PARKING AUTHORITY OF THE CITY OF CAMDEN, ETC. VS. ESTATE OF MILTON RUBIN (L-3605-14 AND L-2436-14, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5335-17T3
PARKING AUTHORITY OF
THE CITY OF CAMDEN, a body
corporate and politic of the State of
New Jersey,
Plaintiff-Appellant/
Cross-Respondent,
v.
ESTATE OF MILTON RUBIN,
a/k/a MICKEY RUBIN, fee owner,
Defendant-Respondent/
Cross-Appellant,
and
V & T INC., tenant,
Defendant.
____________________________
ESTATE OF MILTON RUBIN,
Plaintiff,
v.
PARKING AUTHORITY OF
THE CITY OF CAMDEN,
Defendant.
____________________________
Argued December 2, 2019 – Decided February 11, 2020
Before Judges Fasciale, Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket Nos. L-3605-14 and
L-2436-14.
Michael J. Ash argued the cause for appellant/cross-
respondent (Carlin & Ward, PC, attorneys; Michael J.
Ash, of counsel and the briefs).
Robert Baranowski argued the cause for
respondent/cross-appellant (Hyland Levin Shapiro
LLP, attorneys; Robert Baranowski and Megan
Knowlton Balne, on the briefs).
PER CURIAM
Plaintiff Parking Authority of the City of Camden appeals from four
orders related to a condemnation action through which it acquired a property
previously owned by defendant Estate of Milton Rubin, a/k/a Mickey Rubin. A
jury trial was held to determine the property's value. Plaintiff's expert valued
the property at $180,000, while defendant's expert valued it at $9,000,000. The
difference between these valuations was, in part, due to defendant's expert's
opinion that defendant would have been able to rent the entire property, upon
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renovating it, to a tenant in receipt of significant tax incentives. After hearing
testimony from both parties' experts, the jury awarded defendant $3,000,000.
On appeal, plaintiff contends that the jury should not have heard defendant's
expert testimony as to the property's value because it was speculative. Plaintiff
also contends that the judge erroneously set the valuation date as the date of the
taking, rather than the date on which plaintiff initiated the condemnation action.
Defendant cross-appeals, arguing that the judge should have applied the prime
interest rate to its condemnation award. Having reviewed the record, and in
light of the applicable law, we affirm.
I.
We recite the relevant facts from the record. In 1979, Milton "Mickey"
Rubin acquired a roughly .22-acre property located in the City of Camden Center
City Zone. The property was improved by an eight-story, approximately 80,000-
square-foot building that was constructed in 1932. For several years, Rubin
leased the first floor to retailers and leased the remaining seven floors to
Glassboro State College and the civil service training center for use as office
and classroom space. In 1986, he sold the property for $2,700,000, holding a
$2,000,000 mortgage for the buyer. The buyer subsequently sold the property
to an investor group for $2,900,000, and Rubin still held the mortgage. In 1992,
A-5335-17T3
3
the college and civil service training center moved out, and soon after, the
mortgagor ceased making payments. The mortgagor also failed to pay the utility
bills, which caused the pipes to break throughout the building, damaging the
carpet, walls, and ceilings. Thereafter, defendant 1 initiated a foreclosure action
and paid the back taxes, insurance expenses, and maintenance and repair costs.
In 2006, defendant obtained title to the property again, after the execution of a
sheriff's deed.
During October 2007, defendant agreed to sell the property for
$4,500,000. Defendant extended the time for closing through 2012, but the sale
never closed. In 2013, defendant listed the property for sale through a broker,
for $4,500,000. From 2007 through 2014, defendant continued to maintain the
property and pay the property taxes, which, during the last four years , were
based on a valuation of $1,662,400.
In March 2014, plaintiff notified defendant of its intent to purchase
defendant's property to construct a public parking garage. Plaintiff first offered
defendant -$200,000. Consequently, defendant filed a complaint, seeking to
preclude plaintiff from "initiat[ing] condemnation proceedings unless and until
1
Rubin passed away in 1996. Thereafter, Steven Rubin, his son and the
executor of his estate, acted on defendant's behalf, as he had been working with
his family in the real estate industry for several years.
A-5335-17T3
4
[it] makes a proper, good faith, bona fide offer to pay just compensation." The
parties entered into a consent order to stay any condemnation proceedings , and
they agreed to negotiate in good faith.
Thereafter, plaintiff hired Pamela J. Brodowski of BRB Valuation &
Consulting Services. As of July 11, 2014, Brodowski valued the property at
$180,000, after concluding that the property's highest and best use was "its
existing retail use as an interim use, with one retail tenant on the first floor."
Relying on this valuation, plaintiff offered defendant $180,000, but defendant
rejected the offer. Consequently, on September 18, 2014, plaintiff initiated a
condemnation action against defendant. 2
Meanwhile, in May 2014, defendant hired Richard F. Wolf of Valbridge
Property Advisors. On August 29, 2014, Wolf requested information from the
State about the "possibilities of renovating the [property] using . . . tax
incentives," and he received an immediate response from Joseph Constance,
Business Advocate of the Business Action Center of New Jersey Department of
State. On September 8, 2014, defendant and Wolf met with Constance, and they
2
Plaintiff also named V & T Inc. as a defendant. V & T Inc. had rented space
on the first floor of the property to operate a pizza shop. It was the last retailer
to leave the property, and it vacated the space as of August 31, 2014 due to the
condemnation proceedings. V & T Inc. did not participate in the proceedings
below and has not participated in this appeal.
A-5335-17T3
5
discussed defendant's property as well as several programs that could potentially
offset future renovation and occupancy costs. Constance agreed to meet with
them again after defendant obtained "renderings of the building '[a]s
[r]enovated' to use as marketing materials." After the meeting, Constance sent
defendant documentation about various cost-saving programs, including the
Grow New Jersey Assistance Program (Grow NJ).
Grow NJ was established "to encourage economic development and job
creation and to preserve jobs that currently exist in New Jersey but which are in
danger of being relocated outside of the State." N.J.S.A. 34:1B-244(a). The
program provides tax incentives to eligible businesses for up to ten years. Ibid.
To be eligible to apply for these incentives, a business must, among other things,
"make, acquire, or lease a capital investment . . . at a qualified business facility"
where it will retain and create new full-time jobs. N.J.S.A. 34:1B-244(a)(1).
The amount of the capital investment and the number of new jobs required vary
depending on the project and geographic location. N.J.S.A. 34:1B-244(b), (c).
Defendant and Wolf met with Constance again, on October 15, 2014, after
obtaining the requested renderings. Constance informed them that "based on the
plans presented and the ability to deliver a turnkey building in approximat ely
twelve months, a rent of $35.00 per square foot, on a net basis, for the first ten
A-5335-17T3
6
years and $25.00 per square foot for the following ten years was achievable. "
Constance also told defendant that he was aware of two potential tenants that
would be interested in renting the renovated property.
On December 3, 2014, final judgment was entered in the condemnation
action. The judge awarded plaintiff "immediate and exclusive possession" of
the property and required plaintiff to deposit $180,000 with the court. The judge
also appointed three commissioners to appraise the property. On December 5,
2014, plaintiff filed a declaration of taking and deposited $180,000 with the
court. The following February, the appointed commissioners held a hearing and
awarded $180,000 to defendant. Defendant appealed the award, and the judge
ordered a jury trial to determine the property's value. On July 27, 2015, Judge
Robert G. Millenky issued an order setting December 5, 2014 as the valuation
date.
In late 2015, the parties exchanged valuation reports. Plaintiff obtained a
second report from Brodowski to account for the December 5, 2014 valuation
date. Brodowski maintained that the property's highest and best use was "its
existing retail use as an interim use, with one retail tenant on the first floor" and
again valued the property at $180,000, using the income capitalization approach
and incorporating comparable rental rates into the analysis. Brodowski's
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valuation did not account for any potential benefits of Grow NJ, as she opined
that there was no indication of the program's impact on the Camden real estate
market.
Defendant obtained a valuation report from Wolf (the Wolf Report). Wolf
concluded that "[t]he highest and best use of the . . . property, as improved, is
for renovation of the shell into Class A office space." He valued the property at
$9,000,000, using the income capitalization approach and integrating the cost
approach. Like Brodowski, Wolf also incorporated comparable rental rates, but
the rates differed from those used in Brodowski's valuation. Wolf opined that
the property was in a "very unique position" in the Camden market, due to the
Grow NJ tax incentives "recently available to companies" located in Camden.
He also relied on his and defendant's communications with Constance the
previous year.
Plaintiff moved to strike the Wolf Report, and a hearing was held before
Judge Millenky on February 19, 2016. Plaintiff claimed that Wolf's
methodology was speculative because there was no more than a mere possibility
that a tenant of the renovated property would receive Grow NJ tax incentives ,
and the report also failed to account for the risk associated with obtaining site
approval for future renovations. Plaintiff requested an N.J.R.E. 104 hearing, but
A-5335-17T3
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Judge Millenky declined to hold one after finding that the Wolf Report contained
sufficient evidence to allow the jury to find that there was a reasonable
probability that Grow NJ had impacted the Camden real estate market.
However, he agreed with plaintiff's concern about the lack of analysis regarding
the reasonable probability of land use approvals. Thus, the judge approved the
Wolf Report, subject to defendant securing an additional expert opinion on the
land use approval issues, and he issued a written order denying plaintiff's motion
on March 2, 2016.
To comply with the judge's order, defendant produced a planning report
addressing the land use issues, which he obtained from Lance B. Landgraf, Jr.,
a professional planner. Landgraf opined that if defendant was required to submit
a site plan application, "it would have been approved . . . because the renovation
plans present a permitted use under both the [z]oning [o]rdinance and the
[Camden Downtown] Redevelopment Plan, with a continuation of non-
conforming physical site conditions that pre-dated the [z]oning [o]rdinance and
the [Camden Downtown] Redevelopment Plan." As to the property's lack of
off-street parking, Landgraf opined that "the [p]roperty would maintain its
'grandfathered' status" because the proposed renovations would not have
enlarged the structure or resulted in an increase in intensity. Thus, according to
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Landgraf, defendant would not have been required to obtain a variance.
Alternatively, Landgraf opined that defendant would have been able to obtain a
variance if needed. Plaintiff also produced a planning report, which conflicted
with Landgraf's opinion.
Thereafter, plaintiff filed a second motion to strike the Wolf Report,
arguing, among other things, that "it [was] not based on a legally permissible
use" because Landgraf's opinion as to the parking issue was incorrect. Relying
on the nonconforming use statute and related case law, Judge Millenky rejected
this claim because a "fact-finder could reasonably conclude . . . that this office
building constituted a preexisting, nonconforming use, and that renovations to
the property would constitute, therefore, changes that . . . would not defeat the
nonconforming use preservation . . . with regard to the issue of parking."
The judge first determined that the nonconforming use statute, N.J.S.A.
40:55D-68, was not superseded by any provision within the local redevelopment
and housing law, N.J.S.A. 40A:12A-1 to -49. He then found that the
nonconforming use had not been terminated by abandonment. Although the
"property ha[d] not been used for a substantial period of time as an office
building," defendant had not used it for another purpose and continued
maintaining the property. He further found that the proposed renovations would
A-5335-17T3
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not have resulted in total destruction of the property. The steel skeleton and the
roof would remain intact, and the proposed design changes would not have
changed the footprint of the building. Lastly, the judge determined that a change
in ownership was not controlling; rather, the status of the land itself determines
whether the structure qualifies as a preexisting, nonconforming use.
While the judge concluded that this analysis was sufficient to decide the
parking issue, he nonetheless considered whether there was sufficient evidence
to conclude that defendant could have obtained a variance. He found that the
planning board had previously made reasonable accommodations for properties
without appropriate off-street parking, such as permitting off-site parking by
either paying the city to construct spaces or purchasing spaces from a third party.
Thus, the judge denied plaintiff's second motion to strike the Wolf Report and
issued an order to that effect on July 5, 2016. At the final pretrial hearing,
plaintiff filed another similar motion, but the motion was denied by the newly
assigned Judge Michael E. Joyce.
Judge Joyce held a seven-day jury trial during April 2018. The jury heard
testimony from several witnesses, including Steven Rubin, Landgraf, and Wolf.
Steven Rubin testified to the property's ownership history, including the
sales for $2,700,000 and $2,900,000 and the subsequent agreement to sell the
A-5335-17T3
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property for $4,500,000 in 2007. He further testified that he had been planning
to renovate the property as early as 2004 and that he had continued to maintain
it and pay the property taxes, based on an assessed value of $1,662,000 from
2011 through 2014.
Landgraf testified, among other things, that the property's lack of off-
street parking was a preexisting nonconforming condition. Relying on both the
Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and the Camden
Downtown Redevelopment Plan (CDRP), Landgraf opined that the property's
proposed use would have been a permitted use, so any existing nonconformity
would have been permitted to remain on the property without the need for a
variance. Alternatively, Landgraf opined that if defendant had been required to
seek a variance, the property would have met the criteria for either a hardship
variance or a flexible variance. With respect to the positive criteria, he opined
that granting the variance would "[p]rovide sufficient space in appropriate
locations for a variety of commercial uses to meet . . . the needs of all New
Jersey citizens" and that several modes of public transportation were nearby.
Further, he opined that permitting the renovations would allow for the
development of "work space and aesthetic enhancements" through a "more
efficient use of land." As to the negative criteria, he opined that granting a
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variance would not substantially harm the public because the site already lacked
off-street parking, and there was public transportation nearby. Further, a
variance would not impair local zoning regulations because defendant's
proposed development only furthered the city's ambition to encourage
commercial development in Camden.
Wolf testified to the methodology he used in valuing the property, as
presented in the Wolf Report. He testified that after plaintiff's offer to purchase
the property for $180,000, he researched Grow NJ's impact on the Camden real
estate market and found that it had created an increase in demand for Camden
properties and, consequently, an increase in Camden property values. His
research led him to conclude that defendant's property was worth more than
$180,000. Other factors influencing his opinion as to the property's value
included the 2007 agreement to sell the property for $4,500,000 and the 2013
property listing for $4,500,000. Although the 2007 agreement was from several
years earlier, he found it relevant because the 2014 market was significantly
better than the 2007 market, in part due to Grow NJ.
Wolf further testified to the September 8, 2014 meeting with Constance,
at which they discussed defendant's property, how Grow NJ operated, and the
possibility of Grow NJ benefitting defendant through the property. Although he
A-5335-17T3
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was not permitted to testify that Constance had potential tenants intereste d in
renting defendant's property and that defendant would have been able to rent the
property for $35 per square foot, he did testify, generally, that he learned there
were tenants looking to move to Camden, and there were certain market rental
rates that he could consider. Based on the information he learned from his
meetings with Constance, he testified that he was able to conclude that if any
employer had rented the entirety of defendant's property, it could benefit
significantly from Grow NJ. This led Wolf to conduct further market research,
which included serving subpoenas on Grow NJ applicants developing property
in Camden.
In reaching his $9,000,000 valuation, Wolf testified that he determined
the property's highest and best use and then calculated the property's value using
the income capitalization approach. He explained how he determined, under
both single tenant and multiple tenant scenarios, the numbers for market rent per
square foot, vacancy/credit loss, landlord expenses, capitalization rate, cost of
renovations, lost rent, leasing commissions, and entrepreneurial incentive.
At the end of the trial, the jury returned a verdict for just compensation in
the amount of $3,000,000. On June 7, 2018, Judge Joyce held a hearing to
determine the interest rate to apply to defendant's award. Defendant requested
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that the judge apply the prime rate, relying on the expert testimony of Chad R.
Keeports, a certified public accountant and certified valuation analyst.
However, the judge concluded that the court rule rate would best indemnify
defendant for the loss of use of its just compensation. He found the following
facts relevant: the court rule rate remained stable throughout the proceedings ;
when plaintiff initiated the condemnation action, the property was losing money;
and defendant requested an award three times the amount the jury awarded,
indicating its demand may have been unreasonable. While the judge did not
blame the parties for "vigorously litigating this case," he noted that the length
of the proceedings may have been due to defendant's efforts to obtain
information about Grow NJ. On June 12, 2018, the judge issued an order for
final judgment fixing just compensation. This appeal ensued.
On appeal, plaintiff raises two main issues. First, plaintiff contends that
the valuation date should have been the date on which plaintiff filed its
complaint, not the date on which it filed the declaration of taking and deposited
the just compensation funds. Second, plaintiff contends that admission of
testimony based on the Wolf Report was erroneous because it was speculative.
Plaintiff asserts that there was not a reasonable probability that defendant would
have rented the renovated property to a recipient of Grow NJ tax incentives.
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Further, plaintiff asserts that defendant's valuation also relied on the incorrect
assumption that it would not have needed to provide off-street parking.
In its cross-appeal, defendant contends that the prime rate, rather than the
court rule interest rate, should have been applied to its just compensation award.
II.
We begin our discussion with the general principles that apply in a
condemnation case. 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 propert y bear on its
fair market value," the "most relevant . . . is the property's highest and best use."
Ibid. (citing Comm'r of Transp. v. Hope Rd. Assocs., 266 N.J. Super. 633, 641
(App. Div. 1993)).
"[H]ighest and best use" . . . is . . . "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."
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[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)).]
The use must be "1) legally permissible, 2) physically possible, 3) financially
feasible, and 4) maximally productive." Id. at 588.
In reviewing a judge's decision to admit expert testimony in a
condemnation case, we "apply a 'deferential approach . . . reviewing it against
an abuse of discretion standard.'" N.J. Transit Corp. v. Franco, 447 N.J. Super.
361, 369 (App. Div. 2016) (quoting Townsend v. Pierre, 221 N.J. 36, 53 (2015)).
We apply the same standard in reviewing a judge's determination of the
appropriate interest rate to apply to a just compensation award. Township of W.
Windsor v. Nierenberg, 345 N.J. Super. 472, 478-79 (App. Div. 2001). We
review questions of law de novo, Manalapan Realty, L.P. v. Township Comm.
of Manalapan, 140 N.J. 366, 378 (1995), and we will reverse only if an error
was "of such a nature as to have been clearly capable of producing an unjust
result," R. 2:10-2.
III.
We now turn to the parties' arguments on appeal. We first address
plaintiff's claim that the judge erred in setting the valuation date, and we
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conclude that the judge correctly set the date as the date on which plaintiff filed
the declaration of taking.
The Eminent Domain Act of 1971 requires that just compensation be
calculated as of the earliest of several dates:
(a) [T]he date possession of the property being
condemned is taken by the condemnor in whole or in
part; (b) the date of the commencement of the action;
(c) the date on which action is taken by the condemnor
which substantially affects the use and enjoyment of the
property by the condemnee; or (d) the date of the
declaration of blight[.]
[N.J.S.A. 20:3-30.]
We have previously discussed "[t]he relationship between [this statute] and the
constitutional provisions governing the exercise of eminent domain." Township
of Piscataway v. S. Wash. Ave., LLC, 400 N.J. Super. 358, 372-74 (App. Div.
2008). "[A]rbitrary application of N.J.S.A. 20:3-30 to set the valuation date
. . . as of the date the . . . condemnation action was filed is not required where
application of the statute would result in unjust compensation to the property
owner." Id. at 372-73 (alterations in original) (quoting City of Ocean City v.
Maffucci, 326 N.J. Super. 1, 16 (App. Div. 1999)). "The Legislature 'may
prescribe a rule of damages more favorable to the landowner than that which
would satisfy the minimum requirement of the Constitution,' but 'it cannot adopt
A-5335-17T3
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a measure which will detract from that compensation.'" Id. at 373 (quoting
Jersey City Redevelopment Agency v. Kugler, 58 N.J. 374, 384 (1971)).
Just compensation is determined as of the date of taking. E.g., Kirby
Forest Indus., Inc. v. United States, 467 U.S. 1, 10 (1984); Hous. Auth. v.
Suydam Inv'rs, L.L.C., 177 N.J. 2, 14 (2003) (quoting Hilton, 334 N.J. Super. at
587); Piscataway, 400 N.J. Super. at 373 ("When the property increases in value
due to inflation or market factors unrelated to the initiation of the condemnation
action, the valuation date must be the date of the taking."). "[T]he date of taking
is the date on which the declaration of taking is filed accompanied by the deposit
of the just compensation[.]" Piscataway, 400 N.J. Super. at 373 (citing N.J.S.A.
20:3-19; N.J.S.A. 20:3-21(a)). This rule does not prejudice the State, who could
have avoided any increase in value by filing the declaration of taking and
depositing the just compensation on the date it filed its complaint. Id. at 374
(citing N.J.S.A. 20:3-17); see also N.J.S.A. 20:3-18.
While the plain language in our statute suggests that the date on which
plaintiff filed its complaint would be the proper valuation date, we conclude that
the judge correctly set the date of taking as the valuation date, considering the
relevant constitutional principles. The date of taking is December 5, 2014, the
date on which plaintiff filed the declaration of taking and deposited the just
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compensation with the court. See N.J.S.A. 20:3-21(a). During oral argument,
defendant argued that the property had increased in value between September
2014 and December 2014, due to Grow NJ's impact on the Camden real estate
market. Requiring the parties to appraise the property as of September 18, 2014
would have resulted in unjust compensation to defendant. See Piscataway, 400
N.J. Super. at 372-73. Accordingly, we conclude that the judge did not err in
setting December 5, 2014, the date of taking, as the valuation date.
IV.
Next, we address plaintiff's claim that defendant's expert should not have
been permitted to testify as to the property's value based on his valuation as
presented in the Wolf Report. We first consider Wolf's reliance on Grow NJ's
benefits and then Landgraf's opinion that defendant would not have been
required to provide off-street parking. We conclude that admission of the related
testimony was not error because the expert reports contained sufficient evidence
to support the experts' opinions.
New Jersey Rules of Evidence 702 and 703 govern the admissibility of
expert testimony at trial. "If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training,
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or education may testify thereto in the form of an opinion or otherwise."
N.J.R.E. 702. The facts upon which an expert bases his or her opinion "may be
those perceived by or made known to the expert at or before the hearing [,]" and
"[i]f of a type reasonably relied upon by experts in the particular field in forming
opinions[,] . . . the facts . . . need not be admissible in evidence." N.J.R.E. 703.
The net opinion rule "forbids the admission into evidence of an expert's
conclusions that are not supported by factual evidence or other data."
Townsend, 221 N.J. at 53-54 (quoting Polzo v. County of Essex, 196 N.J. 569,
583 (2008)). A conclusion "based merely on unfounded speculation and
unquantified possibilities" is inadmissible. Id. at 55 (quoting Grzanka v. Pfeifer,
301 N.J. Super. 563, 580 (App. Div. 1997)). The expert must "'give the why
and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Id. at
54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115,
144 (2013)). However, the expert may not base their opinion solely on their
own subjective standard. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 373 (2011) ("[I]f an expert cannot offer objective support for his or her
opinions, but testifies only to a view about a standard that is 'personal,' it fails
because it is a mere net opinion."). If a party challenges the qualifications of a
proposed expert or the admissibility of the proposed expert's testimony, "the
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[judge] may hear and determine [the] matter[] out of the presence or hearing of
the jury." N.J.R.E. 104(a).
A.
Our Supreme Court has articulated the test for deciding whether a judge
may permit the jury to consider expert testimony about a property's future use
in determining its value:
The jury . . . need not be required to find that the . . .
change is probable. . . . [T]he critical inquiry is the
reasonable belief by a buyer and seller engaged in
voluntary negotiations over the fair market value of
property that a change may occur and will have an
impact on the value of the property regardless of the
degree of probability. . . .
In conclusion, we now hold . . . that in determining the
fair market value of condemned property as a basis for
just compensation, the jury may consider a potential
. . . change affecting the use of the property provided
the court is satisfied that the evidence is sufficient to
warrant a determination that such a change is
reasonably probable. If evidence meets that level of
proof, it may be considered in fixing just compensation
in light of the weight and effect that reasonable buyers
and sellers would give to such evidence in their
determination of the fair market value of the property.
[Caoili, 135 N.J. at 264-65.]
Thus, the judge performs "a gatekeeping function by screening out potentially
unreliable evidence and admitting only evidence that would warrant or support
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a finding that a . . . change is probable." Id. at 264. While Caoili addressed a
potential zoning change, we have applied this standard in other contexts.
In Hilton, 334 N.J. Super. at 589-594, we applied Caoili where the
defendant's expert valued the subject property by assuming there would be an
assemblage of lots and a newly constructed building, and then considering sales
data of comparable properties. We recognized that "a willing buyer may well
be willing to pay not merely for the property under its present constraints but,
in addition to that present value, for the probability of such an assemblage as
well." Id. at 591. However, because the defendant's expert's methodology
valued the property "as if the assemblage had already taken place," we held that
it was "legally defective." Ibid. "The distinction between enhancing market
value and constituting the basis of market value is . . . critical[.]" Ibid.
We addressed a similar situation in State ex rel. Commissioner of
Transportation v. 200 Route 17, L.L.C., 421 N.J. Super. 168 (App. Div. 2011).
The defendant's expert opined that a property's highest and best use was as
renovated and, consequently, its value on the date of taking was the renovated
value less the renovation costs. Id. at 172. We framed the issue as follows:
"What would a willing buyer pay a willing seller, without compulsion, for a
substandard building, knowing that the buyer would be obligated to obtain
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appropriate land use and building approvals, as well as spend [a certain number
of] dollars for the property to achieve its highest and best use?" Id. at 175. We
rejected the expert's methodology because it "assum[ed] that the building was
already improved and then deduct[ed] the costs of improvement." Ibid. "[A]
buyer might pay a premium if it knew that such an investment would result in
the property's highest and best use, but to suggest that the buyer would pay 'full
value' is speculative at best." Ibid. Accordingly, the State must
pay for the building "as is," considering the reasonable
probability of future renovations and approvals
required to improve the property to its highest and best
use, discounted by the risks and costs of such venture,
just as a buyer would pay for the building in its current
condition, then make any improvements necessary to
bring the building to the buyer's desired use.
[Id. at 179.]
We conclude that neither judge abused his discretion in finding that the
evidence was sufficient to allow the jury to find that defendant would have
benefitted from Grow NJ had it renovated the property and subsequently rented
it to a Grow NJ recipient. Wolf's valuation is unlike those we rejected in Hilton,
334 N.J. Super. 582, and 200 Route 17, 421 N.J. Super. 168, because his
valuation was not based on the assumption that defendant's property had already
been renovated and rented to a Grow NJ recipient.
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Wolf first valued the property as renovated. He considered potential gross
income based on comparable properties renting to Grow NJ recipients, vacancy
loss, credit loss, and regular accounting and legal fees, and he multiplied the
resulting value by a capitalization rate. Then, he discounted the value to account
for renovation costs, lost rent, leasing commissions, and entrepreneurial
incentive. This entrepreneurial incentive accounted for "the profit that is
required to stimulate an investor to purchase the building in its '[a]s is' condition,
find a tenant, and renovate the building considering all the risk involved with
the transaction." This methodology recognizes "[t]he [critical] distinction
between enhancing market value and constituting the basis of market value."
200 Route 17, 421 N.J. Super. at 175; Hilton, 334 N.J. Super. at 591.
The judge hearing plaintiff's first motion to strike the Wolf Report
fulfilled his gatekeeping function by finding that there was sufficient credible
evidence that a willing buyer would have considered the probability that
defendant's property, as renovated, could have been rented to a Grow NJ
recipient. The judge decided that an N.J.R.E. 104 hearing was unnecessary, as
the Wolf Report contained adequate evidence to reach a determination as to the
admissibility of its contents. Based on the Wolf Report, he concluded that Grow
NJ's impact on the Camden real estate market was "readily apparent." Before
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defendant's property was taken, there was extensive construction in Camden,
including the construction of a Subaru headquarters that would contain
substantial office space. Subaru, along with four other entities, were granted
millions of dollars in Grow NJ tax incentives over a ten-year period. Further,
Wolf had spoken with a state representative, Constance, who had estimated
rental rates for defendant's property, as renovated. Therefore, plaintiff's claim
that it was unlikely that defendant would have benefited from Grow NJ is of no
concern because the Wolf Report contained sufficient credible evidence that
defendant could have benefited, and the issue of the degree of probability that it
would have benefited was properly left for the jury to decide. See Caoili, 135
N.J. at 264-65.
We add that the jury apparently shared plaintiff's concern, as it only
awarded defendant $3,000,000, a third of the amount proposed in the Wolf
Report. This value was also supported by other evidence in the record, including
two prior sales of the property, for $2,700,000 and $2,900,000, and a prior
agreement for sale of the property, for $4,500,000. Accordingly, we conclude
that the judge did not err in admitting testimony about Grow NJ's potential
benefits.
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B.
A property's "highest and best use[] must be considered in light of any
zoning restrictions that apply to the property." Caoili, 135 N.J. at 260. The
CDRP requires newly developed property used as office space to provide "1
parking space for every 1,000 [square feet] of professional space." Camden
Downtown Redevelopment Plan, at 46 (Oct. 2004) [hereinafter CDRP].3 The
Camden Land Development Ordinance imposes a similar requirement, but the
CDRP supersedes it. Camden, N.J., Land Development Ordinance § 577-230(f)
(2009); CDRP, at 56 ("All ordinances . . . inconsistent with this [CDRP] are
repealed to the extent of such inconsistency only.").
Under the MLUL, "[a]ny nonconforming use or structure existing at the
time of the passage of an ordinance may be continued upon the lot or in the
structure so occupied and any such structure may be restored or repaired in the
event of partial destruction thereof." N.J.S.A. 40:55D-68. Parking conditions
in existence before the adoption of an ordinance imposing new parking
requirements may be protected as a nonconforming use. Dresner v. Carrara, 69
3
The CDRP was adopted by ordinance in September 2005. Camden, N.J.,
Ordinance 4108 (Sept. 8, 2005). Its contents can be found at
http://camdenredevelopment.org/getattachment/d0e1b389-c31d-452a-b3be-
567d273318e0/Redevelopment-Plan.aspx.
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N.J. 237, 240 (1976); Wawa Food Mkt. v. Planning Bd., 227 N.J. Super. 29, 37-
38 (App. Div. 1988) ("[W]here the nature and intensity of the business remains
the same, continued use of the property without off-street parking is protected
as a nonconforming use."); see also Reich v. Borough of Fort Lee Zoning Bd. of
Adjustment, 414 N.J. Super. 483, 503 (App. Div. 2010).
Although the CDRP, adopted pursuant to the Local Redevelopment
Housing Law, controls redevelopment within Camden, it does not supersede the
MLUL. "[S]ince the two statutes deal with the same subjects of zoning and land
development, . . . we construe the two statutes in pari materia." Weeden v. City
Council, 391 N.J. Super. 214, 228 (App. Div. 2007); see DePalma v. Bldg.
Inspection Underwriters, 350 N.J. Super. 195, 222 (App. Div. 2002). Construing
the LRHL and the MLUL together, we perceive no issue with applying the
MLUL's protection for nonconforming uses where a municipality has adopted a
redevelopment plan that does not explicitly provide for the same protection. The
LRHL does not contradict the MLUL's provision for nonconforming uses.
Britwood Urban Renewal, LLC v. City of Asbury Park, 376 N.J. Super. 552,
566-67 (App. Div. 2005). Moreover, the CDRP provides that a variance may be
granted, CDRP, at 50, indicating that the CDRP was not intended to preclude all
deviations from the plan when new development occurs. See Motley v. Borough
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of Seaside Park Zoning Bd. of Adjustment, 430 N.J. Super. 132, 144 (App. Div.
2013) ("Municipalities may not, however, take 'active' steps to eliminate
nonconforming uses, and must wait with 'fervent hope that they would in time
wither and die and be replaced by conforming uses.'" (quoting Fred McDowell,
Inc. v. Bd. of Adjustment, 334 N.J. Super. 201, 214 (App. Div. 2000))).
We now consider whether there was sufficient evidence indicating that the
property's lack of off-street parking could have qualified for protection as a
nonconforming use under the MLUL. The property owner bears the burden of
establishing that the condition at issue was "a nonconforming use as of the
commencement of the changed zoning regulation" and that it continued
afterward. S & S Auto Sales, Inc. v. Zoning Bd. of Adjustment, 373 N.J. Super.
603, 613 (App. Div. 2004). However, nonconforming uses may be terminated
if the use is substantially enlarged, Grundlehner v. Dangler, 29 N.J. 256, 263
(1959), or abandoned, S & S Auto Sales, 373 N.J. Super. at 613 (citing Borough
of Saddle River ex rel. Perrin v. Bobinski, 108 N.J. Super. 6, 16 (Ch. Div.
1969)). Total destruction of the property also terminates a nonconforming use.
S & S Auto Sales, 373 N.J. Super. at 619-620.
Where the issue of abandonment is raised, the property owner must show
that they did not intend to abandon the nonconforming use and that they did not
A-5335-17T3
29
in fact abandon the use. Id. at 613-14. "Mere passage of time during a cessation
of active use does not constitute abandonment." Id. at 617.
As the passage of time increases, . . . two things must
be kept in mind: (1) some discontinued uses are more
readily revivable than others, and (2) the passage of
time must be considered in conjunction with all
circumstances, including those that caused the
cessation, the nature and quality of efforts being made
to resume the use, and any other objective
manifestations supporting or negating the owner's
expressed intention to continue the use.
[Id. at 618.]
Where property destruction is at issue, the court's analysis must be guided
by the "discrete facts presented," as our Legislature has not defined either total
or partial destruction. Motley, 430 N.J. Super. at 144, 146. "Prior cases have
construed total destruction to mean 'substantially totally destroyed.'" Id. at 144
(quoting Camara v. Bd. of Adjustment, 239 N.J. Super. 51, 56 (App. Div. 1990)).
We will consider "whether the destruction is so substantial in nature—
qualitatively if not quantitatively—to surpass the 'partial' threshold that the
statute expresses." Id. at 148-49 (nonconforming use was terminated where one
of two stand-alone residences was destroyed by construction activity, except for
the foundation and footings); see also Township of Lacey v. Mahr, 119 N.J.
Super. 135, 138 (App. Div. 1972) (use of a building as an inn was substantially
A-5335-17T3
30
totally destroyed where 69% was totally destroyed by fire and 14% was badly
gutted); Krul v. Bd. of Adjustment, 122 N.J. Super. 18, 28-29 (Law Div. 1972),
aff'd, 126 N.J. Super. 150 (App. Div. 1973) (nonconforming use was not
terminated where main building in a complex of buildings was totally destroyed
by fire because the newly proposed structure was to be constructed on the same
foundation, "the nature of the contemplated use is exactly the same," and there
was no "extension or expansion of the physical structure or its use").
We conclude that the judge did not abuse his discretion in finding that
there was sufficient evidence to allow the jury to find there was a reasonable
probability that defendant would not have needed to provide off-street parking.
Landgraf opined that the lack of off-street parking was a preexisting
nonconforming condition, since defendant's property was constructed before
Camden adopted the CDRP and the current city code. He explained that the
nonconforming condition was "a valuable property right" transferred with
ownership of the property and would "continue with the property until the use
is either abandoned or the structure in which the non[]conforming use operates
is substantially or completely destroyed." Thus, he concluded that defendant
would not have been required to seek a variance for the lack of off-street
parking.
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Although Landgraf's report did not provide a detailed explanation on this
issue, the judge found that Landgraf's opinion was supported by other evidence
in the record. The judge reasoned that the property's use was neither abandoned
nor totally destroyed. Although the property was not in operation at the time of
the taking, it was previously used as office space for a substantial period of time,
defendant had not used it for any other purpose, and defendant had planned to
renovate it for further use as office space. In addition, defendant had maintained
the property by paying the property taxes and replacing the roof. Moreover,
defendant's proposed renovations would not have resulted in total destruction of
the property because the foundation, roof, and structural members would have
all remained intact throughout the proposed renovations. Accordingly, we
conclude that Wolf's valuation was not unsupported for a lack of providing for
the need to seek a variance to remedy the absence of off-street parking.
V.
Finally, we address defendant's cross-appeal, regarding the appropriate
interest rate applied to a just compensation award. We conclude that the judge
did not abuse his discretion in determining that the court rule interest rate best
indemnified defendant.
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The State shall pay interest on a just compensation award, reduced by the
amount deposited with the court, "from the date of the commencement of the
action until the date of payment of the compensation." N.J.S.A. 20:3-31.
"Unless agreed upon by the parties, the amount of such interest shall be fixed
and determined by the court in a summary manner after final determination of
compensation[.]" N.J.S.A. 20:3-32. Since there is no uniform rate, the judge
selects one "on a case-by-case basis." Nierenberg, 345 N.J. Super. at 479. "The
judge should consider the prevailing commercial interest rates, the prime rates
of interest, and the legal rates of interest, and select the rate which will best
indemnify the condemnee for the loss of use of the [just] compensation [.]" Id.
at 478 (internal quotation mark omitted) (quoting Township of Wayne v.
Cassatly, 137 N.J. Super. 464, 474 (App. Div. 1975)).
In deciding to apply the court rule interest rate, the judge relied on several
factual findings: the court rule interest rate had remained stable throughout the
proceedings; defendant's property was losing money at the time of the taking;
defendant had requested an award three times the jury's verdict; and defendant
contributed to delays in the proceedings. We have held that the court rule
interest rate adequately compensated a defendant in a similar situation. See
Casino Reinvestment Dev. Auth. v. Hauck, 317 N.J. Super. 584, 595 (App. Div.
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33
1999) (affirming application of the court rule interest rate where the rate was
stable throughout condemnation proceedings, and the defendant contributed to
the length of the proceedings by unreasonably demanding an award twice the
amount of the jury verdict).
Additionally, we reject defendant's claim that the judge should have
considered other factors causing delays in the proceedings, such as plaintiff's
and the court's conduct. It is not our role to second guess the judge's decision
where the record supports it. See Nierenberg, 345 N.J. Super. at 478-79. We
add that during oral argument, the judge asked defendant whether there were
any factors, other than market factors, that should be considered, but defendant
provided none, reasoning that the judge could "exercise judicial discretion" and
apply "other factors that [he] determine[d] to be relevant and appropriat e."
Accordingly, we conclude that the judge properly exercised his discretion.
To the extent that we have not addressed the parties' remaining arguments,
we conclude that they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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