New Jersey Turnpike Authority v. Sisselman

• Decision Date: 10 July 1969
• Citation: 106 N.J.Super. 358,255 A.2d 810
• Parties: NEW JERSEY TURNPIKE AUTHORITY, Plaintiff-Respondent, v. H. Jerome SISSELMAN et al., Defendants-Appellants. NEW JERSEY TURNPIKE AUTHORITY, Plaintiff-Respondent, v. BERGEN COUNTY ASSOCIATES et al., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 358

106 N.J.Super. 358

255 A.2d 810

NEW JERSEY TURNPIKE AUTHORITY, Plaintiff-Respondent, v. H. Jerome SISSELMAN et al., Defendants-Appellants.

NEW JERSEY TURNPIKE AUTHORITY, Plaintiff-Respondent, v. BERGEN COUNTY ASSOCIATES et al., Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued June 16, 1969.

Decided July 10, 1969.

Walter H. Jones, Hackensack, for appellants (Thomas W. Dunn, Paramus, on the brief).

Grover C. Richman, Jr., Camden, for respondent.

Before Judges CONFORD, KILKENNY and LEONARD.

The opinion of the court was delivered by

KILKENNY, J.A.D.

Defendants appeal from three orders of the Law Division, entered in connection with these condemnation proceedings commenced by the Turnpike Authority. The first two orders, made on April 5, 1968 by Judge Pashman, were based upon orders to show cause and/or motions. The third order was made by Judge Trautwein on October 4, 1968, following a plenary hearing.

Defendants' appeal as to the first interlocutory order of April 5, 1968, is limited to paragraphs (1), (2), (3) and (5) thereof. Paragraph (1) denies defendants' motion for leave to counterclaim for injunctive and other relief. Paragraph (2) strikes the answer of defendants Sisselman and Bergen County Associates, with the exception of such portions of the answer that raise issues of arbitrariness, oppressiveness and bad faith, as to which a plenary hearing was allowed. Paragraph (3) strikes the answer of defendant Borough of East Rutherford with the same exception applicable to paragraph (2), immediately above. Paragraph (5) provides that any construction or preparation of construction of a roadway by plaintiff on Sisselman or Bergen County Associates property after the date of actual full hearing, as provided in paragraph (4), shall be at the risk of plaintiff.

The other interlocutory order of April 5, 1968 denied a motion by defendants for an order compelling the taking of oral depositions of the three Turnpike Authority commissioners.

Judge Trautwein's order of October 4, 1968 was made upon conclusion of a plenary hearing before the judge, sitting without a jury. Based upon the trial judge's oral opinion of September 18, 1968, defendants' motion to dismiss the Turnpike Authority's complaint on the grounds of arbitrariness, oppression and bad faith was denied; defendants' answers raising these questions were stricken, and judgment was entered appointing commissioners for the determination of an award of just compensation. The order contained the addendum that, in conformance with the court's order of April 5, 1968, all construction or preparation for construction of a roadway on the property of defendants, or any of them, up to and including the date of October 4, 1968, 'shall have been without risk to the plaintiff.'

We note preliminarily that the roadway in issue has been under construction unabated by any injunctive order during all the time in issue, and further construction progresses from day to day.

A summary of the litigation background seems to be in order. In July and August of 1967 the Turnpike Authority instituted condemnation proceedings to acquire two parcels of land in the Borough of East Rutherford, allegedly owned or controlled by defendants, the Sisselmans. The acquisitions were deemed necessary in the public interest for the purpose of building a highway spur from the existing Turnpike at Exit 15 to its northerly terminus, thus bypassing Exit 16, a principal outlet for traffic to and from the Lincoln Tunnel. Such a project was expressly authorized by the Legislature. N.J.S.A. 27:23--23.2, L. 1966, c. 6, § 1, effective February 16, 1966.

In its declaration of taking and pursuant thereto and complaint filed, the Authority deposited into court $286,800 for one of the parcels and $93,000 for the other. The acquisitions of defendants' two parcels were deemed necessary by the Authority because the established alignment of this highway spur required construction of two bridges over Berry's Creek Canal, thus involving the lands in question. These bridges would form an integral part of the planned additional spur.

Defendants contested the Authority's condemnation proceedings. They filed an answer in September 1967 in which they set forth the following separate defenses:

1. The proposed taking was arbitrary.

2. The Turnpike Authority had no power to take the land in question.

3. N.J.S.A. 27:23--1 et seq., creating the New Jersey Turnpike Authority and defining its powers and responsibilities, under which the Authority acted in the instant case, is an unconstitutional delegation of power.

4. The proposed taking violates 33 U.S.C.A. § 401 et seq.

5. The Authority failed to comply with the requirements of N.J.S.A. 40:55--1.13.

6. The complaint failed to state a claim upon which relief could be granted.

7. The complaint was insufficient in law.

In October 1967 defendant sought leave to counterclaim for dismissal and for an injunction against further condemnation proceedings on the grounds enumerated in numbers 4 and 5 above.

We need not detail the various other legal amendments, orders to show cause, motions and affidavits during the following months, all of which led up to hearings before Judge Pashman as to the substantive validity of defendants' answer and proposed counterclaim. Apparently, defenses numbered 2, 3, 6 and 7 had been abandoned. They have not been argued before us. The argument was limited to, and Judge Pashman's decision of January 17, 1968 was concerned only with, defenses numbered 1, 4 and 5. Defenses 4 and 5 were dismissed for reasons hereinafter discussed. Only defense numbered 1, which had asserted arbitrariness, capriciousness, unreasonableness and bad faith on the part of the Authority was deemed to raise a factual issue requiring a plenary trial thereof. The trial on that limited issue was subsequently conducted before Judge Trautwein, sitting without a jury.

For completeness, we note also that defendants sought leave from Judge Pashman to file a cross-claim against the State, which had been added as a party by reason of the Authority's earlier amendments of its complaint. Defendants sought by its cross-claim a judgment that they held title to all 275 acres of the meadowlands surrounding their parcels and that the State had no title thereto. In an oral opinion on February 19, 1968 the court allowed the filing of the cross-claim, but ruled that it would not be consolidated with the plenary hearing on the issue of arbitrariness and was not to be tried until after the determination of that matter.

In another pretrial motion defendants sought to compel the Turnpike commissioners to appear for oral depositions. Judge Pashman heard this application on March 1, 1968 and ruled that the commissioners were immune from depositions, 'barring allegations of improper behavior,' which were not present in the case. It was determined that, absent such allegations, 'the mental processes of fact-finders are beyond the permissible limits of our discovery procedures.'

I

We shall first consider defendants' appeal insofar as it challenges the propriety of the interlocutory orders made by Judge Pashman.

A

As to the four paragraphs in the order of April 5, 1968 striking certain defenses, denying injunctive relief and burdening plaintiff Authority with the risk of proceeding with construction after the date of the plenary hearing, we find no valid basis for a reversal of that order.

Defendants argue in their appeal only as to two of the defenses stricken, namely, (1) their claim that the proposed taking violates 33 U.S.C.A. § 401 et seq. and (2) the Turnpike Authority failed to comply with the requirements of N.J.S.A. 40:55--1.13. We shall, therefore, deem abandoned any claim of error in the striking of the other defenses.

(1) AS TO 33 U.S.C.A. § 401

This statutory reference is to the Federal Harbors and Rivers Act. It provides in pertinent part:

'It shall not be lawful to construct or commence the construction of any bridge * * * over or in any * * * canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of the Army: Provided, that such structures may be built under the authority of the legislature of a state across rivers and other waterways the navigable portions of which lie within the limits of a single State, provided the location and plans are submitted to and approved by the Chief of Engineers and by the Secretary of the Army before construction is commenced * * *.'

The Turnpike Authority's plans for the highway spur provided for the construction of two bridges across Berry's Creek Canal. Application for the federal permit had been filed with the Corps of Engineers on July 27, 1966, long before filing of these proceedings, but decision on the application had long been delayed. Therein, the Authority sought approval of construction of the two bridges with a fixed vertical clearance of 25 feet. At the time of the hearings before Judge Pashman, federal approval had not yet been obtained. But, at the same time, the Authority had not yet constructed or commenced the construction of the bridges. The contracts then being performed for it involved only the excavation of muck and the subsequent backfill of materials to provide a foundation for the roadway. A public hearing on its application for construction of the bridges was scheduled by the federal authority for January 18, 1968. No contracts for the actual construction of the proposed bridges would be awarded until the grant of the federal permit. The Authority stated that it intended to abide by the vertical clearance requirements prescribed by the federal authorities.

Judge Pashman correctly ruled that, since no construction of an unapproved bridge was then...