COUNTY OF ESSEX VS. GERALD RUBINÂ (L-981-10, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is only binding on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1651-14T4
COUNTY OF ESSEX,
Plaintiff-Respondent/
Cross-Appellant,
v.
GERALD RUBIN and THE GRACE
ARAMANDA TRUST,
Defendants-Appellants/
Cross-Respondents,
and
CHRISTIAN FEIGENSPAN & CO.;
ORATON INVESTMENT CO.; CITY
OF NEWARK; and NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL
PROTECTION, BUREAU OF TIDELANDS
MANAGEMENT,
Defendants.
____________________________________
Submitted October 11, 2016 — Decided August 2, 2017
Before Judges Sabatino, Nugent and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-981-
10.
Law Office of W. Lane Miller, and Paul V.
Fernicola & Associates, LLC, attorneys for
appellants/cross-respondents; Mr. Miller, of
counsel; Mr. Miller and Robert Moore, on the
briefs).
DeCotiis, FitzPatrick & Cole, LLP, attorneys
for respondent/cross-appellant; Mr. Frino, of
counsel; Michael J. Ash, on the briefs).
PER CURIAM
Plaintiff, County of Essex ("the County"), filed this
condemnation action under the Eminent Domain Act of 1971, N.J.S.A.
20:3-1 to -50 ("the Act") to acquire land owned by defendants
Gerald Rubin and the Grace Aramanda Trust ("the owners"). The Act
includes, among four possible dates for determining just
compensation to the owners, "the date possession of the property
being condemned is taken by the condemnor in whole or in part" and
"the date on which action is taken by the condemnor which
substantially affects the use and enjoyment of the property by the
condemnee." The trial court determined on summary judgment the
former was the appropriate valuation date.
The owners appeal from the March 22, 2013 implementing order.
They also appeal from the trial court's May 6, 2013 order that
denied their motion for reconsideration, and from the October 23,
2014 order that entered final judgment on the jury's valuation
verdict.
The County cross-appeals from the order of judgment, arguing
the trial court improperly permitted the owners' expert to include
2 A-1651-14T4
part of a vacated street in his valuation of the condemned land.
The County also contends the trial court twice erred during the
trial; first, when it precluded plaintiff's expert from testifying
about the motivation of a buyer for buying comparable property;
second, when it refused to instruct the jury that the condemned
property was subject to regulation by the New Jersey Department
of Environmental Protection ("NJDEP").
For the reasons that follow, we affirm the three orders.
I.
A.
The condemned property consists of four lots (collectively,
"the condemned tract") designated on the Newark City tax map as
Block 2025, Lot 20, Block 2473, Lots 1 & 2, and Block 2473.01, Lot
4. The first three lots border the Passaic River along one side
and, to a considerable extent, the Morris Canal Bed along the
other. The fourth lot borders the opposite side of the Morris
Canal Bed along one side and Raymond Boulevard along the other.
A section of Brill Street perpendicular to Raymond Boulevard
provided access to the condemned tract. The City of Newark vacated
this section of Brill Street in 1999.
The County filed a verified complaint on January 29, 2010,
seeking, among other relief: a determination that it had duly
exercised its power of eminent domain; an order authorizing it to
3 A-1651-14T4
deposit funds upon the contemporaneous filing and recording of a
declaration of taking; and the appointment of commissioners to
render an equitable appraisal of the condemned tract. The trial
court granted the relief the County sought, the owners appealed,
and we affirmed the trial court's August 24, 2010 order for
judgment and appointing commissioners. Cty. of Essex v. Rubin,
No. A-0714-10T3 (App. Div. June 24, 2011).
Lengthy discovery ensued. Following completion of discovery,
the County filed a motion for partial summary judgment seeking an
order fixing the date for valuation of the condemned tract. The
trial court granted the motion on March 22, 2013, and entered an
order providing "the date of valuation for the condemnation value
litigation shall be April 14, 2010 in accordance with N.J.S.A.
20:3-30(a)", the date the County filed the declaration of taking.
On May 6, 2013, the court denied the owners' motion for
reconsideration.
At the conclusion of a July 23, 2014 hearing, the court
determined that the owners' expert would be permitted to opine at
trial that a 4043.6 square foot portion of the vacated Brill Street
should be included in the condemned tract's valuation. The court
explained that the County could cross-examine the expert and
"maybe, even offer witnesses at some future date to offer contrary
opinions. I don't know about that."
4 A-1651-14T4
The matter was tried in September 2014 and the jury returned
a verdict of $5,045,000 as just compensation to the owners for the
County's acquisition of their property. This appeal followed.
B.
The summary judgment motion record consisted mostly of
undisputed facts and disputed expert reports. The record
established three periods of activity relevant to this appeal.
During the first period, from 1996 to 2003, the County sought to
acquire the condemned tract but abandoned its efforts to do so.
During the second period, 2003 through 2005, the County informed
the owners of its renewed intention to acquire the condemned tract,
the parties engaged in unsuccessful negotiations concerning just
compensation, and the owners ultimately filed an inverse
condemnation action. The third period, from 2006 through 2010,
culminated in the County filing a declaration of taking and
depositing the sum it believed to be just compensation for its
acquisition.
The first event of the first period occurred in 1996 when the
City of Newark agreed to allow the County to build a jail in the
city on the condition the County build a minor league baseball
stadium and soccer stadium on County land located in Newark. Essex
Cty. Improvement Auth. v. RAR Dev. Assocs., 323 N.J. Super. 505,
510 (1999). The County agreed to use Riverbank Park as the
5 A-1651-14T4
location of the stadiums. Ibid. The County also agreed to build
a "replacement park" near Riverbank Park. Id. at 510-11.
The Essex County Improvement Authority ("ECIA") identified
the condemned tract as the then-anticipated site for the
replacement park. RAR Development Associates ("RAR") owned the
condemned tract. Defendant Rubin was RAR's general partner. Id.
at 511. After making two offers to buy the condemned tract from
RAR and taking preliminary steps to acquire the tract through
eminent domain, ECIA abandoned its efforts. Ibid. Litigation
ensued and a Law Division judge determined ECIA was precluded
"from continuing to prosecute the present condemnation action
against RAR." Id. at 528. The judge declared the condemnation
of RAR's property abandoned. Ibid.In July 2001, RAR filed a development application with the
Newark Board of Adjustment seeking a use variance and site plan
approval for the proposed construction of ninety townhouses and a
playground on the condemned tract. Newark's zoning officer
rejected the application because, among other reasons, the
application "appear[ed] to include properties not owned by the
applicant . . ., namely, the Morris Canal Bed"; and because the
site was "subject to the WaterFront Development Permit process and
regulations with the [NJDEP]." RAR did not further pursue the
6 A-1651-14T4
condemned tract's development, though it repeatedly threatened to
do so during the second period relevant to this appeal.
The second relevant period began on December 3, 2003, when,
during a town council meeting, the City of Newark adopted two
ordinances, both intended to facilitate the County's acquisition
of the condemned property and construction of a park. During the
meeting, a council member publicly stated the County Executive had
made a commitment to build the park. The council member also
stated that as soon as the ordinances were adopted, "they will
move into condemning the . . . property, obtaining the property
and move on in building the replacement park."
Two days later, on December 5, 2003, ECIA Special Counsel
wrote to defendant Rubin, stating:
[t]he County and the City of Newark have been
working on a cooperative basis to restart the
Replacement Park Project.
. . . .
Hopefully, the RAR Property can be acquired
by the County or the ECIA through a mutually
acceptable Purchase and Sale Agreement. If
mutually acceptable terms concerning such
property acquisition cannot be reached, the
County or the ECIA will seek to acquire the
RAR property through exercise of their
respective powers of eminent domain.
The December 5, 2003 letter triggered more than a year's
exchange of letters and meetings among RAR, Rubin, and County
7 A-1651-14T4
Counsel concerning the condemned tract's value. Rubin asserted
the condemned tract's value had been affected by the longstanding
"threat of condemnation." Rubin also threatened to "commence
active development plans for the RAR properties." Nonetheless,
the parties continued to negotiate while the County obtained
appraisals for the condemned tract.
The County obtained two appraisals. On July 20, 2004, County
Counsel wrote to Rubin and confirmed the County had offered
$4,200,000 to purchase the condemned tract. In a lengthy response
dated July 26, 2004, Rubin memorialized RAR's rejection of the
offer and confirmed he had been told the offer was final.
Consequently, Rubin expected the County to "either file a
Declaration of Taking or abandon the [p]roperty as a proposed
park." He concluded: "[i]f we do not get a response to this letter
within fifteen (15) days, we will assume the County is abandoning
its interest in the [p]roperty as a proposed park and my client
will immediately proceed with development plans."
In response, County Counsel wrote to Rubin on August 9, 2004,
pointing out the County had delivered copies of appraisals to
Rubin. The valuations in the appraisals "ranged from a low of
$3,698,000 to a high of $4,300,000." The County further pointed
out that its offer of $4,200,000 "exceeded both appraisal
valuations where RAR had no interest in the Morris Canal [B]ed."
8 A-1651-14T4
In an October 28, 2004 letter, Rubin confirmed a meeting in
which he countered, on behalf of RAR, with an offer to sell the
condemned tract for $5,000,000 "to settle this matter even though
[RAR] believes that the fair market value of the [p]roperty is
substantially in excess of $5,000,000."1 Rubin further confirmed
the County had rejected RAR's counteroffer and insisted it would
not purchase the condemned tract for more than $4,300,000.
On March 9, 2005, in response to County Counsel telling Rubin
he had offered no evidence that the County's appraisals were
inaccurate, Rubin provided a report from Appraisal Consultants
Corp. ("Appraisal Consultants"). In the February 1, 2005
appraisal, the value of the condemned tract, based on the
assumption RAR had no right or interest in the Morris Canal Bed,
was $9,460,000. Assuming RAR had rights in the Morris Canal Bed,
the condemned tract's value was $11,000,000. The parties exchanged
additional correspondence in which County Counsel enclosed reports
from the County's appraisers challenging as unreliable the data
relied upon by RAR's appraisers.
The parties' negotiations ended on May 25, 2005, when Rubin
wrote to County Counsel confirming RAR had rejected the County's
1
We discern no violation of N.J.R.E. 408 in discussing the history
of the parties' settlement negotiations in this context, given the
special relevance of the negotiations to the condemnation issues.
9 A-1651-14T4
final "firm" offer of $4,700,000. Rubin concluded his three-page
letter by stating, "[i]t is the position of my client that the
County's actions have resulted in a condemnation of their property.
We are in the process of instituting a suit against the County
taking the position that the County's actions have resulted in the
condemnation of their property. We will file that suit within two
weeks unless we can reach a mutually acceptable agreement with
respect to the status of my client's property."
In November 2005, JAGR Three Realty, L.L.C., successor to
RAR, filed an inverse condemnation action against the City of
Newark, the County, and ECIA. Later that month, counsel for Rubin
and JAGR wrote a letter to County Counsel confirming the County
had once again offered to purchase the condemned tract for
$4,700,000, and the offer had once again been rejected. JAGR
agreed to accept the sum of nine million dollars as the purchase
price.
Thereafter, the owners leased portions of the condemned
tract. According to the County, the court dismissed JAGR's inverse
condemnation action on September 20, 2007, pursuant to Rule 1:13-
7 for lack of prosecution.2
2
According to the County's brief, the Essex County Superior Court
Clerk's file was destroyed on April 17, 2009.
10 A-1651-14T4
The third period relevant to this appeal began on December
2, 2009, when the County offered to purchase the condemned tract
for $3,330,000. The owners rejected the offer, and on January 29,
2010, the County filed a verified complaint seeking the following
relief: a determination that it was authorized to, and had, duly
exercised its power of eminent domain; an order instructing the
County to deposit funds equal to the appraised value of the
condemned tract upon the filing and recording of a declaration of
taking and declaring that the County was authorized to take
possession of the condemned tract; and the appointment of
commissioners to make a just and equitable appraisement of the
value of the condemned tract and to fix compensation to be paid
for its acquisition. The owners filed an answer in which they
alleged, among other things, the proper date of valuation of the
condemned tract was November 3, 2005.
On August 24, 2010, the trial court entered judgment as
requested by the County. The owners appealed, arguing the County
failed to engage in bona fide negotiations to acquire the condemned
tract and failed to serve them with the appraisal before filing
the verified complaint. We affirmed the August 24, 2010 order for
judgment and appointing commissioners. Cty. of Essex, supra, No.
A-0714-10. Thereafter, appointed commissioners filed an award,
which was rejected.
11 A-1651-14T4
Following discovery, the County filed a motion for partial
summary judgment, seeking an order fixing a valuation date for the
condemned tract. The County argued the valuation date should be
April 14, 2010, the date on which the County became vested with
title and possession of the condemned tract by filing the
Declaration of Taking and depositing the estimated compensation.
The owners argued the valuation date should be July 1, 2005, the
date they claimed the use and enjoyment of the condemned tract was
substantially affected by the County's actions.
The summary judgment record included appraisal reports
prepared for the owners. The reports were included in the County's
moving papers. One, prepared by Appraisal Consultants, dated June
1, 2012, concluded that as of July 2, 2005, the fair market value
of the condemned tract was $9,460,000 assuming no rights, title
or interest in the Morris Canal Bed; and $11,000,000 assuming full
rights, title or interest in the Morris Canal Bed. Another,
prepared by Blau Appraisal Company and dated November 13, 2009,
appraised the value of the condemned tract as of November 2, 2005,
at $11,825,000 assuming no rights in the Morris Canal Bed, and
$13,750,000 assuming full rights in the Morris Canal Bed.
According to both reports, the highest and best use of the
condemned tract was residential development. The Appraisal
Consultants' report stated:
12 A-1651-14T4
[d]ue to the County's actions and inactions
as of July 1, 2005[,] the property owner could
. . . [o]nly rent the property on a short term
basis[; could n]ot prepare [and file] a
development plan[,] . . . make any substantial
development plans to enhance the property's
value[, or] sell the property to a developer
or lease the property on a long term basis to
a user who required substantial improvements
be made to the property.
The report also stated:
In conjunction with the property's loss of use
and enjoyment there would also be a
significant loss in its market value resulting
from its loss of its bundle of rights and
relegating the use and utility of the property
to short term rental status for use solely as
outside storage. No purchaser or developer
would give any value to the property for
development to its highest and best use which
is and was for residential or for any other
development use.
The report's author opined that sellers and buyers would have
no motivation to sell or buy the property "for development for
residential use (its highest and best use), for development for
an industrial building, office building, retail, or any other use
that necessitated making substantial improvements to the
[p]roperty due to the significant uncertainties (cloud) hovering
over" the property. He continued:
The fact that there was no response relating
to the March 11, 2004 and April 8, 2005 letters
from Rubin to the County and the County's
statement that it was "not going to do
anything" as a result of impasse in
negotiations had a marked deleterious effect
13 A-1651-14T4
on the subject property due to its serious
chilling [e]ffect on any attempt on the part
of the owner to either market or develop the
property and therefore caused a substantial
downward fluctuation in its value. Given that
vacant land's most profitable use is for it
to be developed, the loss and value suffered
by the [owners] as a result of their inability
to effectively develop the property was in
excess of $5,000,000 as specifically detailed
below.
The author estimated the current value of the condemned tract
based on the proposition that "the only use that the land could
be used for is for outside storage short[-]term rental." Employing
"[a]n accepted valuation technique for estimating land value[,
namely,] to capitalize the net rent derived from the rental of the
land[,]" the author valued the condemned tract based on current
use at $4,436,000 assuming no rights, title or interest in the
Morris Canal Bed, and $5,138,000 assuming full rights, title or
interest the Morris Canal Bed. The author compared these values
to the condemned tract's values based on a highest and best use
as residential development: $9,460,000 assuming no rights, title
or interest in the Morris Canal Bed, and $11,000,000 assuming full
rights, title or interest in the Morris Canal Bed. The author
concluded that the cloud over the property due to the County's
actions and inactions resulted in a diminution in the property's
market value of a minimum of $5,000,000.
14 A-1651-14T4
The Blau report was prepared for use by JAGR III Realty in
its inverse condemnation action against the City of Newark, the
County, and ECIA. The purpose of the report was "to develop an
opinion of the market value of the [property] as of November 2,
2005." Based upon the Sales Comparison Approach to value, the
Blau report's author valued the condemned tract, assuming the
owners had no interest in the Morris Canal Bed, at $11,825,000;
and, assuming a developable interest in the Morris Canal Bed, at
$13,750,000.
The trial court determined a hearing was unnecessary, found
the owners had not demonstrated the County engaged in conduct that
substantially affected their use and enjoyment of the condemned
tract, and fixed April 14, 2010 as the valuation date. In making
its determination, the court was "persuaded by the County's
argument" that in this case "like the Stanley3 case, the alleged
decrease in property value occurred in the gray shadow in the 2007
and 2008 financial crises." Noting the owners' argument that
their expert had selected a July 2005 valuation date based on the
"totality of circumstances," the court characterized the Appraisal
Consultants' report as "set[ting] forth little more than bare
conclusions."
3
Mt. Laurel Twp. v. Stanley, 185 N.J. 320 (2005).
15 A-1651-14T4
Trial ensued and resulted in the judgment from which the
parties appeal.
II.
We first address the owners' arguments. They contend that
in fixing the valuation date, the trial court misapplied the
summary judgment standard and decided the motion on the papers
rather than on evidence presented at a plenary hearing. They also
contend the court misapplied relevant case law and improperly took
judicial notice of the recession that began in 2007. The owners
argue the trial court also erroneously denied their motion for
reconsideration.
We review "[a] ruling on summary judgment . . . de novo."
Davis v. Brickman Landscaping, Ltd. 219 N.J. 395, 405 (2014)
(citing Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115
(2014)). In determining whether summary judgment was proper, an
appellate court applies the same standard as that which governed
the trial court and views "the evidence in the light most favorable
to the non-moving party." Nicholas v. Mynster, 213 N.J. 463, 477-
78 (2013) (citing Murray v. Plainfield Rescue Squad, 210 N.J. 581,
584 (2012)). Rule 4:46-2(c) requires that the trial court grant
a summary judgment motion "when the record demonstrates . . .
'there is no genuine issue as to any material fact challenged and
16 A-1651-14T4
. . . the moving party is entitled to a judgment or order as a
matter of law.'" Davis, supra, 219 N.J. at 405-06.
A motion for summary judgment will not be defeated by bare
conclusions lacking factual support, Petersen v. Twp. of Raritan,
418 N.J. Super. 125, 132 (App. Div. 2011) (citation omitted), self-
serving statements, Heyert v. Taddese, 431 N.J. Super. 388, 414
(App. Div. 2013), or disputed facts "of an insubstantial nature."
Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R.
4:46-2 (2017). "Competent opposition requires 'competent
evidential material' beyond mere 'speculation' and 'fanciful
arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super.
415, 426 (App. Div. 2009) (citations omitted).
Turning to the Act, the section that addresses the date on
which just compensation is to be fixed states in pertinent part:
Just compensation shall be determined as of
the date of the earliest of the following
events: (a) the date possession of the
property being condemned is taken by the
condemnor in whole or in part; (b) the date
of the commencement of the action; (c) the
date on which action is taken by the condemnor
which substantially affects the use and
enjoyment of the property by the condemnee;
or (d) the date of the declaration of blight
by the governing body . . . .
[N.J.S.A. 20:3-30.]
"The question whether and when a landowner's use and enjoyment
of his or her property has been 'substantially affected' under
17 A-1651-14T4
N.J.S.A. 20:3-30(c) is a mixed question of law and fact." Twp.
of W. Windsor v. Nierenberg, 150 N.J. 111, 135 (1997) (citation
omitted). For purposes of subsection (c), "[a] substantial effect
upon the use and enjoyment of property is occasioned when the
condemnor takes action which directly, unequivocally and
immediately stimulates an upward and downward fluctuation in value
and which is directly attributable to a future condemnation." Id.
at 129-30 (quoting New Jersey Sports & Exposition Auth. v. Giant
Realty Assocs., 143 N.J. Super. 338, 353 (Law Div. 1976)). "A
'clearly observable and direct interference which is directly
related to condemnation' must exist if a substantial effect is to
be found." Id. at 130 (quoting New Jersey Sports & Exposition
Auth., supra, 143 N.J. Super. at 353-54).
In West Windsor, the Township sent the condemnees a letter
notifying them it had received funding to develop a community park
on the condemnees' property and might acquire the property. Id.
at 117. The Court held "the trial court properly found that the
date of the Township's letter set the date of valuation." Id. at
137. The Court cautioned, however:
That determination should not discourage
municipalities from responsibly notifying
potential condemnees of an intention to
condemn. See N.J.S.A. 20:3-6 (dictating that
[the] condemnor must engage in bona fide
negotiations that include written offer to
purchase before initiating condemnation
18 A-1651-14T4
proceedings). Nor should our disposition be
viewed as penalizing condemnors. The
objective of N.J.S.A. 20:3-30(c) is neither
to reward nor to punish either party to a
condemnation. Rather, it is to establish
value at the time that the condemnor's actions
substantially affect the landowners use and
enjoyment of her property.
[Ibid. (citation omitted).]
In the case before us, we conclude the summary judgment record
contained insufficient factual support to create a genuine issue
as to whether the County's actions directly, unequivocally and
immediately stimulated an upward or downward fluctuation in the
value of the owner's property as of July 2, 2005 – as stated in
the owner's Appraisal Consultants' appraisal.4 The Appraisal
Consultants' report states the condemned track was "substantially
affected and as a result thereof its value impacted as of July 1,
2005 by the actions and inactions of the condemning authority
(County of Essex)." The expert's selection of that date is
arbitrary.5
First, the expert opines that as of that date, the owners
could not effectively list the property for sale at its highest
and best use, prepare a development plan and present the plan
4
Because our review is de novo, our agreement with the trial
court's ultimate conclusion should not be read as agreeing with
the trial court's reasoning.
5
The owners do not assert on appeal that November 2, 2005 should
be considered as an alternate valuation date.
19 A-1651-14T4
before a city planning or zoning board of adjustment, make any
substantial development plans to enhance the property's value,
sell the property to a developer, or lease the property on a long
term basis. The expert does not explain why, if these were the
critical factors causing a diminution in value, these same factors
did not have the same effect in December 3, 2003, when the County
sent the letter to the owners notifying them of its intent to
exercise its power of eminent domain.
In addition, the February 5, 2005 Appraisal Consultants'
report stated the valuation of the condemned tract was $9,460,000
without the Morris Canal Bed, and $11,000,000 with the Morris
Canal Bed. The November 13, 2009 Blau appraisal stated the value
of the condemned tract as of November 2, 2005, was $11,825,000
without the Morris Canal Bed, and $13,750,000 with the Morris
Canal Bed. Considered collectively, these reports suggest there
was no change in the condemned tract's value between February and
July 2005, but an increase of more than $2,000,000 between July
and November. The Appraisal Consultants' report is silent as to
what economic conditions were causing such an upward spiral in
2005, whether the same market forces were at work in December 2003
when the County announced to Rubin its intention to acquire the
property, and why the value of the condemned property was
significantly different in 2010. Throughout those years, the
20 A-1651-14T4
County's commitment to acquire the condemned tract had not changed.
Thus, the owners' selection of July 2005 as the valuation date was
arbitrary and perhaps, as the County contends, a date the experts
backed into to take advantage of an upward surge in land use
values.
Perhaps more significantly, to justify the July 1, 2005
valuation date, the Appraisal Consultants' report emphasizes the
author's interpretation of the impact of negotiations between
Rubin and the County. We reject the notion that a condemnee's
legal maneuvering during negotiations should be a substantial
factor in determining a valuation date for condemned land. Such
a proposition is unsound and without precedential support.
On appeal, the owners do not insist that July 1, 2005, is
necessarily the fixed date for valuation of the condemned tract;
rather, they argue "the appropriate date for the valuation was no
later than July 1, 2005 when negotiations between the parties had
broken off for the voluntary acquisition of the [condemned tract]
by the County." The owners note their expert, in the June 1, 2012
Appraisal Consultants' report, "concluded that the concerted
actions of the County and the City from December 2003 through July
2005 had substantially affected the use and enjoyment of the
[condemned tract], causing a dramatic diminution of the value of
21 A-1651-14T4
the [condemned tract]." That argument underscores the arbitrary
nature of selecting July 1, 2005 as a valuation date.
First, the argument that the valuation of condemned property
should be fixed somewhere along a nineteen-month temporal spectrum
overlooks the requirement that, to be substantial, the effect of
a condemnor's action upon the use and enjoyment of the condemnee's
property must "directly, unequivocally, and immediately
stimulate[] an upward or downward fluctuation in value." W.
Windsor, supra, 150 N.J. at 129 (emphasis added) (citation
omitted).
Second, unlike the matters in West Windsor and Stanley, here
there was no evidence in the motion record that the County's
December 2003 letter had any direct effect on the property's
valuation. In West Windsor, the condemnee had filed a development
application for a forty-eight-lot residential subdivision before
receiving the Township's letter providing formal notification the
Township intended to acquire the property for the purpose of
establishing a park. Supra, 150 N.J. at 116-17. According to the
condemnee's expert, the condemnee's "final plan conformed with the
municipal zoning ordinance." Id. at 116. Moreover, the
condemnee's attorney testified that "it was 'a relatively
straightforward submission.'" Ibid.22 A-1651-14T4
In contrast, in the case before us, the owners had filed a
development application which had been rejected before the County
informed the owners in December 2003 of its intent to exercise its
power of eminent domain. The owners had not pursued development
of the property in the interim. Thus, unlike West Windsor, the
County's letter concerning its intent to acquire the condemned
tract had no immediate effect on pending plans to develop the
tract.
In short, there was no evidence on the summary judgment motion
record that created a genuinely disputed issue of material fact
as to when the County's action "directly, unequivocally, and
immediately stimulated an upward or downward fluctuation in value
. . . directly attributable to a future condemnation," id. at
129-30; and what the value of the condemned tract was at such
time. The owners' selection of the July 2005 date was
demonstratively arbitrary. The owners' argument that the County's
action substantially affected the value of the condemned tract
sometime between December 2003 and July 2005 does not satisfy the
requirement that a condemnor's action immediately stimulate an
upward or downward fluctuation in value.
Lastly, there was no competent evidence in the motion record
from which the trial court could have inferred the value of the
condemned tract had directly, unequivocally, and immediately been
23 A-1651-14T4
affected by "[a] 'clearly observable and direct interference which
is directly related to condemnation[.]'" Id. at 130 (citation
omitted).
For the foregoing reasons, we affirm the trial court's order
fixing the date the County filed the declaration of taking as the
valuation date.
III.
On cross-appeal, the County contends the trial court
committed three errors. First, the County contends the court
erred by permitting the owners' expert to include in his valuation
the 4043.60 square foot portion of Brill Street (the "Brill Street
parcel"). Second, the County contends the court erred by
precluding its expert from explaining the purchaser of a property
comparable to defendants' had a particular need for a functioning
waterfront. Lastly, the County contends the court erred by
declining to instruct the jury the property was subject to an
NJDEP regulation. These arguments are without sufficient merit
to warrant extended discussion. R. 2:11-3(e)(1)(E).
Concerning the County's argument regarding the Brill Street
parcel, the court determined the owners' expert could testify
about why the Brill Street parcel should be included in the
valuation, but permitted the County to adduce contrary expert
testimony. Rather than doing so, before trial, the County informed
24 A-1651-14T4
the owners in a pretrial email, "[y]ou don't need to call [the
expert] at trial. We are both valuing 5.346 acres[.]" During
voir dire, the court instructed the jury the County "acquired a
5.346 acre property" and the court repeated this in its final
instructions. Thus, it appears from the record the County conceded
the condemned tract consisted of 5.346 acres.
Next, the trial court acted well within its discretion in
determining the County's expert's testimony concerning a
comparable parcel's owner's motivation for purchasing the property
should be excluded. The decision was not so wide of the mark that
a manifest denial of justice resulted. State v. Sands, 76 N.J.
127, 140 (1978); State v. Carter, 91 N.J. 86, 106 (1982).
Moreover, the purpose of the testimony was to demonstrate the
adjacent property had a bulkhead and deeper water along its
riverfront border, thus making it accessible to certain vessels,
unlike the condemned tract. For that reason, the County's expert
opined that an adjustment had to be made to this "comparable."
The trial record demonstrates the court permitted the expert to
fully explain these considerations. Consequently, even if it was
error to exclude testimony that the comparable party's owner
purchased the property for these reasons, the error was harmless.
R. 2:10-2.
25 A-1651-14T4
Lastly, the trial court acted well within its discretion when
it declined to give the County's proposed instruction concerning
an NJDEP waterfront development regulation. The court refused to
give the instruction because the County had presented insufficient
testimony through its expert to make the instruction meaningful.
We agree that without underlying supporting testimony, the
instruction would have been either confusing or meaningless to the
jury.
IV.
For all the foregoing reasons, we affirm the orders of the
trial court in their entirety, including the order entering
judgment.
Affirmed.
26 A-1651-14T4