Township of Jackson, Etc. v. Getzel Bee, LLCTownship of Jackson, Etc. v. Getzel Bee, LLC
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION January 31, 2025 APPELLATE DIVISION
Argued October 28, 2024 - Decided January 31, 2025
Before Judges Sabatino, Gummer and Berdote Byrne.
Richard P. DeAngelis, Jr., argued the cause for appellants Getzel Bee, LLC and Bellevue Jackson, LLC (Connell Foley LLP, attorneys; Richard P. DeAngelis, Jr., of counsel and on the briefs; Meredith S. Rubin, on the brief).
Jerry J. Dasti argued the cause for respondent (Dasti, McGuckin, McNichols, Connors, Anthony and Buckley, attorneys; Jerry J. Dasti, of counsel and on the briefs).
The opinion of the court was delivered by
BERDOTE BYRNE, J.A.D.
In these back-to-back appeals, which we consolidate for the purpose of issuing a single opinion, appellants Getzel Bee, LLC and Bellevue Jackson, LLC (collectively “LLCs“), appeal from identical October 20, 2023 orders of the Law Division, authorizing
Lots 84 and 90 are not being used for the asserted public purpose of open space-an otherwise valid public purpose for eminent domain. Instead, the record shows the lots are being condemned and combined with land the Township already owns to exchange them for land intended to be used as open space. The Township has failed to demonstrate the statutorily-required public use of the condemned land and the trial court erred in determining the Township had validly exercised its eminent-domain authority to condemn the properties. Moreover, because the trial court‘s prior order authorizing the Township‘s land-swap agreement included Lots 84 and 90, although those lots were not owned by the Township, the land-swap agreement is not enforceable as to Lots 84 and 90, and does not preclude the LLCs from opposing the condemnation, as claimed by the Township. The
I.
We glean the following facts from the scant record and note there was no evidentiary hearing held by the trial court. On February 21, 2023, the Township entered a contract with Bellevue Estates, LLC (“Developer“) in which the parties agreed to a land-swap pursuant to
The Township began negotiating with the LLCs a month earlier, on March 13, 2023, to purchase Lots 84 and 90. In its initial correspondence with the LLCs, the Township stated it was “in the process of acquiring substantial acreage for open space purposes” and it sought to purchase the LLCs’ land. On April 12, 2023, the Township made a formal offer to acquire the LLCs’ land, but the LLCs did not
On May 12, 2023, the Township passed Ordinance 15-23, which authorized the acquisition of the Lots 84 and 90 “by either arm‘s length transaction or, if necessary, by condemnation/eminent domain so that the Township . . . shall have access onto, over and through said privately owned real property for the purpose of open space.” Jackson, N.J., Ordinance 15-23 (May 12, 2023). The specific findings in Ordinance 15-23, stated in a conclusory manner, are as follows:
The Township Council finds that the acquisition will promote and protect the health, safety, and welfare of residents of the Township, and further find that any purchase or taking by eminent domain of any and all property interests necessary for the same are all in the furtherance of a public use and purpose.
[Ibid.]
The Township then filed verified complaints and orders to show cause for the condemnation of Lots 84 and 90 on June 14, 2023, again specifying the use of the properties as open space in its pleadings.
On August 26, 2023, the Township passed Ordinance 26-23, amending Ordinance 15-23. See Jackson, N.J., Ordinance 26-23 (Aug. 26, 2023). The amended ordinance included more detailed findings and, for the first time, intimated that the condemned parcels were not to be used as open space by the Township, but instead were to be combined with land owned by the Township and exchanged for land that would be used as open space. The amorphous “findings” in Ordinance 26-23 are as follows:
The Township Council finds that the acquisition will promote and protect the health, safety, and welfare of residents of the Township, and further find that any purchase or taking by eminent domain of any and all property interests necessary for the same are all in the furtherance of a public use and purpose. This Ordinance will permit the Township to exchange the [LLCs‘] properties, along with surrounding properties, to protect and maintain open space for the Township. The Township has entered into a contract for the exchange of land. Such contract includes the exchange of the subject parcels. The purpose of the land exchange is to provide open space for the residents of Jackson Township. The land exchange, with the inclusion of [the LLCs‘] properties, will permit the [T]ownship to preserve open space in a desirable location of the Township. The location of the open space which will be made possible by adoption of this Ordinance and condemnation of the [LLCs‘] parcels, will create open space in a centrally located portion of the Township, creating open space to be utilized by residents. The Township of Jackson has determined that this condemnation best serves the Township of Jackson and promotes public use of open space within the municipality.
[Ibid.]
Prior to the Township‘s filing of the orders to show cause, the land-swap agreement was challenged in a separate matter, White Road HOA, LLC v. Township of Jackson, filed on March 28, 2023. See Verified Complaint and Complaint in Lieu of Prerogative Writ, White Road HOA, LLC v. Township of Jackson, No. OCN-L-0723-23 (Law Div. Sept. 8, 2023). The White Road plaintiffs, not parties to this litigation, alleged the Township‘s land-swap with the Developer was invalid because: (1) the value exchanged for the Township‘s land was insufficient; (2) the exchange was discriminatory against the
In deciding the Township‘s complaint for condemnation in the within matter, the trial court relied on the White Road decision and the language of the ordinances to conclude the Township had “duly exercised its power of [e]minent [d]omain” in condemning Lots 84 and 90 and appointed condemnation commissioners to appraise the lots “taken by the [Township] for public purposes.” The LLCs’ motions to stay the orders pending appeal were denied.
II.
The LLCs raise three issues on appeal. They posit: (1) the Township lacks a proper public purpose to acquire Lots 84 and 90 through eminent domain as required by
A. The Public Use Requirement.
“Eminent domain is the power of the State to take private property for public use.” State v. Lanza, 27 N.J. 516, 529 (1958) (internal quotation marks omitted). Because the power to condemn private property is grounded in the Federal and New Jersey Constitutions, this power “is subject to several important constitutional limits: the property acquired must be taken for a ‘public use,’ the State must pay ‘just compensation’ in exchange for the property, and no person shall be deprived of his or her property without due process of law.” Township of West Orange v. 769 Assocs., LLC, 172 N.J. 564, 571 (2002) (first citing
To be sure, once the strict requirements of governing statutes have been met, great discretion is afforded to condemning authorities in determining what property may be taken for public use. Tex. East. Trans. Corp. v. Wildlife Preserves, 48 N.J. 261, 269 (1966); Burnett v. Abbott, 14 N.J. 291, 294 (1954). Nevertheless, “local entities must adhere to the conditions placed on [their] eminent domain powers,“, and “‘legislative’ decisions are still bound by any applicable constitutional and statutory limits on the legislative power.” Grossman, 457 N.J. Super. at 428, 431. As a result, the decision to condemn shall not be enforced where there has been a showing of “improper motives, bad faith, or some other consideration amounting to a manifest abuse of the power of eminent domain.” Tenn. Gas Trans. Co. v. Hirschfield, 39 N.J. Super. 286, 288 (App. Div. 1956).
Additionally, when exercising the power of eminent domain, a governmental entity has an obligation to “turn square corners.” F.M.C. Stores, Co. v. Borough of Morris Plains, 100 N.J. 418, 426 (1985) (quoting Gruber v. Mayor of Raritan Twp., 73 N.J. Super. 120, 127 (App. Div.), aff‘d, 39 N.J. 1 (1962)). It has “an overriding obligation to deal forthrightly and fairly with property owners.” Ibid.; Jersey City Redevelopment Agency v. Costello, 252 N.J. Super. 247, 257 (App. Div. 1991); see also State v. Siris, 191 N.J. Super. 261 (App. Div. 1983); Rockaway v. Donofrio, 186 N.J. Super. 344 (App. Div. 1982). That obligation includes providing a clearly-articulated public use for the condemned property set forth in the public record.
As noted, although municipalities enjoy discretion, the
The United States Supreme Court has addressed this issue, stating: “[I]t has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.” Kelo v. City of New London, 545 U.S. 469, 477 (2005).3 For example, “[a] [c]ity would no doubt be forbidden from taking [a private citizen‘s] land for the purpose of conferring a private benefit on a particular private party.” Ibid.; see also Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 245 (1984) (“A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void.“).
However, “it is equally clear that a State may transfer property from one private party to another if future ‘use by the public’ is the purpose of the taking.” Kelo, 545 U.S. at 477. “In such cases, [the] government does not itself have to use property to legitim[ize] the taking” as long as the property taken will
Although the Township, in its opposition brief and for the first time, argues the condemnation of Lots 84 and 90 will serve a “public benefit” including recreation, environmental preservation, economic benefits, and easement of traffic congestion by combining the condemned properties with land the Township already owns and exchanging it for more desirable land elsewhere, its attempt to equate this vague public benefit with the public use requirement is belied by the record, which demonstrates the Developer is not restricted in its use of the condemned lots in any fashion.
We have identified no reported case in New Jersey, nor has one been brought to our attention, where a private property was lawfully condemned solely to exchange it for other property that will be put to public use. In fact, in all of New Jersey‘s reported cases, including Mount Laurel Township v. Mipro Homes, LLC, 379 N.J. Super. 358 (App. Div. 2005), aff‘d, 188 N.J. 531 (2006), on which the Township relies, the land condemned was ultimately used for some public purpose. See, e.g., State v. Silver, 92 N.J. 507, 510 (1983) (the State condemned portions of two land parcels for “highway purposes,” and the condemned land was used for that purpose); State v. Township of South Hackensack, 65 N.J. 377, 381 (1974) (the State condemned portions of six streets for highway construction and used the condemned land for that public purpose); State v. Gallant, 42 N.J. 583, 585 (1964) (the State condemned property “in connection with the construction of Interstate Highway 80” and used the condemned land for that purpose); Lanza, 27 N.J. at 521 (the State condemned land for the purpose of establishing a future water supply system and ultimately used the land for that purpose); Mipro, 379 N.J. Super. at 375 (the municipality condemned land where one of its purposes was to avoid further residential construction, but the land condemned was nonetheless used for passive open space, the stated purpose), aff‘d, 188 N.J. 531 (2006); accord Salt Lake City Corp. v. Evans Dev. Grp., LLC, 369 P.3d 1263, 1267 (Utah 2016) (“It is not enough to accomplish a public use on some property; the condemnor must satisfy the public use requirement on the property subject to the condemnation.” (emphasis in original)).
Neither Kelo nor the
The Township‘s condemnation action failed to meet the strict requirements of the
B. The LLCs Are Not Precluded from Challenging the Condemnation.
Additionally, the LLCs have a statutory right to challenge the condemnation. We recognize “[t]he doctrines of collateral estoppel, issue preclusion, res judicata, and the like serve the important policy goals of ‘finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion[,] and uncertainty; and basic fairness.‘” First Union Nat‘l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007) (quoting Hackensack v. Winner, 82 N.J. 1, 32-33 (1980)). However, we disagree with the Township‘s claim that the trial court‘s final order in White Road precludes the LLCs’ challenges to these condemnation actions.
“Res judicata prevents a party from relitigating for a second time a claim already determined between the same parties.” In re Vicinage 13 of the N.J. Superior Ct., 454 N.J. Super. 330, 341 (App. Div. 2018). “Collateral estoppel (or ‘issue preclusion‘) is ‘that branch of the broader law of res judicata which bars relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action.‘” Ibid. (quoting State v. Gonzalez, 75 N.J. 181, 186 (1977)). For collateral estoppel to preclude subsequent litigation,
the party asserting the bar must show that: (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.
[Winters v. N. Hudson Reg‘l Fire & Rescue, 212 N.J. 67, 85 (2012) (quoting Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006)).]
The Township asserts the LLCs are precluded from challenging its authority to condemn Lots 84 and 90 because the trial court in White Road ruled
There is no evidence the LLCs agreed to be bound by the decision in White Road, had a pre-existing legal relationship with any party in White Road, assumed any control over the litigation in White Road, or are currently acting as a proxy for or in priority with any party in White Road. The Township‘s assertion the LLCs were adequately represented in the White Road matter is of no moment because the matter before us concerns the Township‘s ability to condemn Lots 84 and 90, and White Road concerned only the validity of the Township‘s land-swap agreement.
We note the land swap agreement does not require the Township to condemn the LLCs’ lots to meet its contractual obligations, and the Township could not have agreed to exchange land it did not already own.
More importantly, the
Finally, we note the Township did not “turn square corners” in its interactions with the LLC. See F.M.C. Stores, 100 N.J. at 426. The first ordinance claimed the condemned properties would be used for open space, as did the Township‘s original correspondence with the LLCs seeking to purchase the properties, and the Township‘s pleadings in support of condemning the two lots. These representations were pretextual as the Township had no intention of using the condemned lots as open space. And, in the amended ordinance, the Township failed to articulate how the condemned lots will ultimately be used. It is now clear the Township planned to use the lots not for open space, but to exchange for the Developer‘s land in a land-swap deal. As such, it failed its “overriding obligation to deal forthrightly and fairly with property owners.” Ibid.
Because the Township attempted to condemn land it does not plan to use for its purported public purpose of open space, and has not articulated any valid public use of the condemned land, we reverse the trial court‘s October 20, 2023 orders in which the court found the Township had “duly exercised its power of [e]minent [d]omain” in condemning Lots 84 and 90 and appointed condemnation commissioners based on that erroneous finding. As there is no ordinance that sets forth the actual proposed public purpose of Lots 84 and 90, a requirement of the Federal and State Constitutions and New Jersey‘s Eminent Domain Act, and the purported use of the lots as open space has been demonstrated to be pretextual, we conclude a hearing before the municipality is not warranted, and decline to remand this matter to the municipality.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION