SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5011-15T1

 NO. A-5201-15T1

NORTH HUDSON SEWERAGE AUTHORITY,

a Body Corporate and Politic of

the State of New Jersey,

Plaintiff-Respondent,

v. 

HARTZ MOUNTAIN INDUSTRIES, INC.,

a New York Corporation,

Defendant-Appellant,

and

STATE OF NEW JERSEY and TOWNSHIP OF

WEEHAWKEN, a Municipal Corporation

of the State of New Jersey,

Defendants.

______________________________________

NORTH HUDSON SEWERAGE AUTHORITY,

a Body Corporate and Politic of

the State of New Jersey,

Plaintiff-Respondent,

v.

HARTZ MOUNTAIN INDUSTRIES, INC.,

a New York Corporation, STATE OF NEW JERSEY,

NOT FOR PUBLICATION WITHOUT THE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-5011-15T2

and TOWNSHIP OF WEEHAWKEN, a

Municipal Corporation of the 

State of New Jersey,

Defendants.

 

1500 HARBOR BOULEVARD PARTNERS,

LLC,

Appellant.

___________________________________

Argued March 14, 2018 – Decided

Before Judges Fuentes, Koblitz and Manahan.

On appeal from Superior Court of New Jersey, 

Law Division, Hudson County, Docket No. L1722-14.

Anthony F. Della Pelle argued the cause for 

appellant Hartz Mountain Industries, Inc. (in 

A-5011-15) (McKirdy and Riskin, PA, attorneys; 

Anthony F. Della Pelle, of counsel and on the 

brief; Daniel Kim, on the brief).

Dennis J. Drasco argued the cause for 

appellant 1500 Harbor Boulevard Partners, LLC 

(in A-5201-15) (Lum, Drasco and Postian, LLC, 

attorneys; Dennis J. Drasco and Kevin J. 

O'Connor, of counsel and on the brief).

John J. Curley argued the cause for respondent 

(John J. Curley, LLC, attorneys; John J. 

Curley, of counsel; Jennifer J. Bogdanski, on 

the brief).

PER CURIAM

1500 Harbor Boulevard Partners, LLC (1500 Harbor) appeals

from a December 8, 2014 order denying its motion to intervene in 

a condemnation claim filed by North Hudson Sewerage Authority 

(NHSA) against Hartz Mountain Industries, Inc. (Hartz), the State 

July 26, 2018
3 A-5011-15T2

of New Jersey, and the Township of Weehawken.1 After a bench 

trial, Hartz appeals from a May 20, 2016 award of $569,774.61 in 

compensation damages. We consolidate these appeals for the purpose 

of writing one opinion. We affirm the denial of intervention and 

remand for reconsideration of the condemnation award.

On April 14, 2014, NHSA sought four easements on Hartz

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 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 

 

1 Neither the State of New Jersey nor the Township of Weehawken 

appeared in the litigation. 
4 A-5011-15T2

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. On November 19, 2014, 1500 Harbor filed an 

unsuccessful motion to intervene in the condemnation action 
5 A-5011-15T2

pursuant to Rule 4:33-1 and requested an extension of the date for 

the Commissioners' hearing. The motion was denied on December 8, 

2014. Five weeks later, 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.

I.

1500 Harbor owns the property known as "Pier D". It had

received zoning approvals to build a 227 unit luxury residential 

development on the site. The Outfall Facility will be located 

within two feet of 1500 Harbor's property.

At the hearing for the motion to intervene, 1500 Harbor argued 

it may be entitled to severance damages because of the Outfall 

Facility and asserted unity of ownership and unity of use, giving 

it a sufficient interest to intervene in the underlying 

condemnation action. 1500 Harbor argued the severance damages 

would stem from the anticipated diminution in value of the soonto-be-built north-facing apartments of 1500 Harbor's residential 

development due to the interruption in the view. 1500 Harbor's 

counsel stated that Hartz holds a significant ownership interest 

in 1500 Harbor. 
6 A-5011-15T2

The motion judge expressed concern "that the intervention at 

this point by 1500 Partners does not seem to me to fit into the 

summary proceeding course that is to be taken by condemnation 

actions." The judge also stated that even if the court were to 

accept both 1500 Harbor's unity of ownership and unity of use 

arguments, the issue regarding severance damages appeared 

premature and speculative. The judge also expressed concern 

regarding the fact that 1500 Harbor claims unity of ownership yet 

did not seek to participate earlier in the condemnation action. 

For these reasons, the motion court denied 1500 Harbor's motion 

to intervene, noting that if 1500 Harbor's property suffers

damages, it could seek recovery in a separate action. We agree. 

Intervention in a condemnation case is governed by the general 

intervention rule, Rule 4:33. Pressler & Verniero, Current N.J. 

Court Rules, cmt. 1.1 on R. 4:73-2 (2018). Rule 4:33-1 requires 

the moving party to show "an interest in the subject matter of the 

litigation, an inability to protect that interest without 

intervention, lack of adequate representation of that interest, 

and timeliness of the application." Pressler & Verniero, cmt. 1 

on R. 4:33-1. "As the rule is not discretionary, a court must 

approve an application for intervention as of right if the four 

criteria are satisfied." N.J. Dep't of Envtl. Prot. v. Exxon 

Mobil Corp., 453 N.J. Super. 272, 286 (App. Div. 2018) (quoting 
7 A-5011-15T2

Meehan v. K.D. Partners, LP, 317 N.J. Super. 563, 568 (App. Div. 

1998)). 

"Rule 4:33-1 is construed 'liberally.'" Allstate New Jersey 

Ins. Co. v. Neurology Pain Assocs., 418 N.J. Super. 246, 254 (App. 

Div. 2011) (quoting Meehan, 317 N.J. Super. at 568). "Consistent 

with this liberal construction, our courts take a practical 

approach in determining whether a moving party has a cognizable 

interest in litigation that it is entitled to protect by 

intervention." Id. at 254-55 (citing Am. Civil Liberties Union 

of N.J., Inc. (ACLU NJ) v. Cty. of Hudson, 352 N.J. Super. 44, 67-

69 (App. Div. 2002)). 

"[W]here intervention of right is not allowed, one may obtain 

permissive intervention under [Rule] 4:33-2." ACLU NJ, 352 N.J. 

Super. at 70 (quoting Atl. Emp'rs Ins. Co. v. Tots & Toddlers PreSchool Day Care Ctr., 239 N.J. Super. 276, 280 (App. Div. 1990)). 

Pursuant to Rule 4:33-2, a court may permit anyone to intervene 

in an action "upon timely application if the claim or defense and 

the main action have a question of law or fact in common." Exxon 

Mobil, 453 N.J. Super. at 286 (alterations omitted). 1500 Harbor 

did not seek permissive intervention.

When a public entity "takes private property for a public 

use, the property owner is entitled to 'just compensation' under 

our State and Federal Constitutions." Borough of Harvey Cedars 
8 A-5011-15T2

v. Karan, 214 N.J. 384, 388 (2013) (citing U.S. Const. amend. V 

and N.J. Const. art. IV, § 6, ¶ 3). In a condemnation action, the 

parties are to include the "record owner, the occupant, if any, 

such other persons appearing of record to have any interest in the 

property and such persons claiming an interest therein as are 

known to the plaintiff." R. 4:73-2. 

"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) (citing Hous. Auth. of Newark v. Norfolk Realty, 71 

N.J. 314, 324 (1976)). 

Rule 4:33-1, governing intervention as of right, is subject 

to de novo review. Exxon Mobil, 453 N.J. Super. at 285. 1500 

Harbor argues that the motion court erred when it denied 1500 

Harbor's motion to intervene because the Outfall Facility is within 

two feet of 1500 Harbor's property and will clearly affect its 

property interests. Although 1500 Harbor claims it will suffer a 

diminution in value of the apartments facing the Outfall Facility, 

it has not argued that it could not otherwise seek remedies in a 

separate action. The motion judge stated that a claim for damages 

"may ripen into a claim based upon a theory of inverse 
9 A-5011-15T2

condemnation." Therefore, 1500 Harbor has not shown that the 

disposition of the underlying action impairs or impedes its ability 

to protect its interest. 

Lastly, 1500 Harbor did not file its motion to intervene 

until one month after receiving an October 2014 public notice 

issued by the Army Corps of Engineers regarding the scope of the 

Outfall Facility and its proximity to 1500 Harbor's property. 1500 

Harbor notes that NHSA's "Complaint and Declaration of Taking 

. . . described only the lands to be taken and did not specifically 

describe the sewer facilities to be constructed pursuant to the 

easements (which directly causes the severance damages to [1500 

Harbor's] property)." The motion court, however, expressed 

concern regarding why 1500 Harbor did not move to intervene in the 

matter sooner, if it had unity of ownership with Hartz. 

1500 Harbor's counsel was not prepared to present evidence 

of damages to 1500 Harbor's property, but instead set forth 1500 

Harbor's belief that its north-facing apartments would diminish 

in value due to the construction of the Outfall Facility. The 

letter submitted by 1500 Harbor from McLaren Engineering Group 

discussed what the engineers saw as possible problems that 

construction of the Outfall Facility could cause to 1500 Harbor's 

property.
10 A-5011-15T2

Reviewing the evidence presented by 1500 Harbor de novo, we 

agree with the motion judge that, even if it could prove unity of 

use and ownership, the possible damages are speculative and could 

be addressed in a later proceeding. The delay in moving to 

intervene given a unity in ownership also would have delayed the 

entire proceedings. We affirm the order denying intervention.

II.

A.

We are compelled to reverse the award of condemnation damages 

and remand for reconsideration due to certain erroneous rulings. 

"The concept of 'unity of ownership' . . . is flexible and does 

not require a rigid definition of ownership on the basis of bare 

legal title." Artaki, 392 N.J. Super. at 149. "[A]ll parcels of 

real property, whether contiguous or noncontiguous, that are in 

substantially identical ownership . . . shall be treated as if the 

entire property constitutes a single parcel." Norfolk, 71 N.J. 

at 325. (alteration in original) (emphasis in original) (quoting 

Uniform Eminent Domain Code, § 1007 (1974)). 

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 
11 A-5011-15T2

was $11.6 million – $265.70 per square foot of each easement area. 

The court fully accepted Hartz's valuation of the property. Hartz 

does not appeal from this determination and NHSA does not crossappeal.

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 
12 A-5011-15T2

value of the two permanent easements and the two temporary 

easements was $2,463,300.

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.

Our standard of review of trial court findings after an 

evidentiary hearing is limited. Gnall v. Gnall, 222 N.J. 414, 428 

(2015). The court's decision, however, must be based on 

substantial evidence in the record. Ricci v. Ricci, 448 N.J. 

Super. 546, 564 (App. Div. 2017).

Hartz argues that the trial court's decision to allocate a 

two-percent fee for the taking of Permanent Easement B, a onepercent fee for Permanent Easement D, and no severance damages to 

Estuary, was unsupported by the record. With respect to Permanent 

Easement B, Hartz states that the trial court's conclusion was 

based on a faulty premise – that B was a "replacement of an 

already-existing easement." Hartz accurately states that B

encompassed 14,424 square feet and was "not previously encumbered 
13 A-5011-15T2

by an easement." Defendant's own expert assessed a ten-percent 

fee for Easement B, yet the court assessed a fee of only two

percent.

Hartz further argues that the trial court incorrectly noted 

"that the only detriment to the encumbered parcel is the presence 

of the pipe with no further access nor plan for continued 

maintenance nor access to it." In fact, the easement granted 

access for maintenance.

The trial court found that "Permanent easement B represented 

a replacement of an already-existing easement and represents two 

percent of the bundle of rights" because "Permanent easement B, 

only very slightly, impacts on the surface area of the Estuary 

. . . ." It found that Permanent Easement B did not "affect the 

use or the utility of the property, at all." It calculated the 

value of NHSA's taking at $76,649.14, two percent of the total 

value of the land taken for Permanent Easement B.

As to Permanent Easement D, Hartz contends that the trial 

court "erroneously speculated that the 'decorating scheme' would 

somehow cure the sign of trucks and other equipment." Hartz argues 

that the design of the system could change at any moment, but this 

is its only opportunity to "receive compensation." Last, Hartz 

contends that the trial court incorrectly determined that the 
14 A-5011-15T2

impact of a truck utilized monthly to help maintain the sewer 

outfall structure is negligible. 

With respect to Permanent Easement D, the 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 

. . . ." For these reasons, it found a one-percent fee for the 

imposition of Permanent Easement D, valued at $47,493.87.

The Fifth Amendment to the United States Constitution and 

Article I, Paragraph 20 of the New Jersey Constitution provide 

that private property may not be taken for public use without just 

compensation made to the owners. N.J.S.A. 40A:12-4(a) provides:

Any county or municipality may acquire:

Any real property, capital improvement, 

personal property or any interest or estate 

whatsoever therein, including easements, 

water, water power, or water rights, either 

within or without the county or municipality, 

except that no such property belonging to the 
15 A-5011-15T2

State or any of its agencies, a county or any 

municipality shall be acquired without its 

express consent.

Property is defined under the eminent domain statute as "land, 

or any interest in land." N.J.S.A. 20:3-2(d). "An easement

constitutes an interest in land, and the owner must be compensated"

for its value. Twp. of Manchester Dep't of Utils. v. Even Ray 

Co., Inc., 315 N.J. Super. 122, 132 (App. Div. 1998). "Just 

compensation is a function of the value of the property in light 

of its highest and best use, which is ordinarily evaluated in 

accordance with current zoning ordinances." Borough of Saddle 

River v. 66 E. Allendale, LLC, 216 N.J. 115, 119 (2013). 

"[T]here is no precise and inflexible rule for the assessment 

of just compensation. The Constitution does not contain any fixed 

standard of fairness by which it must be measured. Courts have 

been careful not to reduce the concept to a formula." State v.

Caoili, 135 N.J. 252, 271 (1994) (quoting Jersey City Redevelopment 

Agency v. Kugler, 58 N.J. 374, 387-89, (1971)). 

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 witness, even if it is 

unrebutted by any other evidence." Torres v. Schripps, Inc., 342 

N.J. Super. 419, 430-31 (App. Div. 2001) (citations omitted). But 
16 A-5011-15T2

findings must be based on substantial evidence. Ricci, 448 N.J. 

Super. at 564.

The trial court calculated the taking of Permanent Easement 

B based on its "replacement of an already-existing easement" and 

the nominal effect it would have on the surface area. The court 

failed to explain in what way even the defense expert so 

dramatically overvalued the percent of damages, at ten percent

rather than the two percent the judge found.

B.

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.

Regarding the effect on the Estuary, the trial court wrote:

"Severance damages are not appropriate and will not be awarded. 

Although the property is impacted by these easements, the Court 

does not find that they [] so substantially impact the premises 

to represent a diminution in the total value of the property to 

justify an award." The court also found no unity of ownership.
17 A-5011-15T2

The court erred in finding no unity of ownership because 

Hartz owned "only" 92.5% of Estuary. In Artaki, 392 N.J. Super. 

at 149-50, we wrote, "The concept of 'unity of ownership' suggests 

that physically separate parcels are owned in their entirety by 

one owner or set of owners. The concept, however, is flexible and 

does not require a rigid definition of ownership on the basis of 

bare legal title." The "fluid interpretation of the unity of 

ownership" was addressed by the New Jersey Supreme Court in 

Norfolk, 71 N.J. at 324. Id. at 150. 

When determining unity of ownership, the Court addressed the 

question of "whether strict unity of title in a given entity must 

exist, or whether ownership is a matter of substance rather than 

form so that identity of beneficial interest will suffice." 

Norfolk, 71 N.J. at 324. The Court concluded:

However, the concept of eminent domain 

requires that the realities underlying 

corporate ownership of land be fairly 

recognized. Normal business considerations, 

including due regard for federal tax 

consequences, may indicate that a bifurcated 

ownership of the assets of a functionally 

integrated enterprise is more desirable than 

ownership by a single entity. The law should 

not require businessmen to ignore otherwise 

sensible economic planning decisions in order 

to retain their right to full actual damages 

consequent upon a public taking.

[Ibid.]
18 A-5011-15T2

Thus the trial court's conclusion that there was no unity of 

ownership because "Estuary is owned by three different entities, 

with Hartz possessing only a 92.5% interest in that property" is 

incorrect. 

In evaluating unity of use, the court overlooked that the 

entire Lincoln Harbor has been developed by Hartz, that the site 

has been treated as a "single planned development unit," and that 

Hartz essentially controls Estuary. Additionally, and most 

importantly, because Estuary is contiguous to the easement 

property, unity of use need not be demonstrated. Manalapan Twp. 

v. Genovese, 187 N.J. Super. 516, 521 (App. Div. 1983) ("[T]o 

recover severance damages, an owner must prove either that the 

parcels were contiguous or that they were constituent parts of one 

economic unit.").

The trial court focused on its perception that Hartz had to 

prove a unity of use, writing:

To establish a unity of use, the landowner 

must demonstrate that any non-contiguous lots 

were constituent parts of a single economic 

unit. Cty. of Middlesex v. Clearwater Vill., 

Inc., 163 N.J. Super. 166, 174 (App. Div. 

1978); State v. Whitehead Bros. Co., 210 N.J. 

Super. 359, 366 (Law Div. 1986).

[(Emphasis added).]

NHSA does not dispute that the Estuary and the "part taken" 

are, in fact, contiguous, but rather argues that the parcels are 
19 A-5011-15T2

not part of a single economic unit. To recover severance damages, 

Hartz need only prove "either that the parcels were contiguous or

that they were constituent parts of one economic unit." Manalapan, 

187 N.J. Super. at 521 (emphasis added). Because Hartz 

demonstrated both unity of ownership and that the parcels were 

contiguous, Hartz is entitled to recover severance damages.

We reverse and remand with regard to the award for Easement

B as well as severance damages for Estuary. The court should 

explain the foundation for its awards.

A-5201-15 is affirmed. A-5011-15 is reversed and remanded 

for reconsideration. We do not retain jurisdiction.