232 A.3d 463
N.J. Super. Ct. App. Div.2020Background
- DEP filed a summary condemnation action seeking a perpetual easement across Midway Beach Condominium Association’s beachfront for the Manasquan Inlet to Barnegat Inlet shore-protection Project.
- DEP offered $500 based on an Otteau appraisal that estimated the taking would increase the property’s value; Midway never negotiated a voluntary grant, citing bylaw unanimity requirements.
- Midway presented an expert saying its privately maintained dune system (avg. peak 27 NAVD, >150 ft wide) made the Project unnecessary; DEP’s engineer certified the dune had gaps and inadequate berm width.
- Midway requested a plenary hearing to contest necessity and arbitrariness; the trial judge denied the request and entered final judgment authorizing the taking, relying in part on evidence from a related plenary trial.
- Midway also argued DEP lacked statutory authority, acted arbitrarily and capriciously, failed bona fide negotiations, and should have named individual condo owners as defendants; the court rejected these claims and affirmed the judgment.
Issues
| Issue | DEP's Argument | Midway's Argument | Held |
|---|---|---|---|
| Whether a plenary hearing was required before entry of final judgment in summary condemnation | Rule 4:67 summary procedure proper; no genuine issue of material fact requiring plenary hearing | Plenary hearing necessary to resolve factual disputes about necessity/arbitrariness | No plenary hearing required; no triable fact shown and summary procedure appropriate |
| Whether N.J.S.A. 12:3-64 authorizes DEP to condemn easements for shore protection | Statute authorizes DEP to acquire any property interest, including perpetual easements | Statute does not authorize this taking (joined related appeals) | Statute authorizes such condemnation; DEP may take lesser interests like easements (followed North Beach) |
| Whether taking was arbitrary and capricious / unnecessary | Taking was necessary: DEP’s engineer showed dune gaps and inadequate berms; Project ensures continuity/protection | Midway: its dune system made Project unnecessary; DEP may not maintain project properly | Not arbitrary or capricious; evidence supported DEP’s engineering judgment and need for continuous system |
| Whether DEP engaged in bona fide negotiations before taking | DEP made a valuation offer, disclosed appraisal and methodology; Midway did not attempt to negotiate | Offer was nominal ($500); negotiations were not in good faith and were futile | DEP met negotiation obligations; valuation dispute is for condemnation commissioners |
| Whether individual condominium owners had to be named as defendants | Association is the proper party; individual owners participate via the association per statute | Individual owners’ access/use rights require they be joined as parties | No abuse of discretion: statute contemplates association representation and distribution of damages through the association |
Key Cases Cited
- Coastal Eagle Point Oil Co. v. Township of West Deptford, 353 N.J. Super. 212 (App. Div. 2002) (plenary hearing required when defendant makes a prima facie showing of disputed material facts).
- State v. North Beach 1003, LLC, 451 N.J. Super. 214 (App. Div. 2017) ( statute authorizes DEP to condemn property interests, including easements, for shore protection).
- Town of Kearny v. Disc. City of Old Bridge, Inc., 205 N.J. 386 (2011) (condemnor need only negotiate with fee owner when fee simple is condemned; other interest holders protected at commissioners' hearing).
- City of Atlantic City v. Cynwyd Invs., 148 N.J. 55 (1997) (discusses proper parties and procedures in condemnation and protection of nonjoining interest holders).
- State v. Archer, 107 N.J. Super. 77 (App. Div. 1969) (older precedent considered in related appeals).