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State of New Jersey, By the Commissioner of Transportation v. Frank A. Delucca and Anna Jean Delucca

July 16, 2012

STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-RESPONDENT,
v.
FRANK A. DELUCCA AND ANNA JEAN DELUCCA, DEFENDANTS-APPELLANTS, AND BOROUGH OF LINDENWOLD, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4893-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 27, 2012

Before Judges Grall and Alvarez.

Defendants Frank A. and Anna Jean DeLucca own a residential corner lot situated at the intersection of United States Avenue and Egg Harbor Road in Lindenwold. In connection with a project to construct a new bridge in Lindenwold, the New Jersey Department of Transportation (DOT) filed a complaint and order to show cause under the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 to -50, seeking to condemn a 583-square-foot portion of the DeLuccas' property and an easement affecting the remainder.

The DeLuccas initially opposed the taking and the amount of compensation, but the parties subsequently settled the matter with three agreements that collectively state the DeLuccas' consent to the taking, fix their monetary compensation for the property DOT acquired at $3000 and establish DOT's obligation to perform work to realign the driveway on the property as necessitated by the taking. The first of the agreements was signed in January, the second in March and the third in December 2005.

DOT completed the work in 2006 but not to the DeLuccas' satisfaction. While the record does not clearly indicate when the DeLuccas first alleged the work was deficient, there is no question that they had done so by September 2008.

This is the DeLuccas' appeal from the denial of a motion they filed in August 2010 to enforce the settlement; they alleged that DOT's work was not done in accordance with agreed-upon plans or in a workmanlike manner and sought the cost of correcting the deficiencies. The trial court determined that a provision of the March agreement, which is memorialized as paragraph six of the consent judgment fixing compensation, barred the DeLuccas' claims. Because the several agreements do not permit that interpretation, we reverse and remand for further proceedings.

The first of the three agreements, executed on January 11, 2005, provides:

1. The parties agree that this settlement addresses all issues of challenge to the Order to Show Cause by the property owner.

2. Property owner withdraws the challenge to the Order to Show Cause. . . . Assignment Judge agrees to proceed with entering the Order Appointing Commissioners.

3. The DOT agrees to submit a plan prepared by Jeffrey Konrad of Buchart Horn to the property owner to be reviewed by Frank Seney of Remington & Vernick. This plan will be a driveway schematic to realign the two remaining driveways on the property, will allow for additional landscaping plans, and close the remaining driveway access on United States Avenue.

4. The DOT will construct, plan, develop, be responsible for all costs, and all liabilities set forth in the right of entry.

5. The DOT will make available, after property owner approves the driveway schematic, personnel from the Bureau of Landscaping Architect ...


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