Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
[45 NJSuper Page 418] This is an appeal by the defendants from a judgment of the Law Division of this court awarding
$11,415.84 in compensation for their property taken in condemnation proceedings. The judgment includes the jury verdict of $10,750, and $664.84 for interest.
The property is substantially triangular in shape, having its apex at the intersections of State Highway No. 4, a well-traveled highway, and Saddle River Road, in Fair Lawn, New Jersey. On January 27, 1956, at the time the proceedings to condemn defendants' property were commenced, virtually all the property along the highway was zoned for business, but, as the Borough of Fair Lawn had at a prior date intended to use defendants' property as part of a county park, it was zoned for residential purposes.
Of the 45,997 square feet of defendants' property, plaintiff acquired approximately 8,971 square feet for road construction, including its entire 190 feet frontage on the highway, and an additional 1,405 square feet for slope rights along the perimeter of the acquired portion. The property was characterized as "low," "muddy" and "swampy." To facilitate road construction the acquired portion had to be filled in; thus slope rights were necessary to establish a gradual slope between the acquired portion and the remaining low portion -- but the rights thus acquired were to revert to defendants if and when they filled in the remaining low land.
The condemnation commissioners, appointed pursuant to N.J.S.A. 20:1-2, fixed the compensation for defendants' property at $19,700. Both parties appealed from that award to the Law Division, where the following testimony was adduced: Two local businessmen testified that as early as the latter part of 1955, they each independently had considered purchasing defendants' property for use as a highway retail outlet, but no purchase was made in either case. Two real estate experts testified for defendants that although the property was zoned for residential purposes its highest and best use would be for business. One valued the property at $61,620 before the taking and the remaining property at $8,250 afterward -- a difference of $53,370 -- the other at $69,170 before and $17,900 afterward -- a difference of $51,270. Each of these figures, however, was based upon
use of the property for "business" purposes. As to its value for residential use, the first testified, "I don't think it would be worth much. I can't imagine that it would be worth anything. I don't know anybody who would want to live there as a residential use. It has no value." The second, "That is almost impossible to answer. * * * you could not logically expect that to be used for home purposes."
Plaintiff's real estate expert testified that he felt that the owner "would have a reasonable chance of having his property rezoned * * * for business although at the time of the taking it was zoned for strictly residential * * *," and that, as business property, its value was $8,658 before the taking, and $652.39 afterward -- a difference of approximately $8,000. On cross-examination, he agreed the highest and best use of the property would be for business.
During the course of the trial, defendants sought to introduce into evidence a certified copy of a zoning ordinance, adopted November 12, 1956, almost ten months after the taking of their property, which changed the zone of the remaining portion of the property from residence to business. The trial court ruled against the admission of this evidence, and, on this appeal, the principal question before us is the propriety of that ruling.
Plaintiff contends that the exclusion of such evidence was proper, since the value of property taken in condemnation proceedings must be established as of the date that proceedings were commenced, without regard to any changes subsequent to that date, N.J.S.A. 20:1-9; Lehigh Valley R. Co. v. McFarlan , 43 N.J.L. 605, 611 (E. & A. 1881); Manda, Inc., v. Delaware, L. & W.R. Co. , 89 N.J.L. 327 (E. & A. 1916); Ross v. Commissioners of Palisades Interstate Park , 90 N.J.L. 461 (Sup. Ct. 1917); New Jersey Highway Authority v. Wood , 39 N.J. Super. 575 (App. Div. 1956). This argument, however, fails to answer the question whether the zoning change may be admitted to show that the authorized use of the property for business could reasonably be anticipated at the time of taking, for such anticipated use might well be reflected in the value of the
property as of that date. See Long Beach City High School Dist. of Los Angeles v. Stewart , 30 Cal. 2 d 763, 185 P. 2 d 585, 173 A.L.R. 249 (Sup. Ct. 1947). Thus, it has long been a recognized rule in this state that a landowner is entitled to receive a fair price "for any use for which [his land] has a commercial value of its own in the immediate present, or in reasonable anticipation in the near future." Currie v. Waverly & N.Y.B.R. Co. , 52 N.J.L. 381, 395 (E. & A. 1890); ...