On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
King and McElroy. The opinion of the court was delivered by King, J.A.D.
This is an appeal from a denial of severance damages in a condemnation proceeding. By summary judgment, Judge Shebell ruled against appellants. We conclude that he was correct. There were no material issues of fact; we decline appellants' invitation to innovate the law of condemnation. Appellants fail to persuade us that they conform to the requisites of unity of use and ownership required by Supreme Court precedent. Newark Housing Auth. v. Norfolk Realty Co., 71 N.J. 314, 325 (1976).
These facts are pertinent. Appellant ED & Y Realty Co., Inc., a New Jersey corporation of which Emil Wuest was president and in which he and his wife were the sole stockholders, purchased property on October 22, 1970 between State Highway 9 on the west and Franklin Lane on the east in the Township of
Manalapan, from the Genoveses and Ace General Store, Inc. The parcel included a shopping center composed of nine retail stores and a commuter bus concession and depot, all facing Highway 9. Defendants leased some of the stores but operated the bus concession, a liquor store and a delicatessen themselves. The stores had adequate on-site parking. Defendants alleged that about 750 people commuted by bus from the site daily.
The Wuests, through their corporation, also contemporaneously leased from the Genoveses property known as Block 7, Lot 17B, located across Franklin Lane on the east. This lease was for ten years, commencing November 1, 1970 with options to renew for two five-year periods. The lot had been developed as a commuter parking lot for 150 vehicles and was later expanded to 400 spaces. The lease limited the use to a parking lot. The rent was $1 a month a car, about $4,800 a year from 1976 to 1980. From 1970 to 1976 the Wuests operated the leased premises as a commercial parking lot at full capacity.
Thereafter the Wuests subleased the lot to the township until September 1980 for a nominal rent, $1. During that period the Wuests continued to pay the Genoveses rent, $4,800 a year, but the township assumed the costs of all maintenance and repair, and collected the parking fees.
In May 1979 the township adopted a resolution to acquire Block 7, Lot 17B, along with two adjacent lots. Because of public objection, the township abandoned its attempts to acquire the adjacent lots. In February 1980 the township initiated condemnation proceedings to acquire Block 7, Lot 17B. In October 1980 defendants exercised their option to renew the lease with Genoveses.
Defendants claimed, as a long-term lessee of the condemned lot, that they were entitled to a share of the compensation paid by plaintiff. They also claimed that loss of control over the parking lot would diminish the rental value of their stores, causing compensable severance damages of $71,500.
On the motion for summary judgment the Wuests contended that because their leasehold represented a compensable interest,
this interest was sufficient to establish a unity of ownership. Further, they argued that the commuter parking lot was utilized by riders commuting by bus from their depot and that their willingness to lease the lot to the township for only $1 while paying rent of $4,800 and collecting ...