NEW JERSEY TURNPIKE AUTHORITY, et al. v. MICHAEL FELDMAN ASSOCIATES, L.L.C. and MICHAEL FELDMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6032-03T16032-03T1

NEW JERSEY TURNPIKE AUTHORITY,

a body corporate and politic of

the State of New Jersey,

Plaintiff-Respondent,

v.

MICHAEL FELDMAN ASSOCIATES, L.L.C.

and MICHAEL FELDMAN,

Defendants-Appellants,

and

MONIKA DILLAHAY, HADDONFIELD

LUMBER COMPANY, JOSEF HOFFMAN,

LAVELL CHESTNUT, minor by G/A/L

MARIE CHESTNUT, SUMMIT BANK f/k/a

UNITED JERSEY BANK, CORESTATES

BANK f/k/a NEW JERSEY NATIONAL

BANK, successor by merger to INTER

COMMUNITY BANK, TEAM REALTY, INC.,

REINAUER ENERGY CO., INC., STATE

OF NEW JERSEY, MONMOUTH UNIVERSITY

f/k/a MONMOUTH COLLEGE, DIVISION

OF MOTOR VEHICLES, DONALD J.

MILLNER, DMD, GREENWOOD TRUST

COMPANY, ARTHUR J. DINICK, D.D.S.,

M.S., OFFICE OF THE PUBLIC

DEFENDER, UNITED STATES OF AMERICA,

Defendants.

_________________________________________

 

Argued September 21, 2005 - Decided

Before Judges Stern, Grall and Levy.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2519-97.

S. David Brandt argued the cause for appellants (Ballard, Spahr, Andrews & Ingersoll, attorneys; Drew K. Kapur, of counsel; Mr. Kapur and Michelle A. Ducellier, on the brief).

Anne P. McHugh argued the cause for respondent (Pellettieri, Rabstein & Altman, attorneys; Ms. McHugh and Andrew L. Watson, on the brief).

PER CURIAM

Defendants Feldman Associates, L.L.C. and Michael Feldman (collectively "Feldman") appeal from a final judgment fixing just compensation for property condemned by the New Jersey Turnpike Authority ("Authority"). Feldman contends that its property should have been valued as a corner lot bordered by and with access to Route 130 and Cedar Lane. Feldman maintains that, if the property had been valued as having access to both roadways, compensation would have been greater than the $580,000 plus interest awarded on May 26, 2004. We conclude that the trial judge properly ruled that the property lost access to Cedar Lane as a result of a prior taking.

Resolution of the issue requires consideration of the correctness of a ruling by Judge Harold B. Wells, III, that a 1955 taking by the Authority involving the same 3.43-acre triangular parcel, which at the time was owned by a predecessor in title and referred to as the "Harkins' Estate," left Feldman's parcel without frontage on, or access to, Cedar Lane. Judge Wells' decision, dated February 16, 2000, was in response to a motion by the Authority to bar, as a matter of law, any testimony valuing the Feldman property based upon a conclusion that it had access to Cedar Lane on the date of taking, September 8, 1997. The effect of the order was to bar such testimony, while, at the same time, specifically permitting appraisals to be revised, and testimony to be introduced,

tending to show (i) that on the valuation date the property owner had a right to apply to the Turnpike Authority for access to Cedar Lane, (ii) the probability that the Turnpike Authority would grant said application, and (iii) what conditions, if any, might be imposed on any such access.

The Harkins taking occurred in connection with the Authority's construction of the Pennsylvania Extension to the New Jersey Turnpike. As part of the project the Authority constructed a limited access roadway which, in the area of the Feldman property, crossed over Cedar Lane before crossing over Route 130. In order to obtain fill necessary to accomplish the construction, the Authority condemned a portion of the Harkins' Estate that cut off its access to Cedar Lane. Judge Wells explained the undisputed facts and circumstances surrounding the taking as follows:

It is clear that in 1954 and prior the Harkins' property had substantial frontage on Route 130 and along both sides of Cedar Lane as it proceeded north from Route 130. It was then primarily farmland improved with farm buildings. But on February 26, 1955, the [Authority] filed a declaration of taking covering six parcels owned by Harkins, one of which was a pie shaped piece of the Harkins' tract, consisting of .73 acres beginning at the intersection of Route 130 and Cedar Lane and lying between the remaining Harkins lands to the east and Cedar Lane. The parcel was designated Parcel A10F.

The 1955 Declaration of Taking, prepared by the [Authority] described parcel A10F as follows (emphasis mine):

Said parcel A10F including specifically all the land and premises owned or controlled by the party of the first part (Harkins) lying to the southwest of the proposed southerly right-of-way line of the Pennsylvania Extension of the New Jersey Turnpike and being within the proposed right-of-way line of the relocation of Cedar Lane as more particularly described as follows: Beginning at a point of intersection of the proposed southerly right-of-way line of the Pennsylvania Extension of the New Jersey Turnpike with the existing northeasterly line of Cedar Lane at Station 210-88 more or less and extending thence in a southeasterly direction along the proposed southerly right-of-way line of said turnpike a distance of 124 feet to a point in said line at Station 323 - 12 more or less; thence extending in a southerly direction along the proposed northeasterly right-of-way line of Cedar Lane a distance of 635 feet more or less to a point in the northwesterly line of New Jersey Highway route #130 (formerly Route #25); thence extending in a southwesterly direction along said line a distance of 10 feet to a point in the existing northeasterly line of Cedar Lane; thence extending in a northwesterly direction along the existing northeasterly line of Cedar Lane a distance of 730 feet more or less to the place of beginning. Containing seventy-three hundredths (0.73-) Acres more or less.

This description of A10F was the last of six parcels described in the Declaration being taken from Harkins. Four parcels to the north of A10F were the situs of the actual relocation of Cedar Lane. Following the six descriptions, the Declaration continues:

TOGETHER WITH all right, title and interest that the party of the first part may have in and to Cedar Lane and Schuylers Ferry Road, contiguous to the lands of the party of the first part herein described.

ALSO the right of direct access to and from the Pennsylvania Extension of the New Jersey Turnpike constructed or to be constructed on Parcels 10A, 10B and 10C hereinabove described.

In addition to the above written descriptions of A10F the [Authority] attached a plat map showing the takings. This plat described the second course of A10F's description, 635 feet in length, as the "Taking Line." It also demonstrated that in the area of A10F no actual relocation of Cedar Lane was to take place.

Judge Wells then noted that the Authority was once again involved in a project requiring the taking of the Feldman property, this time to provide, among other things, direct access to and from Route 130 to the Turnpike. And this time, the "entire old Harkins farm to the east of Cedar Lane," consisting of two parcels, 49 and 49X, would be needed for an exit ramp from Route 130. Noting the similarity in the language of the Declaration of Taking for both parcels. Adding emphasis as noted, Judge Wells quoted from one:

Said Parcel 49X including specifically all the land and premises bounded on the southeast and southwest by the proposed right-of-way line of State Highway Route 130 and Ramp B, on the west by the existing right-of-way line of Cedar Lane, and on northeast by the existing right-of-way line of the New Jersey Turnpike Authority; extending from about proposed Route 130 baseline Station 1960+40 on the south to about Station 1964+30 on the north, as shown on said map; containing about 2.205 acres more or less.

The judge continued:

A plat is attached on which the line between the 1955 [Authority] taking and the remaining property of Feldman is described as "Exist R.O.W. line."

Having described the 1955 Declaration of Taking and the 1977 plat to which the parties gave differing interpretations, Judge Wells stated that Feldman was arguing that those documents "evidence an intent to expand the Cedar Lane ROW thus giving him a clear right to access from his remaining property."

In granting reconsideration, however, Judge Wells concluded that he had originally erroneously relied on a literal reading of the descriptions and had ignored other parts of the record. He stated:

On the one hand the 1955 taking description of A10F (see the italicized courses) clearly suggest that Cedar Lane ROW was to be relocated, as Feldman argues. If so Harkins would have had access to Cedar Lane across [Authority] property. But even if the Harkins Estate read the descriptions that way, the accompanying plat clearly demonstrated that Cedar Lane was not to be changed at A10F and it specifically referred to the second course as the "taking line." The 1997 taking description of 49X (see italicized course) states Cedar Lane had been relocated. But the fact is that in the 45 years since the 1955 taking, the Cedar Lane ROW has not been touched in the area of A10F, lending credence to the [Authority's] claim that [the] description was a mistake. Only lands of Harkins to the north of A10F, especially on Parcels A10D and the northerly part of Parcel A10E (and parcels taken from other owners) were to be used to relocate Cedar Lane and/or Schuyler's Ferry Lane. When those descriptions were drawn, I must infer that they were simply used to describe A10F even though there was no intent to relocate Cedar Lane.

Judge Wells then opined that there would have been no public purpose served by widening or relocating Cedar Lane and that this was clearly shown on the plat. The plat showed that the remaining lands of Harkins to the east were, in fact, severed from Cedar Lane. Judge Wells concluded:

Cedar Lane to the north of A10F and another road, Schuyler's Ferry Road, were to be rerouted and substantial amounts of fill taken from A10F in order to grade up to the Turnpike which ran at a much higher grade than either of the two local roads. It was for this fill and necessary grading that parcel A10F was taken. [The Authority] did not condemn any part of Cedar Lane itself adjoining A10F. Nor did the County whose road it was, and still is, widen or relocate it at the point it intersected with Route 130.

Furthermore, Judge Wells observed that, if the county were to decide to widen or relocate Cedar Lane at A10F, it would have to first acquire property from the Authority out of the former A10F in order to do so, because the taking description had not given the county any right to widen Cedar Lane. Significantly, Judge Wells also found that the descriptions clearly gave the Authority fee simple absolute

without any reservation of rights in the neighboring property owner to cross the taken property to achieve access to Cedar Lane. Whatever may be said about the wisdom of what the [Authority] and Harkins agreed to in 1955, A10F forever separated the Harkins property from its frontage on and access to Cedar Lane like a knife stripping flesh from bone.

Indeed, as Judge Wells noted, Feldman had, in 1987, applied to the Authority for access to Cedar Lane, an action the court found "essentially inconsistent with [Feldman's] position now that he has a property right to cross the former A10F as a matter of law based on the 1955 taking description of the parcel."

Finally, Judge Wells pointed to the discovery of 1955 appraisals in which "loss of frontage" clearly was considered in the evaluations. The appraisals, the court stated, "urge that Harkins should be compensated for his loss of frontage on Cedar Lane ." Based upon all of the above reasoning, the court granted reconsideration and, in so doing, barred expert testimony attributing value to frontage on or access to Cedar Lane.

 
In this appeal, Feldman argues that the court erred in determining that the subject property had no access to Cedar Lane by virtue of the 1955 taking and that this error prejudiced Feldman for the remainder of the case because he was no longer able to present evidence in an attempt to prove that the property was indeed a corner lot with access to both Route 130 and Cedar Lane. However, we agree with Judge Wells' reasoning and conclusions and find his factual determinations to be supported by substantial credible evidence in the record. Therefore, for the reasons expressed in his opinion, we affirm the judgment awarding compensation.

The order granted reconsideration of a November 15, 1999 order in which Judge Wells concluded that, for the purpose of valuation, the property was to be considered as having reasonable access to Cedar Lane.

Judge Wells noted that the Authority had approved the request subject to conditions, but never actually granted access because the matter was dropped. In that regard, as cited above, Judge Wells' order gave Feldman the right to revise appraisals and assert that on the valuation date he had the right to apply for access and that it probably would have been granted, although, perhaps, subject to conditions.

On August 31, 2001, Judge John A. Sweeney ordered that "no witness will be permitted at trial to offer testimony asserting that the Subject Property actually had access to and from Cedar Lane ." During trial, on July 28, 2003, Judge Marie White Bell likewise prohibited Feldman from pursuing the position.

(continued)

(continued)

9

A-6032-03T1

November 3, 2005