary easement on the established commercial businesses. It then discussed how the State relied on defective appraisals because they failed to clearly provide how access to the properties would be provided. Thereafter, the court noted that dismissal on the basis of permitting access over private property to a third-party was not proper under existing case law. After deciding that the complaints should be dismissed, the court stated that access issues pending on appeal under a separate docket number were not binding on this court because the issue related solely to compensation, and that injunctive relief was not necessary because the complaints were dismissed.
The court also denied the State’s motion for reconsideration because the State failed to address why the court erred in its July 21, 2010 opinion. In a third opinion, the court addressed a separate motion that had been filed for consolidation of the two matters, ordering the State to file a recordation of judgment, and awarding attorneys’ fees. There, the court suggested that a motion to consolidate was more appropriately filed with the Appellate Division where the access action was still pending. However, the court agreed that the judgment should be filed by the State, and awarded the property owners’ attorney fees for his efforts beginning August 28, 2008 because the State’s complaints had been dismissed.
The trial court’s opinion in State v. The General’s Group. L.L.C., BER-L-4853-10 and BER-L-4854-10 (Law Div. July 21, 2010), may be found here.
The trial court relied on State v. Arifee in its July 21, 2010 opinion. The property owners in State v. Arifee, Mohammed and Jawed Arifee and the Palace Car Wash, were represented by McKirdy & Riskin’s Edward McKirdy, Anthony Della Pelle and Joseph Grather at trial and on the appeal. The Appellate Division’s opinion can be read here , while more can be read about the case on our New Jersey Condemnation Law Blog here.
The author wishes to acknowledge the assistance of Cory K. Kestner, Esq., of McKirdy & Riskin, PA, in the preparation of this article.
