This document describes two consolidated appeals regarding beachfront property in Ocean City, New Jersey. It provides background on how Ocean City created a dune system in the 1980s and 1990s through easement agreements with property owners, with a three-foot height restriction. However, changing regulations in the 1990s required Ocean City to obtain state permits for dune maintenance. When property owners requested maintenance to comply with easements, Ocean City applied for a permit but was denied. The appeals consider whether Ocean City is relieved from its easement obligations and whether property owners have remedies.
The document announces a public meeting of the City Council of San Angelo, Texas to take place on January 22, 2013 at the McNease Convention Center. The agenda includes items such as calling the meeting to order, pledges, proclamations, recognitions, public comments, consent agenda items including approving meeting minutes and awarding bids, regular agenda items including adopting resolutions and ordinances related to animal control fees and zoning ordinances. The meeting will be broadcast on local government access channels.
This document summarizes information presented at a 2015 pork management conference regarding a lawsuit filed by Des Moines Water Works (DMWW) against several drainage districts. DMWW alleges that field tile lines discharging into surface waters without an NPDES permit violates the Clean Water Act and Iowa state law. The document also discusses criteria considered by GIPSA when determining compliance with regulations regarding additional capital investments required by contracts, reasonable time to remedy contract breaches, and arbitration clauses.
The document discusses space exploration efforts including Endeavor, a Colombia space shuttle mission, the USA landing on the moon, the Nasa logo, Mars Rover robotic missions, Nasa robots, and citizen space shuttle programs.
U.S. District Court Decision Against Chesapeake & Inflection on Force Majeure...Marcellus Drilling News
The decision handed down by U.S. District Court Judge David Hurd that found Chesapeake Energy and Inflection Energy could not extend land leases beyond the original term because of the drilling moratorium in New York State. Chespeake & Inflection claimed the moratorium prevented them from drilling, but the judge ruled they could have still drilled conventional, vertical wells.
Susan Farady, Seawalls: Legal Implications of Shoreline Protectionriseagrant
The document summarizes key legal issues related to shoreline protection in Rhode Island. It discusses how changing shorelines impact expectations of private property owners and state interests. It outlines that the state owns all tidal lands under the public trust doctrine and that the Coastal Resources Management Council has jurisdiction below the mean high tide line. It also reviews how the common law "common enemy" doctrine has been replaced by the reasonable use test regarding water flow, and discusses some cases related to legal challenges of seawalls.
The U.S. Supreme Court ruled on a challenge to the National Park Service's ban on hovercraft use in Alaska. The Court vacated the lower court's ruling that had upheld the ban, finding that land within Alaska conservation areas may be treated differently than other federal preservation areas. Specifically, the Court noted that Alaska is unique in that it allows for "rural residents" to use snowmachines and motorboats on federal lands for traditional activities like hunting. This case will reconsider whether the hovercraft ban can apply to the Nation River, part of which falls within a federal preserve, given that hovercrafts are traditionally used for hunting in the region. The ruling reopens the question of whether the hovercraft ban can be
The Public Trust Doctrine, Water Rights and Public Use Liability of Landowner...rshimoda2014
David Schade - Chief, Water Resources Section, Alaska Department of Natural Resources, Division of Mining, Land and Water
Risa Shimoda - The Shimoda Group, LLC
This discussion focuses on the conflicts of traditional water rights and the public trust doctrine of public use of waters.
An overview of a representative sample of different States current status with Public Trust and how that can /is in conflict with traditional water rights is discussed.
This summarizes a key court case regarding the diversions of water from streams flowing into Mono Lake by Los Angeles. The case brought together California's system of water rights and the public trust doctrine. It determined that the state has authority over navigable waters as part of the public trust, and that water rights are not absolute but subject to reconsideration if diversions harm public trust interests like scenic beauty and ecology. The court said diversions from Mono Lake must be reconsidered to protect public trust values in the lake.
The document announces a public meeting of the City Council of San Angelo, Texas to take place on January 22, 2013 at the McNease Convention Center. The agenda includes items such as calling the meeting to order, pledges, proclamations, recognitions, public comments, consent agenda items including approving meeting minutes and awarding bids, regular agenda items including adopting resolutions and ordinances related to animal control fees and zoning ordinances. The meeting will be broadcast on local government access channels.
This document summarizes information presented at a 2015 pork management conference regarding a lawsuit filed by Des Moines Water Works (DMWW) against several drainage districts. DMWW alleges that field tile lines discharging into surface waters without an NPDES permit violates the Clean Water Act and Iowa state law. The document also discusses criteria considered by GIPSA when determining compliance with regulations regarding additional capital investments required by contracts, reasonable time to remedy contract breaches, and arbitration clauses.
The document discusses space exploration efforts including Endeavor, a Colombia space shuttle mission, the USA landing on the moon, the Nasa logo, Mars Rover robotic missions, Nasa robots, and citizen space shuttle programs.
U.S. District Court Decision Against Chesapeake & Inflection on Force Majeure...Marcellus Drilling News
The decision handed down by U.S. District Court Judge David Hurd that found Chesapeake Energy and Inflection Energy could not extend land leases beyond the original term because of the drilling moratorium in New York State. Chespeake & Inflection claimed the moratorium prevented them from drilling, but the judge ruled they could have still drilled conventional, vertical wells.
Susan Farady, Seawalls: Legal Implications of Shoreline Protectionriseagrant
The document summarizes key legal issues related to shoreline protection in Rhode Island. It discusses how changing shorelines impact expectations of private property owners and state interests. It outlines that the state owns all tidal lands under the public trust doctrine and that the Coastal Resources Management Council has jurisdiction below the mean high tide line. It also reviews how the common law "common enemy" doctrine has been replaced by the reasonable use test regarding water flow, and discusses some cases related to legal challenges of seawalls.
The U.S. Supreme Court ruled on a challenge to the National Park Service's ban on hovercraft use in Alaska. The Court vacated the lower court's ruling that had upheld the ban, finding that land within Alaska conservation areas may be treated differently than other federal preservation areas. Specifically, the Court noted that Alaska is unique in that it allows for "rural residents" to use snowmachines and motorboats on federal lands for traditional activities like hunting. This case will reconsider whether the hovercraft ban can apply to the Nation River, part of which falls within a federal preserve, given that hovercrafts are traditionally used for hunting in the region. The ruling reopens the question of whether the hovercraft ban can be
The Public Trust Doctrine, Water Rights and Public Use Liability of Landowner...rshimoda2014
David Schade - Chief, Water Resources Section, Alaska Department of Natural Resources, Division of Mining, Land and Water
Risa Shimoda - The Shimoda Group, LLC
This discussion focuses on the conflicts of traditional water rights and the public trust doctrine of public use of waters.
An overview of a representative sample of different States current status with Public Trust and how that can /is in conflict with traditional water rights is discussed.
This summarizes a key court case regarding the diversions of water from streams flowing into Mono Lake by Los Angeles. The case brought together California's system of water rights and the public trust doctrine. It determined that the state has authority over navigable waters as part of the public trust, and that water rights are not absolute but subject to reconsideration if diversions harm public trust interests like scenic beauty and ecology. The court said diversions from Mono Lake must be reconsidered to protect public trust values in the lake.
The document discusses several environmental issues and calls readers to write their representatives to voice support. It urges writing local supervisors to reconsider their negative stance on proposed wilderness designations. It also encourages contacting senators and representatives to oppose bills weakening the Endangered Species Act and support protecting roadless forest areas. Readers are asked to advocate for alternative energy over drilling in Alaskan wildlife refuges.
This document is a motion filed by the plaintiffs-appellants requesting expedited treatment of their appeal from a district court decision regarding the Honolulu High-Capacity Transportation Corridor Project. Specifically, the plaintiffs argue that expedited treatment is necessary to avoid mootness, irreparable harm, and emergency motions if construction begins as scheduled in September 2013 before the appeal can be resolved. The motion provides background on the project, the district court decision finding violations of Section 4(f) regarding traditional cultural properties and parks but otherwise upholding the project, and the risk that construction will commence before the appeal is heard. The plaintiffs request an expedited briefing schedule and oral argument.
The document announces a public meeting of the City Council of San Angelo, Texas to take place on March 5, 2013 at the McNease Convention Center. The agenda includes: an opening session with a call to order, prayer, pledge, and proclamations; recognitions of individuals; public comment; a consent agenda with various considerations; a regular agenda with public hearings, presentations, and considerations of ordinances regarding zoning, annexation, and other matters.
The official motion filed with the New York State Court of Appeals, NY's highest court, to hear the case of Norse Energy v Town of Dryden over the town's vote to ban all fracking and drilling throughout the township.
California State Lands Commission - City of Hermosa Beach State Tidelands TrustStopHermosaBeachOil
This letter is in response to the September 2, 2014, request from your office on behalf of the City of Hermosa Beach (City) memorializing the request made by the City Council during its July 8, 2014 Council meeting for information from the California State Lands Commission (Commission) staff regarding the City's responsibilities as a trustee of granted public trust lands.
This document describes plans to restore a 12-acre degraded wetland and shoreline area located on the extreme south end of Broad Channel, New York. The site was previously an illegally expanded small marina until legal action in the 1990s and 2000s led to its closure and acquisition by New York City. A restoration plan was developed by the Broad Channel Civic Association to remove debris, create new wetland habitats, and add public access features like trails and a boardwalk. Several partner organizations will help implement the plan, and funding from various government grants totaling over $7.5 million has been secured or applied for to complete the restoration project.
Bruce Cameron Peters has over 25 years of experience in commercial litigation and dispute resolution. He has worked in private practice at several law firms and has also held roles as a government lawyer. His experience spans a wide range of legal areas including commercial litigation, administrative law, intellectual property, employment law, insolvency, and property law. He is admitted to practice in the Supreme Court of Queensland, High Court of Australia, Federal Court of Australia, and Federal Magistrates Court of Australia.
The document provides notice of a public meeting of the City Council of San Angelo, Texas to take place on February 21, 2013. The agenda includes recognitions, public comment, consent agenda items, and regular agenda items such as utility software demonstration, storm water plan presentation, economic development reports, payroll deduction authorization, and community garden license agreement. The meeting will be held at the McNease Convention Center and is accessible to persons with disabilities.
On September 24, 2014, Kenneth Cook from WaterCentric joined us at the North Texas Commission offices to discuss Texas Water Rights and Alternative Sourcing. The North Texas Commission Webinar Series, Topic: North Texas, is presented by Verizon.
PA Commonwealth Court Decision Overturning Zoning Part of Act 13 Marcellus Dr...Marcellus Drilling News
The decision issued by the Pennsylvania Commonwealth Court, the appeals court (second level) in PA. The decision overturns a portion of the Act 13 Marcellus Shale drilling law passed by the PA legislature in early 2012. The zoning portion of the law would have overruled any local zoning of oil and gas drilling with state guidelines. Seven towns and a few others sued to have the zoning provision nullified. The case will likely go to the PA Supreme Court in 2012.
This presentation highlights some of the context behind the contentious debate between environmentalists and U.S. builder/developer interests over the issue of "wetlands". The issue has undertones that reveal the tension between pro-growth and slow- or no-growth advocates. It also reveals some of the machinations of the policy process, especially the use of agency power and the court system to bypass the legislative process. The material from which this presentation is based comes from the excellent book, "Housing in the Twenty-First Century: Achieving Common Ground", written by Kent Colton.
PP - Real Estate CLE June 2015 - finalKeith Turner
This document discusses environmental laws and risks associated with properties. It provides an overview of key federal environmental laws such as the Clean Air Act, Clean Water Act, and CERCLA. It also outlines environmental assessment processes like Phase I ESAs and defenses from CERCLA liability for innocent landowners and bona fide prospective purchasers. The document discusses strategies to manage environmental risks for both sellers and buyers of potentially contaminated properties.
This document discusses potential legal liability arising from the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. It outlines various environmental laws that could apply including the Oil Pollution Act, Clean Water Act, Endangered Species Act, and others. It examines which parties may be considered responsible under these statutes, such as BP as operator, Transocean as rig owner, and Halliburton as contractor. The document also reviews elements of liability, available damages, and penalties under these laws, which could total in the billions of dollars depending on whether gross negligence or willful misconduct is found.
This brief was submitted by intervenors-appellees-cross-appellants in defense of a Texas law (HB 1131) that restricts vertical integration between automobile insurers and autobody repair shops. The brief argues that HB 1131 does not violate the dormant Commerce Clause or the First Amendment. Regarding the dormant Commerce Clause, the brief asserts that HB 1131 regulates evenhandedly and was not enacted for protectionist purposes. Regarding the First Amendment, the brief argues that the commercial speech restrictions in HB 1131 regulate only false or misleading speech and place incidental burdens that are permissible. The brief urges the court to reject the challenges to HB 1131 and affirm the district court's
Delaware Riverkeeper v Pennsylvania Dept. of Environmental Protection - Leidy...Marcellus Drilling News
This document summarizes a court case involving petitions challenging permits issued by New Jersey and Pennsylvania environmental agencies for a pipeline expansion project. The court consolidated two petitions - one challenging NJ permits and one challenging a PA permit. The court determined it had jurisdiction to review the permits and that the state environmental agencies did not act arbitrarily in issuing the permits, so it denied the petitions. The project is now mostly completed in New Jersey.
The document provides notice of a public meeting of the City Council of San Angelo, Texas to take place on January 7, 2014 at 9:00 AM at the McNease Convention Center. The agenda includes items such as calls to order, prayers, pledges, public comments, consent agenda items, regular agenda items including public hearings, executive sessions, follow up issues, and adjournment. The meeting will include discussions on approving previous meeting minutes, economic development reports, master development strategies, zoning ordinance compliance, and other city business.
The Sierra Club sued the City of Bakersfield for approving a residential development without considering its environmental impacts. The parties reached a settlement where the developer agreed to various mitigation measures, including paying $1,200 per home for an air quality fund. This settlement sets an important precedent for requiring developers to mitigate air pollution from new projects. The Sierra Club's lawsuit achieved its goals of forcing better planning practices and funding for air quality improvements.
This amicus brief argues that the Federal Highway Administration violated principles of Environmental Justice in its site selection process for the Detroit River International Crossing project. It alleges the FHWA prematurely eliminated alternatives in wealthier, white communities due to political pressure. This left only sites in Detroit's poor, Latino community of Delray for consideration. The brief asserts the FHWA failed to properly consider building in areas that would not disproportionately burden a minority community, as required by Executive Order and FHWA regulations regarding Environmental Justice.
Amicus Curiae Brief from Delaware Riverkeeper in Gorsline v Fairfield TownshipMarcellus Drilling News
In Gorsline v Fairfield Township, neighbors have sued to stop a conditional use permit for driller Inflection Energy--essentially stripping away landowners' property rights in the process. After losing in a lower court, Gorsline et al appealed (being sponsored by Big Green groups PennFuture and Delaware Riverkeeper). If the decision is found "for" Gorsline, it would effectively end Marcellus Shale drilling in Pennsylvania.
The document discusses the results of a study on the effects of a new drug on memory and cognitive function in older adults. The double-blind study involved 100 participants aged 65-80 who were given either the drug or a placebo daily for 6 months. Researchers found that those who received the drug performed significantly better on memory and problem-solving tests at the end of the study compared to those who received the placebo.
The document discusses several environmental issues and calls readers to write their representatives to voice support. It urges writing local supervisors to reconsider their negative stance on proposed wilderness designations. It also encourages contacting senators and representatives to oppose bills weakening the Endangered Species Act and support protecting roadless forest areas. Readers are asked to advocate for alternative energy over drilling in Alaskan wildlife refuges.
This document is a motion filed by the plaintiffs-appellants requesting expedited treatment of their appeal from a district court decision regarding the Honolulu High-Capacity Transportation Corridor Project. Specifically, the plaintiffs argue that expedited treatment is necessary to avoid mootness, irreparable harm, and emergency motions if construction begins as scheduled in September 2013 before the appeal can be resolved. The motion provides background on the project, the district court decision finding violations of Section 4(f) regarding traditional cultural properties and parks but otherwise upholding the project, and the risk that construction will commence before the appeal is heard. The plaintiffs request an expedited briefing schedule and oral argument.
The document announces a public meeting of the City Council of San Angelo, Texas to take place on March 5, 2013 at the McNease Convention Center. The agenda includes: an opening session with a call to order, prayer, pledge, and proclamations; recognitions of individuals; public comment; a consent agenda with various considerations; a regular agenda with public hearings, presentations, and considerations of ordinances regarding zoning, annexation, and other matters.
The official motion filed with the New York State Court of Appeals, NY's highest court, to hear the case of Norse Energy v Town of Dryden over the town's vote to ban all fracking and drilling throughout the township.
California State Lands Commission - City of Hermosa Beach State Tidelands TrustStopHermosaBeachOil
This letter is in response to the September 2, 2014, request from your office on behalf of the City of Hermosa Beach (City) memorializing the request made by the City Council during its July 8, 2014 Council meeting for information from the California State Lands Commission (Commission) staff regarding the City's responsibilities as a trustee of granted public trust lands.
This document describes plans to restore a 12-acre degraded wetland and shoreline area located on the extreme south end of Broad Channel, New York. The site was previously an illegally expanded small marina until legal action in the 1990s and 2000s led to its closure and acquisition by New York City. A restoration plan was developed by the Broad Channel Civic Association to remove debris, create new wetland habitats, and add public access features like trails and a boardwalk. Several partner organizations will help implement the plan, and funding from various government grants totaling over $7.5 million has been secured or applied for to complete the restoration project.
Bruce Cameron Peters has over 25 years of experience in commercial litigation and dispute resolution. He has worked in private practice at several law firms and has also held roles as a government lawyer. His experience spans a wide range of legal areas including commercial litigation, administrative law, intellectual property, employment law, insolvency, and property law. He is admitted to practice in the Supreme Court of Queensland, High Court of Australia, Federal Court of Australia, and Federal Magistrates Court of Australia.
The document provides notice of a public meeting of the City Council of San Angelo, Texas to take place on February 21, 2013. The agenda includes recognitions, public comment, consent agenda items, and regular agenda items such as utility software demonstration, storm water plan presentation, economic development reports, payroll deduction authorization, and community garden license agreement. The meeting will be held at the McNease Convention Center and is accessible to persons with disabilities.
On September 24, 2014, Kenneth Cook from WaterCentric joined us at the North Texas Commission offices to discuss Texas Water Rights and Alternative Sourcing. The North Texas Commission Webinar Series, Topic: North Texas, is presented by Verizon.
PA Commonwealth Court Decision Overturning Zoning Part of Act 13 Marcellus Dr...Marcellus Drilling News
The decision issued by the Pennsylvania Commonwealth Court, the appeals court (second level) in PA. The decision overturns a portion of the Act 13 Marcellus Shale drilling law passed by the PA legislature in early 2012. The zoning portion of the law would have overruled any local zoning of oil and gas drilling with state guidelines. Seven towns and a few others sued to have the zoning provision nullified. The case will likely go to the PA Supreme Court in 2012.
This presentation highlights some of the context behind the contentious debate between environmentalists and U.S. builder/developer interests over the issue of "wetlands". The issue has undertones that reveal the tension between pro-growth and slow- or no-growth advocates. It also reveals some of the machinations of the policy process, especially the use of agency power and the court system to bypass the legislative process. The material from which this presentation is based comes from the excellent book, "Housing in the Twenty-First Century: Achieving Common Ground", written by Kent Colton.
PP - Real Estate CLE June 2015 - finalKeith Turner
This document discusses environmental laws and risks associated with properties. It provides an overview of key federal environmental laws such as the Clean Air Act, Clean Water Act, and CERCLA. It also outlines environmental assessment processes like Phase I ESAs and defenses from CERCLA liability for innocent landowners and bona fide prospective purchasers. The document discusses strategies to manage environmental risks for both sellers and buyers of potentially contaminated properties.
This document discusses potential legal liability arising from the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. It outlines various environmental laws that could apply including the Oil Pollution Act, Clean Water Act, Endangered Species Act, and others. It examines which parties may be considered responsible under these statutes, such as BP as operator, Transocean as rig owner, and Halliburton as contractor. The document also reviews elements of liability, available damages, and penalties under these laws, which could total in the billions of dollars depending on whether gross negligence or willful misconduct is found.
This brief was submitted by intervenors-appellees-cross-appellants in defense of a Texas law (HB 1131) that restricts vertical integration between automobile insurers and autobody repair shops. The brief argues that HB 1131 does not violate the dormant Commerce Clause or the First Amendment. Regarding the dormant Commerce Clause, the brief asserts that HB 1131 regulates evenhandedly and was not enacted for protectionist purposes. Regarding the First Amendment, the brief argues that the commercial speech restrictions in HB 1131 regulate only false or misleading speech and place incidental burdens that are permissible. The brief urges the court to reject the challenges to HB 1131 and affirm the district court's
Delaware Riverkeeper v Pennsylvania Dept. of Environmental Protection - Leidy...Marcellus Drilling News
This document summarizes a court case involving petitions challenging permits issued by New Jersey and Pennsylvania environmental agencies for a pipeline expansion project. The court consolidated two petitions - one challenging NJ permits and one challenging a PA permit. The court determined it had jurisdiction to review the permits and that the state environmental agencies did not act arbitrarily in issuing the permits, so it denied the petitions. The project is now mostly completed in New Jersey.
The document provides notice of a public meeting of the City Council of San Angelo, Texas to take place on January 7, 2014 at 9:00 AM at the McNease Convention Center. The agenda includes items such as calls to order, prayers, pledges, public comments, consent agenda items, regular agenda items including public hearings, executive sessions, follow up issues, and adjournment. The meeting will include discussions on approving previous meeting minutes, economic development reports, master development strategies, zoning ordinance compliance, and other city business.
The Sierra Club sued the City of Bakersfield for approving a residential development without considering its environmental impacts. The parties reached a settlement where the developer agreed to various mitigation measures, including paying $1,200 per home for an air quality fund. This settlement sets an important precedent for requiring developers to mitigate air pollution from new projects. The Sierra Club's lawsuit achieved its goals of forcing better planning practices and funding for air quality improvements.
This amicus brief argues that the Federal Highway Administration violated principles of Environmental Justice in its site selection process for the Detroit River International Crossing project. It alleges the FHWA prematurely eliminated alternatives in wealthier, white communities due to political pressure. This left only sites in Detroit's poor, Latino community of Delray for consideration. The brief asserts the FHWA failed to properly consider building in areas that would not disproportionately burden a minority community, as required by Executive Order and FHWA regulations regarding Environmental Justice.
Amicus Curiae Brief from Delaware Riverkeeper in Gorsline v Fairfield TownshipMarcellus Drilling News
In Gorsline v Fairfield Township, neighbors have sued to stop a conditional use permit for driller Inflection Energy--essentially stripping away landowners' property rights in the process. After losing in a lower court, Gorsline et al appealed (being sponsored by Big Green groups PennFuture and Delaware Riverkeeper). If the decision is found "for" Gorsline, it would effectively end Marcellus Shale drilling in Pennsylvania.
Similar to Appellate Court ruling in Petrozzi v. Ocean City (20)
The document discusses the results of a study on the effects of a new drug on memory and cognitive function in older adults. The double-blind study involved 100 participants aged 65-80 who were given either the drug or a placebo daily for 6 months. Researchers found that those who received the drug performed significantly better on memory and problem-solving tests at the end of the study compared to those who received the placebo.
2015 Ocean City municipal budget presentation Feb. 19, 2015OceanCityGazette
This document summarizes the 2015 budget for a local municipality. Revenues are budgeted to increase by 2.67% to $72,017,647, due primarily to higher anticipated property taxes and fund balance. Appropriations are also budgeted to rise by 2.67% to the same amount. Within appropriations, salaries are budgeted to increase 3.19% while debt service rises 6.7%. The fund balance carried over from 2014 is $5,811,666, a portion of which is budgeted to be used to help balance the budget. A history of the fund balance shows balances remaining between 32-56% of annual budgets in recent years.
This document provides information about Ocean City Primary School's academic performance in the 2013-2014 school year. It summarizes that the school's academic achievement is high compared to other schools in the state and very high compared to peer schools. However, its college and career readiness lags behind other schools in the state and significantly lags behind peer schools. The document includes detailed data on student enrollment, demographics, performance on standardized tests, and progress toward targets.
Ocean City Intermediate School report card 2013-14OceanCityGazette
This document provides performance data for Ocean City Intermediate School for the 2013-14 school year. It finds that the school's academic achievement is very high compared to other schools in the state and its peers. However, its college and career readiness lags in comparison to other schools in the state, though it is about average compared to its peers. The school's student growth performance is very high compared to other schools in the state and its peers. The document also provides demographic information about the school's students and more detailed data on academic achievement by subject and grade level.
This document provides information about Ocean City Primary School's academic performance in the 2013-2014 school year. It summarizes that the school's academic achievement is high compared to other schools in the state and very high compared to peer schools. However, its college and career readiness lags behind other schools in the state and significantly lags behind peer schools. The document includes detailed data on student enrollment, demographics, performance on standardized tests, and progress toward targets.
This school's academic performance is average compared to other schools in the state. It outperforms 59% of schools statewide in academic achievement and 41% of peer schools. The school's college and career readiness is high, outperforming 61% of schools statewide and 62% of peer schools. Graduation and post-secondary performance is also high, outperforming 63% of schools statewide and 67% of peer schools.
The document outlines capital planning projects for the City of Ocean City from 2015-2019. It details various infrastructure projects including road improvements, drainage projects, beach and bay dredging, boardwalk reconstruction, improvements to public buildings and facilities, recreational areas, and vehicle and equipment purchases. The total capital budget has increased from $51.6 million for 2014-2018 to $79.4 million for 2015-2019.
The document contains a map that rates different roads on a scale from below 60 to 85-100. The legend shows the rating scales and identifies county roads and private roads. Various street names such as 24th St., 18th St., and 52nd St. are listed without any additional details about the road ratings.
Ocean City capital plan presentation summary 2015OceanCityGazette
This document outlines capital improvement projects and equipment purchases for the city across various categories from 2015-2019. The largest categories of spending are Paving and Drainage, Boardwalk, and Public Safety Building projects. Total planned spending is $79 million over the 5 year period, with the highest spending in 2015-2016 and lower amounts budgeted for the later years. Specific projects mentioned include dredging, beach and boardwalk reconstruction, building improvements, vehicle and equipment replacements, and communications and technology upgrades.
The document discusses the benefits of exercise for mental health. Regular physical activity can help reduce anxiety and depression and improve mood and cognitive functioning. Exercise causes chemical changes in the brain that may help protect against mental illness and improve symptoms.
The document discusses the benefits of exercise for mental health. It states that regular physical activity can help reduce anxiety and depression and improve mood and cognitive function. Exercise causes chemical changes in the brain that may help alleviate symptoms of mental illness.
The document discusses the benefits of meditation for reducing stress and anxiety. Regular meditation practice can help calm the mind and body by lowering blood pressure, reducing muscle tension, and decreasing levels of stress hormones. Making meditation a part of a daily routine, even if just 10-15 minutes per day, can significantly improve mood, focus, and overall feelings of well-being over time.
Council will consider introducing a $750,000 bond ordinance to build a permanent skatepark at Fifth Street and Asbury Avenue when it meets 7 p.m. Thursday, Nov. 13 at City Hall, Ninth Street and Asbury Avenue.
Recent years have seen a disturbing rise in violence, discrimination, and intolerance against Christian communities in various Islamic countries. This multifaceted challenge, deeply rooted in historical, social, and political animosities, demands urgent attention. Despite the escalating persecution, substantial support from the Western world remains lacking.
केरल उच्च न्यायालय ने 11 जून, 2024 को मंडला पूजा में भाग लेने की अनुमति मांगने वाली 10 वर्षीय लड़की की रिट याचिका को खारिज कर दिया, जिसमें सर्वोच्च न्यायालय की एक बड़ी पीठ के समक्ष इस मुद्दे की लंबित प्रकृति पर जोर दिया गया। यह आदेश न्यायमूर्ति अनिल के. नरेंद्रन और न्यायमूर्ति हरिशंकर वी. मेनन की खंडपीठ द्वारा पारित किया गया
लालू यादव की जीवनी LALU PRASAD YADAV BIOGRAPHYVoterMood
Discover the life and times of Lalu Prasad Yadav with a comprehensive biography in Hindi. Learn about his early days, rise in politics, controversies, and contribution.
projet de traité négocié à Istanbul (anglais).pdfEdouardHusson
Ceci est le projet de traité qui avait été négocié entre Russes et Ukrainiens à Istanbul en mars 2022, avant que les Etats-Unis et la Grande-Bretagne ne détournent Kiev de signer.
Slide deck with charts from our Digital News Report 2024, the most comprehensive exploration of news consumption habits around the world, based on survey data from more than 95,000 respondents across 47 countries.
13062024_First India Newspaper Jaipur.pdfFIRST INDIA
Find Latest India News and Breaking News these days from India on Politics, Business, Entertainment, Technology, Sports, Lifestyle and Coronavirus News in India and the world over that you can't miss. For real time update Visit our social media handle. Read First India NewsPaper in your morning replace. Visit First India.
CLICK:- https://firstindia.co.in/
#First_India_NewsPaper
15062024_First India Newspaper Jaipur.pdfFIRST INDIA
Find Latest India News and Breaking News these days from India on Politics, Business, Entertainment, Technology, Sports, Lifestyle and Coronavirus News in India and the world over that you can't miss. For real time update Visit our social media handle. Read First India NewsPaper in your morning replace. Visit First India.
CLICK:- https://firstindia.co.in/
#First_India_NewsPaper
12062024_First India Newspaper Jaipur.pdfFIRST INDIA
Find Latest India News and Breaking News these days from India on Politics, Business, Entertainment, Technology, Sports, Lifestyle and Coronavirus News in India and the world over that you can't miss. For real time update Visit our social media handle. Read First India NewsPaper in your morning replace. Visit First India.
CLICK:- https://firstindia.co.in/
#First_India_NewsPaper
Youngest c m in India- Pema Khandu BiographyVoterMood
Pema Khandu, born on August 21, 1979, is an Indian politician and the Chief Minister of Arunachal Pradesh. He is the son of former Chief Minister of Arunachal Pradesh, Dorjee Khandu. Pema Khandu assumed office as the Chief Minister in July 2016, making him one of the youngest Chief Ministers in India at that time.
16062024_First India Newspaper Jaipur.pdfFIRST INDIA
Find Latest India News and Breaking News these days from India on Politics, Business, Entertainment, Technology, Sports, Lifestyle and Coronavirus News in India and the world over that you can't miss. For real time update Visit our social media handle. Read First India NewsPaper in your morning replace. Visit First India.
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Appellate Court ruling in Petrozzi v. Ocean City
1. NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1633-11T4
A-1677-11T4
DR. & MRS. JOHN PETROZZI;
DR. & MRS. PHILIP LoPRESTI;
MR. & MRS. JACK DOUGHERTY;
APPROVED FOR PUBLICATION
MR. NICHOLAS TALOTTA &
MR. THOMAS L. PAGANO;
October 28, 2013
MR. & MRS. KURT ASPLUNDH;
APPELLATE DIVISION
MR. & MRS. MICHAEL C. COYLE;
MR. & MRS. ANDREW BERENATO;
MR. & MRS. THOMAS PESCI;
MR. & MRS. EDWARD HALES;
MR. & MRS. ROBERT KOONTZ;
MR. & MRS. HARRY BARBIN;
MR. & MRS. R. MARSHALL PHILIPS
and MS. ARLENE DIACO; MS. RUTH E.
ADLAM; MR. & MRS. DANIEL F.
AMOROSO; MS. MARTHA L. ASPLUNDH; MR.
BRETT A. BOAL & MS. LISA MARI
SHEPPARD; MR. & MRS. JOSEPH E.
BUONOMO; MR. & MRS. JEFFREY P.
CARPENTER; MR. & MRS. LARRY
CARRON; MR. HENRY COCCO; MR. &
MRS. DAVID P. DEGLER; MR. PETER
DEPAUL; MR. RONALD J. DiMEDIO;
MR. & MRS. DONALD F. DWYER; MR.
DENNIS ENGLE, MS. LYNN ENGLE & MR.
RICHARD RUTT; MR. & MRS. GROVER
FRIEND; MS. CHRISTINE HANNON;
MR. & MRS. FRANK IACUBUCCI; MR. &
MRS. JOHN JOHNSON; MR. & MRS. DAVID M.
McLAUGHLIN; MR. VICTOR J. MAGGITTI,
JR.; MR. & MRS. JOSEPH M. MARTOSELLA;
MR. & MRS. EUSTACE MITA; MOONRUN
ASSOCIATES, LLC (a/k/a Mumma Family);
MR. & MRS. WILLIAM L. MOPPERT;
MS. VERONICA MORTELITE; DR. & MRS.
JAMES J. NICHOLSON; MR. & MRS. THOMAS
PAGANO; MR. & MRS. DAVID E. PANICHI;
2. 3808 WESLEY AVENUE, LLC (a/k/a
Powers Family); MR. & MRS. RICHARD A.
RAND; MR. DAVID A. RAND POA;
WILLIAM ROSINI & OCEAN ASSOCIATES;
MR. JAMES D. SCULLY, JR. & M.A.
SCULLY; MS. MAUREEN D. SMITH; MR.
CARL W. STRICKLER; MR. & MRS. RICHARD
SYKORA; MR. STEPHEN B. TANNER; MS.
MARGARET WALTERS; MR. & MRS. G. WILLIAM
FOX,
Plaintiffs,
MR. & MRS. DANIEL T. HUGHES;
and MR. AND MRS. NICHOLAS J.
TALOTTA,
Plaintiffs-Respondents,
v.
CITY OF OCEAN CITY, a municipal
corporation; within Cape May
County, State of New Jersey,
Defendant-Appellant,
and
the DEPARTMENT OF ENVIRONMENTAL
PROTECTION, or its assigns, a
governmental agency formed by the
State of New Jersey,
Defendant.
___________________________________________________________
DR.
DR.
MR.
MR.
MR.
MR.
MR.
MR.
MR.
& MRS. JOHN PETROZZI;
& MRS. PHILIP LoPRESTI;
& MRS. JACK DOUGHERTY;
NICHOLAS TALOTTA &
THOMAS L. PAGANO;
& MRS. DANIEL T. HUGHES;
& MRS. KURT ASPLUNDA;
& MRS. MICHAEL C. COYLE;
& MRS. ANDREW BERENATO;
2
A-1633-11T4
3. MR. & MRS. THOMAS PESCI;
MR. & MRS. EDWARD HALES;
MR. & MRS. ROBERT KOONTZ;
MR. & MRS. HARRY BARBIN;
MR. & MRS. R. MARSHALL PHILIPS
and MS. ARLENE DIACO; MS. RUTH E.
ADLAM; MR. & MRS. DANIEL F.
AMOROSO; MS. MARTHA L. ASPLUNDH; MR.
BRETT A. BOAL & MS. LISA MARI
SHEPPARD; MR. & MRS. JOSEPH E.
BUONOMO; MR. & MRS. JEFFREY P.
CARPENTER; MR. & MRS. LARRY
CARRON; MR. HENRY COCCO; MR. &
MRS. DAVID P. DEGLER; MR. PETER
DEPAUL; MR. RONALD J. DiMEDIO;
MR. & MRS. DONALD F. DWYER; MR.
DENNIS ENGLE, MS. LYNN ENGLE &
MR. RICHARD RUTT; MR. & MRS.
GROVER FRIEND; MS. CHRISTINE
HANNON; MR. & MRS. FRANK IACUBUCCI;
MR. & MRS. JOHN JOHNSON; MR. & MRS.
DAVID M. McLAUGHLIN; MR. VICTOR J.
MAGGITTI, JR.; MR. & MRS. JOSEPH M.
MARTOSELLA; MOONRUN ASSOCIATES, LLC
(a/k/a Mumma Family); MR. & MRS.
WILLIAM L. MOPPERT; MS. VERONICA MORTELITE;
DR. & MRS. JAMES J. NICHOLSON; MR. &
MRS. THOMAS PAGANO; MR. & MRS. DAVID E.
PANICHI; 3808 WESLEY AVENUE, LLC
(a/k/a Powers Family); MR. & MRS.
RICHARD A. RAND; MR. DAVID A.
RAND POA; WILLIAM ROSINI & OCEAN
ASSOCIATES; MR. CARL W. STRICKLER; MR.
& MRS. RICHARD SYKORA; MR. AND MRS.
NICHOLAS J. TALOTTA; MS. MARGARET
WALTERS; and MR. & MRS. G. WILLIAM FOX,
Plaintiffs,
MR. & MRS. EUSTACE MITA;
MR. JAMES D. SCULLY, JR. &
M.A. SCULLY; MR. STEPHEN B. TANNER;
and MS. MAUREEN D. SMITH;
Plaintiffs-Appellants,
v.
3
A-1633-11T4
4. CITY OF OCEAN CITY, a municipal
corporation; within Cape May
County, State of New Jersey, and
the DEPARTMENT OF ENVIRONMENTAL
PROTECTION, or its assigns, a
governmental agency formed by the
State of New Jersey,
Defendants-Respondents.
______________________________________________
Argued September 9, 2013 – Decided October 28, 2013
Before Judges Parrillo, Harris and Kennedy.
On appeal from the Superior Court of New
Jersey, Law Division, Cape May County,
Docket No. L-218-05.
Michael P. Stanton argued the cause for
appellant (A-1633-11)/respondent (A-1677-11)
Ocean City (McCrosson & Stanton, P.C.,
attorneys; Dorothy F. McCrosson, of counsel
and on the brief).
Frank L. Corrado argued the cause for
appellants (A-1677-11) Mita, Scully, Tanner
and Smith (Barry, Corrado & Grassi, P.C.,
attorneys; Mr. Corrado, on the briefs).
Kenneth A. Porro argued the cause for
respondents (A-1633-11) Hughes and Talotta
(Wells, Jaworski & Liebman, L.L.P.,
attorneys; Mr. Porro, of counsel and on the
brief; Spencer J. Rothwell, on the brief).
Matthew T. Kelly, Deputy Attorney General,
argued the cause for respondent (A-1677-11)
New Jersey Department of Environmental
Protection (John J. Hoffman, Acting Attorney
General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Mr.
Kelly, on the briefs).
4
A-1633-11T4
5. The opinion of the court was delivered by
PARRILLO, P.J.A.D.
These back-to-back appeals, consolidated for purposes of
this opinion, present recurrent issues facing shore communities
and their residents.
In A-1677-11, we are asked, primarily, to
determine whether a municipality's failure to perform its part
of easement agreements with owners of beachfront properties is
due to reasonably unforeseen circumstances beyond its control so
as to be relieved of its contractual duty, and, if so, whether
these homeowners are nevertheless left without a remedy.
In A-
1633-11, we determine, where municipal liability has been
established, the proper measure of damages for the loss
occasioned by the municipality's breach.
Collateral issues
concern the viability of the homeowners' inverse condemnation
claims against the municipality and the State, through its
Department of Environmental Protection (DEP), and whether
certain plaintiffs had established their ownership of affected
beachfront property.
By way of background, prior to 1987, Ocean City did not
have a significant dune system to provide shore protection and,
instead, relied upon dunes that were naturally created.
To
rectify the problem, in 1989, Ocean City participated in a beach
5
A-1633-11T4
6. replenishment and dunes restoration program with a cost-sharing
ratio involving the State and federal government.
Before pumping sand from the sea to create the dune system,
however, the Army Corps of Engineers required that Ocean City
either own the beach or have access rights where the sand was to
be placed.
Thus, since a portion of the area identified for the
dune system was privately owned, Ocean City would have to either
acquire easements from beachfront property owners, or pursue the
more time-consuming process of condemnation.
Ocean City chose
the former course.
To ease property owners' concerns over their beachfront
views, beginning on April 26, 1991, Ocean City proposed
easements containing a restriction that the municipality would
construct and maintain the dune system with a height limitation
of no greater than three feet above the average elevation of the
bulkhead (i.e., twelve feet) in the block in which the property
was located.
Although the 1991 regulations promulgated pursuant
to the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:191 to -21, did not require a municipality to seek a CAFRA permit
from DEP for dune maintenance, nevertheless a series of State
Aid Agreements entered into between Ocean City and the State
6
A-1633-11T4
7. since 1987 required the municipality to obtain the agency's
written authorization before commencing a dune maintenance.1
From May 1, 1992 to December 8, 1995, Ocean City acquired
the necessary easements, including the three-foot height
restriction,2 from individual beachfront property owners.
Not
surprisingly, between 1992 and 2000, natural accretion caused
areas of the dunes to grow in height and width, and the affected
1
Specifically, paragraph 4 of the 1987 State Aid Agreement
provided that "[t]he municipality shall not undertake any
mechanical manipulation including[,] but not limited to[,]
bulldozing, grading, scraping, of the beach and dune areas
unless written authorization is received from the Division of
Coastal Resources."
2
The Perpetual Easement Deed stated:
As a further consideration for the
grant of this easement, the Grantee [Ocean
City] covenants that it shall perform, allow
or arrange for the following:
. . . .
(3) Dunes created pursuant to this
grant shall not exceed the average
elevation of the bulkhead in Block by
more than three (3) feet. The Grantee
shall construct and maintain the dune
system in a fashion to comply with this
height limitation.
In addition, Ocean City agreed to maintain beach access over the
dunes by creating an eight-foot access way mid-block to the
ocean and an open twenty-foot wide pathway adjacent to and
parallel with the existing bulkheads. The easements obtained by
plaintiffs or their predecessors in title were all obtained in
1992.
7
A-1633-11T4
8. property owners began requesting that Ocean City comply with the
dune maintenance provision in their easement agreements.
By
this time, however, by virtue of CAFRA amendments effective July
19, 19943 that included dune construction and maintenance as a
regulated activity, Ocean City was required to apply for a CAFRA
permit prior to performing dune maintenance to alter the size or
height of any dunes within the municipality.4
Consequently, on May 29, 2002, Ocean City filed with DEP a
CAFRA permit application to reduce the height of existing sand
dunes by mechanical excavation to an elevation of three feet
above the twelve-foot height of the existing adjacent bulkhead.
The agency deemed the application administratively complete, but
on May 17, 2005, denied the permit for non-compliance with
governing regulations.
unpublished opinion.
We affirmed the agency's action in an
City of Ocean City v. New Jersey Dep't of
Envtl. Protection, A-5199-06 (App. Div. September 26, 2008).
3
An amendment to N.J.S.A. 13:19-5 provided that "[a] permit
. . . shall be required for . . . [a] development located in
the coastal area on any beach or dune." L. 1993, c. 190, § 5.
This amendment was approved on July 19, 1993 and stated that it
"shall take effect one year from the enactment date of this
act." Ibid. Thus, a CAFRA permit was required for dune
maintenance after July 19, 1994.
4
In fact, several easements were executed after the effective
date of the July 19, 1994 CAFRA amendments, including those
involving plaintiffs-respondents in A-1633-11.
8
A-1633-11T4
9. Contemporaneously, on May 2, 2005, individual Ocean City
property owners filed a complaint in the Law Division against
Ocean City alleging, among other things, that Ocean City
breached its easement agreements by not maintaining the height
limitation on the beachfront dunes, causing the property owners
to lose their view, access and privacy.
On October 4, 2005,
they filed an amended complaint naming additional plaintiffs and
DEP as an additional defendant, alleging that DEP "had full
knowledge, participated and agreed to the dunes project in
question."
A second amended complaint added, among other claims
against Ocean City and DEP, a cause of action for inverse
condemnation.
Out of the original ninety-five individual plaintiffs
representing sixty-three beachfront properties, by time of trial
only twenty-five plaintiffs remained, representing seventeen
properties, including the six appellants in A-1677-11 and the
four respondents in A-1633-11.
Ocean City was the lone
defendant, the court having dismissed, on summary judgment
motion, plaintiffs' breach of contract claims against DEP,
because DEP was not a party to the easement agreements, and
plaintiffs' inverse condemnation claim, because plaintiffs had
not established a regulatory taking and had not lost
9
A-1633-11T4
10. substantially all of the beneficial use of the totality of their
properties.
A bifurcated bench trial was held on liability and damages.
As to the former, the only remaining claims against Ocean City
were breach of the easement agreements and inverse condemnation.
At the conclusion of the eight-day trial on liability, the Law
Division dismissed the inverse condemnation claims of all
plaintiffs as well as the breach of contract claims of all5 but
the four plaintiffs who had entered into easement agreements
with Ocean City after the effective date — July 19, 1994 — of
the CAFRA amendments.
Those four plaintiffs, each two of whom
own a beachfront condominium in the same two-unit, two-story
structure in Ocean City and who are respondents in A-1633-11,
proceeded to a three-day damages trial, at the conclusion of
which the court awarded $70,000 to the first-floor occupants
(Mr. and Mrs. Daniel Hughes) and $35,000 to the second-floor
occupants (Mr. and Mrs. Nicholas Talotta).
5
The breach of contract claims of two of these plaintiffs, Mr.
and Mrs. Eustace Mita, were dismissed as well on the ground they
failed to prove ownership of the affected beachfront property.
10
A-1633-11T4
11. As to liability, in dismissing the claims of the six
plaintiffs who are appellants in A-1677-11,6 the court found that
the 1994 CAFRA amendments rendered impossible Ocean City's
performance under the easement agreements pre-dating the
effective date of those amendments and, therefore, relieved the
municipality of its contractual obligations.
Finding
performance excused and no contractual breach, the court held
Ocean City was not liable to plaintiffs for damages, especially
since they received the benefit of added storm protection as a
result of the dune creation.
The court also dismissed
plaintiffs' inverse condemnation claims against Ocean City on
the same grounds it had previously rejected identical claims
against DEP, namely that neither DEP nor Ocean City physically
appropriated plaintiffs' properties and that plaintiffs had not
shown substantial loss of use required for a compensable
regulatory taking.7
6
With respect to the Mitas, the court additionally found these
appellants did not have riparian ownership of the area on which
the dunes were constructed.
7
The court stated:
Under general principles a property owner is
barred from any claim to a right of inverse
condemnation unless deprived of all or
substantially all of the beneficial use of
the totality of [the] property as the result
of excessive police power regulation.
(continued)
11
A-1633-11T4
12. These six plaintiffs now appeal the dismissal of their
breach of contract and inverse condemnation claims, seeking
liability judgments in their favor.
They argue, alternatively,
that even if Ocean City were discharged of its contractual
duties, plaintiffs are nevertheless entitled to restitution as
an equitable remedy to compensate them for the benefit they
conferred on the municipality.
Plaintiffs also contend that the
1994 CAFRA amendments, which prevented Ocean City from reducing
the height of the dunes seaward of their property and therefore
interfered with their ocean views and reduced the value of their
beachfront dwellings, effected a regulatory taking of their
property without just compensation.8
As to those four plaintiffs (respondents in A-1633-11) who
executed easement agreements after the July 19, 1994 effective
date of the CAFRA amendments, the court found municipal
liability because Ocean City was on notice at that time that it
could be barred from dune adjustment, and therefore the
(continued)
[Orleans Builders & Developers v. Byrne, 186
N.J. Super. 432, 446 (App. Div.), certif.
denied, 91 N.J. 528 (1982) (citing Penn
Central Transp. Co. v. New York City, 438
U.S. 104, 127, 98 S. Ct. 2646, 2661, 57 L.
Ed. 2d 631, 650 (1978)).]
8
Additionally, the Mitas contend the court erred in finding
their lack of ownership.
12
A-1633-11T4
13. impossibility defense did not apply.
As such, following a
damages trial at which both sides presented expert appraisal
testimony, the court, finding their methodologies flawed,
nevertheless awarded $70,000 to the first-floor residents of a
beachfront condominium building and $35,000 to the second-floor
owners.
Ocean City appeals from this judgment, arguing that
respondents' failure to offer competent expert proof quantifying
the effect of loss of beach views on the value of their real
property precludes an award of compensatory damages.
We first address the issues raised in A-1677-11.
I.
A-1677-11
Plaintiffs argue that Ocean City, having entered into the
easement agreements solely by virtue of authority delegated by
the Legislature, is in effect the State's alter ego and agent
and, therefore, should not be allowed to assert the defense of
impossibility based on what are, in essence, its own actions in
rendering those contracts ineffective.
And, even if considered
a separate entity, Ocean City is still not entitled to the
defense because the State's disapproval of Ocean City's permit
application was reasonably within the municipality's
contemplation when it promised plaintiffs it would limit dune
height.
We disagree.
13
A-1633-11T4
14. "Impossibility or impracticability of performance are
complete defenses where a fact essential to performance is
assumed by the parties but does not exist at the time for
performance."
Connell v. Parlavecchio, 255 N.J. Super. 45, 49
(App. Div.), certif. denied, 130 N.J. 16 (1992).
"Even if a
contract does not expressly provide that a party will be
relieved of the duty to perform if an unforeseen condition
arises that makes performance impracticable, 'a court may
relieve him of that duty if performance has unexpectedly become
impracticable as a result of a supervening event.'"
Facto v.
Pantagis, 390 N.J. Super. 227, 231 (App. Div. 2007) (quoting
Restatement (Second) of Contracts § 261 comment a (1981)); see
also M.J. Paquet, Inc. v. N.J. Dep't of Transp., 171 N.J. 378,
390-91 (2002).
The basis of the defense is "the presumed mutual assumption
when the contract is made that some fact essential to
performance then exists, or that it will exist when the time for
performance arrives."
Duff v. Trenton Beverage Co., 4 N.J. 595,
605 (1950) (internal quotation marks and citation omitted).
The
inquiry, therefore, is whether the condition "is of such a
character that it can reasonably be implied to have been in the
contemplation of the parties at the date when the contract was
made."
Ibid. (internal quotation marks and citation omitted).
14
A-1633-11T4
15. In other words, the parties must not have reasonably
foreseen the change that rendered the contract performance
impossible or impracticable.
As expressed in the Restatement:
Where, after a contract is made, a party's
performance is made impracticable without
his fault by the occurrence of an event the
non-occurrence of which was a basic
assumption on which the contract was made,
his duty to render that performance is
discharged, unless the language or the
circumstances indicate the contrary.
[Restatement (Second) of Contracts, supra, §
261.]
Specifically when dealing with a subsequent government act,
"[i]f the performance of a duty is made impracticable by having
to comply with a domestic or foreign governmental regulation or
order, that regulation or order is an event the non-occurrence
of which was a basic assumption on which the contract was made."
Restatement (Second) of Contracts, supra, § 264.
To be sure, a party cannot render contract performance
legally impossible by its own actions, Creek Ranch, Inc. v. New
Jersey Turnpike Authority, 75 N.J. 421, 432 (1978), as
plaintiffs allege Ocean City did here.
However, Ocean City, as
promisor, neither caused non-performance of its promise nor
reasonably contemplated the change in the law that rendered its
performance impossible or impracticable.
15
A-1633-11T4
16. As to the former, the mere conferral by the Legislature of
the power to contract, N.J.S.A. 40:48-1.2; N.J.S.A. 40:43-1;
N.J.S.A. 40A:12-4(a); Becker v. Adams, 37 N.J. 337, 340 (1962),
does not make the State the contracting party.
On the contrary,
it is undisputed that the State was not a party to the easement
agreements, which were negotiated, drafted and executed by the
municipality and agreed to by the individual property owners.
Moreover, as we found in our earlier opinion affirming the
agency's denial of Ocean City's permit application, DEP neither
endorsed, condoned nor approved the dune maintenance height
restriction in those easement agreements.
City of Ocean City,
supra, slip. op. at 11.
Although Ocean City, as a subdivision of the State, derived
its authority to contract from the State, it does not follow
that the municipality was acting as an agent of the State when
it entered into the easement agreements with its oceanfront
residents.
Clearly, Ocean City was acting in its (and its
residents') own best interests when it sought to obtain
easements to create and maintain dunes along its coast, just as
the State was acting in the best interests of all its citizens
when it sought to include, through the 1994 CAFRA amendments,
dune construction and maintenance as regulated activities
requiring a permit from DEP.
Undeniably, Ocean City had no
16
A-1633-11T4
17. control over the legislative enactment, which required the
municipality to submit to a formal application and approval
process, over which Ocean City also had no control.
Obviously
then, the entity that contracted and the entity that rendered
performance thereunder impracticable are separate and distinct.
Not only were the CAFRA amendments and DEP's subsequent
disapproval of Ocean City's permit application beyond the
municipality's control, they were also not reasonably
foreseeable events.
As noted, while a series of State Aid
Agreements governing funding for Ocean City's beach
replenishment projects required DEP's authorization to reduce
the height of the dunes, under 1991 CAFRA regulations then in
effect, no CAFRA permit was required and Ocean City was free to
engage in beach maintenance activities without submitting an
application to the agency.
Indeed, given the mutual goals of
beach replenishment and dune creation shared with the State, it
was entirely reasonable for the municipality to assume that it
would be permitted to carry out the three-foot height
restriction and thus fulfill its dune maintenance obligations to
plaintiffs, who allowed Ocean City access to their beachfront
property to create the dunes in the first instance.
And even
after adoption of the CAFRA amendments on July 19, 1993, it was
still reasonable for Ocean City to conclude that it would obtain
17
A-1633-11T4
18. a DEP permit, especially considering the fact that the
legislation provided a waiver of the permit process for grading
and excavating dunes.
N.J.S.A. 13:19-5.3.9
Having excused Ocean City's performance as impossible or
impracticable, the trial court found no liability for damages.
With this latter ruling, we part company.
In our view, the
court erred in concluding that because Ocean City did not breach
the contract, plaintiffs are not entitled to monetary relief.
"Where one party to a contract is excused from performance
as a result of an unforeseen event that makes performance
impracticable, the other party is also generally excused from
performance."
Facto, supra, 390 N.J. Super. at 233-34; see also
Restatement (Second) of Contracts, supra, §§ 237, 239, 267.
Even though the non-performing party is not in breach because
the impracticability doctrine discharges the duty, "'it cannot
demand something for nothing from the other party.'"
Facto,
supra, 390 N.J. Super. at 234 (quoting 14 Corbin on Contracts, §
9
N.J.S.A. 13:19-5.3 provides:
The commissioner may waive the permit
requirement for development . . . for any
development that involves the grading or
excavation of a dune by a governmental
agency if the commissioner finds that such a
waiver is warranted as a result of a storm,
natural disaster or similar act of God.
18
A-1633-11T4
19. 78.2 (Perillo Rev. 2001)).
As the Restatement makes abundantly
clear, a contractual impracticability does not render the
performing party remediless:
(1) In any case governed by the rules
stated in this Chapter, either party may
have a claim for relief including
restitution under the rules stated in §§ 240
and 377.
(2) In any case governed by the rules
stated in this Chapter, if those rules
together with the rules stated in Chapter 16
will not avoid injustice, the court may
grant relief on such terms as justice
requires including protection of the
parties' reliance interests.
[Restatement (Second) of Contracts § 272
(1981).]
Here, the parties agreed upon an exchange of performances
and because of events not reasonably foreseen, Ocean City's part
of the exchange cannot now take place.
Yet the fact remains
plaintiffs surrendered their right to compensation in reliance
on Ocean City's promise to protect their ocean views.
Absent
that reliance, Ocean City would have had to pay plaintiffs for
depriving them of their views.
If Ocean City may retain the
benefit of this bargain despite its failure to perform its
promise — even if performance was impracticable — without
consequence, the municipality would reap a windfall at
plaintiffs' expense and plaintiffs would have given "something
for nothing."
Facto, supra, 390 N.J. Super. at 234 (quoting 14
19
A-1633-11T4
20. Corbin on Contracts, supra, § 78.2).
Equity, however, demands
some relief for plaintiffs and, therefore, a hearing to
determine a fair and just restitutionary amount is warranted.
The question remains how to measure damages for restitution
in this case.
Obviously, the fixing of an appropriate
restitutionary amount must consider the value of that which
plaintiffs have been deprived, including loss of, or
interference with, their ocean views due to the accretive
effects.
But offset against the burdens suffered by plaintiffs
are the potential gains conferred by the partial consideration
performed by Ocean City to date, namely the non-speculative,
reasonably calculable benefits arising from the municipality's
dune project.
These may include the added wave/storm surge
protection afforded by the accretive effect of the dunes.
See
Borough of Harvey Cedars v. Karan, 214 N.J. 384, 416 (2013).
We
emphasize that the remedy we grant is an equitable one, and not
a substitute for eminent domain, for which a jury trial is not
appropriate.
Thus, all plaintiffs, save the Mitas, are entitled on
remand to a hearing to determine a fair and just restitutionary
amount for performing their part of the bargain with Ocean City.
As noted, in fixing the appropriate level of compensation, the
20
A-1633-11T4
21. court should consider, upon the requisite proofs, all the
factors we have previously identified.
As for the Mitas, for the reasons expressed by the trial
judge in his written opinion of September 9, 2010, we find they
have failed to prove by competent credible evidence their
riparian rights in the easement area and therefore affirm the
dismissal of their complaint against defendants in its entirety.
Suffice it to say, originating from the State, "a riparian grant
is a conveyance in fee simple of real property[;] [a]s such,
without specific mention in the deed or other evidence that the
parties intended its inclusion, a riparian grant will not pass
as appurtenant to another district parcel."
One, Inc., 190 N.J. 307, 309 (2007).
Panetta v. Equity
In other words, a riparian
grant must be explicit in a real estate conveyance and the Mitas
presented no documentary proof expressly and definitively
supporting their claim.
As the trial judge noted here:
It may well be that at some point some of
the oceanfront owners['] predecessors in
title received a grant; but if that grant
was not passed on in the chain of title then
it remains a separate parcel. The required
riparian ownership only adheres in the
initial transaction with the State. A
riparian grant is the conveyance of real
property divided from the uplands by a fixed
boundary, no different from any other
conveyance of land.
21
A-1633-11T4
22. The Mitas were not a party to the original easement dated
March 10, 1992, and failed to establish a chain of title through
which they received a riparian grant.
Specifically, the Mitas
offered no deed by which they took title from the grantor (the
Maffuccis) on the perpetual deed of easement to Ocean City,
which "expressly acknowledged ownership of the beachfront
property and that included a metes and bounds description of the
property as part of the deed of easement."
In fact, the only
document produced by the Mitas was a 2007 deed from grantor
Eustace Mita, who had purchased the property on June 1, 1996, to
himself and his wife Suzanne Mita as grantees.
While the
document refers to a riparian grant, there is, as noted, no deed
in this record by which the Mitas obtained title from the
grantor on the deed of easement.10
The Mitas did produce a
survey describing the property in issue, but did not explain its
source and therefore the document does not definitively
establish any riparian grant to the Mitas.
Nor does their
unsubstantiated claim that Ocean City "has assessed property
10
When the Mitas' counsel asked Mr. Mita who owned the property,
he replied "my wife and I are the owners through a trust."
22
A-1633-11T4
23. taxes on the beachfront lot against the Mitas and their
predecessors."11
As the trial judge properly noted:
[T]he [c]ourt cannot rely upon the issuance
of tax bills as proof of ownership based
upon the record. Proof of the ownership, as
indicated, would be available by title
search and deed or survey. Any of these
would have been acceptable. That evidence
was not produced for [the Mitas].
Because we have found the remaining plaintiffs-appellants
entitled to a restitutionary hearing, we need not dwell on their
alternative claim to compensation.
Simply stated, plaintiffs
claimed a right to inverse condemnation by a "regulatory
taking," which they were barred from asserting unless deprived
of all or substantially all of the beneficial use of their
property by virtue of governmental regulations.
Orleans
Builders & Developers v. Byrne, 186 N.J. Super. 432, 446 (App.
Div.), certif. denied, 91 N.J. 528 (1982); see also Penn Central
Transp. Co. v. New York City, 438 U.S. 104, 127, 98 S. Ct. 2646,
2661, 57 L. Ed. 2d 631, 650 (1978).
As our Supreme Court has
stated:
Diminution of land value itself does not
constitute a taking. Similarly, impairment
of the marketability of land alone does not
effect a taking. . . . A regulatory scheme
will be upheld unless it denies all
11
The Mitas did not produce any tax documents. During trial,
when asked if he pays a "tax bill for the property extending to
the ocean," Mr. Mita responded, "I don't know."
23
A-1633-11T4
24. practical use of property, or substantially
destroys the beneficial use of private
property, or does not allow an adequate or
just and reasonable return on investment[.]
[Gardner v. N.J. Pinelands Comm'n, 125 N.J.
193, 210-11 (1991) (internal quotation marks
and citations omitted).]
The trial judge, here, found that the subject properties
diminished in market value only between fifteen to thirty-five
percent, and therefore rejected plaintiffs' inverse condemnation
claim because plaintiffs "still maintain[ed] beneficial use of
much of their property."
No one disputes the court's factual
finding, to which we defer, and his legal conclusion is
unassailable.
See Bernardsville Quarry v. Borough of
Bernardsville, 129 N.J. 221, 239-40 (1992) (finding no taking
where the property value decreased from $34,000,000 to
$2,700,000; a 92% decrease); In re Loveladies Harbor, Inc., 176
N.J. Super. 69, 73 (App. Div. 1980), certif. denied, 88 N.J. 501
(1981) (finding no taking where a regulation left a property
owner able to develop only 25% of his property, stating there
was still "substantial potential use").
Therefore, plaintiffs'
claims of inverse condemnation against Ocean City and DEP were
properly dismissed as plaintiffs failed to demonstrate they were
deprived of "all or substantially all of the beneficial use" of
their properties.
Orleans Builders, supra, 186 N.J. at 446.
24
A-1633-11T4
25. II.
A-1633-11
Having found Ocean City liable to four plaintiffs, namely
two couples who each own in condominium form a unit in a twounit, two-story beachfront dwelling, the judge proceeded to a
three-day bench trial to determine the amount of damages to
which each plaintiff was entitled.
following undisputed facts.
The hearing produced the
The Hughes plaintiffs bought the
entire duplex, built in 1962, in 1974 along with other investors
and took title to the first-floor unit in 1981.
purchased the second-floor unit in 1987.
The Talottas
At the time, there
were no dunes in front of the property as the area was
essentially flat during the 1970's and 1980's.
Both plaintiffs
have riparian rights out to the high water line.
The perpetual easement deed executed between the
plaintiffs' condominium association and Ocean City on May 2,
1995, well after the CAFRA amendments, acknowledged, as part of
the consideration, the benefit to be received from construction
of the sand dune system for shore erosion control.
As with all
other plaintiffs, the easement was also subject to certain
conditions, namely: (1) the owners would have mid-block access
to the beach over any dune created not to exceed eight-feet in
width; (2) there would be a twenty-foot-wide pathway running
parallel to the ocean; and (3) most notably, for present
25
A-1633-11T4
26. purposes, the dunes created would not exceed an average
elevation of three feet two inches above the bulkhead.
Ocean
City expressly represented to plaintiffs that if they did not
grant a perpetual easement, the municipality would proceed to
condemnation through eminent domain proceedings.
Ocean City complied with the height requirement for several
years, until about 1995 when there appeared significant changes
in dune structure and plantings.
In fact, the last measurement,
from April 2007, concluded the dune was 6.224 feet above the
three-foot two-inch limit at the north dune point and 4.44 feet
above the limit at the south dune point.
Consequently, these
plaintiffs, along with others, sued for loss of breeze, loss of
access, and loss of ocean view.
At the conclusion of the bench
trial, the judge found no damages for loss of breeze due to lack
of evidence and no damages for loss of access because, as part
of the bargain, Ocean City built a pathway along the property.
This much is not in dispute or an issue here.
The core issue at trial was loss of view and its valuation.
Actually, it was undisputed that these plaintiffs suffered a
loss of view, as the trial judge observed first hand in his two
visits to the site in question.
Where the plaintiffs and the
municipality parted company was the amount of damages attributed
to this loss, as all agreed that ocean view has value and the
26
A-1633-11T4
27. deprivation or diminution of view is compensable if the market
recognizes such loss.
On this issue, plaintiffs' expert Robert Gagliano, a
certified appraiser, employed the sales comparison approach,
which he described as an "appraisal procedure in which the
market value of a property is estimated by direct comparison and
analysis of the sales of similar substitute properties."
Gagliano originally appraised each of the two units at
$1,000,000.12
Then to establish the effect of growing dune
height on the market value of a first-floor condo unit, Gagliano
set up two classifications, comparing plaintiffs' units to pre2000 sales and post-2000 sales, noting that issues associated
with elevated dune height did not become apparent until after
2000.
Gagliano identified seven properties where the first and
second floor units were sold between 1987 and 2000 as comparable
although he did not obtain access to any of them to verify their
views of the ocean.
He also made no adjustments as he would
normally have done in an appraisal process, such as conditions
12
The original $1,000,000 appraisal was based on sales of seven
properties — all first-floor condominium units — considered
comparable that took place between February 17, 2006 and January
31, 2008. Gagliano provided adjustments for date of sale
(timing), condition/quality/age of the properties; room count;
gross living area; and construction quality.
27
A-1633-11T4
28. of sale, date of transaction and physical characteristics.
Gagliano established a value difference for the seven properties
between 1.10% and 15.52% solely based on the gross sales price
difference of the first floor and the second-floor without any
adjustments for view, age, construction or condition.
A median
of 6.96% was obtained from these comparisons.
Gagliano also identified six properties sold after 2000.
Once again, he made no adjustments for design, quality,
condition, or view and simply relied on gross sales price.
He
arrived at a median difference in value between first floor and
second floor units of 21.33%.
Gagliano subtracted the median value difference of 6.96%
for sales between 1987 and 2000 from the median value difference
of 21.33% for post-2000 sales to reach a result of 14.3%,
rounded up to 15%, which he then concluded was the percentage
(15%) impairment of value based upon the height of the dunes and
assumed loss of view.
Gagliano therefore estimated the loss in
value of the Hughes' first-floor property to be $150,000 after
applying the 15% calculation to the original appraisal value of
$1,000,000.
Gagliano arrived at the same loss in value for the
28
A-1633-11T4
29. Talotta's second-floor unit after applying the 15% calculation
to the appraisal value of $1,000,000.13
Ocean City's appraiser, Paul Johnson, used a methodology
valuation that was limited to the reduction in value of the
structure on the property.
the land itself.
He attributed no loss of value to
Johnson concluded that any diminution would be
limited to the life of the building on the property, which he
opined was nine years.
Johnson found a higher loss in value for
the second-floor unit than the first-floor unit, determining a
diminution in value of $1,800 for Hughes and $3,000 for Talotta.
The trial judge rejected both analyses as "flawed."
He
criticized Gagliano's methodology for failing to factor in the
usual adjustments and failing to evaluate the height of the
dunes in front of, and the view from, any of the properties
considered "similar."14
The judge also faulted Gagliano's
13
However, when Talotta complained to Gagliano that his property
was more valuable than that of Hughes, Gagliano revised the
value of the Talotta property to $1,210,000 and after applying
the 15% factor, arrived at a loss of value of $180,000.
14
Specifically, the judge found:
The weakness in the appraisal is in part
based upon not having more detailed
knowledge of the view from each property
which of course is the charge he was given
in terms of valuation; i.e., to estimate the
impact of dune growth and loss of view on
the value of the property. Therefore his
(continued)
29
A-1633-11T4
30. application of the 15% impairment factor to both first and
second floor properties when the loss of view is greater for the
former.
The judge similarly criticized Johnson for
"invert[ing]" the values and finding a higher loss for the
second-floor unit than the first-floor unit.
But even more
fundamentally, the judge disagreed with Johnson's belief that
diminution in value is limited to the nine-year life of the
obsolete building on plaintiffs' property, finding instead "that
view affects land value and not just structure value."
Having faulted both approaches, the judge nevertheless
found plaintiffs' loss of view compensable and that the
severance analysis employed in City of Ocean City v. Maffucci,
326 N.J. Super. 1 (App. Div.), certif. denied, 162 N.J. 485
(1999), an eminent domain case, was "appropriate to evaluate the
breach of contract damages for violation of the Easement
Agreement" because if there had been no easement agreement,
there would have been condemnation by eminent domain.
In Maffucci, a first-floor oceanfront property owner at
2825 Wesley Avenue, six blocks north of plaintiffs' property in
the 3600 block of Wesley, would not agree to a $1 easement for a
(continued)
appraisal differentials are weak at their
very foundation.
30
A-1633-11T4
31. 50' by 80' strip of beach.
326 N.J. Super. at 4-5.
Consequently, Ocean City decided to take the property by eminent
domain.
Id. at 4.
A jury trial ensued after the condemnation
commissioners declared just compensation to be only $1.00.
at 5.
Over Ocean City's objection, the trial judge allowed the
jury to consider evidence of loss of access and view.
13.
Id.
Id. at
The jury returned a verdict of $1.00 for the easement and
$37,000 for severance damages, i.e., compensation for the
diminution in value of the property remaining after the
"taking."
Ibid.15
We upheld the verdict on appeal.
Finding that the loss of
ocean view and access are elements for which severance damages
may be awarded, id. at 18, we held that there was evidence to
support the conclusion that the Maffuccis lost their ocean view,
beach access and privacy, id. at 14.
As to valuation, while we
recognized that "the amount of the severance damages occurring
as a result of the taking, could not be calculated with any
degree of accuracy or fairness[,]" id. at 15, we nevertheless
ruled that "where only a portion of a property is condemned, the
15
The Maffuccis' expert, a real estate broker, had estimated
total severance damages at $100,000; $75,000 was damage to the
first floor and $25,000 was damage to the second floor. He
based his opinion on before and after sales using the before and
after sales of comparable properties. He attributed 60% to loss
of view; 20% to loss of access; 10% to loss of use; and 10% to
loss of privacy. Id. at 6.
31
A-1633-11T4
32. measure of damages includes both the value of the portion of
land actually taken and the value by which the remaining land
has been diminished as a consequence of the partial taking."
Id. at 18 (citing State, by Comm'r of Transp. v. Silver, 92 N.J.
507, 513 (1983)).
To determine the value of the property
remaining after the partial taking, we found that:
[A]n examination of all of the
characteristics of such remaining property
after the time of the taking, as opposed
solely to facts in existence at or
immediately before condemnation, is
inescapable. Therefore, in the case of a
partial taking, the market value of property
remaining after a taking should be
ascertained by a wide factual inquiry into
all material facts and circumstances — both
past and prospective — that would influence
a buyer or seller interested in consummating
a sale of the property.
[Id. at 19 (quoting Silver, supra, 92 N.J.
at 515).]
Here, applying Maffucci's severance analysis, the trial
court quantified plaintiffs' respective damages, reasoning:
In spite of the inadequate appraisal
testimony by the experts, the Court is not
constrained from making an award for loss of
view. It does not take an expert to arrive
at the conclusion that view has value. The
best and most expensive seats in the theatre
are close up with the best view. The best
and most expensive regular seats at major
league baseball are near home plate and
along the first and third base lines close
up to the field. At football games, we hope
to be at or close to the fifty (5[0]) yard
line.
32
A-1633-11T4
33. We also know intuitively that built
into the value of oceanfront property is the
quality of the view of the beach and ocean
beyond. The closer to the beach, the higher
the rent and the higher the purchase price
for similar properties. Therefore, if a
contract provides protection for that view
as in the Easement Agreement, failure to
protect it is a breach of contract.
Valuation of the breach is the issue. The
award of damages need not be precise based
on an expert opinion. Here the Court makes
the award based on a number of factors. The
decrease in market value is one such factor.
The Court finds that the increase of dune
height and loss of view caused thereby
negatively affects market value. The Court
does not accept the determinations of either
expert. However, the differential in first
floor and second floor values on the ocean
reflect in part the views. The height of
the dunes impacts the ground level property
substantially more than the second floor
property regardless of the value of the
respective units. However, the width of the
dunes toward the ocean also may affect value
and that is not compensable and is not a
breach of this contract. That width
increases the distance to the usable beach
for sunbathing and swimming. The first
floor property has suffered the most severe
loss of view because it is a 1962 home built
at ground level and not raised up to full
zoning height. That loss may or may not be
temporary. Clearly, new construction,
including nearby this property, is at a
greater height so even the first floor of
living area would enjoy better views if so
constructed hereafter. The Perpetual
Easement Deed runs with the land so
longevity can be a factor. However, dune
protection comes and goes. The nature of
our coast in New Jersey sometimes restores
view by taking away dune protection. The
property owners here are long time
oceanfront property owners – Hughes since
33
A-1633-11T4
34. 1974 and Talotta since 1987 and have
maintained ownership during the entire
period of conflict with the City.
The Hughes' claim results in a
compensable loss of view for the first floor
unit and common elements of $70,000.
The Talotta claim results in a
compensable loss of view for the second
floor unit and common elements of $35,000.
On appeal, Ocean City contends that plaintiffs are not
entitled to an award of compensatory damages for diminution in
the value of their properties because having rejected both
experts' analyses, there was no competent evidence upon which
the court could ascertain the loss.
We disagree.
In the first place, it is beyond question that plaintiffs
suffered a loss of ocean view, that such a loss has value, and
that the loss is compensable.
Both experts agreed to at least
as much, and the documentary, photographs and testimonial proofs
leave no room to doubt these facts.
Moreover, the analytical
framework used to measure the damages espoused in Maffucci,
supra, was adopted by the trial judge in this case.
And
governed by that standard, the judge assessed the expert proofs
and found them wanting, which he was free to do.
Cnty. of Ocean
v. Landolfo, 132 N.J. Super. 523, 528 (App. Div. 1975); see also
Trenton v. John A. Roebling Sons Co., 24 N.J. Super. 213, 219
(App. Div. 1953) ("The determination of the weight to be given
34
A-1633-11T4
35. to the statements of expert witnesses in the first instance is
for the hearing tribunals, and that weight depends upon their
candor, intelligence, knowledge, experience, and especially
[upon] the facts and reasoning which are the foundation of their
opinion.").16
While we agree with the trial judge's critique of the
expert proofs and his adoption of the Maffucci methodology, we
are unclear as to how he otherwise arrived at the severance
damages awarded to plaintiffs in this case.
Although the judge
stated that he considered the decline in market value caused by
the loss of ocean view as one of several factors, he failed to
mention how that decline was quantified and failed to identify
the other factors taken into account in his valuation.
Perhaps
the court, in its embrace of the Maffucci approach, also took
note of the values ascribed therein, given the proximity of the
properties to the two units involved here.
But we question
whether that was indeed the case, as we do the propriety of such
reliance.
16
Plaintiffs' expert failed to observe the view from the
"comparable" properties and made no adjustments in the "before
and after" comparison sales to account for differences in
quality, area and condition, among other attributes. Ocean
City's appraiser's methodology was also flawed as he relied on
the reduction in value of the structure and not the property,
even though dune height undoubtedly affects the property value.
35
A-1633-11T4
36. To be sure, "[f]indings by the trial judge are considered
binding on appeal when supported by adequate, substantial and
credible evidence."
Rova Farms Resort, Inc. v. Investors Ins.
Co., 65 N.J. 474, 484 (1974).
Our appellate function, on the
other hand, is a limited one:
we do not disturb the factual findings and
legal conclusions of the trial judge unless
we are convinced that they are so manifestly
unsupported by or inconsistent with the
competent, relevant and reasonably credible
evidence as to offend the interests of
justice, and the appellate court therefore
ponders whether, on the contrary, there is
substantial evidence in support of the trial
judge's findings and conclusions.
[Ibid. (internal quotation marks and
citations omitted).]
However, "[i]t is important that a trial court make
specific findings, particularly when faced with a complex
financial valuation question, so that the parties and reviewing
court may be informed of the rationale underlying the court's
conclusion."
Orgler v. Orgler, 237 N.J. Super. 342, 358 (App.
Div. 1989); see also Esposito v. Esposito, 158 N.J. Super. 285,
291 (App. Div. 1978).
Because the trial court here failed to
make specific findings as to its damages awards, we are
constrained to remand the matter for further explication of its
fact determinations and conclusions of law.
However, before
rendering any further explication of its rationale, we suggest
36
A-1633-11T4
37. that, as with the remand hearing ordered for the other
plaintiffs in A-1677-11, the remand judge allow further proofs
of valuation, consistent not only with Maffucci's analytical
framework, but as well with the admonition in Borough of Harvey
Cedars v. Karan that "the quantifiable decrease in the value of
their property -- loss of view -- should [be] set off by any
quantifiable increase in its value -- storm-protection
benefits[.]"
214 N.J. at 418.
Along with any "non-speculative,
reasonably calculable benefits from the dune project," id. at
387, the remand judge should inquire "into all material facts
and circumstances . . . that would influence a buyer or seller
interested in consummating a sale of the propert[ies]" in
question.
Maffucci, supra, 326 N.J. Super. at 19.
In A-1677-11, affirmed in part, reversed and remanded in
part.
In A-1633-11, remanded.
37
A-1633-11T4