Town of Kearny v. Discount City of Old Bridge, Inc.

16 A.3d 300, 205 N.J. 386, 2011 N.J. LEXIS 329
CourtSupreme Court of New Jersey
DecidedMarch 17, 2011
DocketA-76 September Term 2009
StatusPublished
Cited by29 cases

This text of 16 A.3d 300 (Town of Kearny v. Discount City of Old Bridge, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Kearny v. Discount City of Old Bridge, Inc., 16 A.3d 300, 205 N.J. 386, 2011 N.J. LEXIS 329 (N.J. 2011).

Opinions

Justice LONG

delivered the opinion of the Court.

The issues on this appeal include the following: whether one who is not the record owner of property when a redevelopment designation is being considered under the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73, may later challenge a blight designation in an eminent domain proceeding; [393]*393whether a leasehold interest, standing alone, can be condemned; and, if so, whether the condemning authority has a statutory obligation under N.J.S.A 20:3-6 of the Eminent Domain Act of 1971 (Eminent Domain Act), N.J.S.A. 20:3-1 to -50, to conduct bona fide negotiations with the lessee. A discrete issue regarding the effect of a lease condemnation provision on the relationship between landlord and tenant, where the landlord is also serving as the redeveloper, is also presented.

We reaffirm our decision in Iron Mountain Information Management, Inc. v. City of Newark, 202 N.J. 74, 995 A.2d 841 (2010), that a non-record owner of property is not entitled to individualized notice that redevelopment is being considered but only to newspaper publication under N.J.S.A 40A:12A-6(b)(3) and that if that party does not object or challenge the blight designation at the hearing or in a timely action in lieu of prerogative writs, the issue is foreclosed. Id. at 78-79, 995 A.2d 841. We further hold that a leasehold interest is an “interest in land” that, standing alone, can be condemned. In that instance, the lessee has the same rights as any other condemnee, including the right to bona fide negotiations. In this case, the lease between the lessor, who was also serving as the redeveloper, and the lessee contained a common condemnation clause which did not relieve the municipality from the duty to negotiate with and compensate the lessee. Because bona fide negotiations did not occur here, the condemnation complaint must be dismissed.

I.

DVL, Inc. (DVL) is a Delaware corporation which wholly owns Professional Service Corp. (PSC), DVL Kearny Holdings, LLC (DVL Kearny Holdings), and Del Toch LLC (Del Toch).1 Like the parties, we refer to those entities collectively as DVL. Del Toch owns Del Toch Industrial Park (Del Toch property) and the [394]*394adjacent eight acres in Kearny. The Del Toch property is leased to: (1) Discount City of Old Bridge, Inc. (Discount City); (2) James Farm Market Corporation; and (3) James Wholesale Warehouse, Inc. (collectively “James”). Franklin-Burlington Plastics, Inc., d/b/a Spartech Polycom (Spartech) possessed a reservoir easement on the Del Toch property.2

James’s leasehold interest, 3.8% of the Del Toch property, is based on two lease agreements with PSC dated July 21,1994, and March 31, 1995. The leases describe the “complex” as Toch Industrial Park, 160 Passaic Avenue, Kearny, New Jersey, and the “premises” as 5,544 square feet located in Building 12 of the complex and 7,873 square feet located in Building 113 of the complex. Apparently, the renewal options in the leases were exercised such that James remained a tenant of DYL at all times relevant to this action. Each lease contains the following clause:

CONDEMNATION: If the Complex of which the Premises are a part, or any portion thereof, shall be taken under eminent domain or condemnation proceedings, or if suit or other action shall be instituted for the taking or condemnation, or if in lieu of any formal condemnation proceedings or actions, Landlord shall grant an option to purchase and or shall sell and convey the Premises or any portion thereof, to the governmental or other public authority, agency, body or public utility, seeking to take said land or any portion thereof, then this lease, at the option of the Landlord, shall terminate, and the term hereof shall end as of such date as Landlord shall fix by notice in writing; and Tenant shall have no claim or be entitled to any portion of any amount which may be awarded as damages or paid as the result of such condemnation proceedings or paid as the purchase price for such option, sale or conveyance in lieu of formal condemnation proceedings; and all rights of the Tenant to damages, if any, are hereby assigned to the Landlord. The Tenant agrees to execute and deliver any instruments, at the expense of the Landlord, as may be deemed necessary or required to expedite any condemnation proceedings or to effectuate a proper transfer of title to such public authority, seeking to take or acquire the Premises or any portion thereof. Tenant covenants and agrees to vacate the Premises, remove all the Tenant’s personal property and deliver up peaceable possession thereof to Landlord, or to such other party designated by Landlord in the aforementioned notice. Failure by Tenant to comply with any provisions in this clause shall subject Tenant to such costs, expenses, damages and losses as Landlord may incur by reason of Tenant’s breach hereof.

[395]*395On January 11, 2000, the Mayor and Council of the Town of Kearny (collectively “Kearny”) authorized and directed the Planning Board to conduct a redevelopment study of the Passaic Avenue area. In relation to the Del Toch property, the report stated:

Parcels 51 and 52, Del Toch Industrial Park and Ozzie’s Ford display obsolete layout of structures and obsolescence of buildings and improvements that has resulted in a not fully productive condition of land. The industrial park has reused existing structures, however these structures and the parking and circulation of the site have not been changed since their construction in the first half of the 20th Century to accommodate the new uses. Obsolete tanks remain on-site, and defunct motor vehicles are stored on-site. The subdivided lot that contains Ozzie’s Ford has been haphazardly drawn and does not provide comprehensive circulation and access for that property. The 5- and 6-story buildings on both properties exceed the 40’ height limit for the C-4 zoning district.

Following the study, the Planning Board issued notices for the purpose of hearing persons who were interested in or would be affected by a determination that the delineated area was a redevelopment area, as required by N.J.S.A 40A:12A-6(b)(2). In doing so, it complied with all of the provisions pertaining to publication and mailing of those notices as required by N.J.S.A. 40A:12A-6(b)(3). The Planning Board conducted hearings on October 2 and October 16, 2000, at which time all persons who requested to be heard were permitted to do so as required by N.J.S.A. 40A:12A-6(b)(4). After completing its hearing on the matter, the Planning Board, in accordance with N.J.S.A 40A:12A-6(b)(5), recommended that Area B on the Planning Board map be a redevelopment area. That area included the Del Toch property.

On December 12, 2000, in response to that study, Kearny designated the Passaic Avenue area, including the Del Toch property, “as in need of redevelopment.” Following that designation, Heyer, Gruel, & Associates, P.A., submitted a proposed redevelopment plan which was subsequently adopted by Kearny through an ordinance on October 11, 2001:

This Redevelopment Plan authorizes the Town to exercise its condemnation powers

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16 A.3d 300, 205 N.J. 386, 2011 N.J. LEXIS 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-kearny-v-discount-city-of-old-bridge-inc-nj-2011.