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Township of West Windsor in County of Mercer v. Nierenberg

November 22, 1995

TOWNSHIP OF WEST WINDSOR IN THE COUNTY OF MERCER, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
YVETTE NIERENBERG AND PRINCETON MANOR ASSOCIATES, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County.

Approved for Publication November 22, 1995.

Before Judges Baime, Villanueva and Kimmelman. The opinion of the court was delivered by Baime, J.A.D.

The opinion of the court was delivered by: Baime

The opinion of the court was delivered by BAIME, J.A.D.

The narrow question presented in this case concerns the date for valuing property condemned by the Township of West Windsor. The Eminent Domain Act of 1971 (N.J.S.A. 20:3-1 to -50) provides three alternative dates for valuation - the date the condemnor takes possession of the property, the date the condemnation suit is commenced, or the date on which action is taken by the condemnor which substantially affects the condemnee's use and enjoyment of the property. N.J.S.A. 20:3-30. The value of the property on the date of the earliest of these events is to control for the purpose of determining just compensation. Ibid.

At issue is whether the Township's letter to the defendants advising them that it might acquire their vacant tract for development of a community park so impaired the marketability of the property as to require that the value of the parcel on that date be used to determine fair compensation. Following an evidentiary hearing, the Law Division concluded that the letter triggered a downward fluctuation of the value of the property directly attributable to the proposed condemnation, thus establishing the date of valuation. *fn1 We disagree. We hold that the Township's equivocal expression of its interest in acquiring the land did not so directly interfere with defendants' use and enjoyment of their property as to fix the date of valuation for determining just compensation.

I.

Princeton Manor Associates is a partnership formed in 1987 by Philip Kramer, Stuart Nierenberg, Sol Kramer, Ely Kramer and Marilyn Nierenberg for the purpose of developing a fifty-acre tract initially owned by Stuart's mother, Yvette. The property fronts on the Princeton-Heightstown Road and partially consists of wetlands. Approximately 44.6 acres are suitable for development.

The property is zoned R-2 residential, which permits single-family detached dwellings on three-quarter acre lots with seventy-five feet of frontage. Open space cluster developments, with minimum lot size of 20,000 square feet, are permitted as a conditional use if the property is serviced by either public water or sewer. The property here is serviced by public water and partially by public sewer. It is undisputed that the highest and best use of this property is for residential development of single-family dwellings.

Although the exact chronology is not entirely clear, prior to 1987, the property, along with two contiguous parcels, was designated by the Township's master plan as a potential site for a community park. Phillip Kramer, a highly experienced real estate developer, was aware of this fact both when the partnership was formed and when it purchased the property from Yvette on July 8, 1987 for $4,500,000.

Prior to January 1988, the Township Committee adopted a resolution authorizing appraisals of the proposed park site and a request for a Green Acres loan. In early 1988, the Township was awarded a $3 million low interest loan, and the Township Committee authorized the mayor to enter into an agreement with the Green Acres Program to fund acquisition of the properties for park development.

On May 13, 1988, Princeton Manor filed an application for a major subdivision of its fifty-acre property into forty-eight half-acre lots, a cluster development. On June 3, 1988, the partnership was advised that its application was not complete because the entire property was not within the sewer service area, and, therefore, percolation tests and soil log data would be required to determine the property's suitability for septic systems. At that point, Princeton Manor had two choices. It could attempt to have the sewer service plan amended to encompass the entire tract so the project could proceed with public sewers, or it could conduct the percolation tests at a cost of $40,000 to determine whether the land was suitable for septic systems.

The partnership was in the process of considering these options and had begun studying the sewer plan amendment process when it received a letter from the Township Administrator dated July 29, 1988. That letter, addressed to Yvette, is the focal point of the partnership's contention ...


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