SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5575-93T2
STATE OF NEW JERSEY, by the
COMMISSIONER OF TRANSPORTATION,
Plaintiff-Appellant,
v.
FRED WEISWASSER and GERALDINE
WEISWASSER,
Defendants-Respondents.
and
TOWNSHIP OF HAINESPORT, In the
County of Burlington, a
municipal corporation of the
State of New Jersey,
Defendant.
Argued November 1, 1995 - Decided February
2, 1996
Before Judges King, Kleiner and Humphreys.
On appeal from the Superior Court of
New Jersey, Law Division, Burlington County.
George P. Ljutich argued the cause for
appellant (Deborah T. Poritz, Attorney
General, attorney; Mary C. Jacobson,
Assistant Attorney General, of counsel; Mr.
Ljutich, Deputy Attorney General, on the
brief).
David S. Brandt argued the cause for
respondent (Brandt, Haughey, Penberthy, Lewis
& Hyland, P.A., attorneys; Patrick F.
McAndrew, of counsel and on the brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
This is an appeal by the State of New Jersey and cross-appeal by defendants, Fred Weiswasser and Geraldine Weiswasser,
property owners, in a condemnation action pursuant to the Eminent
Domain Act of 1971, N.J.S.A. 20:3-1 to -50. We are called upon
to determine two questions of first impression in New Jersey:
(a) whether the State may require a condemnee to accept
substitute real estate or the value thereof as compensation for
the condemned real property; and (b) whether the loss of
visibility to the remainder of property after condemnation by the
State is compensable to the condemnee.
On November 13, 1986, the State filed a Declaration of
Taking of .39 acres of land owned by defendants. The condemned
property directly abuts Route 38 in Burlington County and
includes 255 feet of highway frontage. The State intended to
utilize the condemned property to construct a jughandle on Route
38. Pursuant to its Declaration of Taking, the State deposited
$165,000 with the Clerk of the Superior Court on January 5, 1987.
On February 10, 1988, the State amended its Declaration of Taking
and deposited an additional $4,000 with the Clerk's office. On
January 6, 1987, defendants filed a notice of application to
withdraw the initial deposit from the court and did withdraw
those funds. After the amended Declaration of Taking, defendants
withdrew the additional $4,000 deposit pursuant to a notice of
application.
A Condemnation Commissioners' hearing was conducted and on
May 20, 1988, defendants were awarded $390,000. The State's
expert opined that just compensation for the condemned land and
severance damages to the remainder totalled $169,000. Defendants
offered testimony that just compensation was $604,000, excluding
severance damages to the remainder attributable to a reduction in
exposure to Route 38. Defendants' valuation was predicated on
replacement value with adequate ingress and egress. The State
appealed that decision and defendants cross-appealed to the Law
Division.
After a series of pretrial rulings that constitute the crux
of the issues raised on appeal, the matter proceeded to a jury
trial. The jury returned a verdict of $204,000 for defendants.
An order for judgment was entered requiring the State to deposit
with the Clerk of the Superior Court an additional $35,000,
representing the balance of the award.
We affirm.
Defendants purchased for investment purposes a tract of land measuring approximately 112.38 acres. The land, which is vacant, is situated in the Township of Hainesport, Burlington County, and has limited frontage on Route 38 and limited frontage on Bullshead Road. As of the date of valuation, October 15, 1987, approximately 19 acres were zoned commercial and residential and 93.38 acres were zoned residential.
Prior to the taking, the property included five points of
road frontage, four on Route 38 and one on Bullshead Road.
Although defendants had never applied for access permits, access
would have been permitted at all five points of frontage.See footnote 1 On
Route 38, three of the points of frontage are narrow strips of
land that lie between property owned by third parties. The
fourth point of frontage is a wider area with 278.5 feet of
frontage on Route 38. The area between the 278.5-foot frontage
and a 62-foot frontage to the northeast, also on defendant's
property, was owned by Ronald Firth. The condemned area totals
.39 acres and includes 255 feet of frontage within the 278.5-foot
frontage area.
Subsequent to the valuation date and the Condemnation
Commissioners' hearing, the State purchased the Firth property.
The Firth property totals .37 acres, nearly equivalent to the
condemned .39-acre tract, and has approximately 150 feet of
frontage on Route 38. The State purchased the property to
replace the frontage lost by defendants as a result of the
condemnation and to cure the severance damages by providing
frontage that could serve as an access point to the remainder of
defendants' property. The Firth property would provide
defendants with a continuous stretch of frontage of 236 feet,
made up of 24 feet remaining adjacent to the condemned frontage
site plus 150 feet from the replacement Firth property plus
condemnee's adjacent 62-foot frontage strip.See footnote 2
On January 30, 1992, the State reduced its offer to
defendants, offering $117,700 or, in the alternative, the Firth
property (valued at $114,000) plus $3,700 cash. The State's
revised offer was predicated upon the opinion of appraiser Joseph
Manzi that the Firth property would operate effectively as a cure
for the severance damages which resulted from the taking.
Defendants rejected the revised offer. At trial, the court
precluded the State from admitting evidence of the acquisition of
the Firth property as a curative offset. As a result, the State
was forced to rely solely upon the testimony of its expert, John
Borden.
Prior to trial, the State apprised the court of the fact
that Borden was prepared to testify to two separate valuations of
just compensation: one including damages for loss of visibility
from Route 38 to the remainder of defendant's property after
condemnation and the second excluding visibility loss damages.
The State moved to exclude the second Borden appraisal. The
State presented Borden's testimony at the motion in limine. The
trial judge denied the State's motion and ruled that Borden's
testimony should include damages attributable to the loss of
visibility.
Prior to trial, the State also moved in limine for an order
resolving issues pertinent to access to defendants' property.
Defendants contended that the issue of reasonable access was an
issue which raised a jury question. The trial judge entered an
order which provided:
1. Reasonable access remains, as a
matter of law, to the approximately 93 acres
of the subject property, zoned "R-1
Residential," after the State's acquisition,
described in the complaint filed in this
matter.
2. The issue of whether reasonable
access remains to the approximately 19 acres
of the subject property, zoned "AC
Residential/Commercial," after the State's
acquisition, described in the complaint filed
herein, is a question of fact, to be
determined by the trier of fact in this
matter.
At trial, Borden testified that the just compensation to
defendants would be $204,000. Defendants presented testimony
that just compensation would be in the amount of $400,300. As
noted, the jury returned a unanimous verdict of $204,000.
On appeal, the State contends that the trial court erred in
prohibiting it from introducing evidence that it had purchased
land adjacent to defendant's condemned property and had offered
that land to defendants as partial compensation. The State also
contends that the trial court erred in failing to exclude
testimony of loss of visibility damages to the remainder of
defendants' property.
In its cross-appeal, defendants contend that the trial court
erred in determining that the issue of accessibility to their
residential zoned property was one of law to be addressed to the
court. At oral argument on appeal, defendants submitted that if
the State does not prevail on its appeal, they would abandon
their cross-appeal.
We conclude for the reasons discussed hereafter that the
trial court correctly ruled on both of the State's applications,
namely (1) prohibiting evidence that the State had purchased land
adjacent to defendants and had offered same to defendants as
partial compensation, and (2) permitting evidence of severance
damages which included damages attributable to a loss of
visibility. We accordingly affirm the judgment entered after the
jury verdict. Defendants' cross-appeal is therefore moot and is
dismissed.
N.J.S.A. 20:3-29 provides, "The condemnee shall be entitled to compensation for the property, and damages, if any, to any remaining property, together with such additional compensation as provided for herein, or as may be fixed according to law." The Supreme Court has concluded that the statute mandates an award of "just compensation." State v. Silver, 92 N.J. 507, 513 (1983). See also N.J. Const. art. I, ¶ 20; U.S. Const. amend. V. Just compensation must be fair to both the landowner and the condemning authority. Port of N.Y. Authority v. Howell, 59 N.J. Super. 343, 347 (Law Div. 1960), aff'd, 68 N.J. Super. 559 (App. Div. 1961).
In Silver, the Court concluded that "where only a portion of
a property is condemned, the measure of damages includes both the
value of the portion of land actually taken and the value by
which the remaining land has been diminished as a consequence of
the taking." 92 N.J. at 514. Because the State in the instant
matter did not take the entirety of condemnees' property, just
compensation should be ascertained by considering not only the
value of the portion taken but also the reduction in value, or
severance damages, of the remainder.
The statutory scheme for compensation in eminent domain
matters does not expressly contemplate compensation in the form
of real property. In fact, the State is required to deposit with
the court the amount of estimated compensation upon filing the
declaration of taking. N.J.S.A. 20:3-18. The condemnee is then
permitted, upon application, to withdraw the funds prior to
judgment. N.J.S.A. 20:3-23. This implies that proper
compensation takes the form of money. However, the fact that the
State is required to deposit money with the court does not
necessarily mean that the ultimate judgment must be paid from
those funds.
There are two recognized formulae to be used in determining
just compensation. Silver, supra, 92 N.J. at 514. Both are
acceptable. The first formula sets the measure of damages at
"the market value of the land taken plus the difference before
and after the taking in market value of the remainder area."
Ibid. (quoting Village of South Orange v. Alden Corp., 71 N.J.
362, 367 (1976)). The second formula equates damages with "the
difference between the value of the entire tract before the
taking and the value of the remainder after the taking." Ibid.
Although the State recognizes that Silver focused on those
two recognized formulae, it argues that neither formula requires
a specific method of compensation, nor prohibits as an
appropriate measure of compensation the value of adjacent
replacement land, such as the Firth property which was offered by
the State to defendants together with the differential value of
the land taken. In support of this alternate form of
compensation, the State contends that its offer to defendants
should have been admissible because it is consistent with the
general proposition that a condemnee in an eminent domain
proceeding is under a duty to mitigate damages, including
severance damages.
The concept of mitigation of damages in eminent domain
matters has gained specific judicial approval in other
jurisdictions. See, e.g., Mayes Co. v. State,
223 N.E.2d 881
(N.Y. Ct. App. 1966) (denying severance damages when condemnee
refused to permit the drilling of a well by the State to replace
water source that had been condemned); Albers v. County of Los
Angeles,
398 P.2d 129, 141 (Cal. 1965) ("the general rule is that
an owner whose property is being taken or damaged by a public
entity is under a duty to take all reasonable steps available to
minimize his loss."); State v. Casey,
115 N.W.2d 749 (Minn. 1962)
(concluding that a landowner is not entitled to recover
compensation from the state for damages which he could mitigate,
but also concluding that mitigation measures that are too
speculative will not be required). However, the State has not
cited any decision in New Jersey which directly discusses
mitigation of damages in an eminent domain proceeding.
The State does cite State v. Birch,
115 N.J. Super. 457
(App. Div. 1971), and State v. Sun Oil,
160 N.J. Super. 513 (L.
Div. 1978), as support for its contention. In Birch, the State
condemned property so that it could construct a highway across
the owner's property. 115 N.J. Super. at 460. The taking
landlocked a portion of the condemnee's property, preventing
access to a main thoroughfare. Ibid. Both parties agreed that a
road would have to be built to provide the condemnee with access
to the thoroughfare. There was no dispute that the cost of
construction of the road would be included in the condemnee's
severance damages. At issue was whether the cost of conforming
the road to local zoning regulations would be included in
severance damages and, in fact, whether the municipality could
enforce those regulations against condemnee's access road. Id.
at 461.
On appeal, we found that "the cost of ameliorating or curing
[the severance damage] was an important factor to be considered
in arriving at its fair market value." Id. at 463. The fair
market value, of course, would be used to determine the extent of
the severance damages to the remaining property. We did not
speak in terms of a "duty of a condemnee to mitigate severance
damages" or "the right of the State to compensate a condemnee
with real property."
The mitigation of damage concept was more definitively
discussed by the Law Division in State v. Sun Oil. In Sun Oil,
condemnation of part of the owner's property rendered his use of
the property impossible in light of the local zoning ordinance.
160 N.J. Super. at 517. The court determined that the condemnee
could have applied for a variance and should not have simply sat
on his hands and expected full compensation where some action of
his could have mitigated the damage. However, the holding is
limited to mitigating by constructing reparative facilities and
applying for variances on the remainder property and does not
specifically extend to a condemnee's duty to accept replacement
property offered by the condemnor.
The State has cited only one decision, Utah Dep't of Transp.
v. Rayco Corp.,
599 P.2d 481 (Utah 1979), which it contends
supports the concept that the State may compensate a condemnee
with adjacent real property. In Rayco, a minority view stated:
A condemnee should not be awarded damages as
if the taking rendered his remaining land
unfit for its established use if the means of
cure, or of minimizing damages, is available
by exercising reasonable prudence; and this
is true even if it involves making
expenditures for substitute facilities,
whether within his own land or outside its
boundaries.
[Id. at 494.]
Defendants also cite Rayco and contend that it supports their
position that the State's offer cannot bind a condemnee to accept
adjacent property as compensation. Defendants stress that the
minority view cited by the State does not express the actual
holding of the Utah Supreme Court.
Rayco involved the taking by the State of Utah of a fifty-foot wide strip of property that constituted the boundary of a
supermarket's property along a main thoroughfare. Id. at 485.
The taking reduced the number of parking spaces available to the
supermarket below the minimum set by the local zoning ordinance.
Ibid. Thus, one issue in the case was whether the measure of
compensation should include the cost to the owner of improving
the remaining property so that it would conform to the zoning
ordinance. However, the primary issue was "whether the severance
damage could be mitigated by the acquisition and improvement of
replacement property." Id. at 486. The State sought to compel
the owner to acquire contiguous property for the purpose of
remedying severance damages. Ibid.
A careful reading of Rayco reveals that the majority of the
Utah Supreme Court refused to affirm a rule that would be
"tantamount to compelling the condemnee to take substitute land
in lieu of money for the damages sustained." Id. at 490. The
Court emphasized the rule in Utah that compensation be fixed in
terms of money, and that real property would not be substituted
in lieu of money against the wishes of the condemnee. Ibid.
(quoting Shurtleff v. Salt Lake City,
82 P.2d 561 (Utah 1938)).
The Utah Court found that the replacement property could not
ameliorate the problems caused by the State's acquisition. Ibid.
The replacement property would have provided parking to the side
of, not immediately in front of, the store. Ibid. The
replacement property was zoned for a different use and whether
parking was a permitted use was uncertain. Ibid. Furthermore,
access to the property would be reduced under the State's plan.
Access points would be reduced from six to three and tractor
trailers may have been unable to gain access from the replacement
property. Ibid.
The State differentiates Rayco from the facts pertinent to
defendants' property by stressing that the Firth property is
zoned for the same usage as defendants' condemned property and
that the Firth property would provide defendants with access to
Route 38, otherwise lost by the condemnation.See footnote 3 However, the
State does admit that a building on the Firth property would
require demolition. Additionally, the State concedes that the
discussion in Rayco upon which it relies, does not constitute the
decision of the court's majority.
There do exist a handful of cases from other jurisdictions
that are more definitive than Rayco on the issue of whether a
State may provide substitute property as a method of mitigating
damages in eminent domain matters. In Carillion Realty Corp. v.
State,
602 N.Y.S.2d 76,
158 Misc.2d 810 (Ct. Cl. 1993), for
example, the New York Court of Claims denied severance damages to
a condemnee who refused to accept an easement over condemned
property. Id. at 813. The State had offered the easement to
provide the condemnee with access to a main thoroughfare that his
property had abutted prior to the taking. Id. at 811. The Court
found that the State possessed an implied power to provide
substitute access to avoid paying severance damages. Id. at 814.
The Kentucky Court of Appeals rendered a similar decision in
Board of Educ. v. Commonwealth Dep't of Highways,
528 S.W.2d 657
(Ky. Ct. App. 1975). In that case, the State condemned a
school's playground to construct a highway. Id. at 657-58. The
State presented witnesses who testified that the school could
acquire adjacent property to replace the condemned playground.
Id. at 659. The court of appeals affirmed the admission of
evidence of the cost of acquiring this adjacent land as relevant
to a determination of severance damages. Ibid. Also, in Porrata
v. United States,
158 F.2d 788 (1st. Cir. 1947), the government
offered to a condemnee property adjacent to the condemned
property. Id. at 789. The District Court determined that the
property owners would be justly compensated by accepting the
substitute property plus a cash sum representing the balance of
the value of the condemned property. Id. at 790. On appeal, the
First Circuit was not required to affirm this aspect of the
District Court's decision. Ibid.
Defendants contend that the mitigation theory espoused by
the State is not sufficiently rooted in precedent to warrant
acceptance by this court. Additionally, they urge that even if
the State's proposed theory were to be specifically sanctioned,
laches and general principles of equity dictate that it should
not apply in this case. We find defendants' arguments
persuasive.
Laches clearly applies here. The State filed its
declaration of taking and deposited its estimate of compensation,
$165,000, on November 13, 1986. The State made an additional
deposit of $4,000. Defendants immediately filed a notice to
withdraw those deposited funds and did in fact receive those
funds in January 1987. The State acquired the Firth property in
1989. In January 1992, the State revised its offer to defendants
when it offered $117,000 or, in the alternative, $3,700 plus the
Firth property valued at $114,000.
In Lavin v. Hackensack Bd. of Educ.,
90 N.J. 145 (1982), the
Supreme Court said:
Where it would be practically unjust to give
a remedy, either because the party has, by
his conduct, done that which might fairly be
regarded as equivalent to a waiver of it, or
where by his conduct and neglect he has,
though perhaps not waiving that remedy, yet
put the other party in a situation in which
it would not be reasonable to place him if
the remedy were afterwards to be asserted, in
either of these cases, lapse of time and
delay are most material.
[Id. at 152 (quoting Hall v. Otterson,
52 N.J. Eq. 522, 535 (Ch. 1894)).]
"The length of delay, reasons for delay, and changing conditions
of either or both parties during the delay are the most important
factors that a court considers and weighs." Ibid. Length of
time alone may result in laches, but the real question is whether
the delay has resulted in prejudice to the innocent party. Id.
at 152, 153.
Here, defendants have been prejudiced by the delay between
the date of taking and the date when the State offered to convey
the Firth property to them. Defendants withdrew the State's
deposits and assert they have expended those funds. If
defendants are required to accept the State's revised offer, with
or without the Firth property, they will be required to return
$52,000 to the State. Every condemnee is aware of the risk that
an ultimate condemnation award will be less than the sum
deposited by the condemnor. A condemnee is specifically apprised
of that risk by the terms of an agreement binding him to repay
any excess sum which is executed when deposited sums are
withdrawn. N.J.S.A. 20:3-23. However, when defendants withdrew
the deposited sums from the Clerk of the Superior Court, they
were not aware that the State would thereafter acquire the Firth
property and contend that defendants must accept the Firth
property or its equivalent value as compensation. Clearly,
defendants did not know, nor should they have known, of that
potential risk when they withdrew the deposited funds.
We conclude that although as a general proposition, a
condemnee has the duty to mitigate severance damages, a condemnee
is not obligated to accept replacement land offered by the
condemnor in lieu of just compensation where, as here, the
condemnor does not own the replacement property as of the date of
taking or does not apprise the condemnee that replacement
property may be available as a form of compensation prior to the
condemnee withdrawing the deposit. We therefore conclude that
the trial judge correctly barred the State from introducing the
replacement property as evidence of an attempt to mitigate
damages. In light of our conclusion, we need not develop a
standard which might be used in future eminent domain proceedings
for the offer of replacement property to a condemnee.
As noted in Part I of this opinion, the State's appraiser prepared his appraisal utilizing a valuation without consideration of damages attributable to a loss of visibility and a valuation which included damages attributable to loss of visibility. The appraisal ascribed a value of $7,800 per acre to the residential zoned portion of the property prior to the taking and a $7,500 value per acre after the condemnation.
The State introduced that testimony of its appraiser on a motion in limine out of the presence of the jury. The witness testified:
Essentially, by the taking the development of the residential tract has lost as I considered the advantage of having property along the major highway of Route 38 for exposure purposes. As a practical matter, the fact that it was located on Route 38, as I've seen in many instances, developers have utilized sample homes for display purposes and I felt that at least two dwellings could be placed on that site with appropriate advertising and exposed to the tremendous new traffic on Route 38 by reason of the
improvement, changing it from a two lane to a
four lane highway with ample side roads, that
the developer would be able to sell off his
residential tract more readily because it
would be more readily exposed to the public
by just driving by, coupled with the fact
that he would not have to do extensive
advertising as a lot of developers do when
they have tracts back in the Pinelands or
close to them and give you directions how to
get there. And for that reason I felt that
it added a measure of value to the property
in the before. I, frankly, felt that that
portion could be utilized if there was no
taking.
The State then moved to strike the post-condemnation remainder
reduced value. The trial judge denied that motion.
The question of whether diminution of visibility is an
element of damages in a condemnation proceeding has not been
directly addressed in any reported decision in this State. We
note that in New York the courts have refused to award
consequential damages because the owner's property is no longer
visible to passing motorists. Acme Theaters Inc. v. State,
26 N.Y.2d 385,
310 N.Y.S.2d 496, 500 (Ct. App. 1970). On the other
hand, California courts recognize that loss of view from the
highway by reason of new construction is an element to be
considered in a condemnation case. People v. Lipara,
213 Cal.
App.2d 485,
28 Cal. Rptr. 808 (Dist. Ct. App. 4th Dist. 1963);
People v. Ricciardi,
23 Cal.2d 390,
144 P.2d 799 (Sup. Ct. Cal.
1943). See also 2 Nichols on Eminent Domain §5.72[1], n.12 (3rd
ed. 1970).
We think the facts of this case fall within a narrow
exception to any rule which would prohibit an award of
compensation for a diminution in visibility. We reach this
conclusion by drawing an analogy to a similar exception which
permits damages to a remainder resulting from a loss of access to
an adjoining public thoroughfare.
The principle is generally accepted that a "property owner
is not entitled to access to his land at every point between it
and the highway but only to `free and convenient access to his
property and the improvements on it.'" High Horizons Dev. Co. v.
Department of Transp.,
120 N.J. 40, 48 (1980) (quoting Mueller v.
N.J. Highway Auth.,
59 N.J. Super. 583, 595 (App. Div. 1960)).
See also Commissioner of Transp. v. National Amusements, Inc.,
244 N.J. Super. 219 (App. Div. 1990), certif. denied,
127 N.J. 327 (1991); State v. Charles Investment Corp.,
143 N.J. Super. 541 (Law Div. 1976), aff'd o.b.,
151 N.J. Super. 14 (App. Div.)
1977)), aff'd o.b.,
76 N.J. 86 (1978); Lima & Sons, Inc. v.
Borough of Ramsey,
269 N.J. Super. 469 (App. Div. 1994).
These principles were reviewed by in State by Comm'r of
Transp. v. Van Nortwick,
260 N.J. Super. 555, 558 (App. Div.
1992) (Van Nortwick I) and most recently in State by Comm'r of
Transportation v. Van Nortwick, N.J. Super. (App. Div.),
certif. denied, N.J. (1995) (Van Nortwick II). In Van
Nortwick II, we commented:
In State by Comm'r of Transp. v. Van
Nortwick,
260 N.J. Super. 555 (App. Div.
1992), we held the trial judge's failure to
exclude evidence of the diminution of access
to a fronting highway as an element of
damages was reversible error. There, we were
confronted with the question of whether the
diminution of access is compensable in the
context of a partial taking where the
remaining access is reasonable. We
determined that it was not compensable,
reversed the judgment in favor of defendant
and remanded the case for trial. In that
context, we observed as dicta, that "a
diminution of access may cause other
conditions on the property itself which may
be compensable, as for example, . . . such
things as limitation of design options or on-site maneuverability, [as long as the
remaining access is reasonable, the
diminution per se is not compensable.]
[Id. slip op. at 2 (quoting Van Nortwick I,
supra, 260 N.J. Super. at 558 (emphasis
added).]
In Van Nortwick, II, on appeal following our remand is Van
Nortwick I, we defined the issue on appeal as "whether a property
owner is entitled to just compensation for on-site damages to his
remaining property caused by the manner in which his access was
limited." Id. slip op. at 13-14. We concluded that a condemnee
is entitled to compensation. Id.
Here, the State's appraiser recognized that defendants
intend to develop the residential portion of their property, the
remainder subsequent to the condemnation, into single-family
residential home-building lots. The State's appraiser recognized
in his appraisal that the loss of frontage, although not
depriving defendants of reasonable access to Route 38, would
deprive defendants of the opportunity to market the remaining
portion of residentially zoned land in the same manner that the
property could be marketed but for the condemnation. With
highway frontage a developer is able to construct a sample home
adjoining the highway which itself promotes and advertises the
presence of a residential development in the interior portion of
the property. The absence of highway frontage deprives the
developer of that advertising and marketing technique and will
require the developer to devote capital for advertising to
overcome the absence of visibility.
The opinion of Borden, the State's appraiser, was also
shared by defendants' experts. One expert, Stephen Segal
testified as follows:
Q. Secondly, you heard Mr. Borden
testify about the advantage that one would
have if one could put sample homes out on
Route 38 which would have some promotional
and advertising value. Were you here when he
gave that testimony?
A. Yes, I was.
Q. Do you agree with Mr. Borden that
that is a factor to be considered in the
before and after condition?
A. In the early stages of development
it's very important because it's a show case
on a very heavily travelled major artery.
Q. Did you also hear the testimony of
Mr. Ritter [defendants' other expert] in this
case with regard to the developmental
expenses being increased as a result of
having to provide access only from the
westerly side of the property rather than the
lower or easterly end of the property?
A. Yes, I did.
Q. Was that something that is a factor
in determining the after value?
A. Well it's a contributing factor because the greater the expense to the developer, the less he's in a position to pay for a portion of unimproved land prior to embarking on the development process. Nothing's been done to the property so you
have to view it as a developer would look at
it as a competitor in the marketplace.
We think it is clear that the loss of visibility resulting
from the State's condemnation will have a direct effect upon
development expenses pertinent to marketing. To the extent that
the property value after condemnation is affected by that
increase in marketing costs, the property owner has been damaged.
An increase in market and advertising expense is similar, we
think, to limitations of design options, to which we referred in
Van Nortwick I. Those damages, although attributable to loss of
visibility, are recoverable. The trial judge recognized this
distinction and properly permitted both appraisers to testify to
that effect at trial. Although Mr. Borden's opinion was not
extremely articulate, in the context of the entire trial and the
theory of the case presented by defendants, the conclusion is
clear that permitting the jury to hear that testimony in this
particular case was proper.
The trial judge made appropriate reference to the
distinction between an award of damages for loss of visibility,
which are not permitted, and damages to the remainder by way of
increased development costs, attributable to a loss of
visibility, which are permitted, in view of our comment in Van
Northwick I. Specifically the court charged, "You may consider
whether the taking caused a reduction in the total number of lots
and the cost of developing them." (emphasis added). Obviously,
the reference to development costs was a reference to the
expert's opinion in light of Van Nortwick I.
We affirm the judgment.
Footnote: 1 The expert testimony offered by the State pertinent to the right to access to defendants' property was uncontradicted at trial. Footnote: 2 The 24-foot section of frontage is that which remains of the original 278.5 feet of frontage less the condemned 255 feet. Footnote: 3 Although the State asserts that the Firth property is zoned for the same use as defendants' condemned property, there is no specific proof of that fact in the record. We may accept the contention as correct as the Firth property adjoins defendants' property and shares adjacent frontage on Route 38. It is therefore likely that both parcels are zoned for both commercial and residential use.