NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3393-15T4,
A-3396-15T4, A-3397-15T4,
A-3398-15T4, A-3399-15T4,
A-3727-15T4, A-3770-15T4,
A-3771-15T4, A-3781-15T4,
A-3782-15T4, A-3783-15T4,
A-3786-15T4, A-3787-15T4,
A-3789-15T4, A-3790-15T4,
A-3791-15T4, A-3792-15T4,
A-3958-15T4, A-3960-15T4,
A-3965-15T4, A-3966-15T4,
A-3967-15T4, A-3969-15T4,
A-3970-15T4
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. June 22, 2017
APPELLATE DIVISION
NORTH BEACH 1003, LLC, a
New Jersey limited liability
company,
Defendant-Appellant,
and
STATE OF NEW JERSEY, DEPARTMENT
OF THE TREASURY, DIVISION OF
TAXATION,
Defendant.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
SHANIN SPECTER and TRACEY
SPECTER,
Defendants-Appellants,
and
GE CAPITAL MORTGAGE SERVICES,
INC., a New Jersey corporation
or its successor,
Defendant-Respondent.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
THOMAS R. KLINE,
Defendant-Appellant.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
ROBERT S. HEKEMIAN,
Defendant-Appellant,
and
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
a Delaware foreign profit
corporation, or its successor,
as nominee for TD BANK, N.A.,
2 A-3393-15T4
Defendant-Respondent.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
RICHARD CAROLAN and
TINA CAROLAN,
Defendants-Appellants.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
JEANETTE F. FRANKENBERG and
LOUIS CAMPISANO,
Defendants-Appellants,
and
THE PROVIDENT BANK, a New Jersey
domestic limited liability
company, or its successor,
Defendant-Respondent.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
BEVERLY T. CAMMARANO QUALIFIED
3 A-3393-15T4
PERSONAL RESIDENCE TRUST,
BEVERLY T. CAMMARANO and ROBERT
J. CAMMARANO as co-trustees,
Defendants-Appellants,
and
BANK of AMERICA, N.A.,
Defendant.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
BARBARA J. WELDON,
Defendant-Appellant.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
COLLEEN M. ROWE and
KELLY A. ROWE,
Defendants-Appellants.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
KEVIN KLINGERT and KRISLYN
4 A-3393-15T4
KLINGERT,
Defendants-Appellants.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
PATRICIA ROBERTS TRUST,
PATRICIA ROBERTS as trustee,
and SCOTT GUSMER,
Defendants-Appellants.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
DAVID CASTELBLANCO and LAURA
ENGELHARDT,
Defendants-Appellants,
and
FIRST REPUBLIC BANK,
Defendant-Respondent.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
RICHARD MALOUF and MARILYN
5 A-3393-15T4
MALOUF,
Defendants-Appellants.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
FREDERICK SMITH, SANDRA S.
HOLDER-BROWN as trustee for
SANDRA S. HOLDER-BROWN
TRUST, and DEBORAH A. SMITH,
Defendants-Appellants,
and
SANTANDER BANK, N.A.,
Defendant-Respondent.
________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
MICHAEL VAN KRALINGEN and
SANDRA MILLER as trustees of
the VAN KRALINGEN RESIDENCE
TRUST II,
Defendants-Appellants,
and
0.238-Acres of Land in The
Borough of Point Pleasant
Beach, Ocean County, New
Jersey and INVESTORS SAVINGS
6 A-3393-15T4
BANK,
Defendants-Respondents.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
DENNIS LA PLANTE and CATHERINE
LA PLANTE,
Defendants-Appellants,
and
0.232-Acres of Land in The
Borough of Point Pleasant Beach,
M&T BANK CORPORATION, as
successor to HUDSON CITY SAVINGS
BANK, and U.S. SMALL BUSINESS
ADMINISTRATION,
Defendants-Respondents.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
COURTNEY M. ALESSO and JOHN A.
ALEXY, co-trustees of the
COURTNEY M. ALESSO 2012 TRUST,
Defendants-Appellants,
and
0.259-Acres of Land In The
Borough of Point Pleasant Beach,
7 A-3393-15T4
Ocean County, New Jersey,
Defendant-Respondent.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
MINALKUMAR A. PATEL LIVING TRUST,
MINALKUMAR A. PATEL and ASRA
WARSI as trustees, and ASRA WARSI
LIVING TRUST, MINALKUMAR A. PATEL
and ASRA WARSI as trustees,
Defendants-Appellants.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
NEIL KAHANOVITZ and SUZANNE
KAHANOVITZ,
Defendants-Appellants,
and
MANASQUAN SAVINGS BANK,
Defendant-Respondent.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
8 A-3393-15T4
JILL P. GILES REVOCABLE TRUST,
JILL P. GILES, as trustee,
Defendants-Appellants,
and
MANASQUAN SAVINGS BANK,
Defendant-Respondent.
_________________________________
NINA RITTER, SHARON CRUZ,
LAWRENCE E. BATHGATE, II, AUSTIN
FRAGOMEN and GWENDOLYN FRAGOMEN,
SMATCO, LP, ANN F. MESTRES,
LOWELL MILLAR and JENNIFER
MILLAR,
Plaintiffs-Appellants,
v.
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Defendant-Respondent.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
RAYMOND BRAUN and JAYNE K.
BRAUN,
Defendants-Appellants,
and
NEW YORK COMMUNITY BANCORP,
9 A-3393-15T4
Defendant-Respondent.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
THOMAS BUCKLEY and KAREN
BUCKLEY,
Defendants-Appellants,
and
TD BANK NORTH, INC., d/b/a TD
BANK, N.A.,
Defendant-Respondent.
_________________________________
STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
GERARD LOSURDO and NINA
LOSURDO,
Defendants-Appellants,
and
U.S. BANK, N.A.,
Defendant-Respondent.
_________________________________
Argued May 2, 2017 – Decided June 22, 2017
Before Judges Yannotti, Fasciale, and
Gilson.
10 A-3393-15T4
On appeal from the Superior Court of New
Jersey, Law Division, Ocean County, Docket
Nos. L-3067-15, L-3071-15, L-3077-15, L-
3066-15, L-3069-15, L-2919-15, L-3289-15, L-
3286-15, L-3420-15, L-3410-15, L-3319-15, L-
3287-15, L-3285-15, L-3438-15, L-0442-16, L-
0444-16; L-0443-16, L-3206-15, L-3205-15, L-
3288-15, L-2949-15, L-3204-15, L-3292-15,
and L-3275-15.
Scott A. Heiart argued the cause for
appellants North Beach 1003, L.L.C., Shanin
Specter and Tracey Specter, Thomas R. Kline,
Robert S. Hekemian, and Richard Carolan and
Tina Carolan (Carlin & Ward, P.C.,
attorneys; Mr. Heiart, on the briefs).
Mark S. Winter argued the cause for
appellants Jeanette F. Frankenberg and Louis
Campisano (Stern Lavinthal Frankenberg &
Norgaard, L.L.C., attorneys; Mr. Winter, on
the briefs).
John H. Buonocore, Jr. and Anthony F.
DellaPelle argued the cause for appellants
Beverly T. Cammarano Qualified Personal
Residence Trust, Beverly T. Cammarano and
Robert J. Cammarano as co-trustees, Barbara
J. Weldon, Colleen M. Rowe and Kelly A.
Rowe, Kevin Klingert and Krislyn Klingert,
Patricia Roberts Trust, Patricia Roberts as
trustee, and Scott Gusmer, David
Castelblanco and Laura Engelhardt, Richard
Malouf and Marilyn Malouf, Frederick Smith,
Sandra S. Holder-Brown as trustee for Sandra
S. Holder-Brown Trust and Deborah A. Smith,
Michael Van Kralingen and Sandra Miller as
trustees of the Van Kralingen Residence
Trust II, Dennis La Plante and Catherine La
Plante, Courtney M. Alesso and John A.
Alexy, co-trustees of the Courtney M. Alesso
2012 Trust, Minalkumar A. Patel Living
Trust, Minalkumar A. Patel and Asra Warsi as
trustees, Asra Warsi Living Trust,
Minalkumar A. Patel and Asra Warsi as
11 A-3393-15T4
trustees, Neil Kahanovitz and Suzanne
Kahanovitz, Jill P. Giles Revocable Trust,
Jill P. Giles as trustee, Nina Ritter,
Sharon Cruz, Lawrence E. Bathgate, II,
Austin Fragomen and Gwendolyn Fragomen,
SMATCO, L.P., Ann F. Mestres, Lowell Millar
and Jennifer Millar, Raymond Braun and Jayne
K. Braun, Thomas Buckley and Karen Buckley,
and Gerard Losurdo and Nina Losurdo (McKirdy
& Riskin, P.A., attorneys; Mr. Buonocore and
Mr. DellaPelle, on the briefs).
David C. Apy, Assistant Attorney General,
and Ronald L. Perl, argued the cause for
respondent Department of Environmental
Protection (Christopher S. Porrino, Attorney
General, and Hill Wallack, L.L.P.,
attorneys; Melissa H. Raksa, Assistant
Attorney General, of counsel; David S.
Frankel, Kristina L. Miles, Bruce A. Velzy,
Deputy Attorneys General, and Dale Laster
Lessne, on the brief).
The opinion of the court was delivered by
GILSON, J.A.D.
These consolidated appeals present the questions whether
the New Jersey Department of Environmental Protection (DEP) has
the authority to condemn private property to take perpetual
easements for shore protection purposes and whether the
easements can allow public access to, and use of, the areas
covered by the easements. We hold that the DEP has such
authority and the easements that allow for publicly funded beach
protection projects can include public access and use. Thus, we
affirm the trial court's final judgments finding that the DEP
properly exercised its power of eminent domain and appointing
12 A-3393-15T4
commissioners to determine the value of the takings. We also
affirm the trial court's orders denying defendants' motion to
dismiss the DEP's complaints and granting summary judgment to
the DEP on the declaratory judgment action brought by certain
appellants.
I.
Under the New Jersey public trust doctrine, the State holds
ownership over all shore-lined lands that are flowed by the tide
up to the mean high water mark. City of Long Branch v. Jui Yung
Liu, 203 N.J. 464, 475 (2010) (citing O'Neill v. State Highway
Dep't, 50 N.J. 307, 323 (1967)). Accordingly, New Jersey has
historically managed, protected, and developed its shoreline.
Over the past several decades, the federal government has
assisted New Jersey in protecting coastal communities from the
impacts of storms and beach erosion. In 1986, Congress enacted
the Water Resources Development Act (WRDA), 33 U.S.C.A. § 2211
to § 2227. Under the WRDA, the federal government will pay
between fifty to sixty-five percent of the costs of such
projects and the State will be responsible for the remaining
balance. 33 U.S.C.A. § 2213.
In the aftermath of Superstorm Sandy, Congress passed the
Disaster Relief Appropriations Act of 2013 (Sandy Act), Pub. L.
No. 113-2, 127 Stat. 4. The Sandy Act authorizes the Army Corps
13 A-3393-15T4
of Engineers (Army Corps) to construct beach replenishment and
dune construction projects to protect the New Jersey shoreline.
The Sandy Act also provides that the federal government will
fund one hundred percent of the costs for the completion of some
of the projects. The State's contribution for those projects
can be deferred and financed over a period of thirty years.
In September 2013, Governor Chris Christie issued Executive
Order No. 140. That order established the Office of Flood
Hazard Risk Reduction Measures within the DEP and gave it
responsibility "for the rapid acquisition of property vital to
[Sandy] reconstruction efforts[.]"
To facilitate the projects authorized by the Sandy Act, the
Army Corps partnered with the DEP. The DEP was responsible for
gaining physical access to the property along the New Jersey
shoreline needed to construct and maintain the projects. Two
projects are at issue on these appeals. The Long Beach Island
Project (the LBI Project) and the Manasquan Inlet to Barnegat
Inlet Storm Damage Reduction Project (the Manasquan Project).1
Those Projects consist of a dune and berm system extending the
1
According to the partnership agreements between the Army Corps
and the DEP, the federal government will fund one hundred
percent of the Manasquan Project initially and the State shall
defer payment of the contribution in accordance with the Sandy
Act. For the LBI Project, the State is required to pay thirty-
five percent of the cost at the start of the Project.
14 A-3393-15T4
entire eighteen-mile length of Long Beach Island and fourteen
miles along northern Ocean County from Berkeley Township to
Point Pleasant Beach.
Under its agreements with the Army Corps, the DEP must
obtain all necessary property interests before the Army Corps
will begin to construct the Projects. In that regard, the
project partnership agreements between the DEP and the Army
Corps provide that the DEP is to acquire all "real property
interests . . . required for construction, operation, and
maintenance of the Project[s]," including the "lands, easements
and right-of-way required for the Project[s]."
After Superstorm Sandy, the State, working with various
municipalities, undertook efforts to secure voluntary
conveyances of the property interests needed for the Projects.
While many property owners voluntarily granted easements, other
property owners declined to give voluntary easements. Thus, the
DEP initiated actions to acquire the remaining easements through
eminent domain proceedings.
Certain appellants in these consolidated appeals own
twenty-three properties on Long Beach Island or in northern
Ocean County. They refused to provide voluntary easements to
the DEP. The DEP filed condemnation complaints against the
owners of those twenty-three properties. Those property owners
15 A-3393-15T4
are referred to as the North Beach 1003 defendants, the
Frankenberg defendants, and the Cammarano defendants. The
owners of seven other properties brought a declaratory judgment
action against the DEP. They are referred to as the Ritter
appellants.
Before filing eminent domain actions, the DEP had an
appraiser, Richard Hall, appraise the properties owned by the
North Beach 1003, Frankenberg, and Cammarano defendants. Hall
first wrote to each property owner, informing them that he would
be conducting an appraisal and inviting them to provide him with
relevant information and to attend his inspection. Only a few
defendants responded to Hall and attended his inspection. As a
consequence, Hall was not given access to the homes of most
defendants, including the home owned by the Frankenberg
defendants.
Once the appraisals were completed, the DEP sent those
appraisals to defendants and offered to purchase easements for
between several hundred dollars and several thousand dollars.
Attorneys for defendants then informed the DEP that they would
like to negotiate those offers. The DEP responded that
defendants would need to obtain their own informal appraisals to
commence meaningful negotiations. Defendants requested time to
obtain such appraisals. Defendants also requested the DEP
16 A-3393-15T4
answer certain questions concerning Hall's appraisals and his
methodology. In addition, the Frankenberg defendants requested
a reappraisal since Hall had not inspected the interior of their
home. The Frankenberg defendants also provided the DEP with
photographs of the views from the interior of their home and
allowed representatives of the DEP and the Army Corps to inspect
their home.
Eventually, the DEP set a deadline for receiving
defendants' appraisals. When the deadline passed without
receipt of appraisals from defendants, the DEP commenced
condemnation actions in late 2015 and early 2016.
In the condemnation complaints against the North Beach
1003, Frankenberg, and Cammarano defendants, the DEP sought
perpetual easements under N.J.S.A. 12:3-64. The proposed
easements would allow for the "construction, periodic
nourishment, and continued maintenance of the Project[s'] dunes
and berms system." The easements also provided the right for
the public to access and use the areas covered by the easements.
Defendants responded with answers and motions to dismiss
the complaints, contending that the DEP lacked statutory
authority to take easements. Defendants also contended that the
DEP did not have the authority to take perpetual easements,
which provided for a public beach. Additionally, defendants
17 A-3393-15T4
asserted that the DEP had failed to engage in bona fide
negotiations as required by the Eminent Domain Act (EDA),
N.J.S.A. 20:3-1 to -50.
On March 4, 2016, the trial court heard oral argument in
the matters involving the North Beach 1003, Frankenberg, and
Cammarano defendants. Thereafter, on March 28, 2016, the trial
court issued a written opinion explaining that it would grant
the DEP's orders to show cause and deny defendants' motions to
dismiss. The court held that the DEP was statutorily authorized
to take private property for "public beach purposes and for
shore protection purposes." Specifically, the trial court held
that both N.J.S.A. 12:3-64 and the EDA permitted the DEP to take
a property interest less than a fee simple, such as perpetual
easements. The court also held that, because federal funding
was conditioned on public access and use, the DEP had the
discretion to include public access and use as part of the
easements. Finally, the court found that the DEP had complied
with all pre-litigation steps required by the EDA, including
engaging in bona fide negotiations with the property owners.
See N.J.S.A. 20:3-6.
Having held that the DEP properly exercised its power of
eminent domain, on April 5, 2016, the trial court entered orders
18 A-3393-15T4
for final judgments in favor of the DEP and appointed
commissioners to determine the value of the takings.2
Separately, in 2015, the Ritter appellants filed a
declaratory judgment action seeking a ruling that the DEP could
not rely on N.J.S.A. 12:3-64 to acquire easements on their
properties. The Ritter appellants moved for summary judgment
and the DEP cross-moved for summary judgment, arguing that the
Ritter appellants' action was premature since the DEP had not
yet commenced condemnation proceedings against their properties.
The trial court granted summary judgment to the DEP in an order
entered on April 8, 2016. The court relied on its March 28,
2016 opinion, holding that the DEP had authority to condemn
private property. The court also found that the Ritter
appellants were seeking an advisory opinion because the DEP had
not yet filed condemnation actions against those property
owners.
The North Beach 1003, Frankenberg, and Cammarano defendants
now appeal the orders of final judgments entered in their
2
The trial court also ruled that it would conduct a plenary
hearing to determine whether the Project was necessary in front
of certain properties that were already protected by a "rock
revetment," as alleged by certain owners of properties located
in Bay Head and Mantoloking. At oral argument, counsel informed
us that the properties protected by the rock revetment are not
part of these consolidated appeals because the trial court has
not yet issued a decision concerning those properties.
19 A-3393-15T4
actions. The Ritter appellants appeal the April 8, 2016 order
granting summary judgment to the DEP and dismissing their
declaratory judgment action. All the appeals were consolidated
because they present similar issues. One property owner who was
initially part of these consolidated appeals has resolved the
dispute with the DEP while these appeals were pending. We
denied appellants' request for stays of the Projects pending
these appeals, but we accelerated the consolidated appeals.
II.
In challenging the orders and judgments entered by the
trial court, appellants present eight arguments, six of which
relate to all appellants, and two of which are specific to the
North Beach 1003 and Frankenberg defendants. Specifically,
appellants argue that the trial court erred by (1) holding that
the DEP had statutory authority to acquire easements; (2)
interpreting N.J.S.A. 12:3-64 to allow for the taking of
easements; (3) interpreting N.J.S.A. 12:3-64 to allow for the
protection of public beaches; (4) interpreting our decision in
State v. Archer, 107 N.J. Super. 77 (App. Div. 1969); (5)
determining that the EDA authorized the DEP to take easements;
(6) allowing the DEP to take perpetual easements; (7) finding
that the DEP conducted bona fide negotiations with the North
20 A-3393-15T4
Beach 1003 defendants; and (8) finding that the DEP acted in
good faith in dealing with the Frankenberg defendants.
We first address the DEP's statutory authority to condemn
property and thereby address appellants' first, second, fourth,
and fifth arguments. Next, we examine whether the DEP can take
a perpetual easement that allows for public access, which will
address appellants' third and sixth arguments. Finally, we will
address the last two arguments raised by the North Beach 1003
and Frankenberg defendants concerning the bona fide negotiations
by the DEP and the agency's compliance with the pre-litigation
procedures in the EDA.
Initially, we identify our standard of review. We use a
plenary standard to review questions of law. Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Thus, we review de novo the question whether the DEP has
statutory authority to condemn private property and take
perpetual easements allowing for public access and use. We
defer to the trial court's factual findings regarding the
negotiations conducted by the DEP. Tractenberg v. Township of
West Orange, 416 N.J. Super. 354, 365 (App. Div. 2010) (quoting
Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474,
484 (1974)). Accordingly, we will reverse such factual findings
only if "they are so manifestly unsupported by or inconsistent
21 A-3393-15T4
with the competent, relevant and reasonably credible evidence."
Rova Farms, supra, 65 N.J. at 484. To the extent that
established facts are applied to legal questions, however, we
owe no special deference to the trial court. Manalapan, supra,
140 N.J. at 378.
A. The DEP's Authority to Condemn Private Property and
Take an Easement.
The power of eminent domain, under which the State may take
private property for a public purpose, "is an inherent and a
necessary right of the sovereignty of the state." Valentine v.
Lamont, 13 N.J. 569, 575 (1953), cert. denied, 347 U.S. 966, 74
S. Ct. 776, 98 L. Ed. 1108 (1954). That power rests with the
Legislature. State by Comm'r of Transp. v. Township of South
Hackensack, 111 N.J. Super. 534, 543 (App. Div. 1970), certif.
denied, 57 N.J. 433 (1971). Our State Constitution provides
that when the State takes private property for a public purpose,
it must pay "just compensation." N.J. Const. art. I, ¶ 20.
Our Constitution also allows the Legislature to delegate
the power of eminent domain to state agencies or political sub-
divisions:
Any agency or political subdivision of the
State . . ., which may be empowered to take
or otherwise acquire private property for
any public . . . use, may be authorized by
law to take or otherwise acquire a fee
simple absolute or any lesser interest, and
may be authorized by law to take or
22 A-3393-15T4
otherwise acquire a fee simple absolute in,
easement upon, or the benefit of
restrictions upon, abutting property to
preserve and protect the public . . . use;
but such taking shall be with just
compensation.
[N.J. Const. art. IV, § 6, ¶ 3.]
1. Statutory Authority
The Legislature has expressly delegated to the DEP the
power of eminent domain and the power to protect the New Jersey
coastline through N.J.S.A. 12:3-64 and N.J.S.A. 12:6A-1. The
power to condemn "any lands in the State" is set forth in
N.J.S.A. 12:3-64. The power to protect the shore is set forth
in N.J.S.A. 12:6A-1.
N.J.S.A. 12:3-64 provides:
The [DEP] may acquire title, in fee simple,
in the name of the State, by gift, devise or
purchase or by condemnation in the manner
provided in chapter one of the Title Eminent
Domain (20:1-1 et seq.) to any lands in the
State, including riparian lands, of such
area and extent which, in the discretion of
the department, may be deemed necessary and
advisable.
. . . .
Lands thus acquired shall be used for the
improvement or development of any waterway,
stream, river or creek or any waterfront or
oceanfront property or to give access to any
lands of the State.[3]
3
When N.J.S.A. 12:3-64 was first enacted in 1918, the statute
authorized the Board of Commerce and Navigation to condemn
(continued)
23 A-3393-15T4
N.J.S.A. 12:6A-1, entitled "Beach Protection; powers,"
states:
In addition to the powers conferred by the
provisions of the act to which this act is a
supplement, the [DEP] is hereby authorized
and empowered to repair, reconstruct, or
construct bulkheads, seawalls, breakwaters,
groins, jetties, beachfills, dunes and any
or all appurtenant structures and work, on
any and every shore front along the Atlantic
ocean . . . to prevent or repair damage
caused by erosion and storm, or to prevent
erosion of the shores and to stabilize the
inlets or estuaries and to undertake any and
all actions and work essential to the
execution of this authorization and the
powers granted hereby.
The initial question is whether N.J.S.A. 12:3-64 limits the
DEP to acquiring only a fee simple, thereby restricting the DEP
from acquiring a lesser interest, such as an easement. We hold
that the Legislature intended the power to acquire a fee simple
to include the power to acquire lesser interests, including an
easement.
We start with the plain language of the statute. See Merin
v. Maglaki, 126 N.J. 430, 434 (1992) (explaining that
"[c]onstruction of any statute necessarily begins with
consideration of its plain language"). Read in full context,
(continued)
lands. L. 1918, c. 215. The statute was amended in 1939, and
the authority was given to the Department of Conservation and
Economic Development (DCED). L. 1939, c. 193. The powers of
the DCED were later transferred to the DEP. N.J.S.A. 13:1D-1.
24 A-3393-15T4
the words "fee simple" do not limit the DEP's authority. To the
contrary, because fee simple is the greatest interest that can
be acquired in land, those words do not suggest that the DEP
could not elect to take a lesser interest. For example, the
statute states that the DEP may condemn "any lands in the State,
including riparian lands, of such area and extent which, in the
discretion of the department, may be deemed necessary and
advisable." N.J.S.A. 12:3-64. The word "extent" supports the
interpretation that the DEP has the discretion to acquire a
lesser interest than a full fee simple.
Appellants focus on the words "fee simple" and argue that
the Legislature must have intended to limit the DEP's authority
to acquire only a fee simple. That argument, however, finds no
support in the language of the statute. N.J.S.A. 12:3-64 is
written broadly to authorize the DEP to condemn "any lands in
the State, including riparian lands, of such area and extent
which, in the discretion of the department, may be deemed
necessary and advisable." The phrase "in fee simple" does not
suggest that the Legislature intended to limit the DEP's
authority to take a lesser interest.
Appellants also argue that N.J.S.A. 12:3-64 does not allow
the DEP to take interests in property for purposes of protecting
the shore from storm damage. In that regard, appellants point
25 A-3393-15T4
to the words "improvement or development" and argue that those
words do not include protecting the shoreline. Read in full
context, however, "improvement or development" includes
protecting the very lands being acquired for improvement or
development.
Appellants further contend that "improvement or
development" refers only to the authority, granted by N.J.S.A.
12:3-64 to -71, to acquire lands in fee simple so that they may
be leased or granted to the owner as compensation for the
taking. Such lands are then "improved and developed at the
expense of the grantee or lessee." N.J.S.A. 12:3-66. The
lessee or grantee must then "maintain and operate, during the
life of the lease or grant upon said premises, such enterprise,
commercial operation, business or venture as the improvements
are designed for[.]" N.J.S.A. 12:3-67. N.J.S.A. 12:3-65
states, however, that lands acquired under N.J.S.A. 12:3-64 "may
be leased or granted[.]" Thus, the statute does not limit DEP's
authority to acquire lands or interests in properties for use by
the State, such as shore protection.
2. The Eminent Domain Act
The DEP's power to acquire a lesser interest than a fee
simple under N.J.S.A. 12:3-64 is confirmed by the EDA. The EDA
was enacted in 1971 for the purpose of integrating and
26 A-3393-15T4
standardizing the more than three-hundred statutes authorizing
the exercise of eminent domain. Township of West Windsor v.
Nierenberg, 150 N.J. 111, 126 (1997). The EDA is not an
enabling statute; rather, it provides uniform practices and
procedures to be followed by all public entities that have the
power to condemn. County of Monmouth v. Wissell, 68 N.J. 35,
39-40 (1975); Township of Hillsborough v. Robertson, 260 N.J.
Super. 37, 42 (Law Div. 1992).
The EDA does not independently authorize the DEP to acquire
property by condemnation. The EDA does, however, confirm our
interpretation that N.J.S.A. 12:3-64 allows the DEP to acquire
any interest in property it condemns. Section twenty of the EDA
states:
The title to property condemned and acquired
by the condemnor hereunder, shall be a title
in fee simple, free and discharged of all
right, title, interest and liens of all
condemnees, and shall include all the right,
title and interest of each condemnee
therein, provided, however, that if the
complaint or any amendment thereof shall
specify a lesser title, the lesser title so
specified shall be the title condemned and
acquired.
[N.J.S.A. 20:3-20.]
Our Supreme Court has held that the language of N.J.S.A.
20:3-20 "anticipates a situation in which a leasehold or an
easement is the only condemned property interest." Town of
27 A-3393-15T4
Kearny v. Disc. City of Old Bridge, Inc., 205 N.J. 386, 405
(2011); see also Borough of Merchantville v. Malik & Son, LLC,
218 N.J. 556, 570 (2014) ("To be sure, a condemning authority
may condemn less than a fee simple interest. The very language
of N.J.S.A. 20:3-6 requiring the condemnor to identify the
property and the interest to be taken recognizes this
principle."). Moreover, the EDA defines "[p]roperty" to mean
"land, or any interest in land." N.J.S.A. 20:3-2(d).
When the Legislature enacted the EDA in 1971, it was aware
that the DEP had the authority to condemn property. Indeed,
N.J.S.A. 12:3-64 expressly provides that the DEP is to condemn
property "in the manner provided in chapter one of the Title
Eminent Domain (20:1-1 et seq.)," which was the statute replaced
by the EDA. Thus, when the Legislature authorized a condemnor,
such as the DEP, to take a title in fee simple or "a lesser
title," that confirmed the authority of the DEP. Indeed, if the
Legislature had intended to limit the DEP's authority to acquire
an interest less than a fee simple, it could have amended
N.J.S.A. 12:3-64. The Legislature, however, chose not to amend
that statute and left the DEP with the authority granted under
N.J.S.A. 20:3-20 to take "a lesser title" than fee simple.
28 A-3393-15T4
3. Implicit Authority
The power to acquire a lesser interest than a fee simple is
also implicit in N.J.S.A. 12:3-64. The sources of that implicit
legislative intent include (1) understanding the DEP's broad
authorities and reading N.J.S.A. 12:3-64 in conjunction with
N.J.S.A. 12:6A-1 and -2; (2) considering the history of beach
protection efforts in New Jersey; and (3) considering our
decision in Archer, supra, 107 N.J. Super. 77.
An administrative agency has the powers that have been
"expressly granted" by the Legislature, as well as such
"'incidental powers [as] are reasonably necessary or appropriate
to effectuate' those expressly granted powers." Borough of
Avalon v. N.J. Dep't of Envtl. Prot., 403 N.J. Super. 590, 607
(App. Div. 2008) (alteration in original) (quoting N.J. Guild of
Hearing Aid Dispensers v. Long, 75 N.J. 544, 562 (1978)),
certif. denied, 199 N.J. 133 (2009). Further, "the powers of an
administrative agency should be liberally construed to permit
the agency to achieve the task assigned to it[.]" In re Heller,
73 N.J. 292, 303 (1977) (quoting In re Comm'r of Banking & Ins.
v. Parkwood Co., 98 N.J. Super. 263, 271-72 (App. Div. 1967)).
Thus, "courts should readily imply such incidental powers
as are necessary to effectuate fully the legislative intent."
N.J. Guild, supra, 75 N.J. at 562. The primary task of the
29 A-3393-15T4
court is to "effectuate the legislative intent in light of the
language used and the objects sought to be achieved." Merin,
supra, 126 N.J. at 435 (quoting State v. Maguire, 84 N.J. 508,
514 (1980)). Therefore, in determining whether a given action
of the DEP has statutory authorization, a reviewing court "may
look beyond the specific terms of the enabling act" and
"examin[e] the entire statute in light of its surroundings and
objectives." N.J. Guild, supra, 75 N.J. at 562.
The DEP is a combination of agencies and divisions that
historically operated independently of each other. See, e.g.,
N.J.S.A. 13:1D-1 to -3 ("reorganiz[ing], continu[ing] and
designat[ing]" the Department of Conservation and Economic
Development (DCED) as the DEP). Accordingly, the DEP has a wide
array of responsibilities and related authorities. See, e.g.,
N.J.S.A. 12:3-1 (assigning to the DEP the task of
"ascertain[ing] the rights of the state and of the riparian
owners in the lands lying under the waters of the bay of New
York, and elsewhere in the state").
Those authorities include coordinating shore protection
programs. See N.J.S.A. 12:6A-1; see also N.J.S.A. 13:19-16.1
and -16.2 (creating a "Shore Protection Fund" to appropriate
monies for shore protection projects). Accordingly, the
statutes authorizing the DEP to condemn private property and to
30 A-3393-15T4
protect the shore should be read in pari materia with the
statutes that define the DEP's responsibilities and powers. Nw.
Bergen Cty. Utils. Auth. v. Donovan, 226 N.J. 432, 444 (2016)
(stating that "[s]tatutes that deal with the same matter or
subject should be read in pari materia and construed together as
a 'unitary and harmonious whole'" (alteration in original)
(quoting Saint Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 14-15
(2005))).
The broad language used by the Legislature in N.J.S.A.
12:6A-1, reflects the legislative intent to grant broad powers
and discretion to the DEP with regard to shore protection. For
example, the Legislature stated that the DEP was to protect
"every shore front along the Atlantic ocean" and "to undertake
any and all actions and work essential to the execution of" that
authority. N.J.S.A. 12:6A-1. At the time that the Legislature
enacted N.J.S.A. 12:6A-1, it knew that it had already authorized
a precursor to the DEP to condemn "any lands in the State,
including riparian lands[.]" N.J.S.A. 12:3-64. Thus, read in
conjunction, the two statutes give the DEP broad discretion to
acquire lands, either in fee simple or with a lesser interest,
such as an easement, for the purposes set forth in the statutes.
The history of beach protection also supports our holding
that the Legislature intended to grant the DEP broad discretion
31 A-3393-15T4
to acquire various types of interests in lands. Since 1986, and
the enactment of the WRDA, the DEP has repeatedly partnered with
the Army Corps to protect the New Jersey shoreline. The passage
of the Sandy Act in 2013 highlighted the need for the DEP to
work in conjunction with the Army Corps. The agreements between
the DEP and the Army Corps expressly require the DEP to acquire
all necessary property interests, including easements so that
the Army Corps can build the projects authorized by the Sandy
Act.
In the thirty years since 1986, and more recently in the
years since the passage of the Sandy Act, the Legislature has
been aware that the DEP would be acquiring various types of
interests in lands to protect the New Jersey coastline.
Implicitly, therefore, the Legislature expected the DEP to
facilitate both the WRDA and the Sandy Act by acquiring various
types of property interests, through condemnation when
necessary.
Appellants argue that traditionally municipalities have
been responsible for shore protection and thus the DEP cannot
independently acquire property for the purpose of protecting the
shoreline. In making this argument, appellants point to
N.J.S.A. 40:56-1(h), which allows municipalities to improve
beach or waterfront and provide protection to prevent damage to
32 A-3393-15T4
lands by the ocean. They also cite N.J.S.A. 40:68-27, which
allows municipalities bordering tidal waters to create and
establish beach erosion control districts, and N.J.S.A. App.
A:9-51.5, which gives municipalities the authority to construct
and repair protective barriers bordering the Atlantic Ocean and
Delaware Bay. Appellants also argue that a survey of past cases
reveals that municipalities were the entities that exercised the
power of eminent domain and acquired properties for the purpose
of shore protection. See, e.g., Klumpp v. Borough of Avalon,
202 N.J. 390, 397-98 (2010); Petrozzi v. City of Ocean City, 433
N.J. Super. 290, 297-98 (App. Div. 2013), certif. denied, 217
N.J. 623 (2014).
That practice, however, does not establish the absence of
alternatives to achieve the same end. Nothing in the statutes
cited by appellants implicitly or explicitly granted
municipalities the exclusive authority over the construction and
repair of beaches. See N.J.S.A. 40:56-1(h), N.J.S.A. 40:68-27,
and N.J.S.A. App. A:9-51.5. Further, as we have explained,
under N.J.S.A. 12:3-64, the Legislature expressly provided the
DEP with the authority to condemn properties for the purpose of
shore protection.
The Legislature's intent is also reinforced by our 1969
decision in Archer, supra, 107 N.J. Super. 77. In Archer, we
33 A-3393-15T4
addressed a lawsuit where private property owners challenged the
authority of the DEP's predecessor (the DCED) to exercise the
power of eminent domain to acquire lands for shore protection.
Id. at 78. We held that N.J.S.A. 12:3-64 gave the DCED, now the
DEP, the authority to condemn lands "for the purposes of
hurricane and shore protection." Id. at 79.
Accordingly, we rejected the claim that the DEP lacked
statutory authority under N.J.S.A. 12:3-64 to condemn property
for shore protection purposes. Instead, we held that N.J.S.A.
12:3-64 should be "read broadly so as to permit the [DEP] to
achieve the salutary purposes outlined in the act," and that
"[p]articipation by the Department in the Federal flood control
program via this act is fully warranted." Ibid.
In the almost fifty years since Archer was decided, the
Legislature has taken no action to amend the statute, nor has it
given any indication that this court was mistaken in Archer.
Accordingly, the Legislature has implicitly endorsed our
interpretation that that the DEP has broad powers to protect the
New Jersey shoreline. See Cavuoti v. N.J. Transit Corp., 161
N.J. 107, 133 (1999) (explaining that "when a statute has been
judicially construed, the failure of the Legislature
subsequently to act is evidence of legislative acquiescence in
the construction given"). Moreover, since the Archer decision
34 A-3393-15T4
was handed down, the Legislature has passed additional laws
expanding the DEP's shore protection authority and funding the
agency's shore protection efforts. See, e.g., N.J.S.A. 13:19-
16.1 to -16.3 (creating a shore protection fund).
In summary, both the express language of N.J.S.A. 12:3-64
and the broad powers conferred on the DEP support the
interpretation that the statute authorizes the DEP to acquire
any type of property interest in private property in order to
protect the New Jersey coastline.
B. The DEP Can Take a Perpetual Easement and Allow for
Public Access
Appellants argue that even if the DEP has authority to take
an easement, it cannot take a perpetual easement and any such
easement cannot allow for public access and use. We disagree.
1. Perpetual Easements
As we have already explained, N.J.S.A. 12:3-64 authorizes
the DEP to take any type of property interest in lands needed to
protect the New Jersey shoreline. Nothing in that statute
limits the duration of the interest to be taken. Indeed, a fee
simple is an estate of potentially infinite duration.
Restatement (First) of Property § 14(a)(i) (1936). Moreover,
the statute provides that DEP can
take "any lands . . . of such area and extent which, in the
35 A-3393-15T4
discretion of the department, may be deemed necessary and
advisable." N.J.S.A. 12:3-64.
Appellants argue that Congress limited the time for
projects under the WRDA to fifty years. 33 U.S.C.A. § 2220.
Thus, they contend that the DEP does not require a perpetual
easement. The fifty-year time frame in the WRDA, however,
relates to federal indebtedness and federal loans. In that
regard, the federal statute states, in relevant part:
[T]he Secretary of Commerce is authorized to
purchase evidences of indebtedness and to
make loans for a period not exceeding fifty
years to enable responsible local interests
to meet the requirements of local
cooperation pertaining to contributions
toward the cost of construction of such
projects within such areas.
[33 U.S.C.A. § 2220(a).]
Nothing in the WRDA or the Sandy Act limits the DEP's discretion
and authority to take perpetual easements. Accordingly,
Congress' limitation on the timeframe for financing projects
under the WRDA does not limit the DEP's authority to take a
perpetual easement.
2. Public Access
Appellants also argue that the DEP lacks authority to take
an easement that includes the right of public access and use.
The DEP counters that it has such authority and that the Army
Corps mandates public use of the project areas as a condition
36 A-3393-15T4
for federal funding. We hold that the DEP acted within its
discretion in including public access and use in the easements
and that authority for such access and use is contained in
N.J.S.A. 12:3-64 and the public trust doctrine.
Initially, it is important to define the scope of the
public access and use contained in the easements. Appellants
contend that the easements effectively create a public beach in
the area covered by the easements. The DEP responds that the
reference to a "public beach" in the easements does not mean
that the State is acquiring public ownership over the beaches.
Instead, the DEP argues that "federal law requires that public
funds for shore protection projects not be used to benefit
private lands from which the public is barred access." Further,
"to ensure full federal financial participation, the Army Corps
requires [the] DEP to acquire sufficient interests in privately
owned beaches to allow not only project construction, but use of
project areas by the public."
The easements themselves make clear that the property
owners retain ownership of, and the right to use, the area
covered by the easements. The easements also make clear that
the State of New Jersey, the relevant municipality, and "their
representatives, agents, contractors and assigns" can go on to
the easement areas and construct and maintain systems to protect
37 A-3393-15T4
against storm damage and prevent erosion. In that regard, the
easements state that the State and its representatives have
perpetual easements and right-of-ways to
[c]onstruct, preserve, patrol, operate,
maintain, repair, rehabilitate, and replace
a public beach, dune system, and other
erosion control and storm damage reduction
measures together with appurtenances
thereto, including the right to deposit
sand, to accomplish any alterations of the
contours on said land, to construct berms
and dunes, and to nourish and renourish
periodically[.]
The easements also allow for public use and access to the
easement areas. Specifically, the easements provide that the
State and its representatives have the additional right to
[p]erform any other work necessary and
incident to the construction, periodic
renourishment, and maintenance of the
[Projects], together with the right of
public use and access[.]
Read in full context, the easements give the State and its
federal partner, the Army Corps, the right to enter the areas
covered by the easements and construct and maintain systems to
protect against storm damage and prevent erosion. The easements
also give the public the right to "access and use" the easement
areas.
Appellants and the DEP dispute whether federal law mandates
public use and access. We agree with the DEP that the Army
Corps has interpreted its responsibility to include requiring
38 A-3393-15T4
public access and use of Project areas funded by federal monies.
Such a federal requirement, however, does not establish the
DEP's authority to acquire easements with public access and use.
Instead, the source of the DEP's authority must be found in
state law. The public access and use called for by the federal
law is only a requirement for receiving federal funding for the
Projects.
The New Jersey law that gives the DEP its authority to
include a public access and use requirement is N.J.S.A. 12:3-64.
By authorizing the DEP to acquire full title, that statute also
authorizes the DEP to acquire a lesser interest with a public
access and use right. In other words, because the DEP could
have taken title in fee simple, and thereby given the public the
right to have access and use of the land, the DEP also has the
"discretion" to take easements with a right of public access and
use.
Our interpretation of the ambit of rights granted by
N.J.S.A. 12:3-64 is supported by the evolution of the New Jersey
public trust doctrine. Under the New Jersey public trust
doctrine, the shores of New Jersey are open to public use and
access by "all on equal terms." Matthews v. Bay Head
Improvement Assoc., 95 N.J. 306, 322 (quoting Borough of Neptune
City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 309 (1972)),
39 A-3393-15T4
cert. denied, 469 U.S. 821, 105 S. Ct. 93, 83 L. Ed. 2d 39
(1984); see also Raleigh Ave. Beach Assoc. v. Atlantis Beach
Club, Inc., 185 N.J. 40, 53 (2005) (explaining that, under the
public trust doctrine, the public's interest in "privately-owned
dry sand beaches" includes both "'a right to cross [such]
privately owned . . . beaches in order to gain access to the
foreshore . . . [and a] right to sunbathe and generally enjoy
recreational activities' on the dry sands" (alterations in
original) (quoting Matthews, supra, 95 N.J. at 322-23)).
The public trust doctrine has evolved and adapted to the
"changing conditions and needs of the public it was created to
benefit." Borough of Neptune City, supra, 61 N.J. at 309.
Thus, the public trust doctrine extends to "recreational
uses[,]" including the right of the public to access and use the
shore for "swimming and other shore activities." Ibid. "In
addition, limited use of the upland owner's dry sand is
permitted under the public trust doctrine when it is 'essential
or reasonably necessary for enjoyment of the ocean.'" City of
Long Branch, supra, 203 N.J. at 475 (quoting Matthews, supra, 95
N.J. at 325).
Moreover, when a publicly funded beach replenishment
project creates new dry sand lands, such lands are owned by the
State and are open to the public. Id. at 485. Accordingly,
40 A-3393-15T4
interpreting N.J.S.A. 12:3-64 to include the authority for the
DEP to acquire easements with public access and use rights, when
the public is funding the Projects, is consistent with the New
Jersey public trust doctrine.
While the DEP has such authority, it must provide "just
compensation" for such a taking. N.J. Const. art. IV, § 6, ¶ 3.
The commissioners appointed by the trial court in accordance
with the EDA will establish such compensation. N.J.S.A. 20:3-
12; see also N.J.S.A. 20:3-13 (setting forth the rights and
procedures for appealing the commissioners' award).
C. The DEP Complied with the EDA and Conducted Bona Fide
Negotiations
The North Beach 1003 and Frankenberg defendants argue that
the DEP failed to conduct bona fide negotiations as required by
the EDA. Defendants then make a series of arguments that the
DEP failed to do certain things in its interactions with the
North Beach 1003 and Frankenberg defendants. Accordingly,
defendants argue that the DEP's condemnation complaints should
be dismissed. We disagree. The record establishes that the DEP
satisfied the pre-litigation requirements of the EDA and engaged
in bona fide negotiations.
The EDA requires the condemnor to take certain steps prior
to commencing litigation. N.J.S.A. 20:3-6. Those steps include
41 A-3393-15T4
appraising the property and engaging in bona fide negotiations
with the property owners. Ibid.
Before making an offer, "the taking agency shall appraise
said property and the owner shall be given an opportunity to
accompany the appraiser during the inspection of the property."
N.J.S.A. 20:3-6; see also Borough of Rockaway v. Donofrio, 186
N.J. Super. 344, 351 (App. Div. 1982), certif. denied, 95 N.J.
183 (1983). Accordingly, the condemnor or its agent must send
written notice to the property owner at least ten days before
going to the property to conduct the appraisal. N.J.S.A. 20:3-
16.
The condemnor must then provide the property owner with a
written offer, "setting forth the property and interest therein
to be acquired, the compensation offered to be paid and a
reasonable disclosure of the manner in which the amount of such
offered compensation has been calculated[.]" N.J.S.A. 20:3-6.
In connection with that offer, the condemnor must engage in
"bona fide negotiations" with the owner. Ibid.
The purpose of these procedures is to facilitate the
acquisition without litigation and thereby save the parties time
and expense. Hous. Auth. of New Brunswick v. Suydam Inv'rs,
L.L.C., 177 N.J. 2, 15 (2003); State ex rel. Comm'r of Transp.
v. Town of Morristown, 129 N.J. 279, 285 (1992). Failure of the
42 A-3393-15T4
condemnor to comply with the pre-litigation requirements can
result in dismissal of the complaint. State by Comm'r of
Transp. v. Carroll, 123 N.J. 308, 316 (1991); Donofrio, supra,
186 N.J. Super. at 354.
Whether the negotiations between a condemnor and a property
owner satisfy the mandates of the EDA is a fact-specific
question, which should be evaluated on a case-by-case basis.
County of Morris v. Weiner, 222 N.J. Super. 560, 567 (App. Div.)
certif. denied, 111 N.J. 573 (1988). Generally, a condemnor and
the condemnee should deal with each other in a forthright
manner. F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J.
418, 426-27 (1985). The government entity should be candid.
"The reasonableness of pre-negotiation disclosure centers on the
adequacy of the appraisal information; it must permit a
reasonable, average property owner to conduct informed and
intelligent negotiations." Carroll, supra, 123 N.J. at 321.
Accordingly, "an appraisal should contain an explanation of the
valuation approach or methodology actually used." Ibid.
Negotiations, however, involve participation by both sides.
County of Monmouth v. Whispering Woods at Bamm Hallow, Inc., 222
N.J. Super. 1, 9 (App. Div. 1987) ("We would be short on realism
. . . were we not to note that it takes at least two to
negotiate and the record should be reviewed with that in
43 A-3393-15T4
mind."), certif. denied, 110 N.J. 175 (1988). Consequently, the
condemnor's duty to engage in extended negotiations can be
"tempered by a property owner's failure to cooperate." Carroll,
supra, 123 N.J. at 323; see also Borough of Merchantville v.
Malik & Son, LLC, 429 N.J. Super. 416, 430-31 (App. Div. 2013),
aff’d, 218 N.J. 556 (2014) (explaining that when the DEP makes
its best offer and a property owner is unwilling to engage in
negotiations, the DEP's obligation to engage in bona fide
negotiations is satisfied).
Here, the appraiser provided the property owners with
notice of the inspection and invited the owners to attend the
inspection. A few owners accepted that invitation, but many did
not. The DEP then provided the property owners with a written
offer and a copy of the appraisal. The appraisal explained the
methodology used and the offer letter identified the easement to
be taken. Moreover, the offer letters were sent in mid-
September 2015, and gave the owners fourteen days to respond.
Thereafter, attorneys for the property owners engaged in
communication with the attorneys for the DEP.
The North Beach 1003 defendants contend that the DEP did
not engage in bona fide negotiations because the discussions
were truncated and the DEP's offer was not its "best offer."
Specifically, the North Beach 1003 defendants contend that the
44 A-3393-15T4
offer did not compensate them for the creation of "a public
beach" on their properties and their loss of access.
The record establishes that negotiations took place, but
resolutions were not reached. The appraisals provided to the
North Beach 1003 defendants contained a detailed explanation of
the methodology that was used. The appraisals determined the
Projects would generally increase the value of properties by ten
percent. In making that determination, the appraiser used
studies of how the value of properties in nearby neighborhoods
had been affected by past beach replenishment projects. The ten
percent increase in value was then adjusted in each case to
reflect how the Projects would affect a particular property.
For example, reducing the valuation because the dune will
interfere with a property's view of the ocean.
These explanations of the methodology were sufficient to
allow for meaningful and intelligent negotiations.
Nevertheless, "[t]he condemning authority's obligation to
conduct good faith negotiations does not end with making an
offer and furnishing the appraisal on which the offer was
formulated." Borough of Merchantville, supra, 218 N.J. at 572.
"[T]he condemning authority may have an obligation to continue
to discuss the offering price when the response provides
45 A-3393-15T4
credible information supporting its opinion that the offer is
too low." Id. at 572-73.
Here, although defendants contended that the appraisal
methodology was flawed, they provided no credible information
supporting their opinion that the DEP's offer was too low. The
appraisals did not fail to consider the public access and use.
Instead, the appraisals valued the public use and access using
comparative studies of other neighborhoods that have undergone
beach replenishment projects. Defendants merely disagree with
those values.
The North Beach 1003 defendants also argue that the
appraisals failed to value the requirement for defendants to
acquire a permit for and construct walkovers on the dune to
access the beach. Those walkovers must be removed at the end of
each summer season. The appraisals, however, specifically
discussed how such walkovers would be necessary, indicating that
the need for and the seasonal nature of the walkovers were
considered in valuing the properties. Defendants, again, simply
disagree with these valuations. In short, there is nothing in
the record to support the contention that the offers were not
the DEP's best offers or that the DEP failed to engage in bona
fide negotiations.
46 A-3393-15T4
Since the DEP engaged in bona fide negotiations, any
further disagreement concerning the valuations of the takings
are matters to be addressed by the commissioners and, if
necessary and appropriate, further litigation. N.J.S.A. 20:3-
12; see also Suydam, supra, 177 N.J. at 16.4
The North Beach 1003 and Frankenberg defendants also argue
that the DEP did not negotiate with them. In that regard, they
contend that the DEP did not give them adequate time to prepare
their own appraisals. The reasonableness of a property owner's
request for more time to negotiate depends on the circumstances.
Weiner, supra, 222 N.J. Super. at 566. Here, the DEP was
acquiring easements to construct federally-funded projects that
will protect coastal residents and communities. Under these
circumstances, the DEP had the right to request reasonable
responsiveness in negotiations and when those negotiations did
not result in agreements, to proceed to litigation.
The Frankenberg defendants argue that the notice provided
by Mr. Hall did not constitute notice from the DEP. They then
4
The North Beach 1003 defendants cite to several unpublished
cases in support of their arguments concerning the DEP's alleged
failure to engage in bona fide negotiations. Unpublished cases
are not precedent and do not warrant discussion. R. 1:36-3;
Lippman v. Ethicon, 222 N.J. 362, 385 n. 5 (2015). We note,
however, that the unpublished cases cited by the North Beach
1003 defendants are distinguishable and do not support their
arguments.
47 A-3393-15T4
argue that the DEP did not engage in bona fide negotiations
concerning their loss of views. The record establishes that
Hall was acting as an agent for the DEP. It is undisputed that
the DEP sent Hall's appraisal together with its offer. The
record also establishes that it was the Frankenberg defendants
who failed to participate in Hall's appraisal. In short, the
DEP engaged in bona fide negotiations with the Frankenberg
defendants.
The Frankenberg defendants also argue that the DEP failed
to join indispensable parties. In that regard, they point to a
six-foot-wide walkway easement on the southerly edge of their
property. The DEP's title search did not disclose any holders
of a walkway easement on the Frankenberg property. While there
is apparently such an easement, the Frankenberg defendants did
not produce evidence of the parties that hold an interest in the
walkway easement. Consequently, all known parties with an
interest in the Frankenberg property were named in the DEP's
condemnation complaint.
Finally, the Frankenberg defendants claim that the DEP's
agreements with the Army Corps prevented the DEP from engaging
in bona fide negotiations. Nothing in the project coordination
agreements between the DEP and the Army Corps prevented bona
fide negotiations. While the agreements called for the DEP to
48 A-3393-15T4
use a federally-approved form of appraisal, nothing in that
agreement prevented the DEP from re-submitting the appraisal if
it negotiated a new form.
D. The Trial Court Properly Dismissed the Declaratory
Judgment Action Filed by the Ritter Appellants
The Ritter appellants sought a declaration that the DEP
lacked authority to condemn easements for shore protection
purposes. Given that we have rejected that argument, the trial
court properly dismissed the declaratory judgment complaint.
In summary, we affirm the trial court's final judgments
finding that the DEP properly exercised its power of eminent
domain and appointing commissioners to determine the value of
the takings. We also affirm the trial court's orders denying
the North Beach 1003, Frankenberg, and Cammarano defendants'
motions to dismiss the condemnation complaints and the order
granting summary judgment to the DEP on the declaratory judgment
action brought by the Ritter appellants.
Affirmed.
49 A-3393-15T4