Yesterday, a United States District Court judge restrained the U.S. Army Corps and NJDEP from any further action towards their joint Little Egg Inlet to Barnegat Inlet Storm Damage Reduction Project pending further hearings to be held in two weeks time.  The City of Margate, which owns the beach west of the State’s public trust area, does not want to be saddled with the DEP/Army Corps dune project, and filed a complaint in federal court alleging that the governmental entities had violated federal and State law when they attempted to “take” part of the municipalities ocean-front property without complying with the Eminent Domain Act.  The federal judge initially agreed and has issued an order temporarily restraining the federal and state agencies from acting in furtherance of the project.

Another hearing has been set for December 17th in the action.

We’ll keep you posted.

Related news coverage of the case:

Press of Atlantic City

Shore News Today

Ocean County Assignment Judge Vincent Grasso dismissed a declaratory judgment action filed by a redeveloper against the Township of Ocean finding that the redeveloper had to exhaust its administrative remedies before coming to the Court for relief.  Alternatively, it appears that the redeveloper was seeking to partially invalidate or revise an ordinance that had been adopted two and half years earlier. Obviously, out of time. See Del Corp. Enterprises I, LLC v. Township of Ocean (Oct. 9, 2014, opinion here)

The redeveloper, Del Corp., was working with the Township in connection with the designation of tract of land as “in need of redevelopment” under the Local Redevelopment & Housing Law (NJSA 40A:12A-1 et seq).  Once designated, the redevelopment plan would call for a residential housing development called the Tradewinds at Waretown consisting of 115  market rate units and 29 affordable units.  The project received site plan approval from the planning board in 2011, subject to the Township enacting an ordinance adopting a redevelopment plan.  Said ordinance was adopted in February of 2012, and provided “[o]f the 144 dwelling units, 115 units are to be for-sale condominium units and 29 units are to be affordable rental units.”  Del Corp did not object to the Ordinance.

Two years later, Del Corp. has contracted to sell the project to a third-party.  However, the third-party will not finalize the transaction with the “for sale” requirement contained in the ordinance.  The third-party wants to be free to sell or rent the market units.  Hence, Del Corp’s declaratory judgment action, which the Court found premature:

“Del Corp’s brief states “[i]f the terms of the ordinance are enforced by the Township and the developer is not permitted to rent out the market rate units, the contract purchaser will terminate the contract.” Because Del Corp has not demonstrated that it has applied to build  apartment units contrary to the Redevelopment Plan and the Township is enforcing the terms of the Ordinance, the court concludes that Del Corp seeks a declaratory judgment here to discern the rights upon facts that are “future, contingent, and uncertain.” (Slip op. at 7).

Even if it were ripe, the Court found that Del Corp had not exhausted its administrative remedies, namely asking the Township to amend the redevelopment plan to exclude the “for sale” requirement.  If aggrieved by the outcome, Del Corp would then be able to seek redress before the Courts.

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  “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. 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?


Get every new post delivered to your Inbox.

Join 569 other followers