New Jersey Eminent Domain Law Blog

The Halper family has had a long, tortuous history with the township of Piscataway regarding the acquisition of their farm. The township condemned the 75-acre farm for open space on December 10, 1999. Piscataway offered $4.326 million as its estimate of just compensation pursuant to N.J.S.A. 20:3-6. The jury awarded awarded $17.9 million as of September 3, 2004  -  the date of the filing of the declaration of taking and the deposit with the Superior Court Trust Fund. The initial deposit of $4.326 was withdrawn immediately.

On May 14, 2008, Appellate Division Judge Donald S. Coburn issued an opinion, approved for publication, affirming the jury verdict in the Township of Piscataway v. South Washington Avenue LLC; Ruth Halper, Lawrence Halper, et al. Download the opinion here. There are two important issues in this case: first, the Halpers appeal regarding their objection to the right to take their property; and second, the date of valuation per N.J.S.A. 20:3-30.

As to the first issue, the court ruled in favor of Piscataway, noting that once the deposit is withdrawn, the condemnee waives any rights other than those related to the amount of compensation:

We are satisfied that Piscataway's interpretation of N.J.S.A. 20:3-27 is sound, particularly when it is construed in light of the fundamental common law rule that "a litigant who voluntarily accepts the benefits of a judgment is estopped from attacking it on appeal." Tassie v. Tassie, 140 N.J. Super. 517, 524 (App. Div. 1976) (citations omitted). We also noted in Tassie, that

[t]he rule that a litigant cannot seek appellate review of a judgment under which he has accepted a benefit is but a corollary to the established principle that any act upon the part of a litigant by which he expressly or impliedly recognizes the validity of a judgment operates as a waiver or surrender of his right to appeal therefrom.
[Id. at 525 (citations omitted).]

I would note that this holding seems to be at odds with the recent decisions of the Appellate Division in the Harrison cases. All three cases were reversed and sent back to Hudson County Assignment Judge Maurice Gallipoli for further action. There are serious complications in one of the companion cases, Harrison Redevelopment Agency v. Amaral: Mr. Amaral withdrew the deposit, the buildings on the property have been demolished, and he has relocated his business to Lyndhurst, New Jersey. If Judge Gallipoli follows the courts reasoning in the Halper case, Mr. Amaral has achieved a pyrrhic victory and the only issue remaining for him is the argument over compensation.

The second issue regarding the date of value in the Halper case is also interesting. The court has bypassed the clear language of N.J.S.A. 20:3-30 in order to fashion a remedy for the Halpers. The Eminent Domain Act provides as follows:

Just compensation shall be determined as of the date of the earliest of the following events: (a) the date possession of the property being condemned is taken by the
condemnor in whole or in part; (b) the date of the commencement of the action; (c) the date on which action is taken by the condemnor which substantially affects the
use and enjoyment of the property by the condemnee; or (d) the date of the declaration of blight by the governing body upon a report by a planning board pursuant to section 38 of P.L.1971, c. 361 (C. 20:3-38), or, in the case of a property being maintained as an abandoned property for failure to remove the property from the abandoned property list, as provided pursuant to subsection c. of section 37 of
P.L.1996, c. 62 (C. 55:19-56), if there was no declaration of blight, as of the date of
expiration of the condemnee's right to appeal inclusion of the property on the
abandoned property list. [N.J.S.A. 20:3-30 (emphasis added).]

Piscataway argued that the court should apply the provisions of the act literally, citing Township of West Windsor v. Nierenberg, 150 N.J. 111 (1997) and Mt. Laurel Twp v. Stanley A-103/104-2004) and use the date of the filing of the complaint as the date of value. N.J.S.A. 20:3-30(b). 

The court, however, reasoned that where there is a 5 year gap between the filing of the complaint and the filing of the declaration of taking in a rising real estate market, the property owner’s constitutional right to just compensation is adversely impacted by the time delay. The court, therefore, relied on Judge (now Justice) Long’s decision in Ocean City v. Maffucci ( p.20) where she concluded that "arbitrary application of N.J.S.A. 20:3-30 to set the valuation date . . . as of the date the . . . condemnation action was filed is not required where application of the statute would result in unjust compensation to the property owner."

The court in the Halper case concluded:

Under the Act, the date of taking is the date on which the declaration of taking is filed accompanied by the deposit of the just compensation deposit. N.J.S.A. 20:3-19; N.J.S.A. 20:3- 21(a). When the property increases in value due to inflation or
market factors unrelated to the initiation of the condemnation action, the valuation date must be the date of the taking.

Thus, the verdict of $17.9 million rendered by the jury as of the date of the filing of the declaration of taking has been affirmed. As of the date of this post, attorneys for Piscataway are considering filing a petition for certification to the New Jersey Supreme Court. This appears to be a case the Court would consider, given the novelty of the issues decided, and the apparent conflicts between this decision and the decisions of the Appellate Division in the Harrison cases.