                                NOT FOR PUBLICATION WITHOUT THE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

                                                                        A-5335-17T3
                                       2
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


                                                                             A-5335-17T3
                                         7
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
                                       8
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


                                                                          A-5335-17T3
                                        9
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
                                       10
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
                                       11
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


                                                                         A-5335-17T3
                                      12
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
                                       13
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


                                                                           A-5335-17T3
                                       14
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.


                                                                          A-5335-17T3
                                       15
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."

                                                                             A-5335-17T3
                                         16
            [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




                                                                        A-5335-17T3
                                      17
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
                                        18
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


                                                                           A-5335-17T3
                                       19
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,


                                                                            A-5335-17T3
                                        20
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


                                                                            A-5335-17T3
                                        21
[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


                                                                         A-5335-17T3
                                       22
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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                                         25
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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                                       26
                                       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.
                                                                       A-5335-17T3
                                      27
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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                                      28
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


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                                     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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                                      31
      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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                                        32
      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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