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William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

Legal Q & A

 

Valuation of Potentially
Contaminated Property,
Legal Searches and the
Open Public Records Act



Deborah M. Kole
League Staff Attorney

Q I am a member of the council in a municipality that is considering condemning property for a redevelopment project. The problem is that we have discovered the property may be contaminated, and we are afraid that if we condemn it, we may wind up paying the full value of the property on condemnation and then be stuck later with environmental cleanup costs as well. Can we get the court to value the property with a deduction for the estimated cost of cleanup?

A In the case of Housing Authority of the City of New Brunswick v. Suydam Investors, 177 NJ 2 (2003), the New Jersey Supreme Court established the appropriate method of valuation in such a situation. The Court held that the condemned property should be valued as though it has already been remediated, but that the condemnation award should be deposited with the court in a trust account. The condemnor should reserve the right to maintain a cost-recovery action to obtain remediation/cleanup costs, and may seek an order requiring that part of the condemnation award be set aside to satisfy the property's clean-up costs.

Q Someone in our municipality was recently arrested for possession of a gun without a permit in his home. The police found the gun out on a table in the house during what I think was an unconstitutional entry into and search of the premises. The police had received a 911 call from the house. No one was on the line when the call was answered, and when the dispatcher called the number back, the line was busy. Police then responded to the address, and the defendant came to the front door. Although he insisted no one else was with him in the house and that he was fine, the police insisted on entering the house "to make sure no one needed help." They found no one else there, but they did find the gun and arrested him. Is this a legal entry and search?

A The New Jersey Supreme Court has ruled in State v. Gary N. Frankel, (A-90-02, decided May 12, 2004) that in such a situation "the totality of the circumstances"
justify the warrantless entry into the residence by the police. The Court held that, in light of the 911 call, it was reasonable for the officer to assume that someone might be in need of help inside the house, despite what the defendant said, and therefore the warrantless entry was legal. The weapon found "in plain view" afterwards was admissible evidence against the defendant.

 

Q Our municipality is being sued in state court over denial of a variance. Rather than use the Court Rules concerning discovery, the plaintiff is requesting records relating to the suit under the Open Public Records Act. Doesn't he need to use the discovery rules to obtain material concerning litigation as parties have always done?

A Recent case law indicates that he may well be able to use the Open Public Records Act in this manner, to supplement the Rules of Discovery or even instead of the usual discovery process. In the case of Mid-Atlantic Recycling Technologies, Inc. v. City of Vineland , Law Div. (Stanger, A.J.S.C.), an unpublished opinion, the plaintiff sought documents under OPRA relating to its federal suit claiming the city selectively enforces environmental claims. The Court ordered the city to turn over the 12,000 pages of documents requested. Judge Stanger rejected Vineland's claim that this use of OPRA was a circumvention of discovery rules.

In the related federal case in the District of New Jersey, Mid-Atlantic Recycling Technologies, Inc. v. City of Vineland , et al., U.S. District Court (Donio, U.S.M.J.), the Court denied the defendant's request for a protective order to prevent plaintiff from obtaining the records in question under OPRA. The Court found that Rule 26 of the Federal Rules of Civil Procedure did not, as defendant claimed, override a litigant's right to obtain documents under OPRA from a governmental entity that is a party to the litigation.

Therefore, municipalities should honor an otherwise valid OPRA request from an opposing party in litigation related to the subject matter of the litigation.

 

This column is for informational purposes only, and is not intended as legal advice.


 

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