On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1667-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 9, 2011 -
Before Judges Cuff, Fisher, and Simonelli.
In this condemnation appeal, a jury awarded $900,000 as just compensation for property taken by the State of New Jersey for a roadway improvement project. On appeal, the State argues that the trial judge erred in denying its motion in limine to strike the opinion of the property owner's expert that a zoning change was reasonably probable. We affirm.
After defendant DVJ Rentals, Inc. (DVJ) rejected the offer by the State of New Jersey to acquire 2.622 acres of a 17.463 acre parcel in Hillsborough, Somerset County, as part of the Route 206 Bypass Improvement Project, plaintiff State of New Jersey filed a declaration of taking, deposited $36,200 with the court as just compensation, and filed a complaint in condemnation. The court entered an order for Final Judgment and the Appointment of Commissioners. The Commissioners fixed the fair market value of the taken property at $300,000. Both the State and DVJ sought a jury trial to establish just compensation.
The property that is the subject of this taking is located at 176 Steinmetz Road in Hillsborough. It is composed of two separate lots identified as Lot 14, a 9.983 acre parcel in the R-Residential district, and Lot 22, a 17.463 acre parcel in the general industrial district. The lots are adjacent to each other and access to Lot 22 is through Lot 14. The property is irregularly shaped and slopes toward a stream which runs along the southern portion of the property line.
The State took a total of 2.622 acres from Lot 22 comprised of 2.436 acres in fee simple and two utility easements totaling 0.186 acres. The taking divided Lot 22 into two portions creating an eastern and western remainder. The western remainder cannot be accessed through Lot 14. Lot 14 is not affected by the taking.
The State produced an expert who opined that the value of Lot 22 was limited because it was landlocked. Therefore, its highest and best use was as open and undeveloped land. The State expert valued the taken property at $40,000 and found no damage to the remainder that required compensation.
By contrast, DVJ's expert professional planner opined that Lot 22 could be rezoned from general industrial to high-density residential. The DVJ expert noted that Lot 14 was already zoned residential, and there was a reasonable possibility that the property would be rezoned to allow higher density residential development because the property is adjacent to a proposed transit village. The DVJ expert appraiser valued the property taken at $3,400,000.
Prior to trial, both parties moved in limine to exclude each other's experts. The State maintained that the value assigned to the taken property was based on mere speculation that the property would be rezoned to allow high-density residential use consistent with its proximity to a proposed transit village.
The record of the in limine motion included the transcript of the Commissioners' hearing and the reports of the experts retained by the State and DVJ. The Commissioners received testimony from James C. Ford, John A. Madden, Jr., E.J. Flaherty, Peter Steck, and Louis Izenberg. Notably, Madden, a professional planner offered by the State, testified that the property owner would probably receive a use variance to develop Lot 22. The following exchange occurred:
Q. So just to clarify the record, it's now your belief, even though it's not in the report, if the applicant went before the zoning board, they would have good chance of obtaining zoning relief, either a variance or a some type of zone change; is that your testimony?
A. My testimony is that right now the property under the zoning without a variance cannot be used. In other words, they would also have to allow relief for the property from that condition that you cannot access the property for nonresidential use through the residential zone, either relief they would have to ...