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State v. Vacation Land Inc.

Decided: November 8, 1966.

STATE OF NEW JERSEY, ACTING BY AND THROUGH ROBERT A. ROE, COMMISSIONER OF THE DEPARTMENT OF CONSERVATION AND ECONOMIC DEVELOPMENT, PLAINTIFF-RESPONDENT,
v.
VACATION LAND, INC., A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT, AND SIDNEY FRANKEL, DEFENDANT



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Defendant Vacation Land, Inc. appeals from a judgment based on a jury verdict awarding it $19,500 in condemnation, as well as from the denial of its motion for a new trial, on the grounds that the verdict was contrary to the weight of the evidence and grossly inadequate.

The State, through its Commissioner of Conservation and Economic Development, and in pursuance of its Green Acres

Program, brought condemnation proceedings to acquire 94.89 acres of land in Bass River Township, Burlington County. The property is surrounded by Bass River State Forest except for some 142' fronting on a road. The acreage is woodland and was acquired by defendant on April 6, 1962 for $24,000. On June 26, 1964 defendant conveyed two 20' x 100' adjoining lots to Sidney Frankel for $395, the deed being recorded on July 10 following. The complaint in condemnation was filed July 13, 1964, and was subsequently amended to include Frankel's property. The jury awarded Frankel $395 at the same time it returned a verdict of $19,500 for defendant. There is no appeal from the Frankel award.

Defendant's first witness was David M. Kaplan, a local real estate broker and appraiser. He did not fix a value on the basis of sales of comparable properties, but on his evaluation of the highest and best use for the tract -- its development as campsites. He mentioned its accessibility to the state forest, certain rivers in the area, and the Atlantic Ocean, and then referred to an old plot plan, filed in 1898 but redrawn for defendant in 1962, which allowed for a total of approximately 1,800 lots measuring 20' x 100'. A reasonable size for a campsite in today's market, he said, would be 40' x 100', resulting in 900 lots. However, it would be necessary for a developer to lose 200 of these lots in providing certain facilities and what was described as "central public land" to service the campsite areas. The remaining 700 lots could be promoted and sold for $400 each. Against this figure he allowed $200 a lot for installing roads and promoting sales, and thus arrived at a figure of $140,000 as the value of defendant's tract.

Cross-examination elicited that Kaplan had not checked the local zoning ordinance which required a 75' lot width and also the licensing of tourist camps. He admitted he had no knowledge of any sales of comparable land in the area. Nonetheless, he testified that he had used the so-called Market Data Approach which, by his own definition, "is used to reflect a value of the property under consideration * * * by analyzing the sales of comparable or similar properties with

weight given for many factors, including time, size * * *." He further admitted that he was unaware of the local subdivision ordinance and said that if it existed it might be possible to get a variance.

Defendant's other expert witness was Henry S. Haines, a local real estate and insurance broker. He disregarded the plan used by Kaplan as not feasible for subdivision purposes because of the existing subdivision ordinance, the 75' x 100' lot requirement, and the different street layout that would be needed. In his opinion, the highest and best use for the tract would be for campsites. His approach was not to consider lot size, but front foot value. To do this he projected the need for two arterial roads going through the tract, with seven lateral roads crossing them, and in this way arrived at a total lineal frontage of 25,928' which, at $10 per front foot, produced a figure of $259,280. The installation of roads, plus promotion costs, would require $152,510, leaving a fair market value of $106,770.

Haines did not use any sales of what he considered comparable property. However, he referred to a number of developments possessing various characteristics and which, in his opinion, could not be used for purposes of comparison because they were not similar. His only reason for referring to these developments was that they showed there was a market for land of this character to be used for subdivision or for campsites. On cross-examination he was questioned about certain sales within the immediate area, but said that he was unfamiliar with them. These are the sales used by Leon Wack, real estate broker and appraiser, who testified on behalf of the State.

Wack testified, as had Kaplan, that of the three land valuation methods (the Income, Cost or Reproduction, and the Market Data Approaches), only the last could be used in the circumstances. He then described three comparable sales in the area: (1) 44 acres sold on August 10, 1963 for $1,500 (about $35 an acre); (2) 125 acres sold ...


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