|
|
BOROUGH OF HARVEY CEDARS v. KARAN
40 A.3d 75 (2012)
Superior Court of New Jersey, Appellate Division.
Argued January 31, 2012.
He also relied on Sullivan v. North Hudson Railroad Co., 51 N.J.L. 518, 18 A. 689 (E. & A.1889). Citing examples from Sullivan, the judge reasoned that if a railroad project, intended to provide transportation and access to commerce for the general area, also happened to result in the draining of a swamp on a defendant's property thereby creating more usable dry land, that would be a special benefit to the defendant's property. Or, if the construction of a railroad embankment across a defendant's land also incidentally provided a retaining wall for defendant's millpond, that would be a special benefit. However, the incremental commercial benefit of proximity to rail transportation would only be a general benefit to the defendant's property. See Sullivan, supra, 51 N.J.L. at 540, 18 A. 689.
After deciding the special benefits issue, the judge decided a second evidence question. In that ruling, the judge adopted the argument of plaintiff's counsel that settlements of condemnation cases with other beachfront property owners would be inadmissible in the litigated condemnation cases.4 He therefore denied an application to introduce evidence of a $150,000 settlement in a case involving another set of beachfront property owners. The judge recognized that some owners had settled for one dollar and others had settled for much larger sums, but none of those settlements would be admissible.During the ensuing condemnation trial, both sides' experts agreed that, prior to the taking, defendants' property was worth $1.9 million. However, the jury heard starkly opposing testimony concerning the dune's impact on defendants' ocean and beach view and the diminution in value attributable to the dune easement. Moliver, plaintiff's real estate expert, insisted that any loss of view was de minimus and was only worth $300 in compensation. During cross-examination, however, he admitted that he had never actually gone into defendants' house or out on their second-floor deck in order to see the impact of the dune on their view. Defendant's expert, Robert Gagliano, testified that the loss of view was significant and reduced the value of the property by $500,000. He also testified that, prior to the construction of the dune, defendants had a strip of private beach on their property, whereas that land was now occupied by a large dune that they could not use for recreation. That added to the property's loss in value. Mr. Karan gave detailed testimony concerning the 1973 construction of his family's dream house at the shore, with its glass wall facing the ocean, oceanfront decks, and sweeping views of the beach, shoreline and ocean. He also eloquently described the way the twenty-two-foot high dune interfered with that view, including blocking the beach and surf view from the second-floor deck, and transforming the water vista from the dining room into a view of a "wall of sand." The jury was taken to the property for a site visit, during which they observed the view from defendants' house. After two days of deliberations, the jury returned a verdict of $375,000. Finding no miscarriage of justice, Judge Millard denied plaintiff's motion for a new trial. His reasons were stated in an oral opinion, supplemented by a written opinion accompanying the May 13, 2011 order. II
1. Plaintiff moved in the alternative for remittitur, but has not briefed the remittitur issue on this appeal. That issue is therefore waived. Sklodowsky v. Lushis, 417 N.J.Super. 648, 657, 11 A.3d 420 (App.Div.2011).
2. In a previous opinion, we acknowledged the history of serious storm damage to LBI, and the role of dunes in protecting the island. McGovern v. Bor. of Harvey Cedars, 401 N.J.Super. 136, 146-47, 949 A.2d 302 (App. Div.2008).
3. At this hearing, plaintiff did not present testimony from its real estate expert, Moliver, who had no engineering expertise. Moliver's March 9, 2010 appraisal report had opined, in two conclusory sentences, that the property would "enjoy . . . special benefits" due to "added protection against beach erosion, wave attack, and potential property damage." Moliver quantified the value of the alleged special benefits by calculating the cost of building the dune. By contrast, Wise's testimony was designed to establish, based on his engineering expertise, that the dune would in fact confer benefits on defendants' property in the form of increased safety from storms, although he could not quantify the value of that benefit.
4. The Karan case was one of dozens of condemnation cases against beachfront owners. At the April 5 hearing, the judge heard argument from the Karans' attorney and the attorney for another couple, the Strines. The Strines' attorney raised the issue of admitting evidence of the settlements, but it was clear that the judge's ruling would apply to both cases.
5. Sreel suggests that absent a statute specifically authorizing offsets for special benefits, such offsets are impermissible in a condemnation case. Sreel, supra, 28 N.J. at 131, 145 A.2d 306; see State Com'r of Transp. v. Interpace Corp., 130 N.J.Super. 322, 330-31, 327 A.2d 225 (App.Div. 1974). However, no party to this appeal has raised the issue of statutory authority and we do not address it. We also need not address the issue of whether the Legislature has the constitutional authority to authorize offsets for general benefits in condemnation cases such as this one. See McCoy v. Union Elevated R.R. Co., 247 U.S. 354, 365-66, 38 S.Ct. 504, 507-08, 62 L.Ed. 1156, 1165-66 (1918).
6. Plaintiff's reliance on County Park Commission of Camden County v. Kimble, 24 N.J.Super. 221, 226, 93 A.2d 647 (Ch.Div.1952), for the proposition that special benefits are an issue for the jury to decide, is misplaced. Language in that case concerning the jury determining the issue of special benefits for road improvements, sewer extensions, sidewalk construction, or the like, is inapplicable here. Kimble was not a condemnation case; rather, it addressed the statutory power of a county parks commission to make assessments against owners of adjacent property for road improvements.
|
|