Before Judges Stern, Kestin and Steinberg.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
We granted leave to appeal to decide whether a greater or increased deposit has to be paid by plaintiff-condemnor, the New Jersey Turnpike Authority, to the Clerk of the Superior Court pending a trial de novo in this condemnation case. Defendant-landowners contend that they were deprived of "equal protection" of the law because the taking authority's deposit into court was based exclusively on its own appraisal in the amount of $308,000, and was not increased following the award of the condemnation commissioners in a greater amount.
Defendants contend that because their land was "condemned before the Condemnation Commissioners had filed their report [they were] denied the same rights as any other property owner, whose property is condemned after the Condemnation Commissioners have filed their report." They argue that by virtue of the commissioners' report, dated March 17, 1999, determining that just compensation amounted to $750,000, an additional $442,000 (representing the difference between the $750,000 finding and the $308,000 deposit) should be deposited with the court pending the trial de novo. They claim that this is necessary, as a matter of constitutional principle and statutory interpretation, in order to place them on an "even playing field" with the Turnpike Authority and as a matter of fundamental justice while the issue of "just compensation" is being litigated on the trial de novo.
The principal issue turns on the construction of N.J.S.A. 20:3-18 which provides, in pertinent part:
Deposit of estimated compensation
Simultaneously with the filing of the declaration of taking, the condemnor shall deposit the amount of such estimated compensation with the clerk of the court. The amount so deposited shall be not less than the amount offered pursuant to section 6 hereof, and if an award has been made by commissioners hereunder, or a judgment determining compensation has been entered at the time of the filing of such declaration, the amount so deposited shall be not less than the amount of such award or judgment.
Section 6 of the Eminent Domain Act of 1971, N.J.S.A. 20:3-6, referred to in N.J.S.A. 20:3-18, provides in relevant part that "[i]n no event shall such offer be less than the taking agency's approved appraisal of the fair market value of such property."
Defendants contend they were denied equal protection because, had the taking occurred after the commissioners determined their award (or after the judgment was entered), defendants would have been entitled to the amount awarded by the commissioners (or as embodied in the judgment), whereas now they are entitled only to the amount of the Turnpike Authority's appraisal. They argue that if the Turnpike Authority had not immediately taken possession by filing a "declaration of taking" when the complaint was filed on September 8, 1997 "and had [it] not sought possession (by the filing of a declaration of taking) until after the Condemnation Commissioners' award, the statute clearly mandates that the amount of the Condemnation Commissioners' award ($750,000) be deposited" when the Turnpike Authority took possession.
But since plaintiff obtained possession by a taking before the award was made, defendants argue the "anomaly" is that defendants were only entitled to the amount of the appraisal, which was originally $2,500 and then increased to $308,000. As already noted, defendants therefore seek the $442,000 difference between the appraised amount and the Commissioners' award. They rely upon an unpublished opinion, which Judge Harold B. Wells, III, the trial judge in this case, found to be unpersuasive. See R. 1:36-3. While defendants concede that the difference between the final judgment and deposit will ultimately be paid, with interest, see N.J.S.A. 20:3-23 (and N.J.S.A. 27:23-5(j) with respect to the Turnpike Authority), they assert this "does not assist the landowner while the case is pending." Moreover, defendants claim that they have a right to withdraw the deposit, N.J.S.A. 20:3-23, and can do so at least by posting a bond even when the plaintiff-condemnor challenges the commissioners' award as excessive, as it has done here. *fn1
We affirm the judgment under review substantially for the reasons expressed by Judge Wells in his letter opinion of June 4, 1999. We quote extensively from his opinion:
N.J.S.A. 20:3-18 deals with the deposit of commissioners' awards and directs that they be made only if they are the first deposit made in the case. Courts should enforce the express language of a statute, Sheeran v. Nationwide Mut. Ins. Co., Inc., 80 N.J. 548, 556 (1979) (citations omitted), and a literal interpretation of the statute here is clearly not absurd. If the condemning authority has not taken the property before ...