Take Notice: Shennett's eminent domain victory over Passaic

"I just praised the Lord.” – Charles Shennett, land owner

The opinion of the Appellate Division in the City of Passaic v. Charles Shennett is a victory for the “little guy.” See today’s Star-Ledger article, “From victim to victor.” Charles Shennett fought and defeated the misuse of eminent domain by the City of Passaic and the transfer of his property to a former Passaic councilman with a checkered past, who allegedly tried to purchase the property for years before condemnation.

In a unanimous opinion delivered by Judge Lorraine C. Parker and issued on Feb 9, 2007, the Appellate Division reversed Passaic County Assignment Judge Robert J. Passero’s ruling regarding the propriety of the procedures used by the City of Passaic to acquire the property of Charlie Shennett.  

Download a PDF of the opinion in City of Passaic v. Charles Shennett.   For background information on this case, see our blog post of 07 | 13 | 2005, An Eminent Domain Euphemism: An Area in Need of Redevelopment.  In that post, specific remedies to the notice requirements under the existing statute N.J.S.A. 40A:12A-1 et seq. were recommended. It should be noted that these recommendations and others are under consideration by the New Jersey legislature in bill S-1975.

Even though Shennett’s attorney was out of time appealing the final judgment appointing condemnation commissioners, the court considered the appeal because of what it characterized as “the egregious circumstances” of this case:

In exercising their powers of eminent domain, government entities must strictly comply with the rules and statutes governing condemnation. The circumstances here are so egregious that no remedy will suffice but to void the judgment and require the City to properly serve defendant with the requisite precondemnation notice pursuant to N.J.S.A. 20:3-6 and proceed from that point forward in accordance with the rules and statutes governing condemnation proceedings.

The intervenor has not cross-appealed but nevertheless argues that (1) the May 31, 2004 order was final and defendant failed to appeal timely; (2) defendant failed to seek relief within one year of the final order barring his right to recovery; and (3) the appeal is interlocutory because its complaint to quiet title has not been adjudicated. We have addressed each of these issues previously and need not revisit them here. R. 2:11-3(e)(1)(E).

Reversed and remanded for proceedings in accordance with this opinion.

The practical effect of the court’s decision is to revest title to the subject property in Shennett.  If the City of Passaic tries to reinstitute eminent domain, it will be problematic: there is a new house built on the property by WAM, and the cost of acquisition will be far greater than the initial appraised value of $14,730 that was deposited into Superior Court trust funds for Shennett’s lot.  The legal battle doesn’t end here: former Passaic Councilman Wayne Alston sold the property to a third party after building the house on Shennett’s land. All of these issues will be sorted out in new litigation in the law division among Shennett, the City of Passaic, Wayne Alston and the owners of the new house.

To be continued…

UPDATE:  Passaic erred in seizing property, court says. Herald News, February 15, 2007


Written By:Richard Chaiken On February 12, 2007 8:54 AM

Does the unit rule apply so that the condemning authority must appraise the land and building and then seek to partition FMV later? Does the builder get any portion of the award since he built his house on lands he didn't own? Must he "move" the house to another site?

Written By:William J. Ward, Esq. On February 18, 2007 4:20 PM

Good questions, Richard. The answer to the first question is yes. The allocation issues will be interesting due to the "illegal" acquisition by the Passaic Redevelopment Agency. Equitably, in my view, Shennett at the very least should get the value of the lot. The real problem is the innocent third party purchaser of the land and lot, Cerda Orlando, who paid $425,000 for the site, including the house.

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