State by Comm'r of Transp. v. Weiswasser

Opinion

 [*323]  [**865]   The opinion of the court was delivered by

HANDLER, J.

In this case, the State of New Jersey condemned a small section of a large tract of undeveloped property fronting on a major highway. As a result of the partial taking, the property owners lost their widest stretch of contiguous highway frontage.

In the course of extended settlement negotiations,  [***7]  prolonged pretrial proceedings, a commissioners' hearing with an award of compensation, and pretrial motions for evidentiary rulings, the parties raised arguments over the admissibility of evidence that present issues to be determined on this appeal. Those issues are whether, in determining just compensation in a partial-taking condemnation case, (1) evidence of damages, or the mitigation thereof, may include the availability and value of replacement property; and (2) severance damages may include the loss of visibility of the remainder property as a result of reduced highway frontage.

The property that is the subject of this condemnation action is located in Burlington County and is owned by defendants, Fred [**866]  and Geraldine Weiswasser. They bought the property as an investment and planned to develop it. The property consisted of 112.38 acres of undeveloped land, which had road frontage on Route 38 and on Bullshead Road. The sections of the property fronting on Route 38 were approximately 110 feet, 54 feet, 278.5 feet, and 62 feet in width. The property between the 278.5 foot  [*324]  frontage and the 62 foot frontage sections was a 0.37 acre parcel owned by third parties, the Firths. The [***8]  frontage on Bullshead Road is approximately 135 feet wide and three to four feet below the road grade. Approximately 19 acres of the Weiswasser property located within five hundred feet of Route 38 were zoned for commercial use. The bulk of the Weiswasser property, approximately 93.38 acres, was zoned for residential use. Although defendants had never applied for access permits, access would have been permitted at all points of frontage.

The State took a 0.39 acre crescent-shaped section of the Weiswasser property in fee simple to construct a jughandle on Route 38. It also acquired a slope easement over a 0.105 acre band of property surrounding the section taken in fee simple. The section taken included 255 feet of frontage from the property's largest section on Route 38, thereby reducing the width of that section along the highway from 278.5 feet to approximately 24 feet. As a result of the taking the owners were effectively left with only three sections of frontage on Route 38, of widths of 62, 54, and 110 feet, respectively, and the 135 foot stretch of frontage on Bullshead Road.

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