BAY HEAD-MANTOLOKING LAND COMPANY VS. BEVERLY KONOPADA(L-3361-15, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4347-15T1

BAY HEAD-MANTOLOKING LAND
COMPANY,

Plaintiff-Appellant,

v.

BEVERLY KONOPADA, Clerk of
the Borough of Mantoloking,
Custodian of Records, and
THE BOROUGH OF MANTOLOKING,

Defendants-Respondents,

and

NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,

Defendant/Intervenor-
Respondent.

______________________________________

Argued August 1, 2017 – Decided August 14, 2017

Before Judges Sabatino, O'Connor and Whipple.

On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-3361-
15.

Donald F. Burke argued the cause for
appellant.
 Jill L. Thiemann argued the cause for
respondent Beverly Konopada, Clerk and Records
Custodian of the Borough of Mantoloking and
the Borough of Mantoloking (O'Malley, Surman
& Michelini, attorneys; Ms. Thiemann, on the
brief).

John P. Kuehne, Deputy Attorney General,
argued the cause for respondent New Jersey
Department of Environmental Protection
(Christopher S. Porrino, Attorney General,
attorney; Raymond R. Chance, III, Assistant
Attorney General, of counsel; Mr. Kuehne, on
the brief).

PER CURIAM

This appeal stems from the trial court's denial of plaintiff's

request for documents under the Open Public Records Act, N.J.S.A.

47:1A-1 to -6 ("OPRA"), and the common law. Plaintiff seeks copies

of draft appraisal reports furnished to the Borough of Mantoloking

("the Borough") in connection with anticipated eminent domain

litigation for certain beachfront properties located in the

municipality.

The Borough, in coordination with the Army Corp of Engineers

and the New Jersey Department of Environmental Protection ("DEP"),

is involved in a storm water fortification project to protect the

shoreline in the wake of Superstorm Sandy ("Sandy"). As part of

that project, the DEP needs to acquire easement rights for several

properties along the shoreline.

2 A-4347-15T1
 In connection with the anticipated eminent domain cases, the

Borough and the DEP arranged for a certified real estate appraiser

to evaluate the properties, so that the governmental entities

could enter into good faith negotiations with the owners, as

required under the Eminent Domain Act, N.J.S.A. 20:3-1 to -50.

Nine draft appraisals for various parcels were generated. Five

of those drafts were finalized, and the appraisals were turned

over to the property owners to pursue negotiations. Four draft

appraisals for the other parcels were not initially disclosed.

However, after the Borough obtained finalized appraisals from a

different expert, the draft appraisals by the first expert were

turned over to the property owners along with the finalized ones.

Plaintiff, Bay Head-Mantoloking Land Company, LLC, filed the

present action after its request to obtain the four draft

appraisals was denied. The Borough and the DEP, which intervened

in the litigation, argued that the request for disclosure was

appropriately denied on two independent grounds: (1) the

deliberative process privilege for draft reports; and (2) the

attorney work product privilege. The trial court agreed with

defendants that these privileges pertained, and therefore the

requested draft appraisals did not have to be provided to

plaintiff, either under OPRA or under the common-law balancing

test.

3 A-4347-15T1
 On appeal, plaintiff contends that none of the asserted

grounds for non-disclosure apply here as a matter of law, and that

plaintiff should have been provided with the draft appraisals.

For the reasons that follow, we affirm.

I.

On October 29, 2012, Superstorm Sandy first touched land in

New Jersey at Brigantine, with eighty miles-per-hour winds and

floodwaters that decimated large portions of the State's coast.

According to a certification by the DEP manager of coastal

engineering, the coastal areas spared by Sandy were those with

engineered beaches and dunes that had been built to the Army Corps

of Engineers standards, whereas towns without such protections

"fared much worse . . . suffering significant, and often extreme

damage." Of particular import to this case, the DEP manager noted

that Sandy overran Mantoloking Borough and adjacent Brick

Township, and thereby "carved new inlets through the Barnegat

Peninsula landmass, connecting ocean and bay in new places and

cleaving the towns into several islands isolated from the

mainland."

Towns in the northern portion of Ocean County generally did

not replenish those beaches and dunes in the wake of Sandy.

Unfortunately, on January 23, 2016, Winter Storm Jonas furthered

damaged the coastline. That second storm caused Brick Township

4 A-4347-15T1
to suffer elevation losses from ten to fifteen feet and narrowed

the beach's width by ninety to one hundred feet. In the Borough

of Mantoloking, the elevation losses were seven to eight feet and

a beach narrowing of 100 feet.

In response to this storm damage, the federal government

allocated funding under the Disaster Relief Appropriations Act of

2013, Pub. L. No. 113-2, to "construct a system of engineered

beaches and dunes across the New Jersey coast." As the state

agency involved in that effort, the DEP was tasked to engineer

beach and dune projects, and secure easements from private

landowners when those easements could not be voluntarily acquired.1

To advance these objectives, the DEP formulated what is known

as the "Manasquan Inlet to Barnegat Inlet Hurricane and Storm

Damage Reduction Project" ("the Project"). The Project sought to

construct fourteen miles of dunes and berm from Berkeley Township,

near Island Beach State Park, northward to Point Pleasant. The

Project encompasses nine municipalities, including Mantoloking and

Brick.

If the DEP could not voluntarily secure a property owner's

participation, the agency was to acquire the necessary easements

1
The authority of the DEP to engage in eminent domain proceedings
to secure these easements was recently upheld by this court. See
Dep't of Envtl. Prot. v. N. Beach 1003, ___ N.J. Super. ___, ___
(App. Div. 2017) (slip op. at 13).

5 A-4347-15T1
through one of three ways: (1) the Eminent Domain Act, N.J.S.A.

20:3-1; (2) the Disaster Control Act, N.J.S.A. App. A:9-51.5; or

(3) N.J.S.A. 12:3-64. Toward these ends, Governor Christie issued

Executive Order No. 140 (Sept. 25, 2013) ("EO 140"), and directed

the DEP and the Attorney's General Office "to coordinate those

legal proceedings necessary" to achieve the State's shore

protection goals.

Within the Borough, the DEP needed to acquire 264 properties

for the storm water fortification project. The Borough and the

DEP jointly conducted outreach and acquired 244 of the needed

parcels through voluntary transfers by their owners. That left

twenty outstanding parcels owned by nine separate property owners

– including the plaintiff2 in this case. According to a submission

to the trial court from the Deputy Attorney General who has

overseen legal aspects of the Project, five of the nine properties

at issue here were vacant, and the other four contained structures.

According to a certification from the Borough's outside

counsel, he recommended to the Borough that they hire, while

"acting in concert with" the DEP, a real estate valuation expert,

2
We note there is some dispute, not adjudicated by the trial court
or properly before this court, as to whether plaintiff is a true
owner of property within the scope of the beach restoration
project.

6 A-4347-15T1
Richard E. Hall, MAI, CRE3 to appraise the properties. The DEP

also engaged John J. Curley, Esq. to serve as special counsel to

oversee the land acquisitions in the Borough.

On August 20, 2013, the Borough passed a resolution

authorizing a contract with Hall to appraise properties related

to the Project. In the resolution, Hall was directed to value

potential property costs, anticipating that an expert would be

required "in the legal proceedings which are initiated to acquire

easements." The Borough unanimously approved the contract.4

The DEP and Curley provided guidance and oversight to Hall

in conjunction with his appraisal services. Although the Borough

paid Hall directly for his services, it did so with the

understanding that the DEP would reimburse it. Along with his

professional services contract, Hall signed a "Common Interest and

Confidentiality Agreement" with both the DEP and Borough.

According to the trial court's recitation of the facts in its

oral ruling, plaintiff owns property needed to complete the

Project, although not the specific parcels associated with the

3
These professional accreditations indicate that Hall is a member
of the Appraisal Institute ("MAI") and also is a commercial real
estate broker ("CRE").
4
None of the parties argue that these professional services
contracts required public bidding. See N.J.S.A. 40A:11-
5(1)(a)(i)(outlining an exception under Local Public Contracts Law
to include contracts for professional services).

7 A-4347-15T1
OPRA requests in this case. On October 6, 2015, plaintiff's

attorney e-mailed a document request to the custodian of records

for the Borough, and also to a member of the law firm serving as

the Borough's outside counsel.

Plaintiff's attorney sought "all appraisals whether final,

draft or preliminary as well as the authorization to pay for such

appraisals." Plaintiff requested the records under OPRA, the

common law, and unspecified provisions under the New Jersey

Constitution. Specifically, he requested appraisals for the nine

properties as to which the owners had declined to deed their

properties voluntarily to the Borough: 1071, 1121, 1215, 1217,

1513, 1067, and 1021 Ocean Avenue, and 965 and 991 East Avenue.

The Borough's outside counsel responded to plaintiff's

request via email on October 19, 2015. Counsel included several

attachments, which included: (1) minutes of the Borough Council

meetings appointing Hall as the appraiser and later authorizing

payment to him for services he rendered, and (2) the agreement

between Hall and the Borough.5

5
It is unclear whether this agreement is separate from the Common
Interest Agreement mutually executed among Hall, the DEP, and the
Borough.

8 A-4347-15T1
 The Borough's outside counsel withheld the draft appraisals

sought by plaintiff for the following reasons, as expressed in her

email:

The requested appraisals are not being
provided. They are protected by the Attorney-
Client privilege as the work has been
performed under the direction of the NJ DEP's
Counsel in anticipation of imminent
condemnation litigation. These appraisals are
work product covered by the Common Interest
Agreement attached. These appraisals were
prepared so as to allow the State of New Jersey
to tender an offer to the property owners and
negotiate in "good faith" as the law requires.
As of this date the appraisals have been
completed and are under review by the NJ DEP.
Offer letters will be mailed to the subject
property owners in the immediate future. Not
only are these appraisal[s] exempt under
N.J.S.A. 47:1A-1.1(7), but disclosure of these
appraisals may jeopardize the future "good
faith" negotiations or result in one or both
parties suffering potential injury, including
financial injury. Upon balancing the
interests of the subject property owners as
well as the Borough and the State of New Jersey
who will be the parties to said "good faith"
negotiations against any requirement of
disclosure under [OPRA], the Borough and the
State of New Jersey have concluded that the
public interest in confidentiality of these
appraisals outweighs any private interest to
right of access under OPRA.

Although outside counsel wrote in her email that she would

attach the Common Interest agreements between the State and the

Borough and the one signed by Hall, she actually withheld both of

them. Outside counsel characterized the Common Interest

9 A-4347-15T1
agreements as work product and therefore privileged under OPRA.

Lastly, outside counsel declined to release the requested draft

appraisals under the common law.

After the Borough denied the document request, plaintiff

brought the present lawsuit in the Law Division in December 2015.6

In plaintiff's two-count complaint, it asked the Law Division to

order the Borough to provide plaintiff with the nine appraisals,

either under OPRA or the common law right of access.

On December 3, 2015, the Borough's outside counsel sent

plaintiff final appraisals for the five vacant properties that had

been initially requested in plaintiff's OPRA application.7 As to

those properties, the DEP had sent offer letters to the owners,

engaged in good faith negotiations, and had commenced eminent

domain litigation to acquire them. With respect to these disclosed

appraisals, Hall wrote that he drafted them for the State as his

client, but they were also for the DEP and Borough. 8 Hall

6
According to the DEP's motion to intervene, plaintiff submitted
an identical OPRA request to the DEP, and that state agency denied
access, citing the same privileges as the Borough. For reasons
that are unclear, plaintiff only named the Borough as a defendant
in its OPRA complaint.
7
Thiemann sent Burke copies of the following property appraisals:
1215, 1121, and 1021 Ocean Avenue and 965 and 991 East Avenue.
8
Although the DEP is an entity of the State, Hall nonetheless
framed his client relationship in this manner.

10 A-4347-15T1
characterized the reports as documents to be used "to assist the

clients and intended users in real property acquisition

negotiations in a Federal Project and/or determination of the fair

market value of the property rights proposed to be conveyed" that

are necessary for the Project.

Although the disclosures did not specify the precise amount

of property proposed to be taken, for each parcel Hall was asked

to quantify the value of a twenty-foot-wide easement running north-

to-south along each property's eastern ocean-side border. His

market value appraisals for the five parcels ranged from $3,150

to $12,285.

According to the Deputy Attorney General, as of December 23,

2015, the appraisals for the four remaining parcels were then in

draft form "and remain subject to further review and revisions."

The Deputy Attorney General represented that once they were

finalized, the appraisals and corresponding offer letters would

be sent to the property owners.

In its answer to plaintiff's complaint, the Borough similarly

represented that it would release the remaining four property

appraisals "immediately . . . once they are final, approved and

released to the respective property owners whose interests are

being valued." The Borough also asserted that it was bound by the

Common Interest Agreement with the DEP, which "expressly

11 A-4347-15T1
prohibit[ed] the release of the requested appraisals[.]" The

Borough asserted that the Common Interest Agreement itself was

privileged, and would only supply the trial court with a copy

under seal for an in camera review.

The day before oral argument in the Law Division on

plaintiff's application, the Deputy Attorney General wrote the

court with a factual update. He reported that Hall had been

released 9 from his contract to finish the four outstanding

appraisals in this case. In his place, the Borough hired a

different appraiser, Jeffrey Otteau, to provide appraisals for the

same four parcels. The Deputy Attorney General indicated that

Otteau's appraisals "after completion, shall be used by the State

in evaluating offer letters for the four property owners with whom

the State has yet to enter good faith negotiations in accordance

with the Eminent Domain Act." He added that, "[i]f the parties

arrive at an impasse during negotiations, the Otteau appraisals

shall be used in any condemnation action against the property

owners."

That same day, plaintiff's counsel wrote the Borough's

attorney, requesting that the Borough release Hall's four

9
The letter did not disclose whether the DEP or the Borough had
taken the action to release Hall from his contract, or why he was
released.

12 A-4347-15T1
appraisals because the claim of exemption no longer applied. In

a response letter that same day, the Borough denied plaintiff's

request. The Borough maintained its position that Hall's draft

appraisals were exempt from plaintiff's requests under the

deliberative process privilege.

The matter was argued before Assignment Judge Marlene Lynch

Ford. After considering those arguments, Judge Ford immediately

issued an oral ruling, rejecting plaintiff's requests and adopting

the multiple grounds collectively invoked by the Borough and the

DEP supporting their non-disclosure of the draft appraisals.

First, with respect to the deliberative process privilege,

Judge Ford noted that the privilege's purpose is to "permit the

government to withhold documents that reflect advisory opinions,

recommendations, and deliberations comprising part of the process

by which governmental decisions and policies are formulated." The

judge found it was "clear" that the documents requested here "were

part of a pre-decisional and deliberative process relative to the

acquisition of certain interest and property[.]" The judge noted

the governmental decision to be made concerned the market amount

to pay a property owner for the subject property. She reasoned

that the appraisal was part of that decision-making process.

Judge Ford further noted that the appraisals' draft nature

inherently reflected that Hall's appraisals were not final. She

13 A-4347-15T1
reasoned that to require defendants to disclose them at this point

would "prematurely disclose the views of the agency." Although

the judge stated she was "sensitive" to plaintiff's OPRA concerns,

she concluded that "the undisputed facts are fairly clear that

this was prepared for the purpose of engaging in" eminent domain

negotiations.

As an alternative basis for rejecting plaintiff's complaint,

the judge ruled that the draft appraisals were "certainly part"

of the work-product doctrine of the attorney-client privilege.

Judge Ford observed that if the negotiations failed, the only way

the DEP would be able to acquire the property would be through

litigation. To support such litigation, the government had the

subject documents prepared by an expert appraiser in advance. The

judge was not persuaded that it made any material difference that

the Borough, and not its counsel, had hired the expert.

Third, the judge rejected plaintiff's claim of a common law

right of access. In this regard, the judge determined that the

negotiation process for eminent domain should be "cloaked within

some degree of confidentiality," so as to protect both the DEP and

the private property owners' interests.

Another factor that guided the trial court was whether the

document had factual data "as opposed to evaluative reports."

Here, the judge found that the draft appraisals were evaluative,

14 A-4347-15T1
consisting of the appraiser's opinion. She concluded this factor

outweighed plaintiff's interest in obtaining access.

In sum, the judge concluded that the government's interest

in having "fair and meaningful eminent domain negotiations" would

be impeded if draft appraisals had to be released to third parties,

such as plaintiff, who were not part of the direct negotiations.

In a two-page corresponding order issued on April 25, 2016,

Judge Ford denied plaintiff's request for the draft appraisals

under both OPRA and the common law. She did, however, order the

defendants to provide a "Vaughn Index" describing the withheld

records.

This appeal followed.

II.

Plaintiff contends that the trial court erred in denying its

request for disclosure under both OPRA and the common law.

Although plaintiff acknowledges the public policies that generally

shield consultations with expert witnesses in connection with

pending or anticipated litigation, it argues that the particular

circumstances here call for a limited exception to those policies

of confidentiality, because no litigation was pending or imminent

when the draft appraisals were generated. Plaintiff further argues

that the context of pre-suit eminent domain negotiations under

Title 20 also distinguishes the present matter from situations in

15 A-4347-15T1
which experts are consulted or retained by the government in the

ordinary course of civil or criminal litigation.

In addition, plaintiff asserts that the draft appraisals were

not pre-decisional, nor were they documents created for the

"dominant" purpose of assisting the government in matters of

policy, and thus the deliberative process privilege does not

pertain.

Lastly, plaintiff argues that, apart from its asserted

statutory rights as a requestor under OPRA, it had a predominating

interest under the common law to have been supplied with the

documents when they were sought. Plaintiff consequently seeks

reversal of the trial court's decision or, at a minimum, an order

remanding this matter directing in camera review by the trial

court.

Having fully considered the parties' arguments, we affirm the

trial court's rejection of plaintiff's access claims,

substantially for the reasons soundly expressed in Judge Ford's

April 8, 2016 bench opinion. On the whole, we agree with

defendants and the trial court that both the work product and

deliberative process privileges apply here. We add only a few

amplifying comments.

With respect to the work product analysis, plaintiff's heavy

reliance on this court's opinion in Tractenberg v. Township of

16 A-4347-15T1
West Orange, 416 N.J. Super. 354 (App. Div. 2010) is unavailing.

The factual context in Tractenberg involved a situation in which

a municipality had obtained real estate appraisals for vacant

property the governing body was considering purchasing to preserve

open space. Id. at 362. After those appraisals were generated,

lengthy debate about the township's possible acquisition of the

land took place for over two years, without any decision or action.

Id. at 379. By that point, the township still had not initiated

negotiations to purchase the land, nor were such negotiations

"probable any time in the near future." Ibid. In that setting,

we concluded in Tractenberg that "the mere potential for future

negotiations, without a strong showing that negotiations [were]

probable," negated the township's assertion of privilege under

OPRA. Ibid. Here, by contrast, when the nine draft appraisals

were all generated, future eminent domain litigation was far more

likely, especially given the federal and State imperatives of the

Superstorm Sandy restoration project. Hence, Tractenberg is not

on point.

Defendants' assertion of the work product privilege is also

bolstered by the policies reflected in Rule 4:10-2(d)(1), which

was specifically amended in 2002 on the recommendation of the

Civil Practice Committee so as to insulate draft expert reports

as well as related oral and written communication between the

17 A-4347-15T1
attorney and the expert. See Pressler & Verniero, Current N.J.

Court Rules, comment 5.2.1 on R. 4:10-2(d)(1) (2016); see also

Adler v. Shelton, 343 N.J. Super. 511, 530 (Law Div. 2001) (noting

the importance of protecting communications between an attorney

and a hired expert from disclosure in discovery). The same

principles apply here in the context of adversarial proceedings

and negotiations that were anticipated between the government as

condemnor and the individual private property owners as

condemnees. Given that beach restoration would be completed under

federal and State oversight, the acquisitions are hardly

conjectural.

We further agree that the deliberative process privilege

provides an independent justification for the withholding of the

draft appraisals. The draft nature of Mr. Hall's expert appraisal

is undisputed. The drafts are also clearly pre-decisional, as

they were generated before both (1) a decision by the government

to rely upon (or reject) the expert's work in eminent domain

negotiations and litigation, and (2) future decisions by the

government agencies in response to any counter-proposals that

might be made by the individual property owners. See Ciesla v.

N.J. Dept. of Health & Sr. Servs. 429 N.J. Super. 127, 135 (App.

Div. 2012) (applying the deliberative process privilege to draft

reports supplied to the Department of Health to aid in deciding,

18 A-4347-15T1
as a regulator, whether to authorize the acquisition of a hospital

by another hospital). Although the property acquisition and

valuation context here is arguably less policy-laden than that

involved in Ciesla, the same kinds of institutional concerns to

promote unimpeded internal governmental deliberations nonetheless

apply.

We further concur with the trial court and defendants that

plaintiff has not made the "greater showing" required under the

common law balancing test to compel disclosure independent of

OPRA. See N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, ___

N.J. ___, ___ (2017) (slip op. at 45). At best, plaintiff is a

mere bystander to the other property acquisitions. State v. Town

of Morristown, 129 N.J. 279, 287-90 (1992). Moreover, plaintiff

could have sought to intervene in one or more of the other eminent

domain actions (which it apparently attempted, but then withdrew)

if it felt its proprietary interests were sufficiently implicated.

If and when defendants attempt to obtain plaintiff's own parcel,

we presume that competing appraisal reports specific to that

property are likely to be exchanged, analyzed, and, if necessary,

litigated.

Lastly, we must point out that during the oral argument on

the appeal, counsel for both defendants represented that if

plaintiff renews its request to have the draft reports provided,

19 A-4347-15T1
they will now furnish Hall's appraisals without objection, given

that the drafts have been supplied to the individual property

owners during the pendency of this appeal. In essence, the live

controversy that existed at the time of the trial court ruled is

now moot (although for independent reasons, and not as the result

of plaintiff's efforts).10 Consequently, there is no need for a

remand or any further proceedings. "[O]ur courts normally will

not entertain cases where a controversy no longer exists and the

disputed issues have become moot." DeVesa v. Dorsey, 134 N.J.

420, 428 (1993).

Affirmed, without prejudice to plaintiff presenting a renewed

request to defendants to obtain the draft appraisals, which they

have represented they will supply.

10
We note that defendants' present willingness to supply plaintiff
with the draft appraisals was not clearly expressed in their briefs
on appeal, which stated that the drafts had been supplied to the
other property owners, without indicating whether any conditions
on further dissemination pertained. The DEP's brief contains a
footnote stating that the DEP "alerted Appellant's counsel when
the remaining appraisals became available" but does not clarify
to whom they became available. We lament that this apparent
misunderstanding among counsel resulted in this court hearing an
appeal over a dispute that evidently could have been resolved much
sooner.

20 A-4347-15T1