NL INDUSTRIES, INC., Plaintiff v. SAYREVILLE ECONOMIC AND REDEVELOPMENT AGENCY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6037-04T26037-04T2

NL INDUSTRIES, INC.,

Plaintiff,

v.

SAYREVILLE ECONOMIC AND

REDEVELOPMENT AGENCY,

Defendant.

________________________________

SAYREVILLE ECONOMIC AND

REDEVELOPMENT AGENCY,

Plaintiff-Appellant,

v.

NL INDUSTRIES, INC.,

Defendant-Respondent,

and

NL ENVIRONMENTAL MANAGEMENT SERVICES, INC.,

MARSULEX, INC., NEW JERSEY HIGHWAY AUTHORITY,

THE CITY OF PERTH AMBOY, MIDDLESEX COUNTY

SEWERAGE AUTHORITY, CONRAIL (successor-in-

interest to Raritan River Railroad), FAITH

FELLOWSHIP MINISTRIES, INC., JERSEY CENTRAL

POWER AND LIGHT COMPANY (d/b/a GPU Energy),

NATIONAL AMUSEMENTS, INC., PRAXAIR, INC.,

PUBLIC SERVICE ELECTRIC & GAS COMPANY,

UTILITY SERVICE AFFILIATES, INC., VERIZON

COMMUNICATIONS, BOROUGH OF SAYREVILLE and

THE STATE OF NEW JERSEY,

Defendants.

___________________________________________

 

Argued November 1, 2006 - Decided March 2, 2007

Before Judges Wefing, Parker and Yannotti.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

Nos. L-6018-02; L-6130-02.

Gage Andretta argued the cause for

appellant Sayreville Economic and

Redevelopment Agency (Wolff & Samson, attorneys;

Mr. Andretta and Thomas Sabino, on the brief).

Christopher R. Gibson argued the cause for

respondent NL Industries, Inc. (Archer & Greiner,

attorneys; Mr. Gibson, of counsel and on the

brief; Patrick M. Flynn, on the brief).

PER CURIAM

Sayreville Economic Redevelopment Agency ("SERA") appeals pursuant to leave granted from a trial court order to the effect that the project enhancement rule would not be applicable in SERA's pending eminent domain action. After reviewing the record in light of the contentions advanced on appeal, we affirm.

This appeal is a companion to NL Industries, Inc. v. DEP, A-5804-04T2 and A-6094-04T2 (Consolidated); both appeals were argued back-to-back, and we decide both on the same date.

The history of this tract of land and the contentious relationship that has developed between SERA and NL as to remediation and development of this tract of land have been fully set forth in our opinion in NL Industries, Inc. v. DEP. There is no need to restate it here, and we incorporate that history by reference.

For purposes of this appeal, it is sufficient to note that during the period of time that SERA and NL were working cooperatively toward the redevelopment of NL's four-hundred- acre tract of land, it was zoned SED-2; the permitted uses included office, laboratory, assembly, commercial, school training centers, light industry and warehouse/distribution. By the time the cooperative spirit between SERA and NL came to an end, however, the property had been rezoned RA-W in anticipation of its redevelopment. The permitted uses in this new zone are retail, restaurant, recreational and hotel/convention center--all uses that had not been permitted under the earlier zoning.

By the time SERA filed its condemnation complaint in July 2002, the rezoning had been in place for several years. For purposes of the eminent domain proceeding, however, SERA valued the NL property as if it were still zoned SED-2. NL contended that its property should be appraised under the then-extant RA-W zone, but SERA argued that to do so would disregard the project enhancement rule, under which changes in value to a property induced by the condemnation are excluded from valuation so as not to adversely affect either party to the proceeding. State v. Inhabitants of Phillipsburg, 240 N.J. Super. 529 (App. Div. 1990). The dispute between the parties led to NL's motion. The trial court found in favor of NL and, this appeal followed.

On appeal, SERA makes two arguments. It first contends that the issue of which zoning to apply should have been left to the commissioners and not decided by the trial court. Its second argument is that the trial court erred by deciding that the project enhancement rule should not apply in the context of this matter.

We have carefully reviewed these contentions against the record presented on this appeal. We affirm the order entered by the trial court substantially for the reasons expressed by Judge Robert A. Longhi in his oral opinion of May 5 and May 9, 2005.

Affirmed.

 

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A-6037-04T2

March 2, 2007