This is an appeal from an award of $3,700 by the condemnation commissioners on December 19, 1967. By stipulating this case was tried by the court without a jury.
There is no question about the fact that the State had the right to condemn under the terms of Art. I, par. 20, of the 1947 N.J. Constitution.
Plaintiff, the State of New Jersey, by the State Highway Commissioner (now the State Department of Transportation, hereinafter referred to as the State), contends that in the planning of Interstate Route 278 it has acquired a portion of property owned by defendant Board of Education of the City of Elizabeth (hereinafter referred to as the Board), located at the northeast corner of Richmond Street and Cole Place in the City of Elizabeth. Located on the tract is William F. Halloran Elementary School No. 22.
The parcel acquired by the State is a triangular-shaped parcel at the intersection of the streets aforesaid. This property has a dimension of 70 feet on Richmond Street and
120 feet on Cole Place, containing 2,034 square feet. It also acquired a slope easement extending 55 feet on Cole Place and 158 feet on Clifton Street.
The State further contends that after this taking there remains to the Board 158,966 square feet and all the improvements and that the highest and best use for the subject property is its present use as a public school and playground.
The Board contends that it is the owner and operator of the tract on which is located the said William F. Halloran Elementary School, originally located on Cole Place in the City of Elizabeth. It further contends that from its inception in 1951 the school was designed for the education of pupils from kindergarten through the sixth grade, involving children whose ages run from 4 years, 9 months to approximately 12 years.
Under its right of eminent domain the State, beginning in the summer of 1965, proceeded to take a portion of the Board's school property, as well as other property owned by others in the area.
Defendant contends that plaintiff so conducted its construction work and subsequent realignment of the roadway in carrying out the planning of Interstate Route 278 that it isolated defendant's school property on a virtual peninsula surrounded on three sides by highways and/or highway access roads.
Defendant argues that this taking of a portion of its property and the abutting roadways has interfered with the efficiency of the remaining property as an elementary school. Defendant contends that this has caused (a) noxious fumes and serious problems of air pollution; (b) extreme noise from surrounding traffic which will so interfere with the teaching process and oral control of pupils within the school building as to nullify any effective education program; (c) traffic noises that will hinder and render ineffective the outdoor physical education program of the school and create a serious safety problem to pupils using the outdoor play area which is close to the highway termed "Alternate Route
No. 1-9," and (d) extreme danger to pupils between their homes and the school.
Defendant also contends that because of the cumulative effect of the above, the beneficial use of the remaining land and buildings for educational purposes has been impaired or destroyed and that this amounts to a taking of its property. It further claims damages for the expense of fencing the property and the expense of "busing" for the safety of the children.
The condemnation commissioners considered only the value of that portion of defendant's land actually taken by plaintiff. They fixed a value of $3,700 on the parcel.
At the trial it was stipulated that as to the issue of damages, if plaintiff's contentions were accepted, the award would be that of the commissioners; otherwise the court might accept all or part of defendant's claim of damages.
Defendant Board contends that the cumulative effect of the taking on its remaining lands and building, as stated supra , amounts to a taking of said remaining land and buildings. This court disagrees with this contention. There was no physical invasion by the State of the remaining lands; consequently there was no taking under the laws of this State.
In Board of Education, Morristown v. Palmer , 88 N.J. Super. 378, 390 (App. Div. 1965), in which plaintiff requested that the court order the State to condemn the school property, the court reviewed very thoroughly a situation similar to the one under consideration. The court said that the damage to plaintiff's school property, to the joint of total or substantial destruction of its beneficial use as a school facility, would (assuming plaintiff could prove the allegations made in the complaint and supporting affidavits) be different in kind from the damage suffered by other property owners in the area. Cf. Richards v. Washington
Terminal Co. , 233 U.S. 546, 34 S. Ct. 654, 58 L. Ed. 1088 (1914). The court stated that if plaintiff was correct in its assertion, it would be faced with the dilemma of remaining where it was and carrying on as best it could at the risk of the children's lives and the certainty of substandard education, or removing the entire school to another location.
The court then recited the allegations of the complaint which, in substance, were as follows: extreme danger to pupils between their homes and the school, whether on foot or on bicycles; noxious fumes and serious problems of air pollution; extreme noise from surrounding traffic which would interfere with the teaching process and oral control of the pupils within the school building so as to nullify any effectual educational program; a serious safety problem to pupils using the outdoor play area, and traffic noises that would hinder and render ineffective the school's outdoor physical education program because verbal instruction would be limited to three to five feet when trucks are using the highway.
Plaintiff, in Morristown , claimed that because of the cumulative effect of these limitations, hazards and interferences, the beneficial use of the school lands would be destroyed, and this in effect amounted to a taking of the property itself.
The Appellate Division remanded the case to the trial court for a hearing on the merits. However, on appeal the Supreme Court, 46 N.J. 522 (1966), held that the briefs and oral arguments submitted, as well as an additional drawing of the project as presently planned in the George Washington School area (which was not presented to the Appellate Division) revealed that "there will be no physical invasion of the school premises, and (a) the school will not be encircled by the highway or the access roads or ramps." The court further stated that a study of the entire record gave rise to the inescapable conclusion that at the present time the issue sought to be presented by the board of education was purely hypothetical. The court said that the effect
on the school, as a school, if any, was speculative and would continue to be so until the construction work was completed and sufficient time had elapsed to permit an informed judgment to be made as to whether any damage had been suffered by the board in the constitutional sense of a taking. The court then stated that the action was premature.
In the present case there was no taking of the 158,966 square feet remaining to the Board after the original taking of 2, 034 square feet. There was no physical invasion of this remaining tract and there was no evidence that this property was encircled by the highway or the access roads and ramps.
However, in Morristown, the Supreme Court did not rule out the question that plaintiff's allegations (set out above) would not be considered as elements of damages in a subsequent suit. Therefore, in the present case it will be necessary to consider defendant's contentions that the remaining land and building have been damaged as a result of the partial taking by the State. The construction work is completed, or substantially so, and sufficient time has elapsed to permit an informed judgment to be made as to whether any damages have been suffered by the Board with reference to the remaining tract as a result of the partial taking by the State.
In the past it has been customary to try to locate schools in quiet neighborhoods. However, in the larger municipalities at the present time, trucks, "hot rods," motorcycles, interstate highways, jet aircraft and industry have often brought sound pollution to a school. The question then arises: In these modern times, how much of an increase in sound can be tolerated in the classroom before steps must be taken to alter the structure of the school in such a manner that the noise level is abated on the inside? If this is the only feasible course, a second question presents itself: Who is to pay for these alterations?
Defendant contends, among other things, that because of the cumulative effect of the allegations set out supra , the beneficial use of the remaining lands and building for educational purposes has been impaired. If plaintiff is able to prove this, then it would be entitled to damages to the ...