On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5488-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Lihotz.
This appeal requires us to address the issue of whether a billboard located on leased property subject to condemnation is real or personal property under the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 to -50. Assignment Judge Francis in the Law Division concluded that the billboard was personalty, and defendant Lamar Advertising of Penn LLC (Lamar) was not entitled to participate directly in the condemnation proceedings. We agree and affirm.
The facts are not in significant dispute. Defendants Ronald C. Witt and Nancy B. Witt (collectively, the Witts) are the owners of real property located at 269 Prospect Plains Road in Cranbury (the property). The property is contiguous to the New Jersey Turnpike, and located on the property is a 6,658 square foot office building as well as a double-sided billboard, positioned on the eastern property line. Lamar owns the billboard and leases a portion of the property from the Witts to maintain the billboard.*fn1
The billboard is forty-three feet above grade and consists, in part, of a steel monopole (wall pipe) that is thirty-six inches in diameter and contains a double-sided sign panel, which measures fourteen feet by forty-eight feet per face. Steel bracing supports the sign and a catwalk provides access to the sign. The monopole sits in a concrete footing that extends eighteen feet and six inches into the ground. The steel footing is supported by a concrete foundation whose measures are twenty feet, six inches by twenty feet, six inches, and extends to a depth of five feet.
Plaintiff the New Jersey Turnpike Authority (NJTA) is a public corporation that operates the New Jersey Turnpike and "facilitate[s] vehicular traffic and remove[s] the present handicaps and hazards on the congested highways in the State [of New Jersey][.]" N.J.S.A. 27:23-1. NJTA, as part of a Turnpike widening program, sought to acquire the Witt's property as part of the addition of three outer lanes, northbound and southbound, and multiple interchange improvements along approximately thirty-five miles of roadway between Interchange 6 and Interchange 9.
NJTA extended to the Witts a $1,800,000 offer to purchase the property, memorialized in a June 24, 2008 letter. This offer was based on an April 15, 2008 appraisal report, prepared by the NJTA's appraiser, Patrick B. Ard, MAI. Based on this appraisal, $400,000 of the $1,800,000 market value of the property was attributed to the billboard.
NJTA attempted to negotiate a purchase of the property with the Witts; the negotiations proved unsuccessful, and NJTA filed a Workable Relocation Assistance Plan (WRAP) with the State of New Jersey, Department of Community Affairs (DCA), pursuant to N.J.S.A. 52:31B-1 to -12 and N.J.S.A. 20:4-1 to -22 and the Relocation Assistance Regulations, N.J.A.C. 5:11-1.1 to -9.3 (the Relocation Laws) to acquire the property by eminent domain. The Witts did not oppose the taking. The DCA approved the WRAP in correspondence dated March 12, 2008.
On July 9, 2009, NJTA filed a Verified Complaint in Condemnation and Order to Show Cause seeking to institute condemnation proceedings to obtain the property. On that same day, the trial judge, finding that the NJTA was "entitled to immediate and exclusive possession of the premises," entered an Order for Payment into Court and For Possession, whereby NJTA was ordered to deposit with the court the $1,800,000 estimated value of the property for just compensation. On August 4, 2009, the Witts filed a Motion to Withdraw, seeking disbursement of these funds. However, Lamar opposed the taking.
Lamar moved to dismiss the complaint asserting NJTA's failure to value all interests condemned. Lamar claimed that NJTA was legally obligated to engage in negotiations not just with the Witts, but also with Lamar; it further claimed that NJTA had failed to value the billboard or its permit. The judge concluded that Lamar's billboard was personal property and did not qualify for direct compensation under the eminent domain statute.*fn2 As bona fide negotiations are only required to take place with the holder of title of record of the property, Lamar had no right to participate in the negotiations between the Witts and NJTA.
On September 1, 2009, Judge Francis entered an Order for Judgment and Appointing of Commissioners, finding that NJTA "is duly vested with and has duly exercised its powers of eminent domain to acquire the Property." Lamar filed a Motion for Reconsideration of this order on September 11, 2009. Lamar took issue with the trial court's finding that the billboard did not meet the definition of "property" under the Eminent Domain Act, and that Judge Francis improperly relied upon the Supreme Court's ruling in R.C. Maxwell Co. v. Galloway Twp., 145 N.J. 547 (1996). Lamar argued that the Maxwell's holding was limited to wooden billboard structures. Finally, Lamar also asserted that Judge Francis's rulings were inconsistent in that the court's determination that Lamar's ...