MINKE FAMILY TRUST VS. TOWNSHIP OF LONG BEACH TOWNSHIP OF LONG BEACH VS. MINKE FAMILY TRUST (L-3033-14 AND L-0585-16, OCEAN COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-2660-15T3
A-4036-15T3
MINKE FAMILY TRUST,
Plaintiff-Appellant,
v.
TOWNSHIP OF LONG BEACH,
a Municipal Corporation of
the State of New Jersey,
Defendant-Respondent.
________________________________
TOWNSHIP OF LONG BEACH,
a Municipal Corporation of
the State of New Jersey,
Plaintiff-Respondent,
v.
MINKE FAMILY TRUST,
Defendant-Appellant,
and
LISA TOMASI, LYDIA ZINZI,
JEAN VELTEN and TOWNSHIP OF
LONG BEACH,
Defendants.
________________________________
Argued October 17, 2017 – Decided August 20, 2018
Before Judges Yannotti, Leone, and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket Nos.
L-3033-14 and L-0585-16.
John H. Buonocore, Jr. argued the cause for
appellant (McKirdy Riskin Olson & Della Pelle,
attorneys; John H. Buonocore, Jr. and L.
Jeffrey Lewis, on the briefs).
Paul V. Fernicola argued the cause for
respondent (Paul V. Fernicola & Associates,
LLC, attorneys; Paul V. Fernicola, on the
briefs).
PER CURIAM
These appeals concern the selection and condemnation of an
easement for public beach access on property owned by the Minke
Family Trust (Minke) in the Township of Long Beach (Township). In
Docket No. A-2660-15, Minke appeals a February 18, 2016 order
adversely resolving on summary judgment its action in lieu of
prerogative writs against the Township. In Docket No. A-4036-15,
Minke appeals an April 29, 2016 order for judgment in the
condemnation action brought by the Township. We consolidate those
back-to-back appeals for purposes of our opinion. We affirm.
2 A-2660-15T3
I.
The following undisputed facts appear in the trial court's
opinion and in the documentary evidence. Minke owns a beachfront
property on Block 20.107, Lot 4, in the Loveladies section of the
Township.
The Township was part of an on-going shoreline protection
project (Project) undertaken by the New Jersey Department of
Environmental Protection (NJDEP) and the United States Army Corps
of Engineers (ACOE) to construct storm protection measures, such
as dunes and berms, to guard against coastal storm damage. Because
the Project is federally-funded, it is conditioned on compliance
with ACOE regulations as well as NJDEP regulations.
The ACOE's engineering regulations conditioned its
participation in the Project on the "provision of reasonable public
access rights-of-way" to the beach, with an appendix providing:
"Reasonable access is access approximately every one-half mile or
less." U.S. Army Corps of Engineers, ER 1105-2-100, Planning
Guidance Notebook ch. 3, § 4(b)(5)(c) & App. E, § 24(d)(3) (2000)
(Guidance). The Guidance's appendix also provided: "Lack of
sufficient parking facilities for the general public (including
nonresident users) located reasonably near and accessible to the
project beaches may constitute a restriction on public access and
3 A-2660-15T3
use, thereby precluding eligibility for [ACOE] participation."
Id. at App. E, § 24(d)(2); see id. at ch. 3, § 4(b)(5)(b).1 A
NJDEP regulation (originally N.J.A.C. 7:7E-8.11 but recodified as
N.J.A.C. 7:7-16.9) provided that "access shall be provided in
accordance with the [Guidance ch. 3, § 4]," and incorporated the
above-quoted provisions from the Guidance's appendix. N.J.A.C.
7:7-16.9(p). The ACOE will not open bids to construct a project
until the State certifies it has acquired the easements necessary
to meet these requirements.
The Township did not have public beach access every half
mile, and thus had to obtain public access easements in at least
four locations. In particular, there was no public beach access
in the approximately 3600-foot section between Block 20.53 and
Block 20.117. The Township retained Frank J. Little, Jr., P.E.,
P.P. to perform the necessary planning and surveying.
In 2003, Little prepared maps proposing the public access
easement for that section be located between Block 20.93 and Block
20.95. The 2003 maps were presented for public review and comment
in October 2006. However, no easement was obtained, and no
1
Similar standards had been set forth in U.S. Army Corps of
Engineers, ER 1165-2-163, Federal Participation in Shore
Protection ¶ 6(h)(2)-(3) (1989).
4 A-2660-15T3
construction under the Project occurred in that area.
In October 2012, Hurricane Sandy struck. Where the ACOE had
completed dunes and beach replenishment, the homeowners were
largely protected; where it had not, the homeowners suffered
extensive damage. The pre-existing beach and dunes in the
Loveladies section were insufficient to protect the homeowners.
In January 2013, Congress allocated $ 3.461 billion to the
ACOE "for necessary expenses related to the consequences of
Hurricane Sandy," directing that $2.902 billion "shall be used to
reduce future flood risk." Disaster Relief Appropriations Act &
Sandy Recovery Improvement Act of 2013, 113 P.L. 2, 127 Stat. 4(Jan. 29, 2013). In September 2013, noting the refusal of some
private landowners to grant easements to construct the needed
"flood hazard risk reduction measures including protective sand
dunes, berms, and engineered beaches," Governor Christie signed
an executive order creating an Office of Flood Hazard Risk
Reduction Measures in the NJDEP to "lead and coordinate the efforts
of the [NJDEP] to acquire the necessary interests in real
property." Exec. Order 140 at 1, 3 (Sept. 25, 2013).
In February 2014, the NJDEP's Christopher Constantino emailed
Little asking "about the status of the public access plan for the
areas in [the Township] that did not meet the standards." On
5 A-2660-15T3
March 4, 2014, the ACOE's Keith Watson emailed that it was
"critical that we get this for [the Township as] it is delaying
approval of our HSLRR [Hurricane Sandy Limited Reevaluation
Report] & PPA [Project Partnership Agreement]." Constantino asked
for updates on March 10, 2014. On March 13, 2014, the Township
sent a letter to the NJDEP proposing the public access be entirely
within Block 20.93, and attached maps.
The ACOE issued its HSLRR on May 16, 2014, and approved the
Real Estate Plan (REP) annexed to the HSLRR on June 16, 2014. Both
stated that "[b]etween Stations 145+00 and 155+80 [on an ACOE
survey map] . . . there is ample parking but an additional beach
access must be provided." Minke's engineer certified that Station
145+00 is between Block 20.103 and Block 20.104, and that Station
155+80 is between Block 20.82 and Block 20.83.
In July 2014, the ACOE and the NJDEP entered into a PPA,
stating that the Project was described in a 2000 ACOE report as
modified by the HSLRR, and that the NJDEP would provide "necessary
access roads, parking areas, and other associated public use
facilities" as described in the HSLRR. On August 1, 2014, the
ACOE issued a notice to proceed "with acquisition of the necessary
real estate interests" for the Project "in accordance with the
[PPA]" before the bidding of contracts, scheduled for October 7,
6 A-2660-15T3
2014.
On August 19, 2014, Little issued an updated map moving the
proposed public access easement from Block 20.93 to Block 20.107.
Block 20.107 already had an existing private beach access easement
from Long Beach Boulevard which crossed and was used by three
properties on Lots 1, 2, and 3 and Minke's property on Lot 4. On
September 10, 2014, Little issued an updated map which again
proposed the public access easement be at Block 20.107.
On September 12, 2014, the Township passed on first reading
Ordinance 14-32 (Ordinance), which authorized the Township to
acquire through eminent domain four public beach access easements,
including on Block 20.107. On September 26, 2014, over Minke's
objection, the Township adopted the Ordinance. On October 6,
2014, the Township passed Resolution 14-1006.01 (Resolution),
which proposed on an emergent basis under N.J.S.A. App. A:9-51.5
to take possession of public access easements, including on Block
20.107.
On October 22, 2014, Minke filed in the Law Division an action
in lieu of prerogative writs, challenging the Ordinance in counts
I and II and the Resolution in count III. In a February 13, 2015
opinion and March 6, 2015 order, a judge found the Resolution
invalid and granted Minke summary judgment on count III. The
7 A-2660-15T3
judge denied the Township's motion to dismiss counts I and II.
The Township later moved for summary judgment on counts I and
II, and Minke filed a cross-motion for summary judgment. After
hearing argument, the trial court granted the Township's motion
and denied Minke's motion in a December 30, 2015 opinion and
February 18, 2016 order. Minke appeals that order in Docket No.
A-2660-15.
On February 29, 2016, the Township filed a complaint and
order to show cause in the Law Division, seeking to acquire by
eminent domain public-use easements on Block 20.107. Minke filed
an answer. On April 29, 2016, the trial court held a hearing and
issued an order for judgment, finding the Township had duly
exercised its power of eminent domain, and appointing
commissioners to determine the compensation. Minke appeals that
order in Docket No. A-4036-15.
II.
We first consider the summary judgment rulings in Docket No.
A-2660-25. Minke contends the trial court should have granted its
motion for summary judgment, and denied the Township's motion for
summary judgment.
Summary judgment must be granted if "the pleadings,
depositions, answers to interrogatories and admissions on file,
8 A-2660-15T3
together with affidavits, if any, show that there is no genuine
issue as to any material fact challenged and that the moving party
is entitled to a judgment or order as a matter of law." R. 4:46-
2(c). The court must "consider whether the competent evidential
materials presented, when viewed in the light most favorable to
the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995). "[T]he court must accept as true all the
evidence which supports the position of the party defending against
the motion and must accord [that party] the benefit of all
legitimate inferences which can be deduced therefrom[.]" Id. at
535 (citation omitted).
"Our review of a summary judgment ruling is de novo." Conley
v. Guerrero, 228 N.J. 339, 346 (2017). We must hew to that
standard of review.
A.
Minke initially raises evidentiary and discovery issues.
"When, as in this case, a trial court is 'confronted with an
evidence determination precedent to ruling on a summary judgment
motion,' it 'squarely must address the evidence decision first.'"
Townsend v. Pierre, 221 N.J. 36, 53 (2015) (citation omitted).
9 A-2660-15T3
"Appellate review of the trial court's decisions proceeds in the
same sequence, with the evidentiary issue resolved first, followed
by the summary judgment determination of the trial court." Ibid.In response to the Township's summary judgment motion and in
support of Minke's cross-motion for summary judgment, Minke's
Counterstatement of Material Facts asserted the ACOE and the NJDEP
never approved Block 20.107 as the access point. With its reply,
the Township supplied contrary certifications it had just obtained
from the NJDEP's Constantino and the ACOE's Watson. Minke
challenges the admissibility of those certifications.
Minke notes that Watson and Constantino were not listed in
the pretrial order. However, the pretrial order listed only the
"[e]xpert witness" (Little), did not address fact witnesses, and
did not state it was precluding any trial witnesses. Moreover,
the pretrial order did not limit the persons who could provide
certifications for summary judgment purposes.
The Township could submit affidavits or certifications in
response to Minke's counterstatement in support of Minke's cross-
motion for summary judgment. R. 4:46-1, 4:46-5(a). Minke claims
it never had an opportunity to depose Constantino and Watson.
However, the February 13, 2015 order gave each party the
opportunity for discovery in the months before the December 2015
10 A-2660-15T3
summary judgment proceedings. Minke knew Constantino and Watson
represented their agencies on the Project, and could have deposed
them.
Minke also argues discovery was not complete, because the
Township asserted documents in Little's file were privileged but
failed to produce a promised privilege log. However, Minke did
not file a motion to compel discovery, and instead filed a cross-
motion for summary judgment. "When both parties to an action
'move[] for summary judgment, one may fairly assume that the
evidence was all there and the matter was ripe for adjudication.'"
Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436,
450 (2007) (citation omitted).
In any event, "[a] motion for summary judgment is not
premature merely because discovery has not been completed, unless
plaintiff is able to '"demonstrate with some degree of
particularity the likelihood that further discovery will supply
the missing elements of the cause of action."'" Badiali v. N.J.
Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015) (citations omitted).
Minke originally sought the privileged documents to prove
Little moved the access point to Block 20.107 in retaliation for
Minke's refusal to grant a separate beach easement for the dune
and beach construction. However, discovery showed that Little in
11 A-2660-15T3
2014 selected as beach access sites several properties whose owners
had agreed to beach easements. Moreover, in the same August 19,
2014 revision where he moved the proposed public access easement
to Block 20.107, he moved another proposed public access easement
from a property whose owner had not agreed to a beach easement to
a property whose owner had agreed to a beach easement. As a
result, Minke expressly abandoned any retaliation claim, making
those documents "irrelevant." Id. at 563.
B.
Minke claims Little's decision to propose a public access
easement at Block 20.107 violated the ACOE's Guidance and the
NJDEP's regulation. However, the proposed public access at Block
20.107 was 1150 feet north of an existing access point and 2500
feet south of an existing access point, and thus within one-half
mile (2640 feet) of the existing access points in either direction.
"Reasonable access is access approximately every one-half mile or
less." Guidance, App. E, § 24(d)(3); N.J.A.C. 7:7-16.9(p).
Minke quotes the Guidance that parking for the public must
be "reasonably nearby, and with reasonable public access to" and
"within reasonable walking distance of the beach." Guidance, App.
E, § 24(d)(2). However, Little certified, and testified at his
deposition, that the amount of parking reasonably near Block 20.107
12 A-2660-15T3
met this requirement. Minke presented no contrary evidence.
Minke's August 2015 planning report asserted that "Block
20.93 is superior to Block 20.107" because Block 20.93 was the
closest access point to 243 parking spaces versus 157 parking
spaces for Block 20.107. However, Minke's report never asserted
Block 20.107 lacked "sufficient parking" under the Guidance, App.
E, § 24(d)(2), or N.J.A.C. 7:7-16.9(p).
Minke argues it was unauthorized to propose Block 20.107
instead of Block 20.93. However, the NJDEP's Constantino certified
that N.J.A.C. 7:7-16.9 "generally affords discretion to coastal
municipalities in determining where public accessways are
located," and that "each municipality had the discretion to place
the public access easements where it saw fit, provided the ACOE's
not less than half-mile public access requirement to the beach was
met." ACOE's Watson certified that "[t]he specific locations for
the access points are within the discretion of the Township and
the [NJDEP]." Minke presented no contrary evidence.
In any event, nothing in the Guidance or N.J.A.C. 7:17-16.9(p)
dictates where the public access must be, as long as it is "one-
half mile or less" from the access points on either side, and has
sufficient parking. Guidance, App. E, § 24(d)(2)-(3); N.J.A.C.
7:7-16.9(p). Neither provision prevents a municipality from
13 A-2660-15T3
changing proposed access sites so long as the new site meets those
criteria, as here.
Minke claims proposing Block 20.107 rather than 20.93
violated "the Project instruments," namely the HSLRR and REP.
However, neither document mentioned Block 20.93.
Minke cites the HSLRR's statement that the NJDEP "has
developed a public access and parking plan that meets all Federal
requirements for public access points and parking." However,
Minke has not cited any NJDEP plan that listed Block 20.93.
Moreover, both the HSLRR and the REP indicated the NJDEP "has been
and continues to acquire the rights necessary meet both parking
and access requirements for the areas in question," recognizing
the acquisition of necessary public access easements was an ongoing
process. It is undisputed no acquisition process had commenced
for an easement on Block 20.93 before Block 20.107 was selected.
Minke notes the Township's March 13, 2014 letter proposed
Block 20.93. However, that letter was sent to NJDEP. Even
assuming it was forwarded to the ACOE, Minke has not shown the
ACOE ever specified the public access had to be at Block 20.93.
Minke focuses on the statement in the HSLRR and REP that "an
additional beach access must be provided" between "Stations 145+00
and 155+80," in other words between Block 20.82/20.83 and Block
14 A-2660-15T3
20.103/20.104. However, public access at Block 20.107 satisfied
the half-mile requirement of the Guidance and N.J.A.C. 7:7-
16.9(p), and removed the need to have public access between those
stations. Nothing in the HSLRR or REP precluded such a solution.
Further, Constantino certified such public access "plans are
often revised by the municipality upon receipt of additional
information regarding the impacted properties." Watson certified
that "if necessary, the [REP] . . . may be modified to account for
any changes to public access made by the Township and the [NJDEP]
that are otherwise compliant with the Engineer Regulation." Again,
Minke presented no evidence to the contrary.
Minke argues there was no evidence the plans were modified
or that Block 20.107 was ever approved by the NJDEP or the ACOE.
However, the REP stated that "parking and access requirements"
"will be re-evaluated on project authorization to ensure adherence
to federal guidelines." Moreover, Constantino certified:
[T]he Township presented an access plan that
was consistent with both federal and state
requirements, which included an accessway
across [Minke's] property in order to allow
public access to the beach. As a result of
the access plan presented by the Township, the
Project was approved by the State and the
ACOE, with construction of the Project
currently underway along the entirety of Long
Beach Island.
15 A-2660-15T3
Minke questions whether Constantino, an Environmental
Specialist 3, had the authority to alter the HSLRR or the REP.
However, those documents did not require Block 20.93. Moreover,
Constantino simply certified to his personal knowledge that the
Project was approved based on the Township's access plan, which
included public access at Minke's property on Block 20.107. Minke
presented no contrary evidence.
Minke complains about Constantino's additional statements
that it is "the position [of] the State that the Township's access
plan complies with State and ACOE requirements and is not
arbitrary," and that summary judgment should be granted to the
Township and denied to Minke. We agree those were not statements
of fact but of a litigative position of the NJDEP, which was no
longer a party, by a person who was not its lawyer. Thus, we
disregard that statement. Nonetheless, the remainder of
Constantino's certification and the other evidence showed that the
Township's selection of Block 20.107 complied with the
requirements of the ACOE and the NJDEP.
We also reject Minke's argument that the Ordinance was
contrary to the Governor's executive order, which provided that
no municipality shall enact any ordinance "which will or might in
any way conflict with any of the provisions of this Order, or
16 A-2660-15T3
which will in any way interfere with or impede its achievement."
Exec. Order No. 140 at 4. The Ordinance cited the executive order,
and sought to achieve its goal of "acquir[ing] the necessary
interests in real property to undertake Flood Hazard Risk Reduction
Measures." Id. at 3.
Thus, as the trial court observed, the proposed public access
easement on Block 20.107 met the federal and state requirements.
C.
Minke argues Block 20.93 was closer to the midpoint between
the existing public access points, was closer to more parking and
households, and would have been an easier site on which to build
public beach access than Block 20.107. Thus, Minke argues Block
20.93 was superior to Block 20.107 as a public access location.
However, the alleged superiority of one location over another is
not an issue for the courts.
Our "'Legislature has delegated broad authority to
municipalities to acquire private property by eminent domain for
public uses.'" Twp. of Readington v. Solberg Aviation Co., 409
N.J. Super. 282, 310 (App. Div. 2009) (citation omitted). "For
that reason, 'New Jersey courts traditionally have granted wide
latitude to condemning authorities in determining what property
may be condemned for "public use."'" Ibid. (quoting Twp. of W.
17 A-2660-15T3
Orange v. 769 Assocs., 172 N.J. 564, 572 (2002)). "[T]he location
is a matter within the discretion of the condemnor." Tex. E.
Transmission Corp. v. Wildlife Press., 48 N.J. 261, 269 (1966);
accord State v. Trap Rock Indus., 338 N.J. Super. 92, 102 (App.
Div. 2001). "The Township's decision is entitled to deference and
[it] is under no affirmative obligation to show that the proposed
[location] is superior to" an alternative location. 769 Assocs.,
172 N.J. at 579. That another location was a better or "viable
alternative is of no moment." See ibid.Moreover, the Township presented evidence that Block 20.107
was superior in other ways. Little certified and testified that,
after visiting the sites, he chose Block 20.107 over Block 20.93
as the public access easement for several reasons. First, "the
Minke property had a well-defined entrance gate and separate
walkway to the beach." By contrast, adding a pedestrian "walkway
would interfere with the use of the driveway[s] located between
[Blocks] 20.93 and 20.95. Second, Minke's "landscaping physically
separated the property's amenities from the easement area." Third,
there were only four adjacent properties using "the existing
private access easement" at Block 20.107 versus ten adjacent
properties using the existing private access easement at Block
20.93/20.95. Thus, there would be fewer properties involved in
18 A-2660-15T3
the acquisition of the public access easement.
Minke argues Little's reasons were incorrect, controverted,
and raised disputed issues of fact and credibility. Minke's
arguments, and those disputes, are not material. "[A] non-moving
party cannot defeat a motion for summary judgment merely by
pointing to any fact in dispute." Brill, 142 N.J. at 529. "[A]
court should deny a summary judgment motion only where the party
opposing the motion has come forward with evidence that creates a
'genuine issue as to any material fact challenged.'" Ibid.(quoting R. 4:46-2). "[I]f the opposing party" shows disputes
concerning "only facts which are immaterial . . . he will not be
heard to complain if the court grants summary judgment." Ibid.(quoting Judson v. Peoples Bank & Tr. Co., 17 N.J. 67, 75 (1954)).
The disputes are immaterial because, as set forth below, the
courts review an eminent domain ordinance only for "'fraud, bad
faith or manifest abuse.'" 769 Assocs., 172 N.J. at 571 (quoting
City of Trenton v. Lenzner, 16 N.J. 465, 473 (1954)). Thus, a
condemnor's "exercise of [its] discretion [to determine the
location] will not be upset by the courts in the absence of an
affirmative showing of fraud, bad faith or manifest abuse." Trap
Rock Indus., 338 N.J. Super. at 102 (citing Lenzner, 16 N.J. at
473); see Passaic Junior Chamber of Commerce v. Hous. Auth. of
19 A-2660-15T3
Passaic, 45 N.J. Super. 381, 394 (App. Div. 1957). As that
standard was not met by any of the disputes Minke cites, they were
"irrelevant." See Brill, 142 N.J. at 543.
The trial court cited Little's certification, and stated
"that the Township's decision to relocate the access easement to
[Minke's] property is supported by credible expert opinion." As
Minke notes, it is not the role of a court to determine credibility
on summary judgment. See id. at 540. Nonetheless, as the trial
court immediately and correctly noted, "the Township is not
obligated to show that an access easement located on plaintiff's
property is superior to any alternative location." Therefore, it
is irrelevant to our de novo review whether Little was correct
that Block 20.107 was the superior location.
D.
Minke argues the trial court erred in employing a "bad faith"
or "improper motive" standard. However, "[i]t is well-established
that a reviewing court will not upset a municipality's decision
to use its eminent domain power 'in the absence of an affirmative
showing of fraud, bad faith or manifest abuse.'" 769 Assocs., 172
N.J. at 571 (quoting Lenzner, 16 N.J. at 473); accord Solberg
Aviation, 409 N.J. Super. at 310. This standard is applicable
even if the ordinance adopts a location different than the location
20 A-2660-15T3
suggested by an earlier study. 769 Assocs., 172 N.J. at 578-79.
Thus, the trial court properly observed that "[a]bsent an
impermissible motive, the decision of where to locate the access
easement" was left to "the sound discretion of the taking
authority," that Minke "failed to present sufficient evidence to
prove the Township designated the access easement on [Minke's]
property in retaliation or bad faith," and that "[m]ere speculation
about motives in relocating the public beach access easement is
not sufficient to defeat a motion for summary judgment."
"'When a municipality adopts an ordinance in the exercise of
its power of eminent domain, that determination is usually presumed
valid and entitled to great deference.'" Twp. of W. Orange v. 769
Assocs., 341 N.J. Super. 580, 588 (App. Div. 2001) (citation
omitted), rev'd on other grounds, 172 N.J. 564, 570, 579 (2002);
see 62-64 Main St., L.L.C. v. Mayor of City of Hackensack, 221
N.J. 129, 157 (2015). Minke failed to overcome that presumption
of validity, or to show "arbitrary or capricious action," Tex. E.
Transmission Corp., 48 N.J. at 269, let alone a "'manifest abuse
of discretion.'" 769 Assocs., 172 N.J. at 579 (citation omitted);
see id. at 578 ("we have never held that the standard is other
than the manifest abuse of discretion test").
21 A-2660-15T3
III.
We next address Minke's challenge in Docket No. A-4036-15 to
the order for judgment in the condemnation action. "An action in
condemnation shall be brought in the Superior Court in a summary
manner pursuant to R. 4:67." R. 4:73-1. In a summary action, if
"the affidavits show palpably that there is no genuine issue as
to any material fact, the court may try the action on the pleadings
and affidavits, and render final judgment thereon." R. 4:67-5.
"We review the court's findings as if they were made after a
summary judgment motion," In re Estate of Baker, 297 N.J. Super.
203, 207 (App. Div. 1997), except that "a party is not entitled
to favorable inferences such as are afforded to the respondent on
a summary judgment motion," Grabowsky v. Twp. of Montclair, 221
N.J. 536, 549 (2015).
Minke first argues the trial court erred in finding the
Township was authorized to condemn Minke's property, "for the
reasons stated in its prerogative writs appeal." Specifically,
Minke argues that the Ordinance was invalid and thus the
condemnation based on the Ordinance was invalid. We reject these
arguments for the same reasons we upheld the Ordinance and rejected
Minke's appeal in Docket No. A-2660-15.
Second, Minke contends the Township's complaint failed to
22 A-2660-15T3
describe adequately the legal rights to be acquired. Rule 4:73-1
provides that in an action in condemnation:
[t]he complaint shall include a statement
showing the amount of compensation offered by
the condemnor and a reasonable disclosure of
the manner in which the amount has been
calculated. Unless the court for good cause
orders otherwise, reasonable disclosure by the
condemnor shall include furnishing the
condemnee with the map and a description of
land to be acquired and identity of
improvements to be acquired, if any[.]
N.J.S.A. 20:3-6 provides that
no action to condemn shall be instituted
unless the condemnor is unable to acquire such
title or possession through bona fide
negotiations with the prospective condemnee,
which negotiations shall include an offer in
writing by the condemnor to the prospective
condemnee holding the title of record to the
property being condemned, setting forth the
property and interest therein to be
acquired[.]
N.J.S.A. 20:3-17(e) provides the declaration of taking shall
include "a statement of the estate or interest therein being
condemned."
The Township's verified complaint stated in pertinent part
as follows. "[I]t is necessary to acquire for public use easements
in the land and premises, identified as Block 20.107, Lot 4, in
the Township," owned by Minke. The Township was "acquiring two
(2) easements over the Property: the oceanfront Perpetual Storm
23 A-2660-15T3
Damage Reduction Easement required for the shore protection
features as well as a perpendicular Permanent Pedestrian Access
Easement as required by the [ACOE/NJDEP] Project." Those two
easements were "more particularly described" on the attached
exhibits, which included a detailed map and a through description
of metes and bounds for the "Storm Damage Reduction Easement" and
for the "Variable Width Access Easement." The maps and metes and
bounds described in detail the location, length, width, shape, and
area of each easement.
The Township's complaint also proposed just compensation of
$27,000 for the Permanent Pedestrian Access Easement, and $3000
for the Storm Damage Reduction Easement. It stated the other
information required by Rule 4:73-1 had been provided to Minke.
The Township's declaration of taking attached the same maps and
descriptions of metes and bounds for the easements.
Thus, the Township's complaint provided Minke with "the map
and a description of land to be acquired," R. 4:73-1, and the
declaration of taking provided "a statement of the estate or
interest therein being condemned," N.J.S.A. 20:3-17(e). "[T]he
land to be condemned" was "described with such certainty as to
leave no room for doubt or misapprehension as to the land actually
to be taken." Hous. Auth. of Atl. City v. Atl. City Exposition,
24 A-2660-15T3
62 N.J. 322, 328 (1973). In any event, the trial court properly
refused to dismiss the complaint, as Minke has not shown the
complaint "le[ft] the condemnee justifiably uncertain about the
boundaries and extent of the property to be acquired." Cty. of
Monmouth v. Kohl, 242 N.J. Super. 210, 216 (App. Div. 1990).
Moreover, the complaint made clear the Township sought to
acquire a "Perpetual Storm Damage Reduction Easement required for
the shore protection features as well as a perpendicular Permanent
Pedestrian Access Easement as required by the [ACOE/NJDEP]
Project." As the complaint stated and Minke knew, the Storm Damage
Reduction Easement allowed "the placement of suitable beach and
dune fill material," and the Pedestrian Access Easement
"provide[d] the public with access to the improved beaches."
Nonetheless, Minke argues the Township identified the
location of the easement, but not the legal rights it was taking.
Minke contends the titles of the easements do not specify who will
construct and maintain them, who may use them, and what rights and
liabilities are retained by the owner. However, the statute and
Rule 4:73-1 "do not provide for unlimited disclosure." State v.
Town of Morristown, 129 N.J. 279, 288 (1992).
Moreover, we do not have the Township's full disclosures
before us. In its answer to the complaint, Minke stated: "As part
25 A-2660-15T3
of its preliminary negotiations, [the Township] provided [Minke]
with, (a) a form of 'Deed of Easement' containing numerous terms
and conditions applicable to a voluntary easement sought by
plaintiff, and, (b) with an appraisal report containing varying
definitions of easements."
Recently, we held that the NJDEP properly may "condemn private
property to take perpetual easements for shore protection
purposes," and that "easements that allow for publicly funded
beach protection projects can include public access and use."
State v. N. Beach 1003, 451 N.J. Super. 214, 223 (App. Div. 2017).
There, under the same Project, the State sought agreement by
property owners to "voluntary easements," then sent them
appraisals, and after they refused, initiated condemnation
proceedings to obtain easements. Id. at 225-26. "[T]o define the
scope of the public access and use contained in the easements,"
we looked at "[t]he easements themselves." Id. at 239.
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 against storm damage and
prevent erosion. . . . The easements also
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allow for public use and access to the
easement areas.
[Id. at 239-40.]
We also noted that "[t]he appraisal explained the methodology used
and the offer letter identified the easement to be taken," and
that those documents "were sufficient to allow for meaningful and
intelligent negotiations." Id. at 244.
Thus, it would be appropriate to examine the deed(s) of
easement, appraisal(s), and any other documents the Township
provided to Minke to see if they gave the description of the
easements Minke claims is lacking from the complaint.2 However,
Minke has failed to provide us with the deed(s) of easement, the
appraisal(s), or other documents Minke received from the Township.
Accordingly, we refuse to review Minke's claim that it was unaware
of the legal rights of easement the Township sought.
An appellant must include in the appendix "such other parts
of the record . . . as are essential to the proper consideration
of the issues." R. 2:6-1(a)(1)(I). "We obviously cannot address
documents not included in the record." State v. Robertson, 438
2
Form deeds of easement in the record give detailed descriptions
of what the State and Township may enter to do, what they will
construct and maintain, and what rights are retained by the owner
under the Storm Damage Reduction Easement.
27 A-2660-15T3
N.J. Super. 47, 56 n.4 (App. Div. 2014). Nor are we "obliged to
attempt review of an issue when the relevant portions of the record
are not included." Cmty. Hosp. Grp. v. Blume Goldfaden Berkowitz
Donnelly Fried & Forte, P.C., 381 N.J. Super. 119, 127 (App. Div.
2005); see Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 54-55 (2004)
(upholding our refusal to address an issue where the appellant
failed to provide the relevant portion of the record).
In its answer, Minke did not claim the description of the
easements in the deed(s) of easement and the appraisal(s) was
inadequate. Instead, Minke complained that "[n]either of these
descriptions, nor any other description of the specific rights,
estate or interest in real estate [the Township] is attempting to
acquire has been incorporated into the declaration of taking[.]"
However, the complaint stated that Minke had been provided
with the information required by R. 4:73-1, specifically including
the "map and description of the easements to be acquired," "a
description of the appraisal valuation method," and the other
factors affecting the value. The complaint also noted the Township
"attempted to reach a voluntary agreement for the acquisition of
the two (2) easements in the Property." If nothing else, those
portions of the complaint reminded Minke of the deed(s) of easement
and appraisal(s) that the Township had previously provided.
28 A-2660-15T3
Even if the Township erred in not explicitly incorporating
the deed of easement or appraisal into the complaint or declaration
of taking, any error was harmless. "Any error or omission shall
be disregarded by the appellate court unless it is of such a nature
as to have been clearly capable of producing an unjust result."
R. 2:10-2. Because Minke had previously received the deed(s) of
easement and appraisal(s), any error was not clearly capable of
producing an unjust result.
Minke argues the failure to incorporate those documents in
the complaint "deprives the appraisers, condemnation
commissioners, the [condemnation] judge and jury" of knowledge of
what is being valued. However, those documents may still be
supplied to the commissioners or condemnation trial judge if they
have not yet considered the matter. If they have, any absence of
such knowledge may be a potential issue for any appeal from the
condemnation verdict, but that issue is not now before us.
Minke next argues the complaint failed to include all of the
interests the Township "intends to acquire" from Minke. Minke
notes that to allow the public to walk from Long Beach Boulevard
to the beach using the Pedestrian Access Easement the Township is
seeking on Minke's Lot 4 of Block 20.107, the Township must also
acquire pedestrian access easements on Lots 1, 2, and 3. Minke
29 A-2660-15T3
asserts it has a twenty-five-foot-wide private easement over those
lots which may be affected by the pedestrian access easement the
Township intends to seek in those lots.
To support that argument, Minke cites State by Comm'r of
Transp. v. Orenstein, 124 N.J. Super. 295 (App. Div. 1973).
However, that case simply "held that when the property being
condemned is subject to an easement for the benefit of an adjacent
property, an adjacent landowner who is deprived of his easement
is entitled to a separate award." State by Comm'r of Transp. v.
Dikert, 319 N.J. Super. 310, 317 (App. Div. 1999); see Orenstein,
124 N.J. Super. at 301-02. Thus, Minke may be entitled to an
award if the Township brings a condemnation action against Lots
1, 2, or 3, and names Minke as one of the "[o]ther persons appearing
of record who have or may claim to have an interest in the
Property." See N.J.S.A. 20:3-17(e).3
However, Orenstein does not hold that a public body bringing
a condemnation action for an easement against one property must
also seek to condemn in the same action any other interests of the
same property owner in other properties. See 124 N.J. Super. at3
The Township named the owners of Lots 1, 2, and 3, Lisa Tomasi,
Lydia Zinzi, and Jean Velten, as defendants in this complaint
because of their interest in beach access through Minke's Lot 4.
30 A-2660-15T3
301. Moreover, Orenstein "held that a landowner who claims that
the condemning authority is in fact taking, in addition to the
land described in the complaint, an irrevocable appurtenant
easement of right of way over adjacent lands, must present that
claim to the court before entry of the order appointing
commissioners." State by Comm'r of Transp. v. Stulman, 136 N.J.
Super. 148, 157 (App. Div. 1975); see Orenstein, 124 N.J. Super.
at 298-99. Minke did not do so. In any event, Minke cannot now
demand compensation for its alleged easement over Lots 1, 2, and
3 which the Township never sought to condemn in this action.
Finally, Minke notes the complaint cited Ordinance 13-42,
which authorized acquisition of the Storm Damage Reduction
Easement for the construction of dunes and beach improvements, but
does not cite the public beach access ordinance, Ordinance 14-32,
that Minke challenged in its action in lieu of prerogative writs.
Cf. N.J.S.A. 20:3-17(b). However, Minke was well aware of the
Ordinance, and under it the Township "is duly vested with and has
duly exercised its authority to acquire the property being
condemned" for the public beach access easement. See N.J.S.A.
20:3-8. Therefore, any error was harmless. R. 2:10-2.
Minke's remaining arguments lack sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E).
31 A-2660-15T3
Affirmed. We stay our judgment for twenty-eight days to give
Minke time to file a petition for certification and seek any other
relief with our Supreme Court. See Twp. of Long Beach v. Tomasi,
231 N.J. 105 (2017).
32 A-2660-15T3