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Township of Wayne v. Kosoff

Decided: July 15, 1975.


Michels, Morgan and Milmed.

Per Curiam

[136 NJSuper Page 55] Plaintiff instituted condemnation proceedings on June 7, 1970 in order to acquire a 3.3-acre portion of a larger tract of vacant land owned by defendants and located within the Township of Wayne in an area designated as an urban renewal plan by the township and the Department of Housing and Urban Development. On April 15, 1971 the condemnation commissioners filed their report awarding defendants $372,250 for the taking, which amount included damages to the remaining tract, a parcel slightly in excess of four acres. Plaintiff and defendant both appealed this award to the Superior Court, Law Division. Several months after the matter was first listed for trial, the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 et seq. , became effective. The new act afforded the property owner, subjected to a partial taking, the right to compel condemnation of the remaining property where the remainder has "little or no economic value." N.J.S.A. 20:3-37. In the

exercise of this new right defendants, in April 1972, obtained an order requiring plaintiff to acquire the remaining four-acre parcel. The Department of Housing and Urban Development, however, expressed reluctance to finance this additional purchase since the four-acre parcel fell outside the boundaries of the urban renewal plan. As a result plaintiff attempted, through a series of applications, to delay trial of the condemnation suit until some decision was made by the Department of Housing and Urban Development as to payment therefor. An unsuccessful attempt at relief in the federal courts was made.

At any rate, shortly before the case was finally tried plaintiff filed a motion for an order appointing an independent appraiser inasmuch as there was nearly a half million dollars difference between the amount offered by plaintiff and the amount sought by defendants. Plaintiff's motion was denied on the ground that it had been interposed primarily for purposes of further delay. Moreover, the trial judge expressed concern as to the proper procedure in presenting the testimony of an independent or court-appointed appraiser to a jury. It is the denial of this motion that provides one of the principal grounds of this appeal.

At the time the motion was made, and for a substantial period of time prior thereto, the parties were aware of a wide disparity between the appraisals made by the parties' respective expert witnesses. Plaintiff's appraiser placed a value of $490,000 on the subject property. Defendants' appraiser valued it at $937,250, the precise value accepted by the jury in its verdict. Plaintiff contends that in these circumstances, demonstrating such a wide divergence in opinion as to value of the subject property, the trial judge mistakenly exercised its discretion in refusing to appoint an independent appraiser despite the many delays in bringing the matter to trial. We agree.

There can no longer be any doubt but that a trial judge possesses the inherent power to appoint an independent

expert in a condemnation case as an aid in its "quest for the elusive truth of the matter." State v. Lanza , 74 N.J. Super. 362, 374 (App. Div. 1962), aff'd 39 N.J. 595 (1963), app. dism. 375 U.S. 451, 84 S. Ct. 525, 11 L. Ed. 2d 477 (1964); Jersey City Redev. v. Weisenfeld , 124 N.J. Super. 291, 294-295 (App. Div. 1973), certif. den. 63 N.J. 563 (1973).

In both the Lanza and the Weisenfeld cases the trial judge, sitting as the trier of the facts, was confronted with widely disparate valuations placed on the property sought to be condemned. In Lanza the trial judge's initiative in seeking aid in resolving the dilemma by resort to an independent expert was approved. In Weisenfeld , the trial judge sought no such aid, and his failure to do so provided one of the bases for the reversal of its judgment.

Widely disparate opinions of value are highly suggestive of exaggerated partisanship of the experts retained by the parties and place the trier of the fact, be it judge or jury, in the position of attempting to ascertain just compensation from evidence of suspect reliability. The sole purpose of a condemnation proceeding is to ascertain just compensation for the public acquisition of private property. Wide variations in appraisal of value frustrate the achievement of that purpose, and where it occurs, as it did in the present case, the trial judge should exercise his discretion toward providing the fact finder with data from which the element of partisanship has been removed.

The appointment of disinterested expert witnesses by the Court is one of the expedients employed for reforming the defects of the partisan system of providing * * * testimony. [9 Wigmore (3 ed. 1940), § 2484 at 270; see also § 563 at 644 et seq. ]

See also, McCormick , "Some Observation Upon the Opinion Rule and Expert Testimony," 23 Texas L. Rev. 109, 131 (1945). Such additional data can only be of aid in insuring that the constitutional goal of just compensation is achieved, and ...

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