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State by Com'r of Transp. v. Weiswasser

February 2, 1996

STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-APPELLANT,
v.
FRED WEISWASSER AND GERALDINE WEISWASSER, DEFENDANTS-RESPONDENTS. AND TOWNSHIP OF HAINESPORT, IN THE COUNTY OF BURLINGTON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.



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

Approved for Publication February 2, 1996.

Before Judges King, Kleiner and Humphreys. The opinion of the court was delivered by Kleiner, J.A.D.

The opinion of the court was delivered by: Kleiner

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

This is an appeal by the State of New Jersey and cross-appeal by defendants, Fred Weiswasser and Geraldine Weiswasser, property owners, in a condemnation action pursuant to the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 to -50. We are called upon to determine two questions of first impression in New Jersey: (a) whether the State may require a condemnee to accept substitute real estate or the value thereof as compensation for the condemned real property; and (b) whether the loss of visibility to the remainder of property after condemnation by the State is compensable to the condemnee.

On November 13, 1986, the State filed a Declaration of Taking of .39 acres of land owned by defendants. The condemned property directly abuts Route 38 in Burlington County and includes 255 feet of highway frontage. The State intended to utilize the condemned property to construct a jughandle on Route 38. Pursuant to its Declaration of Taking, the State deposited $165,000 with the Clerk of the Superior Court on January 5, 1987. On February 10, 1988, the State amended its Declaration of Taking and deposited an additional $4,000 with the Clerk's office. On January 6, 1987, defendants filed a notice of application to withdraw the initial deposit from the court and did withdraw those funds. After the amended Declaration of Taking, defendants withdrew the additional $4,000 deposit pursuant to a notice of application.

A Condemnation Commissioners' hearing was conducted and on May 20, 1988, defendants were awarded $390,000. The State's expert opined that just compensation for the condemned land and severance damages to the remainder totalled $169,000. Defendants offered testimony that just compensation was $604,000, excluding severance damages to the remainder attributable to a reduction in exposure to Route 38. Defendants' valuation was predicated on replacement value with adequate ingress and egress. The State appealed that decision and defendants cross-appealed to the Law Division.

After a series of pretrial rulings that constitute the crux of the issues raised on appeal, the matter proceeded to a jury trial. The jury returned a verdict of $204,000 for defendants. An order for judgment was entered requiring the State to deposit with the Clerk of the Superior Court an additional $35,000, representing the balance of the award.

We affirm.

I

Defendants purchased for investment purposes a tract of land measuring approximately 112.38 acres. The land, which is vacant, is situated in the Township of Hainesport, Burlington County, and has limited frontage on Route 38 and limited frontage on Bullshead Road. As of the date of valuation, October 15, 1987, approximately 19 acres were zoned commercial and residential and 93.38 acres were zoned residential.

Prior to the taking, the property included five points of road frontage, four on Route 38 and one on Bullshead Road. Although defendants had never applied for access permits, access would have been permitted at all five points of frontage. *fn1 On Route 38, three of the points of frontage are narrow strips of land that lie between property owned by third parties. The fourth point of frontage is a wider area with 278.5 feet of frontage on Route 38. The area between the 278.5-foot frontage and a 62-foot frontage to the northeast, also on defendant's property, was owned by Ronald Firth. The condemned area totals .39 acres and includes 255 feet of frontage within the 278.5-foot frontage area.

Subsequent to the valuation date and the Condemnation Commissioners' hearing, the State purchased the Firth property. The Firth property totals .37 acres, nearly equivalent to the condemned .39-acre tract, and has approximately 150 feet of frontage on Route 38. The State purchased the property to replace the frontage lost by defendants as a result of the condemnation and to cure the severance damages by providing frontage that could serve as an access point to the remainder of defendants' property. The Firth property would provide defendants with a continuous stretch of frontage of 236 feet, made up of 24 feet remaining adjacent to the condemned frontage site plus 150 feet from the replacement Firth property plus condemnee's adjacent 62-foot frontage strip. *fn2

On January 30, 1992, the State reduced its offer to defendants, offering $117,700 or, in the alternative, the Firth property (valued at $114,000) plus $3,700 cash. The State's revised offer was predicated upon the opinion of appraiser Joseph Manzi that the Firth property would operate effectively as a cure for the severance damages which resulted from the taking. Defendants rejected the revised offer. At trial, the court precluded the State from admitting evidence of the acquisition of the Firth property as a curative offset. As a result, the State was forced to rely solely upon the testimony of its expert, John Borden.

Prior to trial, the State apprised the court of the fact that Borden was prepared to testify to two separate valuations of just compensation: one including damages for loss of visibility from Route 38 to the remainder of defendant's property after condemnation and the second excluding visibility loss damages. The State moved to exclude the second Borden appraisal. The State presented Borden's testimony at the motion in limine. The trial Judge denied the State's motion and ruled that Borden's testimony should include damages attributable to the loss of visibility.

Prior to trial, the State also moved in limine for an order resolving issues pertinent to access to defendants' property. Defendants contended that the issue of reasonable access was an issue which raised a jury question. The trial Judge entered an order which provided:

1. Reasonable access remains, as a matter of law, to the approximately 93 acres of the subject property, zoned "R-1 Residential," after the State's acquisition, described in the complaint filed in this matter.

2. The issue of whether reasonable access remains to the approximately 19 acres of the subject property, zoned "AC Residential/Commercial," after the State's acquisition, described in the complaint filed herein, is a question of fact, to be determined by the trier of fact in this matter.

At trial, Borden testified that the just compensation to defendants would be $204,000. Defendants presented testimony that just compensation would be in the amount of $400,300. As noted, the jury returned a unanimous verdict of $204,000.

On appeal, the State contends that the trial court erred in prohibiting it from introducing evidence that it had purchased land adjacent to defendant's condemned property and had offered that land to defendants as partial compensation. The State also contends that the trial court erred in failing to exclude testimony of loss of visibility damages to the remainder of defendants' property.

In its cross-appeal, defendants contend that the trial court erred in determining that the issue of accessibility to their residential zoned property was one of law to be addressed to the court. At oral argument on appeal, defendants submitted that if the State does not prevail on its appeal, they would abandon their cross-appeal.

We conclude for the reasons discussed hereafter that the trial court correctly ruled on both of the State's applications, namely (1) prohibiting evidence that the State had purchased land adjacent to defendants and had offered same to defendants as partial compensation, and (2) permitting evidence of severance damages which included damages attributable to a loss of visibility. We accordingly affirm ...


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