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)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 20, 2018
• Docket: A-2660-15T3/A-4036-15T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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,

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

26 A-2660-15T3 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. at

3 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