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State v. S. Nalbone Trucking Co.

Decided: May 24, 1974.

STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT,
v.
S. NALBONE TRUCKING COMPANY, INC., ET AL., DEFENDANTS-APPELLANTS



Leonard, Allcorn and Crahay. The opinion of the court was delivered by Allcorn, J.A.D.

Allcorn

Defendant-owners appeal from a condemnation award, on a jury verdict.

The land condemned consisted of the whole of a single tract of land, containing approximately 339 acres. For some years prior to the taking it had been used principally as a farm; more recently, it had been utilized also, in part, for the excavation and sale of dirt fill; and, latterly, it had been used exclusively for the excavation and sale of fill.

In the course of the trial in the Law Division, the State employed Joseph A. Martin as its real estate expert. On his direct examination, and as a foundation for his opinion as to the market value of the condemned premises as of the taking date (October 5, 1971), Martin testified as to the details of sales of certain properties which he deemed to be comparable to the condemned property. Among such comparable sales upon which Martin placed reliance was a sale of the condemned premises themselves. That sale, which took place in June 1970, some 15 to 16 months prior to the date of taking, was made by the then owners (Matheson) to defendant Nalbone Trucking Company, for the sum of $325,000 -- i.e., 339 acres at approximately $959 an acre. He equated this price with a per acre value of $1,102 as of the date of taking, adding 15% to the sale price to reflect the general increase in land values occurring between the sale date and the taking date. On the basis of this sale as adjusted, and the adjusted sale prices of five other properties that he also used as comparables, Martin concluded that the market value of the condemned premises as of the date of the taking was $1,300 an acre, for a total value of $440,000.

The two real estate experts called by the owners estimated the date of taking per acre value to be $1,400 (Kenneth A. Walker, Jr.) and $1,750 (Ronald A. Curini), on the basis solely of comparable sales. Each of them was of the further opinion that such values should be doubled by virtue of the municipal permit previously granted authorizing the excavation and removal of fill from the condemned premises, to $2,800 and $3,500, respectively. (Both experts also rendered opinions as to market value based on the income that reasonably might be expected from the excavation and sale of the quantity of fill estimated to be available from the premises. Using this approach, Walker arrived at a value of $2,050,000, and Curini at a value of $2,300.000.)

The jury awarded the owners the sum of $508,500, a per acre value of $1,500.

The seed of the principal issue on this appeal was implanted by counsel for defendant-owners during his cross-examination of the State's real estate expert. In the course of the interrogation counsel questioned the propriety of the use of the 1970 sale of the condemned premises as a valid and bona fide comparable sale on several grounds -- among them, the effect upon the sale price of the announcement by the State of its proposed plan for a Green Acres project which contemplated the taking of these premises, some 15 to 20 years before the actual taking. In response to counsel's questioning, Martin testified that it had been "a known fact since the early 1950's" that the premises were "subject to a taking by the Department of Environmental Protection," but that such knowledge would have no effect whatever "on the purchase price between Nalbone" and its grantors. This was the first occasion on which the subject was introduced at the trial.

Thereafter, following the conclusion of the State's direct case, counsel for the owners continued to pursue the matter in his presentation of the owners' case. The first witness, Frank P. Matheson (one of the grantors in the 1970 sale), testified on direct that he had "knowledge of the proposed Green Acres acquisition" of his property as early as "around

1953." Pasquale J. Nalbone, secretary-treasurer of defendant Nalbone Trucking Company, testified that at the time of the purchase of the property in 1970 he "had no knowledge that the State might acquire the property."

Additionally, both of the owners' real estate experts testified that the 1970 sale of the premises condemned was not usable as a comparable sale by reason of the State's earlier announcement of its contemplated acquisition under the Green Acres program: because "of the land being labeled Green Acres land," according to Walker; because the property was "almost blighted by the New Jersey Environmental Protection Agency for a period of time," in the words of Curini.

In his charge the trial judge preliminarily instructed the jury that its function was to determine and fix the fair market value of the premises as of the date of the taking, from all of the evidence presented to it. Noting that the jurors had the "testimony * * * and evaluation" of the real ...


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