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In re Acquisition of Parcels 13A and X13B

July 20, 2010

IN THE MATTER OF THE ACQUISITION OF PARCELS 13A AND X13B, BLOCK #742.2, LOTS #3.02 AND 3.03, TOWNSHIP OF PISCATAWAY, MIDDLESEX COUNTY.


On appeal from a Final Agency Decision of the Department of Transportation.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 24, 2010

Before Judges Axelrad and Sapp-Peterson.

Petitioner, Walter Mamchur, Jr. (Mamchur), appeals the final administrative determination from the New Jersey Department of Transportation (DOT) awarding him $62,020 for replacement housing pursuant to the Uniform Transportation Replacement Housing and Relocation Act, N.J.S.A. 27:7-72 TO -88. We affirm.

Mamchur owned 2.63 acres, consisting of two contiguous lots located at 546 and 548 Metlars Lane in Piscataway (the property). Situated on the property were two one-and-one-half-story residences, as well as a garage, a coop and several other outbuildings. The property was originally a farm, and petitioner moved to the property in 1953. He resided at 548 Metlars Lane with his four dogs. He used all of the other buildings and grounds on the property except two rental units occupied by tenants who did not otherwise have use of the land or other buildings on the property.

On October 10, 2000, DOT commenced a condemnation action in Superior Court condemning the property as part of a Route 18 widening project in Piscataway Township (Township). DOT had previously attempted to acquire the property for $358,000, which petitioner rejected. Following a bench trial held in October 2004, Mamchur was awarded $740,000. The judge found that the Metlars Lane property contained five lots, each being slightly more than one-half acre. He further found that two of the five lots were improved with residences, one of which petitioner occupied as his dwelling that the judge valued at $235,000 ($90,000 for the land and $145,000 for the residence). Mamchur did not appeal the just compensation award judgment.

Prior to the condemnation trial, Mamchur had been removed from his property in December 2001 following the agency's condemnation. He initially obtained rental housing but, in January 2003, purchased a one-acre property in the Township located at 49 Justice Street. The purchase price for the property was $295,000.

Subsequent to the condemnation trial, Mamchur retained new counsel to represent him in connection with several outstanding legal issues, including assisting him in securing relocation assistance. In October 2006, counsel submitted a claim for relocation assistance to DOT on behalf of petitioner. The claim was initially denied based upon DOT's contention that Mamchur had signed a waiver of relocation assistance in March 2002. Although acknowledging that he signed the waiver, petitioner challenged the circumstances under which the document was signed and claimed that he was unaware that the waiver he executed related to relocation assistance.

In a letter to Mamchur's counsel dated February 22, 2007, Nicholas J. Monahan (Monahan), Jr., Director (Director), Division of Right-of-Way, advised that DOT had determined that there was "good cause" to waive the filing time requirement for relocation assistance and offered petitioner $62,020 as a replacement housing payment. Monahan explained how the replacement housing payment figure was reached:

As you are aware, the final judgment amounted to $740,000, which according to the Trial Report of Deputy Attorney General H. Edward Gable [Report], was based upon a highest [and] best use of the property for a five[-]lot subdivision. Each lot was ascribed a value of $90,000.00, for a total allocation of $450,000 to the land. This then left $290,000 attributable to the two dwellings, or $145,000.00 each, based upon similar ratios being applied by both Mr. Mamchur's and the State's appraiser at the time. Therefore, adjusting for the final judgment, a figure of $235,000.00 (dwelling $145,000 plus $90,000 homesite) would now be deducted from the original comparable listing, reflecting a revised supplement of $30,900.00. However, recognizing that Mr. Mamchur actually spent the sum of $295,000.00 for his replacement property, we have determined to use that figure as a basis, which then increases the supplement due to $60,000.00 In addition, based on our review of the uniform settlement statement prepared for the closing of the Justice Street property, Mr. Mamchur is entitled to receive an added amount of $2,020.00 to cover his title insurance, recording and survey costs. Therefore, in response to the appeal filed on behalf of your client, it is our determination that Mr. Mamchur should be paid a total of $62,020.00 in settlement of this matter.

Mamchur rejected the offer and the matter was transferred to the Office of Administrative Law as a contested case.

At the conclusion of the proceedings before the Administrative Law Judge (ALJ), where petitioner was represented by counsel, the ALJ subsequently issued an initial decision. The ALJ first found that the only portion of the $740,000 condemnation award that could be applied to the replacement housing payment calculation was the amount attributed to the displacement dwelling unit. Relying upon the trial court's determination that $235,000 represented the value of the residential property Mamchur actually occupied, the ALJ concluded that "only $235,000 is considered in calculating the replacement housing payment ($90,000 for the lot and $145,000 for the home)." The ALJ then determined that petitioner's $295,000 purchase of the Justice Street property was replacement housing. Based upon these figures, the ALJ concluded that Mamchur's "replacement home costs exceed[ed] the acquisition fee received by $62,020[,]" which "price differential is precisely the amount offered by the agency in settlement of the claim."

The ALJ affirmed DOT's calculation of relocation benefits to the petitioner and awarded him $62,020. The initial decision was filed with the Commissioner of the Department of Community Affairs (Commissioner). Because the Commissioner did not adopt, modify or reject the ALJ's initial decision within forty-five days and the time period during which the Commissioner could take action was not otherwise extended, ...


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