Bulletin Board Magazine 2022 Volume 1

whether the permit condition challenge would have been sustained had the appeal been timely filed, under the circumstances here where the permittee arguably accepted the permit conditions by proceeding with the work in accordance with the conditions in dispute. EMINENT DOMAIN The Appellate Division affirmed in an unpublished decision the trial court’s order granting plaintiff Carteret the right to acquire a portion of defendant The Carteret Warehouse Condominium Association, Inc.’s (“Association”) property through eminent domain. Carteret owned property that it developed into a public park, and it sought to create an auxiliary parking lot for the park on a portion of the Association’s property. Carteret offered $8,100 to acquire a 0.252-acre easement over the Association’s property. The Association rejected the offer. Subsequently, the Borough Council adopted an ordinance authorizing acquisition of the Association’s property through eminent domain. Based on a final survey and an updated appraisal, Carteret served a formal written offer on the Association offering to acquire a 0.218-acre portion of the property for $7,500. The offer letter also advised that Carteret would initiate condemnation proceedings if the Association did not respond within fourteen days. The Association did not respond to Carteret’s offer. Carteret initiated condemnation and the trial court entered judgment in favor of Carteret in a summary manner. On appeal, the Association argued that a plenary hearing was required because there were disputes of fact regarding whether Carteret engaged in bona fide negotiations with the Association before commencing the condemnation action and whether the taking was arbitrary. Carteret v. Carteret Warehouse Condo. Ass’n

Under the Eminent Domain Act of 1971 (“Act”): a condemnor is required to engage in bona fide negotiations with a prospective condemnee; such negotiations must be in writing and the offer must include details such as a description of the property, the interest required, the compensation being offered, and a methodology of calculation of same; and a condemnee must reject or accept the offer within fourteen days of the mailing of the offer. The court determined that Carteret’s offers were in good faith, and it was the Association who rejected them without engaging in bona fide negotiations. The court also found that the Association failed to make out a prima facie case of arbitrariness as the condemned property was an expansion of existing public parking, was a means to access the park, and the Association failed to demonstrate a reasonable alternative to condemnation. Under the Act, municipalities have “wide latitude” to acquire private property by eminent domain for public use, often critical for beneficial redevelopment. Property owners must meet a high threshold of clear and convincing evidence in order to prove that a municipality’s condemnation action is arbitrary and capricious.

Maple Shade purchased commercial property in Maple Shade Township for redevelopment. Maple Shade submitted a major access permit application, and after many months of discussions between the DOT and Maple Shade, the DOT issued the permit with numerous conditions. Notwithstanding its objections, Maple Shade completed its project in accordance with the permit conditions. Maple Shade had 30 days to file an appeal of any “unacceptable” permit conditions. However, Maple Shade filed its appeal nearly four months after the time to appeal had expired and after it had already completed the project in accordance with the conditions. The DOT accordingly denied Maple Shade’s appeal as untimely. On appeal to the Appellate Division, Maple Shade argued that certain permit conditions were not “required” under the Access Code and, therefore, the DOT improperly applied the time restriction for appeals and Maple Shade was entitled to relief under equitable principles. The court rejected Maple Shade’s arguments and affirmed the DOT’s decision. It found that the conditions imposed for Maple Shade’s permit “were consistent with the safety and efficiency concerns embodied in the Access Code.” In addition, the court found that Maple Shade was not entitled to relief from the Access Code’s time constraints as there were no changed circumstances between Maple Shade’s signing of the permit and its filing of the notice of appeal with the DOT which may have otherwise supported the pursuit of equitable relief. The decision stands as a cautionary tale for Property owners and developers to be mindful of any time restrictions applicable to contesting a final agency decision, as an appeal may be denied solely on procedural grounds. The court interestingly did not address the issue of

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