Temporary "Takings" Judgment Remanded

The Appellate Division of the New Jersey Superior Court recently reversed a trial court decision, which had awarded a property owner over a million dollars in damages allegedly caused by an NJDOT road-widening project that interfered with plaintiff’s high-end used car business for over 4 years.  Penn Auto Sales of Rte 21, Inc. v. Dep’t of Transportation (Docket A-2860-09T1).

The appellate court held there was reversible was error by the trial court in its order granting an “automatic” judgment on liability (effectively a finding of a temporary taking) where there had been no hearing on the issue of liability and plaintiff had failed to present proofs of liability.

The court held that even though NJDOT had defaulted and would not be permitted to present any affirmative evidence at the hearing, it was still entitled to appear and cross-examine and argue against plaintiff’s evidence on liability.  The error was compounded by the fact that plaintiff had not included a takings count in its complaint.

The case also presents a good summary of the rules relating to inverse condemnation.  A copy of the unpublished slip opinion is available here.

In the end, the appellate court reversed and remanded for a hearing on liability and held that “DOT’s participation shall be limited by its relinquishment of the right to present affirmative proofs as a result of the September 12, 2008 order striking its answer and defenses.”