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State v. Bakers Basin Realty Co.

Decided: December 11, 1975.

STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-APPELLANT,
v.
BAKERS BASIN REALTY CO., A CORPORATION OF NEW JERSEY, ET AL., DEFENDANT-RESPONDENT. CORTSHIRE DEVELOPMENT CORP., PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, V. STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION; ET AL., DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS



Carton, Crahay and Handler. The opinion of the court was delivered by Handler, J.A.D.

Handler

[138 NJSuper Page 35] Bakers Basin Realty Co. (Bakers Basin) is the owner of approximately 55 acres of land along

Route 1 in Lawrence Township, Mercer County. Cortshire Development Corp. (Cortshire) is a corporation qualified to do business in New Jersey and organized for the sole purpose of developing shopping centers. On February 9, 1971 the State notified Bakers Basin of its intention to take by condemnation a portion (Parcel R64) of this property to construct an interchange for Interstate 295 and Route 1.

Cortshire, with a view toward developing a regional shopping center, entered into an agreement with Bakers Basin, dated August 3, 1971, by which the entire Bakers Basin property was to be conveyed to Cortshire for the sum of $1,197,000. Cortshire entered into similar agreements for the acquisition of properties adjacent to the Bakers Basin property, on September 7, 1971 with John and Jane Kachmar for 18.1 acres at a purchase price of $135,000 and on October 12, 1971 with John and Janina Zagorzycki conveying 14.71 acres for $250,000.

At the time of these transactions Cortshire was fully aware of the State's intention to take Parcel R64. Its plans, however, were unaffected since the intended taking left sufficient access, more than 450 feet, from Route 1 for the development of the shopping center. On November 29, 1971, however, the State revised its taking, which it designated as Parcel 2R64. The effect of the revision was to curtail access along Route 1. (The fee area did not change.) As a result of the revised taking access was denied along the entire Route 1 frontage of the property with the exception of approximately 25 feet. This sharply reduced access made the property unsuitable for a shopping center. The area thus described as Parcel 2R64 was the subject of the condemnation action filed on January 21, 1972.

In addition to the three aforementioned parcels of land, Cortshire negotiated successfully for two more adjoining properties. On February 1, 1972 it entered into a long-term lease with Albert and Cecilia Leopardi for 10.79 acres. Cortshire

entered into an agreement to acquire 3.56 acres from Joned Corp. on May 22, 1972, on a form identical to the agreements executed by Cortshire with Bakers Basin, the Kachmars and the Zagorzyckis.

Thereafter, on December 13, 1972, the State further revised its taking to increase the access to the Bakers Basin property from Route 1 to approximately 72 feet. This revision, designated Parcel 3R64, became the subject matter of the first amended complaint filed on January 30, 1973. Nevertheless, the increased access of Parcel 3R64 was still insufficient for the development of a shopping center on the combined properties.

On February 22, 1973 Cortshire filed a complaint in lieu of prerogative writ to compel the condemnation of the five properties which it sought to utilize as an assemblage of lands for its proposed shopping center. On June 1, 1973 summary judgment was granted in favor of Cortshire, and the State was ordered to commence proceedings to include all the adjacent parcels in the existing condemnation action and to fix compensation for damages to all the lots as a single tract of assembled land. This action, however, was reversed by the Appellate Division which remanded for a plenary hearing.

After a complete hearing the trial judge held that Cortshire has standing to challenge the action of the State in the condemnation action and has standing to proceed with the action in lieu of prerogative writ to compel condemnation; that Cortshire is a proper party in interest and has standing to share in the proceeds of condemnation with respect to the first three parcels, Bakers Basin, Kachmar and Zagorzyckis, and that these three parcels should be considered in the condemnation proceeding as a single tract of assembled land. The State has taken an appeal from this determination. The trial judge further ruled that the Leopardi and Joned properties should not be included in the assemblage. Cortshire filed a cross-appeal from this aspect of the decision.

I.

In each of the agreements which Cortshire executed with the adjoining property owners there was a provision ...


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