Goldmann, Foley and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant property owner appeals a jury award in a condemnation proceeding brought by plaintiff public utility.
The lands in question are located in the "Meadows Development Zone" of Parsippany-Troy Hills Township, N.J. Plaintiff sought an easement in and across defendant's lands for its electric power lines and a 20-foot-wide access roadway. The former would require 8.60 acres, the latter .232.
Plaintiff applied to the Board of Public Utility Commissioners pursuant to R.S. 48:7-3 (now repealed) for the right to acquire the necessary easement and right-of-way by condemnation. Authority to condemn was granted November 29, 1962, and on December 17 plaintiff filed its complaint seeking the appointment of condemnation commissioners to fix the compensation to be paid for the taking, N.J.S.A. 20:1-2. The actual taking had occurred three days earlier, on December 14.
The zoning of defendant's property (129 acres in all) was considered in Morris County Land Improvement Co. v. Parsippany-Troy Hills Tp., 40 N.J. 539 (1963), where the court held that the zoning in effect at the time of plaintiff's taking was unconstitutional. From that case (at pp. 543-545) and the present record we learn that in 1954 defendant's lands were placed in a zone designated as "Indeterminate." In 1959 defendant unsuccessfully applied to the governing body
to rezone its property for industrial use. Thereafter, in January 1960 it obtained limited permission from the township committee to place fill along Perrine Road at its own risk, since a revision of land uses in the area was then under consideration.
In March 1960 the township committee repealed the "Indeterminate Zone" provisions and created a new zoning classification for the area, known as the "Meadows Development Zone." The following uses, summarized in the Morris County Land opinion, were permitted in that zone: agricultural uses, raising of woody or herbaceous plants, commercial greenhouses, and raising of aquatic plants, fish and fish food -- with a one-family dwelling as an adjunct to any of these uses, provided its lowest floor was a specified distance above flood level; outdoor recreational uses operated by a governmental division or agency; conservation uses, including drainage control, forestry, wildlife sanctuaries and facilities for making them available and useful to the public; hunting and fishing preserves; public utility transmission lines and substations; radio or television transmitting stations and antenna towers, and township sewage treatment plants and water supply facilities.
After exhausting its administrative remedies, Morris County Land Improvement Company challenged the constitutional validity of the 1960 ordinance by a prerogative writ action brought in the Law Division. The Law Division sustained the ordinance on May 7, 1962. Defendant thereupon appealed the judgment, and the appeal was certified to the Supreme Court on its own motion before being heard in this court. The appeal was pending when plaintiff filed its complaint in condemnation on December 17, 1962. Commissioners were duly appointed. On May 3, 1963 defendant filed a notice of motion for an order staying the condemnation proceedings pending determination of the appeal from the Law Division judgment so that the commissioners might have the advantage of such decision as the Supreme Court might hand down, appellate argument having been heard a few months
before. The motion for stay was denied on May 20, 1963, and on May 24 the commissioners filed their report and fixed damages at $9,150.
Defendant appealed that award on May 31. Thereafter, on July 23 the Supreme Court determined that the "Meadows Development Zone" provisions of the 1960 ordinance, as amended, were invalid in their entirety; the prior zoning could not withstand a challenge and, therefore, the area was to all intents and purposes unzoned. Since the absence of all regulation would permit the establishment of any use by any means -- a result which might be damaging to the local public interest -- the court deemed it proper for judgment to be entered by the Law Division, that judgment not to become effective for such a period as the trial court deemed reasonably necessary for the enactment of new and proper zoning regulations. Morris County Land Improvement Company v. Parsippany-Troy Hills Tp., above, 40 N.J., at page 559.
At the time a jury was impaneled on April 7, 1964 on appeal from the award of the condemnation commissioners, the township had not as yet enacted zoning regulations for the area in question. (The extension of time granted by the Law Division judge for such zoning had expired on February 15, 1964.) After viewing the premises and hearing the extended testimony of the ...