Almost twenty years ago, a new neighbor moved in across from Sophie Bubis’ house at 1 Ocean Place in Loch Arbour.  At that time, in 1995, the new neighbors, Jack and Joyce Kassin bought the entire beachfront lot consisting of four + acres.  Soon thereafter, the Kassins erected an eight foot high sand berm covered with bushes and trees reaching heights of eighteen feet in some areas.  All of a sudden, Sophie Bubis could no longer see the ocean.

So, what did Sophie Bubis do? She sued the Kassins to enforce a local zoning ordinance restricting fences heights and a restrictive covenant in the Kassin’s title that restricted the height of fences to four feet.  And ten years later, the New Jersey Supreme Court said that Sophie Bubis was right. Bubis v. Kassin, 184 N.J. 612 (2005).  (The outcome of the case fell on whether the sand berm/dune was – in fact – a “fence.”)

The Kassins had to remove the berm and trees and comply with the local fence ordinance.

Six years later both properties were destroyed by Superstorm Sandy. But Sophie Bubis has no regrets.  As recounted in an article by nj.com:  “Despite the destruction that Sandy wrought, Bubis said she has “not an ounce of regret” about her legal battle to remove the barrier.”  The article also notes that even if the berm were in place at the time of the storm, it would have been overtopped and Bubis’ house would have been destroyed.  LIkewise, the Kassin’s property was severely damaged by Sandy.

And perhaps, in a twist of fate, the bulk of the Kassin’s property was later conveyed to the Village of Loch Arbour by way of settlement in lieu of eminent domain.

Sophie Bubis waged a ten-year legal battle to preserve one of the most important aspects of ownership of shoreline property; an ocean view.  And even after having her house destroyed by Mother Nature, she did not regret having waged a ten-year legal battle to maintain her ocean view.  And why would she?  In real estate it’s all about location.  You can always build a new house, but you can’t get a better location to see the ocean.

So when the State comes along to erect an 18-25 high sand dune on your neighbors’ property, don’t be surprised if they expect to be compensated for their loss in value as required by our State and federal Constitutions.

The historic Neumann Leather building sits on Observer Highway in Hoboken and long ago ceased operating as a tannery.  Its industrial zoning clearly outmoded in today’s Hoboken.  As recounted by the Hudson Reporter, residential and commercial developers have been salivating over the property for years, but the City has refused to modify the zoning to permit development to the properties highest and best use.  But, according to the property owner, the City made things even worse when it included the property within an “area in need of rehabilitation” in 2011.

Neuman HobokenThe property owner therefore sued the City and challenged the designation of its property within the rehabilitation zone.  On September 23, 2014, the Appellate Division published its opinion vacating the designation.  Under the Local Redevelopment and Housing Law (LRHL) (N.J.S.A. 40A:12A-1, et seq.), an area may be designated “in need of rehabilitation” if a majority of the area’s “water and sewer infrastructure is over fifty years old and is in need of repair and substantial maintenance.”  In most simple terms, the Appellate Court strictly construed the statute and vacated the City’s action because there was no evidence that the water and sewer infrastructure was “in need of repair and substantial maintenance.” The court therefore vacated the designation without prejudice to the City’s re-examination of the area under current law (the LRHL was amended in 2013).

It is our understanding that – with this decision in hand – the property owner has sold the building and grounds. Read more here.

For more background on the property, see: Debate Swells Over Future of Neumann Leather.

The building has even attracted unsolicited proposals from the blogging community.  philly2hoboken.com has a redesign plan.

There is also a Neumann Leather’s Tenants Association whose mission statement is to “protect and preserve the Neumann complex.”

A New Jersey appellate court recently affirmed a trial court’s summary judgment dismissing a negligence action where plaintiff’s theory of causation was only supported with an expert’s net opinion. Sayta Sankalp, LLC v. Five Star Auction (opinion here).  In the case, plaintiff sued defendant for damages to real property caused by fire.  The parties were adjoining tenants in a strip center in Salem (NJ), and a fire broke out in the warehouse portion of defendant’s lease-hold late one night, which ultimately caused fire damage to plaintiff’s property.  Plaintiff alleged that the fire was caused by defendant’s negligence.

Plaintiff’s causation theory – careless smoking – was supplied by an expert.  The expert inspected the premises, and interviewed three of defendants’ employees who were present in the warehouse about 3 hours before the fire ignited.  There was no physical evidence to support a claim that anyone had smoked in the warehouse; and no physical evidence of smoking material near the point of origin.  The only evidence was plaintiff’s expert’s testimony that one of the employees present before the fire said that he had observed people smoking in the warehouse.

The evidence showed that there was a strict no smoking policy in the warehouse, and all three employees denied smoking or observing smoking in the warehouse.  The employees left the warehouse at 8:00 p.m.  The smoke and fire alarms alerted almost simultaneously at about 11:15 p.m. that night.  According to defendant’s expert, that time-frame is inconsistent with a “careless smoking” fire, which would take much longer to ignite, and would normally be preceded by a smoke alarm, not simultaneous smoke and fire alarms.

The appellate court summarized the evidence in support of its affirmance of summary judgment dismissal:

“The record shows smoking was not permitted in defendant’s warehouse, the employees were aware of this rule, and all denied seeing anyone smoke in the building. While Cossadoon was a smoker, he left by 8 p.m., well over three hours before the fire set off the fire alarm. Without proof, Oakley’s conclusion that the fire’s cause was careless smoking is, at best, an educated
guess, but does not rise to the level of an opinion stated with reasonable scientific certainty.” (Slip op. at 10.)

While the evidence was disputed as to whether the employee observed smoking int he warehouse, that fact alone did not raise a genuine issue of material fact.  Thus, without more, the trial court was unwilling to allow opinion testimony on causation, and without a viable theory as to the cause of the fire, summary judgment dismissal of the negligence claim was appropriate.

santa-ana-wind-storm-pasadena-300x190On August 14, 2014, the Second Appellate District Court of Appeal of California issued its landmark decision in City of Pasadena v. Superior Court of Califorina (Docket BC491467).  The case arose out of a windstorm that occurred in November 2011.  A City owned tree fell and damaged a residence insured by Mercury Casualty Company, which paid $293,000 to cure the damages.  Mercury, as assignee of the claim, sued the City of Pasadena for inverse condemnation and nuisance to recover the damages paid to the property owner.

The City moved for summary adjudication before the trial court arguing that a “tree was not a work of public improvement that is the proper subject of an inverse condemnation action”; and for the private nuisance claim, that there was no evidence that the City was negligent.  The trial court denied the motion, finding that the “subject tree is part of a work of public improvement” and that evidence of negligence is not required in a nuisance claim.  The City appealed and presented the same arguments to the Court of Appeal.

Regarding the claim for inverse condemnation, the Court of Appeal found that the “sole issue here is whether the City’s public tree, as part of the City’s forestry program, constitutes a public improvement such that it could provide the basis for an inverse condemnation claim.” (Slip op. at 6).

The Court of Appeal denied the appeal, reasoning that the City owned the tree and actively managed its tree population:

“Here, the evidence presented by the City in support of its motion for summary adjudication did not demonstrate that there was no triable issue of fact as to whether the subject tree was a part of a public improvement. The City’s separate statement stated only that, on November 30, 2011, a tree owned by the City fell on the residence of Mercury’s insured. In the supporting declaration by the City’s arborist, the arborist said that he managed the maintenance of 60,000 street trees including the subject tree, that the City catalogued these trees in a database, that he “headed an urban tree maintenance program,” and that “[t]he City strives to enhance the quality of life through the promotion, protection, and balanced management of … trees.”

“This evidence showed that the subject tree was a street tree that was part of a City program to enhance its residents’ and visitors’ quality of life through the maintenance of trees in the City. It showed that the City took deliberate actions to manage the program by cataloging its trees and maintaining them through regular pruning. In addition, as in Regency Outdoor Advertising, the tree here was part of a government program to maintain trees along roads and, thus, served the public purpose of improving public roads. This evidence was sufficient to demonstrate a triable issue of fact as to whether the tree, as part of the forestry program, constituted a public improvement.” (Slip op. at 9).

We’re sure the City will appeal to the California Supreme Court, but, for now, it’s the law of the land in California.

So, let’s assume that the State of New Jersey constructs a system of dunes along the Atlantic coast-line allegedly designed to protect private property from the ravages of a rising sea and more frequent storm-surges (like Superstorm Sandy, Hurricane Katrina, Hurricane Irene, etc.)  And instead of taking fee ownership of the dune system, the State insists that the coastal property owners “give” the State an easement to permit the construction and improvements necessary for the project.

Five years later, the next storm arrives and the State has failed to properly maintain the dunes (b/c federal money is no longer available), and coastal private property is damaged.  Under City of Pasadena, the State would be liable for the damages caused. Food for thought.

We’ll keep you posted.

The New Jersey Supreme Court answered in the negative the question whether a condemnor must negotiate in good faith with a mortgage holder that has obtained a foreclosure judgment pre-commencement of a condemnation action. Borough of Merchantville v. Malik & Son, LLC (opinion here).  In so doing, the Court affirmed the plain letter of the statute, and established black-letter law:  “We hold that a condemning authority has an obligation to present an offer to acquire property and to engage in bona fide negotiations with no party other than the individual or entity that holds title to the property or the holder of the interest sought to be condemned.”  The Court later in its opinion noted that a condemnor would have to negotiate with a leaseholder if the fee interest were  not in issue.  A simple and straight-forward rule of law.

The court’s holding was based on its reading of a clear and unambiguous statutory provision (N.J.S.A. 20:3-6).  The court also ruled that the condemnor had no duty to negotiate with the mortgagee as the requirement only extended to those parties for which an offer must be extended.

Compare the Merchantville decision with the Supreme Court’s decision regarding a condemnor’s obligation to negotiate with a tenant, discussed in our 2011 blog post “Tenant Has Clout to Negotiate in Condemnation“.  Are these two opinions consistent with each other?

As a follow-up to our July 21st posting on a significant recent case from the Georgia Supreme Court, we’re thrilled to provide this special guest blog from Charles Pursley, Esq., who served as counsel to the property owner in the Dillard case.  More info about Charles and his firm are available on his website.  Thanks for the contribution, for your work in protecting property owners’ rights, and your thoughts, Charles!

charles-297x300The complexities of eminent domain law can baffle inexperienced lawyers.  Appraisal methods, procedural stipulations, and over two centuries of jurisprudence form an intricate network that dictates how and when private property can be taken.  However, regardless of how convoluted the field is, there are concrete principles that remain certain.  In Dillard Land Investments, LLC v. Fulton County, the Georgia Supreme Court spoke clearly and decisively about Fulton County’s attempt to abuse the system.

After a special master awarded $5,187,500.00 as compensation for the taking of Dillard’s land, Fulton County attempted unilaterally to dismiss its case without paying the just and adequate compensation owed the plaintiff.  The trial court vacated and set aside the County’s attempt to dismiss its case and ruled that the County was required to pay the award because it failed to file an appeal for a jury trial to contest the amount.  The Court of Appeals found much differently and reversed the decision.  An ultimate appeal to the Georgia Supreme Court resulted in a ruling that, after entry of the award of the special master, Fulton County was no longer entitled to dismiss the condemnation proceeding.

The Court reasoned that an award of a special master has the same legal effect as an assessor’s award.  When the award was entered, it became the judgment of a tribunal fixing the rights and liabilities of the parties, including Fulton County’s liability to pay the $5,187,500.000.  Attorney Charles Pursley Jr., who represented Dillard Land Investments in the case, said the opinion “reinforces the principal that condemning authorities must operate within the constraints of the law”.  The Court of Appeals’ decision would have deprived property owners of the right to be compensated for a government’s actions in taking private property.  “Legally and ethically, eminent domain must be exercised with utmost good faith”, Pursley went on to explain “the Court of Appeals decision would have given condemning authorities the right to simply walk away and leave the condemnees without just and adequate compensation.”  Condemnation cases “usually take years before they even get to a special masters hearing.   They begin with public information meetings – after which tenants may move out and it’s impossible to sell the land.  You generally can’t recover for pre-condemnation damages.  When you can’t sell, you can’t rent, and your property is losing value; damages accrued by the time the special masters award is decided are much more than attorney’s fees.   Allowing the condemning authority to require the property owner to go through a protracted process, possibly multiple times, and still allow the condemning authority unilaterally to withdraw would be an abuse of property owner’s rights”.

The Supreme Court opinion dissects how the Court of Appeals came to a position contrary to their own ruling by pointing out that the court misread the only case addressing the condemnation statute in question, and misinterpreted the intention behind the statute.  The Court of Appeals decision would inequitable allow condemnors to pick and choose the appraisal value they prefer by rejecting an unfavorable award and using multiple special master’s hearings instead of filing an appeal and facing a jury trial.  As Pursley points out, “if condemning authorities are confident in their appraisals, there should be no objection to following the statutorily prescribed appeals process to defend it in court.” The Supreme Court’s decision ensures that all condemnation procedures will continue to be used consistently and correctly.

Charles Pursley, Jr.,Esq.

Pursley, Friese & Torgrimson

Atlanta, Georgia

 

The Georgia Supreme Court recently reversed a decision of the Georgia Court of Appeals and reinstated a special master’s award of $5,187,000 in favor of the property owner for the taking of its property by eminent domain. Full text of Dillard Land Investments, LLC v. Fulton County opinion here.

In short, the Supreme Court held “that a condemnor is not entitled to voluntarily dismiss a condemnation action unilaterally once the special master renders his award” and reversed the Court of Appeals decision that permitted the condemnor to withdraw from the condemnation after the special masters award.

For more info, check out the posting of our colleague Charles Ruffin, Esq. of Owners’ Counsel of America, here.

The procedures in New Jersey are somewhat different and specifically controlled by the Eminent Domain Act.  Here, a condemning authority is entitled to abandon a taking at any time after the filing of a complaint and before or within 30 days after the filing of the award of the condemnation commissioners, but only IF a Declaration of Taking has not been filed.  In cases where a Declaration of Taking has been filed, the condemning authority is not entitled to abandon a taking unless it has consent of the owner.  N.J.S.A. 20:3-35. In either event, the owner is entitled to damages, including costs and fees, in the event of an abandonment pursuant to N.J.S.A. 20:3-24 and 26.

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