Port of New York Authority v. Howell

• Decision Date: 27 July 1961
• Docket Number: A--719,Nos. A--718,s. A--718
• Parties: PORT OF NEW YORK AUTHORITY, Plaintiff-Respondent, v. Joseph G. HOWELL, Defendant-Appellant, and Dorothy Feistel et al., Defendants. PORT OF NEW YORK AUTHORITY, Plaintiff-Respondent, v. Antonio MAISANO et al., Defendants, and M and D Realty Co., Inc., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 559

68 N.J.Super. 559

173 A.2d 310

PORT OF NEW YORK AUTHORITY, Plaintiff-Respondent, v. Joseph G. HOWELL, Defendant-Appellant, and Dorothy Feistel

et al., Defendants.

PORT OF NEW YORK AUTHORITY, Plaintiff-Respondent, v. Antonio MAISANO et al., Defendants, and M and D Realty Co., Inc., Defendant-Appellant.

Nos. A--718, A--719.

Superior Court of New Jersey Appellate Division.

Argued March 20, 1961.

Decided July 27, 1961.

William V. Breslin, Englewood, for defendants-appellants (Francis B. Rusch, Englewood, of counsel).

Russell E. Watson, New Brunswick, for plaintiff-respondent (Robert S. Tobin, Paterson, of counsel).

Before Judges PRICE, GAULKIN and SULLIVAN.

The opinion of the court was delivered by

PRICE, S.J.A.D.

Appellant property owners seek the reversal of judgments entered in the Superior Court, Law Division, in condemnation actions instituted by the Port of New York Authority. The Authority elected, pursuant to the option accorded to it by N.J.S.A. 32:1--132, to proceed under the Airport Act, N.J.S.A. 32:1--35.15. The challenged judgments were entered after an extensive trial without a jury. By order of this court the appeals from the respective judgments were consolidated.

Two properties, both located in the Borough of Fort Lee, were the subject of the condemnation proceedings here under review--one known as the Howell property, the other as the property of M and D Realty Co., Inc. The properties with many others, were the subject of acquisition by the Port of New York Authority for the construction of approaches to George Washington Bridge in connection with the addition of a second deck to that structure.

The Howell property had a frontage of 180 feet on South Marginal Road (facing an area known as Bridge Plaza, west of the approach to the George Washington Bridge) and 50 feet on an arc on Center Avenue. The property had an average depth of 53 feet and contained 9,800 square feet. At the time of the taking, September 5, 1958, a two and one-half story dwelling house and garage were located on the lot. The trial court entered judgment for the 'taking' of the Howell property in the sum of $39,134. Port of N.Y. Authority v. Howell, 59 N.J.Super. 343, 352, 157 A.2d 731 (Law Div.1960).

The property of M and D Realty Co., Inc. was located on the southeast corner of South Marginal Road and Lemoine Avenue. It contained 7,215 square feet. With the exception of a small shanty the land at the time of the 'taking,' October 17, 1958, was vacant. It was operated as a used car lot. Judgment in the condemnation action was awarded by the trial court in favor of the property owner in the sum of $54,990.

The propriety of the aforesaid judgments is challenged on several grounds, some of which apply to both appeals. Where the subject matter discussed is applicable to one property and not to the other we shall so indicate.

Initially appellants attack N.J.S.A. 32:1--132 on constitutional grounds. The precise challenge here made was rejected in In Port of N.Y. Authority v. Heming and Cervieri, 34 N.J. 144, 167 A.2d 609 (1961), appeal dismissed, Cervieri, et al. v. Port of New York Authority, 81 S.Ct. 1676 (1961), decided since the appeals in the instant cases were taken. That decision is controlling in the case at bar.

Appellants next assert that the trial court erroneously compelled them to produce their proofs first instead of requiring the Port Authority to do so. Appellants state in their brief that they feel 'constrained to raise this point although our courts have stated that this determination is a matter of discretion of the trial court * * *. Ringwood Co. v. North Jersey District Water Supply Commission, 105 N.J.L. 165, 143 A. 369 (E. & A. 1928).' Appellants urge that the Ringwood decision is inequitable and that there is 'no cogent reason why the old rule * * * should continue to be followed.' We perceive no reason why it should not be followed. The trial court in the case at bar adhered to the practice which has existed in this State for many years. Appellants advance the further contention that in a Non-jury condemnation case (emphasis supplied), such as the one at bar, the 'condemning authority should be compelled * * * to proceed first.' No persuasive reason is advanced why any different rule should prevail in a non-jury case.

Appellants next contend that in the presentation of appellant Howell's case the trial court committed prejudicial error in refusing to admit proffered evidence of a month to month rental of $500 paid to the Port Authority as lessor of the aforesaid M and D Realty Co., Inc. property, following the Authority's acquisition of it. The suggested relevancy of the proposed proof was that the M and D property was a tract comparable with Howell and that implicit in the rental arrangement was an expression of the Authority's own view of the valuation of the M and D property, thus making the suggested proof evidential in the Howell case. However, it was in evidence that the tenant had paid rent of $500 per month prior to the acquisition as well. With the same general approach appellants sought, unsuccessfully, through the medium of testimony of their real estate expert, to introduce evidence of a sale on January 15, 1959 of allegedly comparable property. Under the particular facts of the instant case we determine that the court's ruling was within its 'wide discretion,' (In re Port of New York Authority, 28 N.J.Super. 575, 581, 101 A.2d 365 (App.Div.1953); State, by State Highway Com'r v. Williams, 65 N.J.Super 518, 528, 168 A.2d 233 (App.Div.1961)), and that no abuse of that discretion is revealed by the record before us.

Appellants next urge that, 'in weighing the lack of commercial development in the area, the trial court should have considered the fact that the owners therein were unwilling to sell their land.' This argument is projected against the conceded fact that the area properties are located in the C--3 zone by the prevailing ordinance of the borough. As set forth in its opinion in the instant case, Port of N.Y. Authority v. Howell, supra, 59 N.J.Super. at p. 350, 157 A.2d at p. 735, the permissible uses under the ordinance provisions as of September 5, 1958 were substantially commercial in nature and included a wide variety of business and professional establishments. Dwellings, except 'apartment buildings of six stories or less in height,' were excluded. The use of the Howell property on which the forty-year-old dwelling was erected was therefore nonconforming.

Appellants' offer of proof envisioned testimony by a real estate broker for appellants that he had been 'given an assignment in 1952 to acquire Bridge Plaza property' but had been unsuccessful in that endeavor. Appellants' counsel offered to develop individual instances of such unsuccessful efforts, which he said would demonstrate that respective owners desired to retain the properties as residences and that would explain the alleged inactivity in the real estate market in the area between 1955 and 1958. Based on that theory appellants urged that the area properties were unique and that the trial court should have 'looked beyond the usual guides when items are not offered on the market,' should have considered the reasons therefor, determined that 'the value was there' and that appellants 'should be entitled to it, regardless of the use to which the land was devoted at the time of taking.' However, the trial judge did take 'into account that the property is presently zoned for limited business and commercial uses * * *.' Port of N.Y. Authority v. Howell, supra, 59 N.J.Super. at p. 352, 157 A.2d at p. 736.

In support of their aforesaid offer of proof appellants cite the case of State, by State Highway Com'r v. Burnett, 24 N.J. 280, 131 A.2d 765 (1957). The trial court held that the principles enunciated in Burnett furnished no support for appellants' instant argument. We are of the same opinion. In Burnett the property involved was unique in character, customary methods of determining its market value were unavailing and therefore 'the trial judge did not abuse his discretion' in adopting another formula for valuation involving reproduction cost less depreciation. (Burnett, 24 N.J. at p. 293, 131 A.2d at p. 772). The trial court held that the Howell property was not unique and no reason existed for departing from the normal methods of testing its market value. The record furnishes adequate support for the court's holding. Appellants cite City of Trenton v. Lenzner, 16 N.J. 465, 109 A.2d 409 (1954) as authority for the proposition (as stated in their brief) that the 'very essence of fair market value is the price agreed upon between a willing seller and a willing buyer.' From that premise they apparently conclude that, as the owners of property in the area refused to sell because (as counsel urged at trial and as their brief reiterates) 'they chose to stay there and pass their benefits on to their children,' some other and different method of valuation should be determined. The Lenzner opinion affords no support for the contention that the actual owner's desire not to sell can be a factor in determining market value. In the opinion the court (16 N.J. at p. 479, 109 A.2d at p. 416) said: 'Its fair market value, measured by the price which would voluntarily be agreed upon between the hypothetical owner willing to sell and the hypothetical buyer willing to buy, would be fixed after the due weighing of all the factors which customarily enter into their purchase and sale negotiations.' In short the state of mind of the actual owner of the land is neither controlling nor of aid in determining what a hypothetical buyer and seller respectively would pay and receive. The court properly rejected the offer of proof.

Appellants' next attack on the judgments is based on the trial court's refusal to permit their real estate and land appraisal expert to testify concerning a 'hypothetical office building'...