On appeal from the Superior Court, Law Division, Morris County.
Antell, Scalera and Keefe. The opinion of the court was delivered by Scalera, J.A.D.
[246 NJSuper Page 158] The issue on this appeal concerns the extent of discovery available to a condemnee at various stages of an eminent domain proceeding. While we touched upon this issue partially in State by Com'r of Transp. v. Carroll, 234 N.J. Super. 37, 559 A.2d 1381 (App.Div.1989), certif. granted 118 N.J. 197, 570 A.2d 961 (1989), we did not fully resolve it.*fn1
The property sought to be condemned amounts to some seven acres which is part of the 613 acre Morristown Airport and is needed to construct an interchange at Columbia Road for the Route 24 Freeway. Sometime in March 1989, the Department of Transportation (DOT) received two reports appraising the value of the property in question. The "Schwartz appraisal" evaluated the seven acres at $1,445,400, and the "Griffin appraisal" stated that the property was worth $1,668,000. Accordingly, on May 12, 1989, DOT offered to purchase the property for $1,455,400. The record does not reflect the status of negotiations between May 1989 and December 1989.
By letter dated December 18, 1989, the town had asked DOT for more information, ostensibly so that it could properly evaluate the offer of $1,455,400 which had been made. Among other things, it requested a copy of the Griffin appraisal and DOT appraisals of neighboring properties in the "same zone." DOT finally gave the town a copy of the Griffin appraisal only, sometime in January 1990. As a result the town questioned the validity of the offer based on the lower Schwartz appraisal. By letter of February 9, 1990, the town repeated its request for the appraisals on the neighboring properties but DOT again refused.
The litigation phase of this dispute commenced on December 14, 1989, when the plaintiff DOT filed a condemnation complaint declaring that it had properly exercised its authority to acquire the property and demanding an order appointing commissioners to fix the compensation to be paid. R. 4:73-1. It was represented to us at oral argument that this followed a DOT letter advising the condemnee of its intention to take this step. The complaint alleged, inter alia, that DOT had been unable to acquire the premises through bona fide negotiations.
Defendant Town of Morristown (the town) asserts that it was not aware that suit had been commenced and was not served with the complaint and order to show cause until January 11, 1990. Cf. R. 4:67-3. It filed an answer around March 5, 1990,
alleging, in part, that DOT had violated the Eminent Domain Act of 1971 (N.J.S.A. 20:3-1 et seq) (the act) because it had failed to engage in bona fide negotiations prior to the filing of the complaint, citing DOT's refusal of the town's prior request for appraisals on neighboring properties.*fn2
On March 23, 1990, the return date of the order to show cause, Morris County Assignment Judge Reginald Stanton also heard oral argument on the town's request for the appraisals on neighboring properties. As a consequence, he entered a judgment on April 9, 1990 appointing the three commissioners as DOT requested and also provided that,
Plaintiff [DOT] is to provide defendant [the town] with copies of appraisals on properties in the immediate neighborhood of the subject property.
Although the DOT objected, Judge Stanton in granting this relief, openly expressed his feelings that the State is required to deal "fairly" and openly in condemnation matters so that such information could be used
In support of its subsequent motion for reconsideration, DOT argued that allowing prospective condemnees access to appraisals on neighboring properties would be expensive, administratively cumbersome and would violate the privacy of those neighbors who cooperated with DOT in the appraisal process by supplying personal or confidential information. It also cited excessive photocopying costs, a perceived need to update the appraisals on neighboring properties and concluded by claiming that its administrative burden would "be so costly and complicated that . . . DOT may be forced to break large projects into small sections" thereby increasing costs to the public. ...