Appeals Court: Hearing Was Required Regarding Impact of Wetlands

On May 6, 2014, the Appellate Division published its opinion in New Jersey Transit v. Mori (Docket No. A-0122-12T4).  The case involved acquisition of property impacted by wetlands regulated by the Army Corps of Engineers. Plaintiff’s estimate of compensation for the one acre (out of fourteen) partial taking was $61,000 given the presence of wetlands on the part taken; property owner countered that there was a reasonably probability of obtaining a permit to develop the land even with the wetlands and argued for a value of $666,000. (The owner also argued that the property contained no wetlands, and should be valued at $845,000).  After hearing all the evidence, the jury awarded $425,000.

Reversed.  The Appellate Division concluded that it was “error for the trial court to submit to the jury the question of whether the [Army Corps] would have granted [the permit]” without first conducting a preliminary hearing to determine whether there was sufficient evidence of a reasonable probability that Army Corps would have granted the permit.  The court remanded and directed the trial court to conduct a preliminary hearing. This opinion is consistent with the recent opinion of the New Jersey Supreme Court in the Borough of Saddle River v. 66 East Allendale, which we discussed in our blog post late last year.

The Appellate Court also found error where the court allowed the jury to question whether the taking area was, in fact, impacted by wetlands.  Long before the taking, the property owner had suffered an adverse final determination by the Army Corps that the property was wetlands.  Given that fact, it probably was error to allow the property owner to argue at trial that the property was not impacted by wetlands.

A copy of the appellate court opinion is available here.

We’ll keep you posted.