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Monday, October 31, 2016

NEW JERSEY TRANSIT CORPORATION VS. MARY FRANCO, ET AL. A-3802-12T4

NEW JERSEY TRANSIT CORPORATION VS. MARY FRANCO, ET AL.
          A-3802-12T4
Plaintiff condemned a property comprised of parcels in three municipalities. The trial court's just compensation award was based on the "highest and best use" of placing apartment buildings on the parcels in two municipalities and placing a driveway on the lots in the third municipality, whose zoning did not allow apartment buildings. The Appellate Division held that use of those lots for a private driveway servicing adjacent lots was itself a "use" and would require a use variance from the third municipality. Offering to dedicate the driveway as a public street would similarly require acceptance by the third municipality. Thus, the condemnee was required to show a reasonable probability the third municipality would have granted acceptance or a use variance, even if the driveway's design complied with the Residential Site Improvement Standards.
The escrow for environmental cleanup of a condemned property should be based on the remediation needed to achieve the highest and best use of the property used to calculate the
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condemnation award, rather than the condemnor's intended or actual use, with any unspent funds returned to the condemnee.