On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Approved for Publication January 6, 1997.
Before Judges Petrella, Landau and Kimmelman. The opinion of the court was delivered by Kimmelman, J.A.D.
The opinion of the court was delivered by: Kimmelman
The opinion of the court was delivered by
Defendant Bayview Associates (Bayview) appeals from a summary judgment entered in the Law Division which permitted plaintiff to file an amended complaint. The trial court ruled that plaintiff had properly exercised its right of eminent domain in connection with the widening of Route 169 in Bayonne, however the appointment of condemnation commissioners was withheld pending the resolution of this appeal.
The operative facts are as follows. Bayview owns a large wholesale distribution warehouse located at the intersection of Route 169 and Pulaski Street in Bayonne. The warehouse is a rail/truck terminal building, ten acres in size, on a twenty-one acre lot. The building was specially designed to receive freight by rail and to redistribute the freight by truck. On its primary level, the building has twenty-five truck doors and seven rail doors which are serviced by two separate rail spurs. One rail spur provides rail service to the five rail doors located along the northwesterly side of the building which are used in conjunction with fifteen truck doors along the northeast side. The other rail spur provides rail service to the remaining two rail doors situated along the southwesterly side of the building which are used in conjunction with ten truck doors along the southeast side. As of the date of the taking, Conrail was providing active and frequent rail service along both spur tracks.
Plaintiff's plan to widen Route 169 requires moving certain Conrail tracks which will directly affect Bayview's building. The railroad spur serving the two railway bay doors on the southwesterly side of the building, feeding the ten southeasterly truck doors, will no longer be connected to Conrail's main line as a result of the subject condemnation of Conrail's property. The other railroad spur which services the five railway bay doors on the northwesterly side of the building, feeding the fifteen northwesterly track doors, will still be connected with the Conrail main lines and will remain functional.
In sum, while none of the seven railway bay doors will be physically taken, the off-site condemnation of a portion of Conrail's right of way will terminate active rail service to two of the seven railway bay doors. It is argued that, as a result, the building will lose approximately twenty-eight percent of its capacity to receive railroad freight.
The only land being taken from Bayview consists of a small triangular parcel of vacant land, less than one acre in size, which is to be used in connection with the Pulaski Street corner improvements. The taking of that small parcel does not affect the outcome of this appeal.
Prior to the filing of the condemnation, the parties were engaged in negotiations during which it was assumed that plaintiff would have the responsibility for curing the impairment in the use of the building caused by the elimination of the southwesterly siding and consequent inutility of two railway doors. It was contemplated that the building would require physical alteration to cure the effect the off-site condemnation would have upon the facility.
Plaintiff offered Bayview $10,600 for the small triangular parcel actually being condemned and damages of $113,600, the estimated cost of alterations to the building needed to change the location of the two railway bay doors which no longer could be used. Bayview estimated it would cost $492,799 for modifications to the building occasioned by the need to relocate the two railway bay doors. When the parties could not agree on the damages figure, plaintiff, on May 22, 1995, filed a complaint for condemnation, and also filed a declaration of taking. The sum of $124,200 was deposited as just compensation with the Clerk of the Court to cover (1) the value of the small triangular piece of property being taken; and (2) the cost to cure the impairment of the building together with the right to enter upon Bayview's land for the purpose of relocating the railroad spur. The declaration of taking was recorded in the Office of the Register of Hudson County.
Eighteen days later, on June 9, 1995, plaintiff filed an amendment to the complaint reducing the estimated just compensation to $10,600 by eliminating $113,600 of its original estimate of just compensation which was related to the projected cost to cure the impairment caused to the building by the Conrail taking. The amendment to the complaint was motivated by plaintiff's determination that, since there was no actual taking of Bayview's land in connection with the curtailment of service to one of the railway sidings, it did not have to fund the cost to cure the damages resulting from the curtailment of such service.
Bayview moved to dismiss the amended complaint. The trial court rejected Bayview's claim and upheld plaintiff's revision of its estimate of compensable damages ruling summarily that the beneficial use of Bayview's property was not destroyed by the taking of adjoining Conrail property which resulted in the ...