Scaduto v. State
| Decision Date | 12 January 2023 |
| Docket Number | DOCKET NO. A-3240-20 |
| Parties | John Robert SCADUTO and Debra Lynn Scaduto, Plaintiffs-Appellants, v. State of New Jersey, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant-Respondent. Robert J. Harkins, Plaintiff-Appellant, v. State of New Jersey, Department of Environmental Protection, Defendant-Respondent. Mark Curcio and Barbara Curcio, Plaintiffs-Appellants, v. State of New Jersey, Department of Environmental Protection, Defendant-Respondent. Sandbox Properties, LLC, Plaintiff-Appellant, v. State of New Jersey, Department of Environmental Protection, Defendant-Respondent. Anthony D'Auria and Deborah D. D'Auria, Plaintiffs-Appellants, v. State of New Jersey, Department of Environmental Protection, Defendant-Respondent. Stephen Roma and Mary L. Roma, Plaintiffs-Appellants, v. State of New Jersey, Department of Environmental Protection, Defendant-Respondent. Richard Colavita and Anne S. Colavita, Plaintiffs-Appellants, v. State of New Jersey, Department of Environmental Protection, Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
John J. Reilly argued the cause for appellants (Bathgate, Wegener & Wolf, PC, attorneys; John J. Reilly, on the briefs).
Brian W. Keatts argued the cause for respondent (Rutter & Roy, LLP, attorneys; Brian W. Keatts, on the brief).
Before Judges Accurso, Firko and Natali.
The opinion of the court was delivered by
ACCURSO, P.J.A.D.
Plaintiffs in these seven inverse condemnation actions, consolidated in the trial court, appeal from Judge Lynch Ford's dismissal of their complaints against the Department of Environmental Protection under the entire controversy doctrine. The dismissal order leaves plaintiffs to their remedies in the DEP's condemnation action against their homeowners association — in which plaintiffs, as well as the Association and the DEP, have appealed from the report of the condemnation commissioners, entitling them to a jury trial already scheduled for February 2023. Because we agree plaintiffs' rights to separate awards for just compensation for the loss of value to their homes, if any, resulting from the DEP's exercise of eminent domain as to the beach lot owned by their Association are fully protected through their participation in the earlier filed condemnation action, we affirm.
Plaintiffs are seven of the twenty-two members of the Bayhead Point Homeowners Association, Inc., which owns an unbuildable, two-and-a-half-acre beach lot along the Atlantic Ocean in Point Pleasant Beach near its border with Bay Head.1 According to the Association's Declaration of Covenants and Restrictions, each of the plaintiffs, as owners of one of the twenty-two "Lots and their assigns, ... successors, ... grantees, ... shall have a perpetual, non-exclusive easement for recreational purposes in, upon and across the Beach." The Declaration also provides plaintiffs a non-exclusive free and unobstructed right of ingress and egress to the beach lot via the six-foot-wide beach access easement walkway between Lots 9.03 and 9.04.
The DEP filed its condemnation action against the Association in December 2015 to acquire a perpetual storm damage reduction easement in the beach lot as part of the Department's collaboration with the Army Corps of Engineers in the Manasquan Inlet to Barnegat Inlet Storm Damage Reduction Project, a dune and berm system in northern Ocean County stretching from Berkeley Township to Point Pleasant Beach begun after Superstorm Sandy. See State v. N. Beach 1003, LLC, 451 N.J. Super. 214, 223-25, 166 A.3d 239 (App. Div. 2017) (describing the project). In its complaint, the DEP acknowledged plaintiffs' access easement provided in the recorded Declaration of Covenants, but noted it was "taking the storm damage reduction easement subject to the rights held by these oceanfront lot owners to cross the dune in a manner allowed by local and state law."
On August 26, 2016, the court signed and entered a consent order between the DEP and the Association resolving the Association's objections to the DEP's failure to join the members of the Association as necessary parties in the condemnation action. The order provided that any member of the Association would be entitled to present evidence relating to claims for severance damages allegedly caused to the member's property by the DEP's partial taking of the Association's beach lot before the condemnation commissioners to be appointed by the court.2 Any member appearing at the commissioners' hearing and filing a timely notice of appeal from the commissioners' report pursuant to Rule 4:73-6 would likewise have the right to make claims for severance damages, if any, at the trial de novo.
The consent order also provided the failure of a member to appear at the commissioners' hearing, either personally or through counsel, would preclude that member's appeal from the commissioners' report. Finally, it provided a copy of the order "shall be served by counsel for the Association upon all members of the Association within seven days of its receipt." The court incorporated the terms of the consent order in its separate order of the same date declaring the DEP had the authority to condemn the Association's property to take a perpetual easement for the purpose of protecting the State's shoreline, a legal conclusion we subsequently endorsed in North Beach 1003, 451 N.J. Super. at 223, 166 A.3d 239.
A few weeks later, the court entered final judgment for the DEP in the condemnation action and appointed commissioners to establish the value of the taking. The DEP recorded its declaration of taking two months later. The commissioners' hearing, however, was not held until October 2019, by which time the Army Corps had completed the dune restoration project, dredging and pumping more than eleven million cubic yards of sand onto the beaches between the Manasquan and Barnegat inlets. The project resulted in a newly constructed dune and elevated beach area on 2.15 acres, or eighty-five percent, of the beach lot. Although recreation on the beach dune was prohibited by State law both before and after completion of the project, the work increased the usable portion of the Association's beach lot from 69,000 to 95,000 square feet.
Plaintiffs claim they did not receive the 2016 consent order until March of 2019. Their retained counsel, however, appeared on their behalf at the commissioners' hearing seven months later, which was conducted at his office. Following the commissioners' issuance of their report, which is not a part of this record, the DEP filed a notice of appeal from the award and a jury demand.
Both the Association and plaintiffs filed cross-appeals, with plaintiffs framing the issue to be tried as the just compensation for the taking of the beach lot, "as well as the separate just compensation due to each of the respective [plaintiffs] by reason of the taking ... of property of each ... and any damages to their respective residential lots." In their notice of appeal, plaintiffs advised that "in order to fully protect their rights to just compensation," each would also be filing a separate inverse condemnation action alleging the State had effected a partial taking of each plaintiff's separate property "without due process and without just compensation, including the impairment of the use and enjoyment of each owner's residential lot." The judge signed plaintiffs' form of order in the condemnation action, ensuring that among the issues to be tried in that action will be "the separate just compensation due to each of the respective [plaintiffs] by reason of the taking ... of property of each ... and any damages to their respective residential lots."
Nine months later, plaintiffs filed their seven separate actions, which Judge Lynch Ford consolidated and dismissed on the State's motion in an opinion from the bench, agreeing plaintiffs' claims are barred by the entire controversy doctrine. See Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108, 203 A.3d 133 (2019) (). The judge reasoned she had already permitted, "in effect," plaintiffs' intervention in the DEP's condemnation action "for the purpose of fully asserting" whatever claims they might have for damages to their easement rights — and plaintiffs were pursuing their claims in that action. Because plaintiffs suffered no unfairness in having their claims adjudicated in the condemnation action and doing so promoted a single disposition of all claims arising out of the DEP's taking of the easement in the beach lot, avoiding both "piecemeal decisions" and the inefficiency and delay that would be occasioned by a separate action — or seven — the judge found the entire controversy doctrine mandated dismissal.
Plaintiffs moved for reconsideration, arguing the entire controversy doctrine did not apply because there had never been an adjudication of the taking of their easement rights; State v. Orenstein, 124 N.J. Super. 295, 306 A.2d 479 (App. Div. 1973), required a separate action; and the court had wrongly conflated plaintiffs' easements to cross the dune, which the State's easement did not impair, and their recreational easement in the beach lot, which plaintiffs characterized as "a discrete separate easement of recreational use in the private beach." Judge Lynch Ford denied the motion. The judge reiterated that "plaintiffs have a forum within which to determine the loss of value, if any, to their properties resulting from the takings related to the project" as the court "established a mechanism" in the condemnation action for consideration of those claims with the claims of the Association to which they are obviously related.
Plaintiffs appeal, reprising their arguments to the trial court. Our review of a decision on summary judgment is de novo, Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582, 243 A.3d 633 (2021),...
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