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Village of South Orange v. Alden Corp.

Decided: October 21, 1976.

THE VILLAGE OF SOUTH ORANGE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALDEN CORPORATION, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT, AND NATIONAL NEWARK AND ESSEX BANK, A NATIONAL BANKING ASSOCIATION AND THE STATE OF NEW JERSEY, DEFENDANTS



For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Mountain, J.

Mountain

This is a condemnation case. It reaches us by way of appeal as of right pursuant to R. 2:2-1(a)(2), there having been a dissent in the Appellate Division. To resolve the narrow point at issue, we are called upon to clarify certain statements appearing in our earlier opinion in Village of Ridgewood v. Sreel Investment Corp., 28 N.J. 121 (1958). What was there said and is here discussed, relates only to condemnation suits involving a partial taking. The pertinent question may be stated thus: To what extent, if at all, may evidence of the proposed use to which condemned property is to be put, be received and considered in evidence in determining severance damages with respect to that portion of the condemnee's property which is not taken?

In the case before us the Village of South Orange condemned a part of defendant's property, located in the South

Orange business district, for use as a municipal parking lot. Defendant's entire holding, before condemnation, consisted of about 26,654 square feet of land extending in a north-south direction from South Orange Avenue to First Street. The property had a width -- and a frontage on each street -- of approximately 50 feet. It was improved by a building on South Orange Avenue, vacant at the time of suit, but shortly prior thereto, occupied by a bank. Another building, formerly used by the bank as a warehouse, was located at the southerly end of the parcel, facing on First Street. Between the two structures was an open area of approximately 10,000 square feet, which had been used by the bank as a parking lot for its employees and customers. The property taken by the municipality included the land on First Street upon which the warehouse building was located as well as substantially all of the parking area.

Both parties appealed from the commissioners' award and the case was tried in the Law Division by a judge sitting without a jury. Dissatisfied with the judgment of the trial court, defendant appealed to the Appellate Division. Being uncertain as to the basis for the conclusions reached by the trial judge, the Appellate Division remanded the case for amplification and clarification. Upon receiving a response from the trial judge, two members of the appellate court expressed themselves as satisfied that the amplified record sufficiently supported the decision that had been reached below and hence voted to affirm. The third member of the court disagreed and voted to remand the case "for redetermination of the limited issue of damage to the remainder." An appeal to this Court followed.

The difficulty that has been experienced both by the trial court and the Appellate Division has its roots in our opinion in Sreel, supra. That case is remarkably like this one on its facts. There, as here, a part of defendant's property was taken by the municipality for use as a public parking lot. The defendant in that case, as is also true here, was left with business or commercial structures facing on a

street, but no longer enjoying the advantages of private parking facilities immediately to the rear. In each case, however, there was the prospect of a contiguous public parking facility. In Sreel the trial judge admitted evidence which, in the light of his charge, could reasonably have caused the jury to believe that the public parking lot to be constructed and maintained by the municipality, would, forever and for all time, adjoin defendant's remaining land. This was of course not so. Furthermore, the evidence admitted included a design of the proposed parking lot which had not been officially adopted or approved and in fact represented the views of only a single member of the governing body. Not only was the municipality not bound to adhere to this proposed plan -- which showed an area of the property taken, adjacent to the rear of defendant's stores, as being left vacant for defendant's use as a loading zone -- but it was in no way foreclosed from converting the property to some entirely different public purpose. We felt it was unfair to the defendant to leave the jury with the impression that the buildings on its remaining land would indefinitely be accommodated with an adjoining public parking lot. As we there said,

To admit promissory representations of the condemnor's intention might well deprive a landowner of damages to which he is justly entitled on the mere expression of an intention to do something which might never be done. [28 N.J. at 130]

A municipality, having acquired real property to satisfy a particular need, may thereafter convert it to any other public use, if it becomes unsuitable or inconvenient to continue its use for the purpose originally intended. N.J.S.A. 40A:12-5(b); Millburn Township v. Pitt, 68 N.J. 424 (1975). We meant no more by what was said in Sreel than to emphasize that a landowner cannot have any legally binding assurance that a particular public use will be indefinitely continued upon condemned land adjoining his contiguous parcel which has not been taken. We did not

mean, as has been suggested, that all reference to the intended purpose of the condemned property is inadmissible on the issue of the amount of severance ...


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