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. 

NOT FOR PUBLICATION WITHOUT THE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.
2

A-3469-18T4

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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A-3469-18T4

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 onehalf 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-3469-18T4

. . . .

[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 threepercent 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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A-3469-18T4

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 
10 A-3469-18T4

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 
11 A-3469-18T4

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 
12 A-3469-18T4

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."
13 A-3469-18T4

[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 
14 A-3469-18T4

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 
15 A-3469-18T4

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.