NORTH HUDSON SEWERAGE AUTHORITY VS. HARTZ MOUNTAIN INDUSTRIES, INC. (L-1722-14, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3469-18T4

NORTH HUDSON
SEWERAGE AUTHORITY,

Plaintiff-Respondent,

v.

HARTZ MOUNTAIN
INDUSTRIES INC.,

Defendant-Appellant,

and

STATE OF NEW JERSEY, and
TOWNSHIP OF WEEHAWKEN,1

Defendants.
_____________________________

Argued telephonically May 28, 2020 –
Decided June 24, 2020

Before Judges Koblitz, Whipple and Mawla.

1
Neither the State of New Jersey nor the Township of Weehawken appeared in
the litigation.
 On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-1722-14.

Anthony F. Della Pelle argued the cause for appellant
(McKirdy, Riskin, Olson & Della Pelle, PC, attorneys;
Anthony F. Della Pelle, of counsel and on the briefs;
Allan C. Zhang, on the briefs).

John J. Curley argued the cause for respondent (John J.
Curley, LLC, attorneys; John J. Curley, of counsel and
on the brief; Jennifer J. Bogdanski, on the brief).

PER CURIAM

Defendant Hartz Mountain Industries (Hartz) returns following our July 2018

remand to the trial court for reconsideration of the award for one of four easements

involved in this matter as well as severance damages. While the easement award

was settled through mediation, the trial court reconsidered the severance damages,

concluding again in its March 15, 2019 order that none were appropriate. Because

the court did not abuse its discretion, we affirm.

Plaintiff North Hudson Sewerage Authority (NHSA) exercised eminent

domain to intrude on a portion of Hartz property on the Hudson Riverfront in

Weehawken for the purpose of constructing a combined sanitary and storm sewer

system. Following a bench trial where experts offered vastly disparate opinions as

to the amount of just compensation, the trial court made an award of compensation,

which Hartz appealed. We determined that the trial court erred in its unity of

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ownership and use analysis, remanding for reconsideration of severance damages.

North Hudson Sewerage Auth. v. Hartz Mountain Indus., Inc., Nos. A-5011-15

& A-5201-15 (App. Div. July 26, 2018). On remand, the trial court acknowledged

that while Hartz was legally entitled to severance damages, it failed to establish a

factual basis for compensation.

Hartz contends the trial court wrongfully disregarded our directive to grant

severance damages and considered inadmissible evidence. Further, because NHSA's

expert's conclusion that severance damages were not warranted was based upon an

incorrect legal premise, Hartz asserts the trial court erred when refusing to reopen

the record to require new or revised expert testimony. Hartz also takes issue with

the trial court's credibility determinations.

In our prior opinion we summarized the matter as follows:

On April 14, 2014, NHSA sought four easements on
Hartz['s] property, a ninety-acre tract known as Lincoln
Harbor, which has been under development for thirty
years. Hartz had built a 582-unit luxury apartment
complex called Estuary on a riverfront portion of Lincoln
Harbor with unimpeded views of the New York City
skyline. Hartz owns approximately ninety-two percent of
Estuary.

NHSA's four easements were needed to construct
and maintain a sewer pipeline to manage Weehawken
storm water. Permanent Easement B provides for the
installation, operation, and maintenance of a ninety-six
inch sewer pipe that is located within the right of way of

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Riverview Terrace, a private street owned by Hartz. The
total area of Permanent Easement B is 14,424 square feet.
Temporary Easement A, lasting ten months, is designed to
provide sufficient space for construction activities for
Permanent Easement B. The area of Temporary Easement
A is 19,638 square feet.

Permanent Easement D provides for the
construction of a platform above the Hudson River as well
as the construction of a superstructure for two sewer
outfalls that will discharge storm water and treated sewage
below the Hudson River's surface. The total area of
Permanent Easement D, the Outfall Facility, is 17,875
square feet, and it will be constructed level with the
existing Hudson River Walkway.

Each new outfall constructed on this platform will
have hidden netting chambers that will be equipped with a
system to catch floatables – solid objects larger than one-
half inch in diameter. The netting system will be accessed
from the top of the platform and is maintained by a truck
and boom system that removes and replaces the nets
periodically. Temporary Easement C, lasting twelve
months, is designed to provide space for the construction
of Permanent Easement D. The total area of Temporary
Easement C is 4600 square feet.

On June 23, 2014, the trial court entered final
judgment allowing NHSA to exercise its eminent domain
power and appointing Condemnation Commissioners to
determine just compensation. N.J.S.A. 20:3-12. . . . [In
January 2015], a hearing was held before the
Condemnation Commissioners. Two weeks later, the
Commissioners issued their report, awarding $129,816
compensation to Hartz for the permanent easements and
$11.25 per square feet for the temporary easements. Both
NHSA and Hartz appealed from the Commissioners'
report.

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....

[A three-day bench trial was held between February
22 and 24, 2016.] Paul Beisser, NHSA's expert, valued
the taking using the comparable sales approach. He
concluded that the underlying land value was $1.8 million
– $41.32 per square foot of each easement area. Albert F.
Chanese, Hartz's expert, valued the taking using the same
methodology, and concluded that the underlying land
value was $11.6 million – $265.70 per square foot of each
easement area. The court fully accepted Hartz's valuation
of the property. . . .

Each expert also rendered opinions about the value
of the specific easements. Beisser reduced his value of the
property subsumed by Permanent Easement B by ten
percent to reflect the value of the limited easement
interest. Although Permanent Easement D was ultimately
developed, Beisser attributed no value to Easement D
because, in his opinion, Easement D could not be
developed. He determined that the value of Temporary
Easements A and C should be based upon an eight-percent
rate of return that was derived from the market value of
the easement areas. He ultimately concluded that just
compensation for the takings was $128,000, adjusted to
$150,000 to reflect favorable market conditions.

Chanese concluded that Permanent Easement B
represented twenty percent of the bundle of rights to that
property, and valued this taking at $766,489. He
concluded that Permanent Easement D represented
twenty-five percent of the bundle of rights and valued this
taking at $1,187,344. Chanese ultimately concluded that
the total value of Easements B and D was $1,953,833, and
the total value of the two permanent easements and the two
temporary easements was $2,463,300.

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 Chanese also concluded that Hartz suffered
severance damages because of the taking. He concluded
that Permanent Easement D would affect the view by a
portion of Estuary residents because Estuary would be in
direct view of the netting chamber and capture vault. He
concluded that this construction would translate to a three-
percent reduction in the value of the entire property, or
severance damages of $2,910,000. Therefore, he
concluded the total value of the taking at $5,373,000.

[North Hudson Sewerage Auth., slip op. at 3-5, 10-12.]

On May 20, 2016, the trial court issued a written opinion, finding the total

value of the taking to be $569,774.61. It assessed a lower amount than both experts

for Easement B. The court denied Hartz's request for severance damages. The order

for final judgment and fixing just compensation was entered on June 24, 2016. Hartz

appealed and we "reverse[d] and remande[d] with regard to the award for Easement

B as well as severance damages for Estuary," concluding that "[t]he [trial] court

should explain the foundation for its awards." North Hudson Sewerage Auth., slip

op. at 19.

Following the remand, the trial court sent the parties to mediation, where they

ultimately settled all issues except the quantum of severance damages to be paid to

Hartz for any diminishment in value to Estuary. The court denied Hartz's request to

reopen the record.

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 On March 15, 2019, the court issued its second opinion, after a thorough

review of the evidence, including an assessment of the experts' varying viewpoints,

reaffirming its original decision stating:

[T]his court does not find that Hartz is entitled to
severance damages because there is no appreciable
adverse impact on the parent parcel . . . . Considering
the testimony of each of the pertinent witnesses in light
of the easement valuation matrix submitted by the
parties, this court does not find that there is any credible
evidence to prove that the property taken as Easement
D represents anything other than a small easement for
which there is no appreciable adverse impact on the
parent tract.

Our standard of review of trial court findings after an evidentiary hearing is

limited. Gnall v. Gnall, 222 N.J. 414, 428 (2015). Generally, the "findings by a trial

court are binding on appeal when supported by adequate, substantial, credible

evidence" in the record. Ibid. When error is alleged, we do not disturb the findings

unless we are "convinced that those findings and conclusions [are] 'so manifestly

unsupported by or inconsistent with the competent, relevant and reasonably credible

evidence as to offend the interests of justice.'" Griepenburg v. Twp. of Ocean, 220

N.J. 239, 254 (2015) (quoting Rova Farms Resort v. Inv'rs Ins. Co., 65 N.J. 474, 484

(1974)).

Questions of law, which we review de novo, will only be reversed if the error

was "of such a nature as to have been clearly capable of producing an unjust result."

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Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); R.

2:10-2.

I.

Hartz argues that the trial could erred by not following our directive that Hartz

was entitled to severance damages. "It is the responsibility of a trial court to comply

with the pronouncements of an appellate court." Jersey City Redevelopment Agency

v. Mack Props. Co. No. 3, 280 N.J. Super. 553, 562 (App. Div. 1995). The trial

court has a "peremptory duty . . . on remand, to obey the mandate of the appellate

tribunal precisely as it is written." Ibid.

"In condemnation cases, severance damages are awarded only when there is

a partial taking of a parcel of realty, the uncondemned parcel and the condemned

parcel are functionally integrated, and there exists a unity of ownership." Union Cty.

Improvement Auth. v. Artaki, LLC, 392 N.J. Super. 141, 150 (App. Div. 2007). Our

Supreme Court, in State by Comm'r of Transp. v. Silver, 92 N.J. 507, 514 (1983),

wrote:

[W]here only a portion of a property is condemned, the
measure of damages includes both the value of the portion
of land actually taken and the value by which the
remaining land has been diminished as a consequence of
the partial taking. The diminished value of the remaining
property constitutes the severance damages visited upon
that property as a result of the taking.

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 We have recognized that among other factors, "every other jurisdiction which

has considered this issue has held that loss of view, loss of access, loss of privacy

and loss of use are compensable." City of Ocean City v. Maffucci, 326 N.J. Super.

1, 20 (App. Div. 1991).

We held here that the trial court erred because "Hartz demonstrated both unity

of ownership and that the parcels were contiguous," and thus was "entitled to recover

severance damages." North Hudson Sewerage Auth., slip op. at 19. The trial court

had denied severance damages because it incorrectly found no unity of ownership.

Id. at 17-18. It also found as a secondary reason that any loss to the view of an

unspecified number of units in Estuary would be minimal and thus no severance

damages were appropriate.

The trial court acknowledged during the case management conference that

when rendering its original opinion, it "only went halfway because [it] did not

believe that severance damages were appropriate for a legal reason."

In the thorough sixteen-page remand opinion, the trial court distinguished

between its factual and legal reasoning for previously denying Hartz severance

damages, explaining:

This court previously concluded that severance damages
were not appropriate factually because of a lack of proof
of a "diminution in the total value of the property to justify
an award." This court also held that the award of damages

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 was legally inappropriate because this court found a lack
of unity of ownership. The Appellate Division disagreed
with this court's legal conclusion holding that "the trial
court's conclusion that there was no unity of ownership
because . . . 'Estuary is owned by three different entities,
with Hartz possess[ing] only a 92.5% interest in that
property[] is incorrect." The Appellate Division did not,
however, speak to the alternative factual conclusion made
by this court and did not opine as to the correctness of that
determination. This court assumes, therefore, that this
remand is to permit that factual analysis.

Having accepted that Hartz was legally entitled to severance damages, the

remand opinion focused on the trial court's factual determinations with the outcome

"center[ed] squarely on the credibility assessments that [the] court [was] required to

make as to the overall reasonableness of the positions taken by the parties." After

summarizing each expert's testimony and NHSA's engineer's testimony, the court

determined that "the position advanced by the NHSA [was] more credibly supported

than the position adopted by Hartz" because Chanese: (1) neither supported his

position "by market data nor any other objective framework"; (2) mischaracterized

the design and placement of the platform; (3) rendered his position without having

viewed or visited the property; (4) exaggerated the obstruction to the view; and (5)

failed to introduce evidence of a physical intrusion or increased noise.

As correctly noted by the trial court, we did not require a new presentation of

evidence, but rather ordered the trial court to reevaluate its reasons in light of its

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legal error. The trial court abided by our remand directive in reconsidering the award

of severance damages and making credibility judgments to ascertain the amount of

the award.

II.

Hartz also argues that the trial court committed reversible error when relying

upon inadmissible "promissory representations" to determine whether severance

damages should be awarded. Hartz contends that although "[t]he law makes clear

that the measure of just compensation for a taking should not be determined by the

easement holder's representations as to the purported frequency of the easement's

use," the court "discounted the significance of Permanent Easement D" by

considering the potential, not actual, impact.

Our Supreme Court recognized that "[t]o admit promissory representations

of the condemnor's intention might well deprive a landowner of damages to which

he [or she] is justly entitled on the mere expression of an intention to do something

which might never be done." Vill. of S. Orange v. Alden Corp., 71 N.J. 362, 366

(1976) (quoting Vill. of Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 130 (1958)).

While Hartz cites to those cases in support of its argument, it overlooks the

fact that in Village of South Orange, our Supreme Court stated:

[T]he fact that South Orange intended to use the land taken
as a municipal parking lot was admissible in evidence. It

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 was something of which the trier of fact should take
account. The point made in Sreel, which we repeat here, is
that there exists no guaranty that the municipality will
continue to devote the land to this purpose for any definite
period of time. Testimony would be appropriate, if
otherwise admissible, as to the probable length of time the
use might continue. This factor–uncertainty of duration–
should be in the mind of the judge and should be explained
to the jury. With this caveat in mind, there is clearly here
no reason to exclude consideration of the use to which the
plaintiff intends to put the condemned parcel.

[Id. at 368.]

When the government takes private property for public use, it must pay just

compensation to the property owner. U.S. Const. amend. V; N.J. Const. art. I, ¶

20. "Just compensation is 'the fair market value of the property as of the date of the

taking, determined by what a willing buyer and a willing seller would agree to,

neither being under any compulsion to act.'" Comm'r of Transp. v. Caoili, 135 N.J.

252, 260 (1994) (quoting State v. Silver, 92 N.J. 507, 513 (1983)). While "all

reasonable uses of the property bear on its fair market value," the "most relevant

. . . is the property's highest and best use." Ibid.

"[H]ighest and best use" . . . is broadly defined as "the
use that at the time of the appraisal is the most
profitable, likely use" or alternatively, "the available
use and program of future utilization that produces the
highest present land value" provided that "use has as a
prerequisite a probability of achievement."

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 [County of Monmouth v. Hilton, 334 N.J. Super. 582,
587 (App. Div. 2000) (quoting Ford Motor Co. v.
Township of Edison, 127 N.J. 290, 300-01 (1992))].

We stated in our 2018 opinion that the trial court:

found that "the land on which the platform is to be
constructed has very little, if any, development potential"
because of the "presence of the existing sewer outfall" and
the "allowable density of the development" would not be
reduced. It continued: "The Court acknowledges that the
permanent easement D may create a slight visual
impediment of the New York City skyline by a few of the
occupants of the Estuary." It recognized the "decorating
scheme" would help "blend in" the "apparatus."
Furthermore, it found the "periodic presence of the boom
truck would be negligible because of the expressed lack of
frequency of the use of this equipment."

[North Hudson Sewerage Auth., slip op. at 14.]

Given that the highest and best use analysis allows the court to consider the "likely

use," and need not consider the "most injurious use," Hartz's contention is

unpersuasive.

III.

Hartz maintains that the trial court erred in denying its request to conduct an

evidentiary or plenary hearing to supplement the record. Because the parties were

not allowed to reopen the record, Hartz asserts the trial court's reconsideration was

based on the "unfairly skewed" 2016 record, which was "based upon an improper

application of the law." Rather, the court should have allowed the record to be

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supplemented with a new opinion from an expert on behalf of NHSA that considers

the existence of the unity of ownership. Hartz asks us to authorize supplementing

the record or to order a new trial before a different judge.

During the case management conference, Hartz raised the same arguments.

Hartz argued that "an award of just compensation [requires] an assessment of

whether there are severance damages and, if so, what they are." Because only one

side presented such evidence, Hartz opined that "justice" requires the record to be

reopened for NHSA to present its own evidence. The trial court disagreed,

emphasizing that NHSA already made its determination as to severance damages.

As correctly noted by the trial court, we did not order a reopening of the record

or new trial. NHSA had no obligation to retain a new expert to opine in more detail

about severance damages.

IV.

Hartz argues that the trial court erred when finding that Beisser was more

credible than Chanese. Because only Chanese offered detailed testimony as to the

quantity of severance damages in his direct testimony, Hartz contends the court's

credibility judgment was flawed.

The court, as a factfinder, "may accept some of the expert's testimony and

reject the rest. That is, a factfinder is not bound to accept the testimony of an expert

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witness, even if it is unrebutted by any other evidence." Torres v. Schripps, Inc.,

342 N.J. Super. 419, 430-31 (App. Div. 2001) (citation omitted).

The trial court thoroughly explained why it found Beisser more credible than

Chanese with regard to severance damages. Because the court's findings are

supported by "adequate, substantial, credible evidence," reversal is not warranted.

Gnall, 222 N.J. at 428.

Affirmed.

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