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Department of Transportation v. Barton Investment Associates

December 07, 1999

NEW JERSEY DEPARTMENT OF TRANSPORTATION, PLAINTIFF,
V.
BARTON INVESTMENT ASSOCIATES, DEFENDANT-APPELLANT/CROSS-RESPONDENT,
AND
TOWNSHIP OF SOUTH BRUNSWICK, DEFENDANT-RESPONDENT/CROSS-APPELLANT



Before Judges Pressler, Landau and Kimmelman.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 26, 1999

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

Defendant Barton Investment Associates (Barton) appeals from a Law Division order that denied its motion to withdraw $4,700 deposited in 1988 by plaintiff New Jersey Department of Transportation (DOT) as compensation after filing a Declaration of Taking for an easement over part of Barton's then-owned property located in the Township of South Brunswick (Township). The appeal also encompasses denial of Barton's motion for reconsideration.

Barton's original motion was opposed by the DOT, which noted the Township's possible interest in those funds. The Township also opposed the motion. On September 11, 1998, an order was entered that denied Barton's application. Reconsideration was denied, and the Township's cross-motion for release of the $4,700 deposit plus accumulated interest to it was granted by the second order.

Based upon the joint record provided to us by the parties, the $4,700 deposit by DOT was made in 1988, solely for an easement described as "Parcel 98C" that encompassed construction and maintenance of a headwall, drains, stabilizing supports, and slope maintenance and control over real property in the Township owned by Barton. The property subject to the easement was later acquired by the Township by in rem tax foreclosure based upon Barton's failure to pay 1989 real property taxes.

We have not been favored by the court with a decision setting forth findings of fact and conclusions of law underlying the orders, other than by a general reference to the briefs filed by the Township. Unfortunately, the judge did not indicate which of the Township's arguments were accepted.

This approach ignores the requirements of R. 1:7-4(a) and confounds our effective review of the questioned orders. In an effort to avoid a remand, we endeavored to consider the Township's arguments, which were directed partially at urging its paramount right to the deposit monies and accumulated interest, and partially at contesting the rights of Barton or persons claiming rights through Barton from appearing in the cause. These arguments included the following: (a) Barton's corporate charter had long since been revoked (although it was reinstated in 1999 after the orders under review were entered); (b) Barton's attorney was representing clients with apparently conflicting interests, i.e., a "creditor" of Barton who held a large consent judgment against it, although that "creditor" was apparently also a Barton principal; (c) a certification by Barton's counsel was based on undocumented hearsay; (d) as a result of the in rem tax foreclosure, the Township currently owned the property in fee simple, thus extinguishing all rights and claims by Barton or its creditors, by reason of N.J.S.A. 54:5-6 and N.J.S.A. 54:5-9, and under Kessler v. Tarrats, 194 N.J. Super. 136 (App. Div. 1984), giving to the Township a priority lien over prior or subsequent rights in the property.

These arguments are supplemented on appeal by reference to N.J.S.A. 20:3-42*fn1 and to a 1989 order entered by the Law Division in the condemnation action. The order directed Barton to convey title to "Lot 15.20 Block 84" to the Township and provided that Barton "shall no longer be a party in interest in the within condemnation proceeding." However, the record also contained a copy of a 1991 deed from Barton to the DOT which purports to convey property in the Township that includes part of Lot 15.20. Neither description is congruent with the description of the easement to DOT that was the subject of the 1988 deposit.

The Township urges that it has "a valid and enforceable priority lien against the property pursuant to N.J.S.A. 54:5-6" and that under N.J.S.A. 20:3-42, "[i]f the condemnation action filed by the State had been resolved while the Township's lien was in place, the Township would have been entitled to payment of any proceedings from the taking by the State, to the full extent of its lien for unpaid taxes."

At the core of the Township's argument is the contention that the current owner of property is the one who must be compensated for the value of the easement taken in 1988 and for any diminution in value to the remainder. The Township urges that Judge, later Chief Justice, Weintraub's opinion in New Jersey Highway Auth. v. Henry A. Raemsch Coal Co., 40 N.J. Super. 355 (Law Div. 1956) is inconsistent with applicable law, including our opinion in City of Orange v. Wall Day Realty Co., 150 N.J. Super. 1 (App. Div. 1977).

In various respects the joint appendix also appears to have been unofficially supplemented without benefit of motion, subsequent to the date of the challenged orders. Among other things, those materials show that the Barton charter has been reinstated by the Secretary of State, and that Barton and the creditor who purported to claim through Barton below, are wholly in accord with each other in this matter.

It is clear from the record that the motion judge did not address Barton's contention that DOT acquired its easement in 1988 upon deposit of the $4,700, and that when the Township foreclosed for non-payment of the subsequent year's taxes, the property foreclosed was ...


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