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Schnack v. State

Decided: June 19, 1978.

HELEN SCHNACK, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF CORA HILDEBRANT AND EDWARD SCHNACK, HER HUSBAND, PLAINTIFFS-RESPONDENTS,
v.
STATE OF NEW JERSEY, BY THE DEPARTMENT OF TRANSPORTATION, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Morris County.

Lynch, Bischoff and Kole.

Per Curiam

[160 NJSuper Page 344] This appeal involves a consideration of whether the actions of the State Department of Transportation

(DOT) in filing an alignment preservation map for a new highway which would run through plaintiffs' property and that of others, and in acquiring and demolishing nearly all the residences in the vicinity, amount to a "taking" of plaintiffs' property for which the Constitution requires just compensation.

The property which is the subject of this controversy is a 2.5-acre tract in Morris Plains, New Jersey. Triangular in shape, it is bordered on the west by Route 53 and on the east by Tabor Road. In the northern section of the tract is a two-story frame house built in 1802 wherein plaintiffs, Helen and Edward Schnack, reside. The property also contains a two-story frame barn, a small cottage and a one-car garage. Access to these structures is had from Tabor Road on the west. The tract is zoned R-2 residential.

In the mid-1960's there appeared several newspaper articles which forecast that a new highway, Route 178, would be built in order to connect Routes 10 and 24 in Morris County. The DOT held a public hearing on the proposed project in 1968 and it was there that Helen Schnack learned that her property*fn1 was in the path of the new highway. in March 1970 an "alignment preservation map" was filed pursuant to N.J.S.A. 27:7-66, showing the path of the proposed highway and the properties it would cross.*fn2 Thereafter plaintiff received a letter from the DOT on May 28, 1970 indicating that the proposed public highway improvement required the purchase of her property and explaining that State appraisers would contact her.

On June 1, 1970 a representative from the DOT contacted plaintiff to insure that she received the May 28 letter and to further explain condemnation procedures. He also told plaintiff and her mother that if there were tenants on the property, "to make sure that we have them on a month-to-month basis so we could notify them if they have to move." The DOT subsequently sent several appraisers to the property to make evaluations.

On January 19, 1972 a right-of-way negotiator called upon plaintiff at her home and tendered a written offer of $84,500 for her property. Plaintiff did not accept the offer at that time and indicated that she wished to consult with her own appraiser and attorney. She also wished to speak with the builder she had hired to construct a new home on property which had been purchased earlier by her mother. When the builder informed her that construction could not start until the spring, she called the right-of-way negotiator, who informed her that if she accepted the offer, she would have to move within 90 days. Plaintiff was willing to accept the offer of the State at that time, but was compelled to demur because of her own difficulty in locating alternative housing. She feared that the 90-day limitation gave her too little time to move. Plaintiff had been given one month to accept the State's offer, and the right-of-way negotiator called several times each week to see if plaintiff had made up her mind. Ultimately, the offer lapsed and the DOT subsequently stopped further acquisitions.

Apparently, neither the DOT nor plaintiffs thereafter took any action regarding the subject property until April 13, 1973, when plaintiff's mother died. At the suggestion of her attorney, plaintiff wrote to the DOT concerning the status of the subject premises and the DOT replied that it had "placed further acquisitions on this project in 'suspense.'" Plaintiff thereupon undertook a series of attempts to sell her property but met with no success. Apparently the potential purchasers were not dissuaded so much by plaintiff's $200,000 asking price as they were by the fact that the

DOT had filed its alignment map showing that the property was subject to eventual condemnation.

At present plaintiffs assert that they "have no neighbors" by reason of the State's acquisition and demolition of surrounding properties. Originally, there were seven residences in plaintiffs' immediate vicinity. There now remains only a gas station, a tavern, a warehouse and a local bank branch office. Plaintiffs presently lease the garage on their ...


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