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State v. Weite

July 15, 2008

STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-RESPONDENT,
v.
ALBERT J. WEITE, A/K/A ALBERT J. WEITE, III, INDIVIDUALLY AND AS EXECUTOR AND TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF ALBERT J. WEITE, JR., DECEASED, DEFENDANT-RESPONDENT, AND CAROL HILL, INDIVIDUALLY AND AS EXECUTOR AND TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF ALBERT J. WEITE, JR., DECEASED, EDDIE TORRES, BOROUGH OF WEST PATERSON, AND TOWNSHIP OF LITTLE FALLS, IN THE COUNTY OF PASSAIC, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANTS.
EVERGREEN TREE ESTATES, INC., SUSSEX PROPERTIES, INC., AND ARROW'S ROUTE 46 AUTO MALL, T/A BOB CIASULLI AUTO GROUP. INTERVENORS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2203-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 13, 2008

Before Judges Coburn, Fuentes and Chambers.

Appellants Evergreen Tree Estates, Inc., Sussex Properties, Inc, and Arrow's Route 46 Auto Mall, Inc., t/a Bob Ciasulli Auto Group ("Ciasulli") appeal from the order of June 22, 2007, denying the application to intervene in this condemnation case. Ciasulli sought to intervene in order to contest the settlement reached between the State and defendants Albert J. Weite, also known as Albert J. Weite, III, and Carol Hill,*fn1 individually and as Executors and Trustees under the Last Will and Testament of Albert J. Weite, Jr., deceased ("Weite"). Under the terms of the settlement, defendants would receive a parcel of land as compensation for property taken from them by the State of New Jersey through the Commissioner of Transportation ("the Commissioner"). Ciasulli maintains that it should have had an opportunity to bid on the parcel of land. We reject this argument and affirm since the settlement constituted a permissible exchange of land, and Ciasulli had no interest in the property in question that would allow intervention in the case.

I.

This dispute arises out of the condemnation of lands needed by the State to improve the interchange of Route 46 and Browertown Road (the "Project"). In connection with the Project, the State condemned the property of three landowners for use by the New Jersey Department of Transportation ("NJDOT"). Specifically, the State condemned all of the property owned by 46 Wendy's, L.L.C., at this location. In addition, a portion of Ciasulli's property, contiguous and to the east of the Wendy's property, was condemned. A portion of Weite's property, contiguous and to the west of the Wendy's property, was also condemned. Thus, Weite's and Ciasulli's properties were not adjacent to each other, but rather were separated by the Wendy's property in the middle.

NJDOT divided the Wendy's land into four parcels. One of those parcels, identified as Parcel VXR15B2 and shown in yellow on the maps submitted with this appeal (the "yellow parcel"), is the subject of this appeal. The yellow parcel shares a border with Weite's property but does not share a border with the Ciasulli property.

On April 12, 2002, the State filed a verified complaint to condemn a portion of Weite's property. On May 2, 2002, the State deposited $87,000 with the court and filed a declaration of taking. At this point, the State acquired legal title to the property. N.J.S.A. 20:3-21(a). However, the matter of Weite's compensation was still unresolved, so the condemnation action remained open. By Judgment and Order for Withdrawal of Funds dated July 26, 2002, the court permitted Weite to withdraw the $87,000 plus any accumulated interest. However, the judgment expressly provided that the withdrawal was subject to repayment under N.J.S.A. 20:3-23, which allows for payment of estimated compensation and provides for repayment with interest in the event of an overpayment. Paragraph three of the order states that "[e]ntry of this judgment shall not affect or prejudice the final determination of the amount of compensation payable for the taking hereunder."

At some point, NJDOT determined that once the project was completed, it would no longer need the yellow parcel for staging and storage for the Project.

On November 7, 2003, a consent order for final judgment was entered setting forth the settlement reached between Weite and the State in the condemnation action. In accordance with the terms of the settlement, the State was to convey the yellow parcel to Weite provided that Weite returned the $87,000 to NJDOT within thirty days after the State notified Weite that the Project was concluded. Thus, once the $87,000 was returned to NJDOT, the yellow parcel was to be Weite's sole compensation for the portion of his property taken. The consent order recites that the just compensation for the Weite property taken "is equivalent to the value" of the yellow parcel. If Weite failed to return the $87,000 to NJDOT in accordance with the consent judgment, that sum would be Weite's full compensation for the taking.

Since Ciasulli was not a party to the Weite condemnation action, it did not receive notice of the proposed settlement, nor were any public notices given offering the yellow parcel for sale. As a result, Ciasulli did not learn of the settlement between the State and Weite regarding the yellow parcel until it made inquiries about the Wendy's property in late 2006.

On March 27, 2007, Casiulli moved to intervene in the Weite condemnation action in order to invalidate the portion of the consent judgment allowing transfer of the yellow parcel to Weite without a public sale. That application was denied on June 22, 2007, and this appeal followed.

Ciasulli raises the following issues on appeal:

POINT I

AS A NEIGHBORING PROPERTY OWNER INTERESTED IN PURCHASING THE SUBJECT PARCEL, CIASULLI HAS A SIGNIFICANT INTEREST IN THE ENFORCEMENT OF THE STATUTORY SCHEME GOVERNING DISPOSITION OF DOT PROPERTY NO LONGER NEEDED FOR HIGHWAY USE WHICH REQUIRES A PUBLIC SALE TO THE HIGHEST BIDDER BECAUSE THE ...


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