Hoagland v. City of Long Branch, 428 N.J. Super. 321 (App. Div. 2012). Plaintiffs owned property in Long Branch as to which the City of Long Branch instituted condemnation proceedings. After some litigation, including a trip to the Appellate Division, the City abandoned its condemnation efforts and agreed to pay the litigation expenses of plaintiffs and others similarly situated. Plaintiffs, however, demanded additional compensation based on their argument that the condemnation actions themselves constituted a temporary taking of their properties without due process. The Law Division granted summary judgment to the City, and the Appellate Division affirmed in an opinion by Judge Haas.
Plaintiffs contended that, under the Eminent Domain Act, N.J.S.A. 20:3-1 to -50, “the mere filing of condemnation complaints and the accompanying lis pendens by the City constituted a temporary taking of an ‘interest in their properties’ for which they should be compensated.” The panel disagreed. Judge Haas stated that the statutory scheme makes no taking occur unless and until the condemning entity files and records a declaration of taking. That can occur when the condemnation complaint is filed, or later. Here, no declaration of taking was ever filed. By withholding the declaration of taking, the City preserved its right to abandon its condemnation effort, as it in fact ultimately did, without liability for a taking. The City had only the responsibility to repay litigation expenses, which it did.
Alternatively, plaintiffs argued that a taking had occurred under general constitutional principles, since they were unable to develop or sell their properties until the condemnations were abandoned. But except for one plaintiff, who did sell the property at issue, none of the plaintiffs even tried to sell their properties. Plaintiffs did offer “anecdotal, mostly hearsay” accounts of problems they allegedly had with the marketability of their properties. But that evidence, Judge Haas declared, was insufficient to show an unconstitutional taking. Quoting Pheasant Bridge Corp. v. Warren Tp., 169 N.J. 282, 298 (2001), he observed that “neither diminution of land value itself nor impairment of the marketability of the land alone constitutes a taking.”