                                                      SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

                     Borough of Saddle River v. 66 East Allendale, LLC (A-126-11) (070525)

Argued April 29, 2013 -- Decided October 21, 2013

LaVECCHIA, J., writing for a majority of the Court.

         In this appeal, the Court considers whether, in a trial on just compensation, it was proper to allow the jury
to hear evidence on the likelihood of a zoning change without the trial court first determining outside of the jury’s
presence that there was a reasonable probability of a zoning change.

          East Allendale, LLC (East Allendale) owned a 2.13 acre parcel of land in the Borough of Saddle River
(Borough). Part of the property was located in the office zone (O-1), which restricts improved lot coverage to 30
percent of the lot’s total area. In 2004, East Allendale submitted an application to the Borough’s Zoning Board of
Adjustment (Board) for a permit to build a 10,000 square foot bank building and parking lot on the property. The
site plan required approval of a bulk variance, pursuant to N.J.S.A. 40:55D-70(c)(2), to allow 42 percent improved
lot coverage in the O-1 zone. The Board initially denied the permit and East Allendale subsequently withdrew its
application in the face of critical questioning prior to the Board’s final action. On November 8, 2006, the Borough
filed a complaint exercising its power of eminent domain in order to acquire the subject property for use as a public
park. After the parties agreed that the Borough duly exercised its power of eminent domain, the court appointed
three commissioners to determine the just compensation owed to East Allendale. The commissioners completed
their appraisals and the court entered an order determining the just compensation for the taking to be $1,593,625.
The parties appealed and demanded a jury trial. Just compensation was the sole trial issue.

          Prior to trial, the Borough filed a motion in limine seeking to strike the reports of East Allendale’s expert
witnesses as inadmissible net opinions on the reasonable probability of a zoning change for the property. In the
alternative, the Borough requested that the court perform its gatekeeping function pursuant to State by
Commissioner of Transportation v. Caoili, 135 N.J. 252 (1994), and conduct a preliminary N.J.R.E. 104 hearing
outside the presence of the jury to assess whether there was a reasonable probability of a zoning change. The trial
court denied the Borough’s motion. The court deferred until trial any decision on whether East Allendale’s experts’
reports constituted net opinions. The court did not regard Caoili as requiring it to have a pretrial hearing and found
that it could satisfy its gatekeeper function during trial through voir dire of witnesses, N.J.R.E. 104 hearings prior to
witnesses taking the stand, and jury instructions.

          At trial, East Allendale’s experts testified that that highest and best use of the property would be a 10,000
square foot bank building, which was the subject of East Allendale’s 2004 application, and that there was a
reasonable likelihood that the application would be entitled to a bulk variance for the use in excess of the O-1 zone
requirements. Although the experts were permitted to present the arguments that they would have set before the
Board in favor of the bulk variance, they did not address the positive and negative criteria under the Municipal Land
Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, which would have been required for Board approval. Based on the
experts’ opinion that there was a reasonable probability that a bulk variance would be granted, East Allendale’s
appraiser testified that the property had a fair market value of $5,250,000. The Borough’s experts proposed a site
plan that provided for a 3,312 square foot bank, which did not require a bulk variance and was appraised to have a
$1,325,000 fair market value. Prior to jury deliberation, the Borough renewed its motion to strike the testimony of
East Allendale’s experts. The trial court denied the motion. The court found a reasonable probability of a potential
zoning change and that the jury may consider the possibility of a zoning change when determining the property’s
value. The jury returned a verdict for just compensation in the amount of $5,250,000.

         The Appellate Division affirmed. The panel concluded that there was sufficient evidence of a reasonable
probability of a zoning change and that the jury could consider that evidence. Borough of Saddle River v. 66 East
Allendale, LLC, 424 N.J. Super. 516 (App. Div. 2012). The panel found that Caoili does not require the judge to
conduct a pretrial hearing in every case and that the judge did not abuse his discretion in performing his required
gatekeeping function before closing arguments, instead of before the jury heard the evidence. The panel also
determined that there was a sufficient objective foundation for the experts’ opinions that the zoning board would
likely grant a bulk variance. The Court granted the Borough’s petition for certification. 211 N.J. 274 (2012).

HELD: The jury heard evidence about the probability of a zoning change that should have been ruled on by the judge
in advance and outside of the jury’s presence. A new trial on just compensation is required because the jury was
allowed to hear speculative evidence that undermined the soundness of its property valuation determination.

1. The Eminent Domain Act of 1971, N.J.S.A. 20:3-1 to -50, requires the state or one of its municipalities to pay the
property owner just compensation for the taking of private property. Just compensation is the fair market value of
the property as of the date of the taking in light of its highest and best use. The highest and best use is the use that
produces the highest value, provided the use can be legally and physically achieved. Therefore, zoning restrictions
are material factors in determining a property’s fair market value. In State by Highway Commissioner v. Gorga, 26
N.J. 113 (1958), the Court concluded that a potential amendment to a zoning ordinance may affect the value of the
property. The Court cautioned, however, that a court must first determine whether there is evidence of the
probability of the zoning change before submitting the issue to the jury. In Caoili, the Court established a two-step
process for evaluating potential zoning changes. First, as a gatekeeping function, the court must determine whether
there is sufficient evidence to support the conclusion that a zoning change is “reasonably probable.” After that
determination is made, the jury determines whether a premium should be added to the value of the property based on
the probability of the future zoning change. (pp. 27-33)

2. The goal of Caoili’s gatekeeping function was to avoid having the jury hear and consider speculative evidence
that a zoning change was reasonably probable when assessing just compensation. Only when the trial court first
determines that evidence is of a sufficient quality to allow the jury to consider the probability of a zoning change
should the jury be permitted to assess a premium based on that zoning change. In this case, the trial court’s failure
to hold a pretrial hearing on the reasonable probability of a zoning change was at odds with Caoili and permitted the
jury to hear speculative testimony on the likelihood that a bulk variance would be granted. Every condemnation
action involving a future zoning change does not require an N.J.R.E. 104 plenary hearing prior to trial. The trial
court should first determine whether it can render its determination on the papers alone. If the issue cannot be
resolved on the basis of paper submissions, such as in this case, then the issue should be heard and resolved prior to
trial. (pp. 33-37)

3. The trial court must render its determination that there is a reasonable probability of a zoning change based on the
standard that would govern the particular zoning change under consideration – here, whether or not the Board would
grant a bulk variance. The expert testimony in this record was insufficient to support the reasonable probability of a
zoning change because it did not address all the criteria that the Board would have to find in order to grant a bulk
variance. In particular, East Allendale’s experts failed to address the positive and negative criteria that the Board
would have had to consider before granting a bulk variance. Furthermore, East Allendale’s appraisal analysis relied
on the experts’ opinions that a bulk variance would likely be granted. Therefore, East Allendale’s experts’ opinions
lacked a proper foundation for their conclusions that zoning change was reasonably probable. (pp. 37-40)

        The judgment of the Appellate Division is REVERSED, and the matter is REMANDED for a new trial on
just compensation.

         JUSTICE ALBIN, DISSENTING, joined by CHIEF JUSTICE RABNER, expresses the view that the
majority has failed to give proper deference to the trial court’s evidentiary rulings and to the factfindings of the jury.

          JUSTICES HOENS and PATTERSON join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN
filed a separate, dissenting opinion, in which CHIEF JUSTICE RABNER joins. JUDGES RODRÌGUEZ and
CUFF (both temporarily assigned) did not participate.




                                                            2
                                       SUPREME COURT OF NEW JERSEY
                                        A-126 September Term 2011
                                                  070525

BOROUGH OF SADDLE RIVER,

    Plaintiff-Appellant,

         v.

66 EAST ALLENDALE, LLC,

    Defendant-Respondent.


         Argued April 29, 2013 – Decided October 21, 2013

         On certification to the Superior Court,
         Appellate Division, whose opinion is
         reported at 424 N.J. Super. 516 (2012).

         Robert J. Kipnees argued the cause for
         appellant (Lowenstein Sandler, attorneys;
         Mr. Kipnees and Natalie J. Kraner, on the
         briefs).

         Peter H. Wegener argued the cause for
         respondent (Bathgate, Wegener & Wolf,
         attorneys).

         Matthew Weng submitted a brief on behalf of
         amicus curiae New Jersey State League of
         Municipalities.


    JUSTICE LaVECCHIA delivered the opinion of the Court.

    In this appeal, we review an appellate judgment that

affirmed a $5.25 million condemnation award for defendant 66

East Allendale, LLC (East Allendale) against plaintiff Borough

of Saddle River (Borough).   For the reasons that follow, we



                                 1
reverse that judgment and remand for a new trial on just

compensation.

    In a condemnation action the determination sought is the

amount of just compensation.   Just compensation is a function of

the value of the property in light of its highest and best use,

which is ordinarily evaluated in accordance with current zoning

ordinances.   Certain circumstances may permit valuation to

include an assessment of a change in the permitted use of a

property, but only if there is a reasonable probability that a

zoning change would be granted.       As our decisions in State by

Highway Commissioner v. Gorga, 26 N.J. 113 (1958), and State by

Commissioner of Transportation v. Caoili, 135 N.J. 252 (1994),

make plain, however, the jury in a condemnation action may not

speculate about such a change in a property’s use.      If valuation

of a property based on another use is to be considered by a

jury, the determination of reasonable probability of a zoning

change must be made by the judge before the evidence is

presented to the jury, and it must be made clearly to enable

appellate review.

    In this matter, the jury was allowed to hear evidence about

the probability of a zoning change that should have been ruled

on by the judge both in advance and outside of the jury’s

presence.   Only if the court first determined that there was a

reasonable probability that a zoning change would have been

                                  2
approved based on the standards governing such approval should

the evidence have been presented to the jury for its

consideration in connection with the jury’s evaluation of just

compensation.   The evidence that the jury heard on the

likelihood of the zoning change in issue here was not assessed

properly in accordance with that standard, and the quality of

the evidence that the jury was allowed to consider undermined

the soundness of the jury’s property valuation determination.

The errors necessitate a new trial on the issue of just

compensation.

                                 I.

                                 A.

    The Borough initiated this condemnation action to acquire

East Allendale’s property located at 66 East Allendale Road.

The property is split-zoned; the majority of the property is in

a residential zone, and the remainder of the property is in an

office zone.    When the parties could not agree on the just

compensation owed to East Allendale, the Borough commenced

condemnation proceedings.

    In fixing the fair market value of the property, the

parties agreed that a bank building would be the property’s

highest and best use.   However, they disputed the size of the

bank that would have been approved under the Borough’s zoning

ordinance.   East Allendale proposed the development of a 10,000

                                  3
square foot bank and office building with an adjacent parking

lot.    The Borough proposed a 3,312 square foot bank branch with

an adjacent parking lot.

       In respect of the approvals necessary for the project as

proposed by East Allendale, the parties further agreed that East

Allendale was entitled to a use variance to permit development

of a parking lot in the portion of the property that is within

the residential zone.    Their dispute devolved into a sharp

disagreement on the intensity of use proposed by East Allendale.

Specifically, the parties dispute whether a bulk variance would

have been granted to permit a 10,000 square foot bank building

that would entail 42 percent of improved lot coverage, which

would have exceeded the ordinance requirement of no more than 30

percent improved lot coverage.

       With that brief overview of the underlying dispute, we turn

to the relevant background about this property and the critical

aspects of the condemnation proceedings.

                                 B.

       East Allendale purchased the 2.13 acre parcel of land

located at 66 East Allendale Road in the Borough1 in December


1
  The Borough of Saddle River is a residential community in
Bergen County. Nearly 98 percent of the Borough is zoned for
residential use. According to the Borough’s 2003 Master Plan
Reexamination Report, it is a “residential community with
business development limited to that necessary to serve the
daily needs and convenience of local residents.” One of the
                                  4
2002, for $900,000, intending to develop the property.     The

property is split-zoned with approximately one-third of the land

in the office zone (O-1) and two-thirds of the land in the

residential zone (R-1).   During the pendency of the condemnation

proceedings, the zoning requirements remained unchanged.

    The O-1 zone permitted banks, offices, and other public

uses.   The Borough’s O-1 zoning ordinance restricted improved

lot coverage to 30 percent of the lot’s total area, required a

minimum lot size of 10,000 square feet, and imposed parking

requirements of one parking space for every 75 square feet of

bank space and one parking space for every 250 square feet of

office space.   The R-1 zone required a lot size of two acres and

generally permitted single-family residences.

    In October 2004, East Allendale, in conjunction with a

development plan in which it was involved, submitted an

application to the Borough’s Zoning Board of Adjustment (Board)

for a permit to build a 10,000 square foot bank office and

building, and an adjacent parking lot on the property.     Within

its permit application, East Allendale sought a use variance,

pursuant to N.J.S.A. 40:55D-70(d)(1), to use a portion of the R-

1 part of the property as a parking lot.   See N.J.S.A. 40:55D-70

(recognizing board of adjustment’s authority to hear



Borough’s primary objectives is to preserve the environment,
which is reflected in municipal zoning ordinances.
                                 5
applications for variances in connection with permit

applications).    David Hals, a professional engineer and planner,

prepared the site plan.    The site plan proposed a 10,000 square

foot, two-story bank and office building requiring a minimum of

57 parking spaces as the property’s “highest and best use.”    The

plan required approval of a use variance to allow parking in the

R-1 zone and a bulk variance, authorized pursuant to N.J.S.A.

40:55D-70(c)(2), in the O-1 zone to allow 42 percent improved

lot coverage.    The Borough conceded that, pursuant to the

holding in AMG Associates v. Township of Springfield, 65 N.J.

101, 113-14 (1974), the local zoning board likely would grant a

use variance to permit construction of parking on the R-1

portion of the property due to the lot’s split zoning

(residential and commercial).2

     The Board denied the permit because the proposed improved

lot coverage in the O-1 part of the property exceeded the

maximum of 30 percent of improved lot coverage.    At the hearing,

facing critical Board questioning and opposition by several

concerned citizens, East Allendale withdrew its application for

a use variance prior to final action by the Board.

     On November 8, 2006, the Borough exercised its power of

eminent domain pursuant to N.J.S.A. 20:3-1 to -50 in order to

2
    Thus, the only issue in this appeal concerns the bulk
variance required in order to permit 42 percent improved lot
coverage contrary to O-1 zone requirements.
                                  6
acquire the subject property for use as a public park.   The

Borough filed a verified complaint in the Superior Court, Law

Division, see N.J.S.A. 20:3-8, and submitted an appraisal

stating the land’s market value was $1,050,000.    East Allendale

filed an answer challenging the Borough’s exercise of eminent

domain and demanding a jury trial.

    The parties attempted to resolve the matter themselves as

well as through mediation.   A partial settlement was reached,

and on March 6, 2009, the court entered an Order for Judgment

and Appointing Commissioners, concluding that the Borough duly

exercised its power of eminent domain.   The court appointed

three commissioners to determine the compensation owed to East

Allendale, and it entered a Consent Order to Withdraw Funds on

Deposit, whereby $1,050,000 previously paid to the clerk of the

court by the Borough was paid to East Allendale.

    The commissioners completed their appraisals, and the court

entered an order on December 18, 2009, determining the just

compensation for the taking to be $1,593,625.   East Allendale

filed a Notice of Appeal on December 23, 2009; the Borough filed

a Notice of Cross-Appeal on December 31, 2009, and demanded a

jury trial.

                                C.

    Prior to trial, the Borough filed a motion in limine

seeking an order to strike the reports of East Allendale’s

                                 7
expert witnesses as inadmissible net opinions because in the

reports the experts’ opinions on the reasonable probability of a

zoning change lacked a proper foundation.3      Specifically, the

Borough’s argument focused on the requirements for deviation

from ordinance requirements set forth in the Municipal Land Use

Law (MLUL), N.J.S.A. 40:55D-1 to -163.        Submitted with the

motion were the reports as well as the deposition testimony of

East Allendale’s expert witnesses, David Hals, Peter Steck,

Shergoh Alkilani, and Jon Brody.       In the alternative, the

Borough requested that the court perform its gatekeeping duty by

conducting a preliminary Rule 104 hearing outside the presence

of the jury to assess whether there was a reasonable probability

of a zoning change for the property.       See Caoili, supra, 135

N.J. at 252.   East Allendale filed its own motion in limine to

bar the report of the Borough’s appraisal expert.

     The trial court denied the Borough’s motions, as well as

East Allendale’s, determining to defer until trial any decision

on whether the reports of East Allendale’s experts constituted

net opinions about whether there was a reasonable probability of


3
  The opinions were characterized by the Borough as net opinions.
See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372
(2011) (explaining that “net opinion” is “an expert’s bare
opinion that has no support in factual evidence or similar data”
(citations omitted)). An expert must provide the “‘why and
wherefore’ that supports the opinion, ‘rather than a mere
conclusion.’” Ibid. (quoting Polzo v. Cnty. of Essex, 196 N.J.
569, 583 (2008)).
                                   8
a zoning change.   The court expressed its view that the defense

could “build a proper foundation which [would] not make those

opinions net opinions” and, therefore, concluded that the

testimony would be heard and objections considered at trial.

    Considering the Borough’s alternative application for a

Rule 104 hearing to be conducted pretrial, the court determined

that such a hearing would be inefficient in terms of both time

and money, and would not serve the interest of justice.     The

court stated that it could not rule based on the briefs because

it could not “weigh testimony,” could not “decide on

credibility,” and could not “weigh the import of expert

opinions.”   The court did not regard Caoili as requiring it, “as

gatekeeper, to have an expansive hearing prior to trial in order

to fully vet these issues.”   Rather, the court determined that

N.J.R.E. 611 permitted the court to determine the most

“efficient use of [his] time, the Court’s time, counsel’s [sic]

time, the parties’ time, and the jury’s time in terms of time

and expense,” explaining that a “three, four, five, six, seven-

day evidential hearing” would incur “undue expense and time and

money for all the parties.”   The court explained that the

gatekeeper function could be performed during trial because the

court could voir dire witnesses regarding qualifications and

could conduct a Rule 104 hearing prior to a witness taking the

stand.   Further, the court expressed the view that jurors would

                                 9
be capable of hearing information and putting it aside if the

court instructed them to do so.

    Pretrial, East Allendale also sought the court’s

authorization to present testimony at trial that the zoning

ordinance requiring 30 percent improved lot coverage in the O-1

zone was invalid, claiming that the ordinance “makes no rational

sense whatsoever, is not reasonably related to any zoning

purpose and has never been enforced against anyone in the

history of the town.”   East Allendale contended that there was

“[n]o reasonable likelihood that this ordinance could be

enforced to deny a land use application by a prospective

purchaser in this case.”   However, the court refused to hold

that, as a matter of law, the ordinance was invalid, explaining

that this was not an action in lieu of prerogative writs and

therefore the validity of the ordinance was not before the

court.

                                  D.

    The trial began on October 18, 2010, and ended on November

3, 2010.   The sole issue for determination was the just

compensation due East Allendale.       To supplement the stipulation

that the highest and best use of the property would be a bank,

East Allendale’s expert Shergoh Alkilani, a retail and bank

developer, had prepared a feasibility report showing the

suitability of the property as a bank site.       Alkilani testified

                                  10
in accordance with that report that the property was a prime

location for a bank and further explained how the demographics

and income growth in the Borough supported not a simple bank

branch but a bank headquarters in the location.   East

Allendale’s other experts then testified about three proposed

options for that form of bank building.

                                1.

    East Allendale’s first proposal was the 10,000 square foot

bank building, which was the subject of East Allendale’s 2004

application to the Board, developed by David Hals.   This

building would house a 2,000 square foot bank and have 8,000

square feet for offices.   The entire building would be located

on the O-1 portion of the property.   A proposed parking lot

would be located on the R-1 portion of the property, and as

noted earlier, the parties agreed that a use variance for the

parking lot would have been granted under AMG.    However, this

application also would have required a bulk variance, pursuant

to N.J.S.A. 40:55D-70(c), for a total improved lot coverage that

constituted 42 percent, instead of the 30 percent improved lot

coverage permitted under the Borough’s requirements for O-1

zoned property.   East Allendale presented evidence that a “c-2”




                                11
or “flexible” bulk variance4 would have been granted for this

proposed use.

     Notwithstanding that the 2004 application had been

withdrawn in the face of citizen opposition and critical

questioning when it had been before the Board, Hals opined at

the condemnation proceeding that there was a reasonable

likelihood that the application would be entitled to both a use

variance for placement of the parking in the R-1 zone of the lot

and a bulk variance for the intensity of the use in excess of

the requirements of the O-1 zone.   Hals opined that it would not

be possible to construct a usable bank/office building that met

all of the ordinance requirements, including the 30 percent

improved lot coverage and the front and side yard setbacks.

Hals presented the Borough’s ordinance changes, which showed

that the improved lot coverage in the O-1 office zone and B-1

4
  See N.J.S.A. 40:55-70(c)(2) (requiring that application in
respect of property demonstrates that “purposes of [MLUL] would
be advanced by a deviation from . . . ordinance requirements and
the benefits of the deviation would substantially outweigh any
detriment”). Thus, this variance approval required the party
requesting the variance to prove both positive and negative
criteria: there must be a benefit to the community from
granting the variance that outweighs the detriment to the zoning
plan, and the purposes of the MLUL must be advanced. See Medici
v. BPR Co., 107 N.J. 1, 22-24 (1987); see also TSI E. Brunswick,
LLC v. Zoning Bd. Of Adjustment of E. Brunswick, 215 N.J. 26
(2013) (noting same and addressing quality of proof issues).
The purposes of the MLUL include the provision of “adequate
light, air and open space,” the provision of certain uses to
serve the needs of the community, advancing the aesthetics of
the development, and safeguarding the environment. See
generally N.J.S.A. 40:55D-2.
                               12
business zone previously had permitted 75 percent of improved

lot coverage and he highlighted the ordinance revision that, in

1987, established the O-1 zone’s current 30 percent improved lot

coverage limitation.     Additionally, Hals testified about

commercial development in the Borough and represented that none

of the commercial properties complied with the existing 30

percent improved lot coverage requirement.     That current

“noncompliance” –- concededly existing as a result of property

improvement previously approved under prior versions of the

zoning ordinance -- was asserted to be inconsistent with the

objectives of the MLUL.

    Throughout Hals’s testimony, the Borough objected to his

opinions on the basis that they lacked a foundation.     The

objections were not successful and the testimony was admitted.

The judge conducted an N.J.R.E. 104 hearing, outside the

presence of the jury, specifically to determine whether Hals’s

testimony analyzing other municipalities’ zoning ordinances was

relevant to whether the Borough would have granted a bulk

variance in this case.    The court permitted Hals to testify that

he would have made a c-2 bulk variance application and to

present the arguments that he would have set before the Board,

including his argument that ordinances in other municipalities

made it reasonable for the Board to grant a bulk variance in

this case.

                                  13
    Before the jury, Hals testified to the information allowed

by the court’s ruling described above and, further, that the

variance would be granted by the Board because the application

would advance the purposes of the MLUL:   the application would

be consistent with other commercial property layouts in town;

the layout is aesthetically pleasing; the landscaping would

promote adequate light, air, and open space; there is no

overbuilding of the property by using 42 percent improved lot

coverage; and the site plan is sensitive to the surrounding

residential areas.    Beyond that, Hals did not further address

how the granting of the bulk variance for this specific property

would provide a positive benefit to the community from a zoning

perspective.    Nor did he specifically address how the variance

could be granted without impairing the intent and purpose of the

zone plan and ordinance (the negative criteria), which is what

the Board would have been required to conclude in order to grant

the variance.    Hals pointed to earlier approvals granted when

the Borough had more lax standards in place, which does not

address the current intent and purpose of the zone plan and

ordinance.   He also noted actions taken in other towns in

respect of improved lot coverage but that is ordinarily not

relevant to the instant town’s zone plan.    Nevertheless, based

on that analysis, Hals opined that the “c-2” flexible bulk



                                 14
variance for the improved lot coverage had a reasonable

probability of being granted.

     Peter Steck, a professional planning expert who reviewed

Hals’s 2004 plan, also opined that the property would justify a

use variance, pursuant to AMG, for parking, as well as a bulk

variance allowing either for a reduction in the required number

of parking spaces or to permit the 42 percent lot coverage.     In

his opinion, it would be possible to obtain a bulk variance to

reduce the number of parking spaces required for the building

because other municipalities required less parking for banks.5

He ultimately opined that there was a reasonable probability

that a 10,000 square foot bank building could be approved with

variances.

     Additionally, Conrad Caruso, a former Borough mayor and

Planning Board member, and an investor in the proposed new bank,

testified about the 2004 application.   He asserted that the

application was withdrawn because it was not in the best

interests of the bank’s investors and that, as a result, he had

discussed a leasing option with East Allendale and its


5
  Steck opined that either a hardship bulk variance, see N.J.S.A.
40:55D-70(c)(1), or a flexible bulk variance had a reasonable
probability of being granted, although East Allendale’s
application was premised on a flexible variance. He opined that
either would be consistent with the MLUL in terms of
demonstrating the required positive and negative criteria and
would achieve the MLUL’s purposes, essentially for the same
reasons as those stated by Hals.
                                15
investors.   During cross-examination of Caruso, the judge

conducted an N.J.R.E. 104 hearing, outside the presence of the

jury, regarding prior statements made by then-Mayor Caruso in a

local newspaper article regarding the reasons for withdrawing

the 2004 application.   The judge permitted the testimony, and

Caruso admitted, on cross-examination before the jury, that he

had made prior statements regarding a potential smaller bank on

the property because the community and Board would not permit a

building of the size requested in the 2004 application.

    Jon Brody, an expert real estate appraiser and consultant,

prepared an appraisal report that was based on Hals’s report of

the 2004 site plan provisions, the location of the property, the

demographics, and the zoning provisions.   He agreed that the

highest and best use of the property was a bank.    Outside the

presence of the jury, the court conducted an N.J.R.E. 104

hearing, heard argument from the parties, and concluded that

Brody could testify that, based on his review of Hals’s opinion

and his experience as an appraiser, there was a reasonable

probability that the variance would be granted.    However, the

court prohibited Brody from explaining why the variance would

have been approved because he was not a professional planner and

thus not qualified as an expert to make that assessment.

Nevertheless, Brody subsequently opined that the bulk variance

would have been approved.

                                16
    Brody discussed the comparable sales and adjustments he

used to determine the fair market value of the property at the

time of the Borough’s taking.   His appraisal compared four

properties purchased for the purpose of a bank, as well as three

leases.   One property in Norwood sold for $2,650,000.   A second

property, located in Hackensack, was purchased by Commerce Bank

for $2,300,000.    A third property in Elmwood Park sold for

$1,862,500.   The fourth comparable involved property located in

Garfield that sold for $3,000,000.    Brody adjusted those sales

downward by 15 percent for the risk of approvals and made

additional adjustments for time, location, and characteristics

of the property.    The comparables that involved leases adjusted

to a sale price for comparison purposes included an East

Rutherford property, with a sale price of $2,648,000, property

in Paramus, with a sale price of $2,940,000, and property

located in Hackensack and leased to Mariners Bank, with a sale

price of $2,268,000.

    Finally, Brody used three methods to determine the value of

East Allendale’s property.   A square-foot-of-land analysis

resulted in a valuation of $5,567,000; a floor-ratio analysis

resulted in a valuation of $5,180,000; and a lease analysis

resulted in a valuation calculated to be $5,050,000.     From those

analyses, Brody concluded that the property had a fair market

value of $5,250,000 as of November 8, 2006.

                                 17
                                2.

    East Allendale’s second proposal included a 10,000 square

foot bank building with parking underneath the building.      In

this plan the building proposed would straddle the two zones,

which altered the variances that would be required.    According

to Hals, this layout would not have required a bulk variance

because it would conform to the 30 percent improved lot coverage

requirement and would only require a use variance.    However,

Hals opined that the 2004 site plan was a better zoning

alternative.

                                3.

    The final site plan proposed by East Allendale was

developed in 2006 by Geof Mulford, a principal investor of the

66 East Allendale property.   This plan envisioned a subdivision

of the property for a 6,000 square foot bank building on the O-1

portion of the lot and a residence located on the R-1 portion of

the lot.   This plan necessitated at least three variances.

Mulford testified that these plans were abandoned.    He did not

seek approval for them because the Borough voted to obtain the

funding to acquire East Allendale’s property.   Mulford stated

that he believed both the 2004 plan and the 2006 plan would have

been approved and would have given him the same return.

    Hals conceded that this third plan would have required

numerous variances but nevertheless opined that the plan had a

                                18
reasonable probability of being approved, although he gave no

specific explanation as to how this plan would have met the

positive and negative criteria.

                                  4.

       The Borough’s experts proposed a site plan that provided

for a 3,312 square foot bank branch.    Martin Spence, the Borough

Engineer, and Richard Preiss, a professional planner, developed

the plan for the property together.    Spence testified that the

only required variance would have been a use variance to allow

the parking lot to be built in the R-1 zone, and the Borough

conceded that a use variance would have been granted pursuant to

AMG.    A bulk variance under the Borough’s plan would have been

unnecessary because the improved lot coverage was below 30

percent.    Preiss, an expert in municipal planning, testified

that the 3,312 square foot bank branch was a reasonable use of

the property because it placed the bank building in the O-1

zone, would meet the improved lot coverage limitation, and

permitted the parking in the R-1 zone as a reasonable use with

the least detrimental impact on the residential portion of the

property as permitted by AMG.

       Hugh McGuire, an expert in real estate appraisal, supported

the findings and conclusions in Preiss’ report.    Based on his

experience appraising other bank branches, McGuire concluded

that the highest and best use of the property was a single-story

                                  19
bank branch.    McGuire discussed in detail four comparable sales

that he used to determine the fair market of East Allendale’s

property, all of which had approvals in place at the time of

sale.6   He then subtracted 25 percent from the sales prices of

those comparables to adjust for the fact that each involved a

contract of sale with all land use approvals for the intended

use in place as opposed to the situation involving East

Allendale’s property.    He also made time adjustments for market

conditions, location adjustments, and riparian buffer

adjustments because a portion of the property was unusable due

to the flowing waters nearby.    After applying the adjustments

and reviewing the dollar per square foot for each comparable,

McGuire determined that East Allendale’s property’s fair market

value was $400 per square foot and, accordingly, the 3,312

square foot bank building would have a fair market value of

$1,325,000.

       The Borough’s witnesses also criticized East Allendale’s

proposed plans.    Spence pointed out several items that were

missing from the East Allendale application, including a

drainage plan, a traffic impact study, and a lighting design.

More importantly for purposes of this appeal, Spence disputed

the opinion of Hals that the 2004 site plan had a reasonable

probability of achieving approval for the bulk variance that it

6
    We note that two of these comparable sales were used by Brody.
                                 20
needed.     Preiss opined that East Allendale’s plan went beyond

the reasonable use of the property, that a bulk variance would

not have the least detrimental impact on the zoning plan, and

that, in fact, the variance would cause a substantial detriment

to the zoning plan, therefore failing to satisfy the negative

criteria.    He further opined that an office building in the O-1

zone and a residential dwelling in the R-1 zone would be

feasible, but that a bank branch in the O-1 zone under this type

of plan would not be a viable option due to its small size and

lack of a drive-through.     Alternatively, he opined that a bank

branch in the O-1 zone, encroaching into the R-1 zone, along

with a residence on the R-1 zone (essentially Mulford’s 2006

plan) would not reasonably have been approved.

                                  5.

    On November 3, 2010, prior to jury deliberation, the

Borough renewed its motion to strike the testimony of East

Allendale’s experts, Steck, Hals, and Brody.     The court denied

the application, stating:

             I find that there’s enough of a –- of a
             finding of a reasonable probability of a
             potential zoning change, as I understand the
             law in Caoili.

                  I simply point briefly to the prior –-
             the revisit to the zoning change that was
             proffered.     The weights of that,      the
             political issues behind that by the planner
             is well before this jury.   Nevertheless, it
             was considered –- this potential zoning

                                  21
         change was    considered   by   the   Borough   at
         least once.

              Secondly, the Court also points out as
         I’m permitted to do that although the
         evidence as to other zoning changes during
         the pendency of the issues involving the
         plaintiff and defendant were brought before
         the town officials and they considered
         zoning   changes.      Although    that’s   not
         evidential for this jury purposes and in
         fact would be inappropriate because they
         were   in     the   context    of    settlement
         discussions and it would be highly improper
         for the reasons I’ve articulated to have the
         jury hear that.         Nevertheless, I can
         consider those type of non evidentiary
         issues   from    my  gate   –-   my   threshold
         findings, as I do in any rulings on
         evidence.

              And that there are also indications
         that this Borough has made zoning changes to
         office portions of their zoning and the
         issues of the –- the commercial zone and the
         office zone and the preexisting use and the
         difficulties of the split zoning and for all
         those issues I reject the plaintiff’s motion
         to strike the testimony of those various
         experts and that issue will be presented to
         the jury for their consideration.   That is,
         they may consider the possibility of a
         zoning   change,  which   would,  therefore,
         impact the value of the property.

    After the court instructed the jury on the law, the jury

returned a verdict for East Allendale for just compensation in

the amount of $5,250,000.

    The Borough filed a Motion for a New Trial or, in the

alternative, Remittitur on November 23, 2010.     The Borough

argued that the court erred by permitting “defendant’s expert


                               22
testimony on the probability of the grant of the variance.”

Specifically, the Borough took issue with the testimony of Hals

and Steck, which contributed to the appraisal testimony of

Brody.   The Borough claimed that Steck and Hals did not address

both the positive and negative criteria as required by the MLUL

to show that it was reasonably probable that the bulk variance

would have been granted.   The Borough asserted that the error

resulted from the trial court’s failure to perform properly its

gatekeeping function as required by Caoili.

    The court denied the Borough’s motion, noting that its

arguments were presented and argued pretrial and during trial.

The court reiterated its conclusion that the opinions of Hals

and Steck were not net opinions.     Rather, in the court’s view,

they provided evidentiary support that a zoning change was

probable and that it was reasonable for Brody to rely on those

opinions for his appraisal.   The court also asserted that it

performed its gatekeeping function under Caoili to determine

that the bulk variance would have been reasonably granted.    The

court entered an order denying the Borough’s motion on January

7, 2011, and entered final judgment for East Allendale in the

amount of $5,250,000 the same day.    An appeal and cross-appeal

were timely filed with the Appellate Division.

                                E.



                                23
    On appeal, the parties reiterated arguments raised in the

motion for a new trial and throughout the trial, including

whether the court properly performed its gatekeeping function

and whether the opinion testimony should have been admitted into

evidence before the jury.   The Borough first argued the trial

court failed to perform its gatekeeping function properly to

determine whether, as a matter of law, there was a reasonable

probability of variance approval before submitting the issue to

the jury.   Second, the Borough asserted that as a result of the

court’s failure to treat the reasonable probability of approval

inquiry as a question of law, the court charged the jury with an

unclear and misleading instruction -- one that allowed the jury

to determine as issues of fact what change would have been

permitted and what a reasonable Board would approve.    Third, the

Borough argued that the court should have barred East

Allendale’s appraisal testimony because Brody used a flawed and

improper methodology and based his appraisal on net opinions.

East Allendale contended that there was no fatal flaw in the

trial court’s procedural handling of the case and that the

expert testimony was properly admitted.

    The Appellate Division rejected the Borough’s arguments

that the jury should not have heard the evidence about the

reasonable probability of a zoning change, concluding that there

was sufficient evidence of a reasonable probability of a zoning

                                24
change and that the jury could consider that evidence.      Borough

of Saddle River v. 66 E. Allendale, LLC, 424 N.J. Super. 516,

522 (App. Div. 2012).    The panel stated that although it was

“preferable [for the court] to make the threshold determination

before the trial begins,” given that the pretrial hearing could

have been seven days, the judge did not abuse his discretion in

concluding that the evidence met the reasonable probability

requirement before closing arguments.     Ibid.

       Further, the panel concluded that the case law did not

support the standard of proof urged by the Borough in which the

trial judge must screen out unreliable evidence as part of the

gatekeeping function.    Id. at 530.   Prior to commencing trial,

the trial judge determined that the court’s authority under

N.J.R.E. 611 provided him the ability to determine how most

efficiently to manage the proceedings.     Id. at 531-33.

Ultimately, the “judge did not abuse his discretion in deciding

that the evidence was sufficient to warrant a determination by

the jury that a zoning change was reasonably probable.”     Id. at

534.    In this case, the panel concluded that “the evidence was

therefore not unduly speculative or potentially unreliable.”

Id. at 535 (citation omitted).

       The panel also rejected the argument about erroneous jury

instructions, which allowed the jury to consider the reasonable

probability of the zoning board’s approval of the bulk variance.

                                 25
Id. at 536.   Related to that argument, the panel explained that

Caoili does not require the judge to conduct a pretrial hearing

in every case, although the panel recognized that Caoili had

been interpreted to require “the judge [to] make a threshold

determination as to whether the prospective zoning change is

reasonably probable in the near future.”    Ibid. (quotation marks

and citation omitted).   However, due to the trial court’s

estimate about the length of time the pretrial hearing would

have taken in this case, the panel declined to find that the

judge abused his discretion in performing his required

gatekeeping function before closing arguments, instead of before

the jury heard the evidence.   Ibid.   The panel stated that “[a]s

with any other evidence inappropriate for the jury room, the

judge may instruct the jury to disregard proofs that fail to

meet the threshold standard of sufficiency.”     Ibid. (citations

omitted).

    With respect to the Borough’s objections that the expert

testimony was based on net opinions, the panel determined that

there existed a “sufficient objective foundation for Hals’s

conclusion that the zoning board would likely grant a variance

for the improved lot coverage.”    Id. at 538.   Further, because

there was a sufficient foundation for Hals’s opinion, the panel

determined that there was a sufficient foundation for Steck’s



                                  26
opinion and that there existed a proper basis for Brody’s

appraisal.   Id. at 538-39.7

    We granted the Borough’s petition for certification.    211

N.J. 274 (2012).   We also granted leave to the New Jersey State

League of Municipalities to appear as amicus curiae.

                                II.

                                A.

    As this Court recently stated,

         [t]he right to “just compensation” when the
         government takes property for a public use
         is one of the essential guarantees of both
         the    United    States    and   New   Jersey
         Constitutions. U.S. Const. amend. V (“[N]or
         shall private property be taken for public
         use, without just compensation.”);       N.J.
         Const. art. I, ¶ 20 (“Private property shall
         not be taken for public use without just
         compensation.”).    This fundamental right is
         of ancient origin, predating the founding of
         our Republic, and is found even in the text
         of the Magna Carta.       Magna Carta ch. 28
         (1215),   reprinted in     The Anglo-American
         Legal Heritage 84 (Daniel R. Coquillette, 2d
         ed. 2004) (“No constable or other bailiff of
         ours shall take grain or other chattels of
         any one without immediate payment therefor
         in money . . . .”).

         [Borough of Harvey Cedars v. Karan, ___ N.J.
         214 N.J. 384, 402 (2013) (citation and
         footnote omitted).]



7
  The panel also considered East Allendale’s cross-appeal on
whether compound interest should have been awarded on the
judgment, id. at 539, and found no abuse of discretion in the
trial court’s determination to apply a simple rate of interest,
id. at 542. That issue is not before us.
                                27
    In implementing constitutional requirements governing the

taking of private property for government’s use, the Eminent

Domain Act of 1971, N.J.S.A. 20:3-1 to -50, requires the state

or one of its municipalities to pay the property owner just

compensation for the taking of private property.    Thus, when a

parcel of property is acquired through the power of eminent

domain, the landowner is entitled to receive from the state or

municipality just compensation, defined as “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.”   State v. Silver, 92

N.J. 507, 513 (1983); accord Caoili, supra, 135 N.J. at 260

(same).   “[A]ll reasonable uses of the property bear on its fair

market value[, but] most relevant in ascertaining fair market

value is the property’s highest and best use.”     Caoili, supra,

135 N.J. at 260.   The highest and best use is the use that

produces the highest value, provided the use can be legally and

physically achieved.   Cnty. of Monmouth v. Hilton, 334 N.J.

Super. 582, 587-88 (App. Div. 2000), certif. denied, 167 N.J.

633 (2001).

    What constitutes a reasonable use of the property must be

“considered in light of any zoning restrictions that apply to

the property,” rendering zoning restrictions “material factors

in determining its fair market value.”   Caoili, supra, 135 N.J.

                                28
at 260.    In two previous opinions, first Gorga and then as

reaffirmed in Caoili, this Court set forth a standard to govern

the consideration of zoning changes in respect of the future use

of a property being valued for condemnation.       See id. at 261,

265.    We turn to those seminal cases.

                                    B.

       The dispositive issue in Gorga, supra, concerned the fair

market value of a property on the date of the taking.       26 N.J.

at 115.    The State contended that a potential amendment to a

zoning ordinance made after the date of the taking should not be

considered in determining the market value a reasonable buyer

and seller would fix to the property.       Id. at 118.   Our Court

concluded that a potential amendment to a zoning ordinance may

affect the value of the property and designated, as a question

of fact, whether the potential zoning change would affect the

property value.      Id. at 117.   However, we cautioned that a court

must first determine whether there is evidence of the

probability of the zoning change before submitting the issue to

the jury.    Ibid.

       Gorga explained that the permissible uses of land, under

the current applicable zoning ordinance, are critical in the

determination of the fair market value of the property.        Id. at

116.    The jury may consider the value of the property if it were

rezoned but only in determining the premium a willing buyer

                                    29
would pay in addition to the value of the property under the

existing ordinance.    Id. at 117.    In other words, after the

judge determines that there is evidence of a probability of a

zoning change, the jury then is to decide whether the parties to

the transaction would consider the probability of the zoning

change in formulating the value of the property.         Ibid.   Thus,

the jury may consider the future ordinance amendment as evidence

demonstrating that at the time of the taking the zoning change

was reasonably probable and thus could affect the market value

and the setting of fair compensation.      Id. at 118.

    Following Gorga, we clarified its operational approach in

Caoili, supra, establishing a clear two-step process:

            [I]n determining the fair market value of
            condemned property as a basis for just
            compensation,   the  jury   may  consider  a
            potential zoning 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.

            [135 N.J. at 265.]

    The two-step approach was explained as necessary to avoid

“unbridled speculation” on the fair market value of the

property.   Id. at 264 (internal quotation marks and citation

omitted).   Under Caoili’s framework, a court first must

determine whether there is sufficient evidence to support the

conclusion that a zoning change is “reasonably probable.”         Id.


                                 30
at 265.   That evidence must “indicat[e] beyond a mere

possibility that a change of use is likely and, further, that

such a change would be an important factor in the valuation of

the property.”   Id. at 264.    The court performs this

“gatekeeping function by screening out potentially unreliable

evidence and admitting only evidence that would warrant or

support a finding that a zoning change is probable.”       Ibid.   In

Caoili a trial court was instructed in the future to place on

the record its basis for finding that sufficient evidence exists

of a reasonable probability of a zoning change.     See ibid.8

     After that determination is made, the jury determines in a

second step whether “a buyer and seller engaged in voluntary

negotiations over the fair market value of the property [would

reasonably believe] that a change may occur and will have an

impact on the value of the property.”     Id. at 264-65.   This

determination does not require the jury to find that the zoning

change is probable, nor to determine the degree of probability

of the zoning change.   Ibid.    Instead, “even though the parties

to a voluntary transaction may not believe that a zoning change

is more likely than not, their belief that there may be a change

should be taken into account if that belief is reasonable and it

8
  That the process prescribed was not followed in the proceedings
in Caoili, and the deficiency was treated as a question of
harmless error in that matter, should not provide present day
courts with a refuge from adhering to the threshold gatekeeping
procedure that the Caoili Court outlined.
                                  31
affects their assessment of the property’s value.”     Id. at 265

(internal quotation marks and citation omitted).     The parties’

belief “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.”    Ibid.   This Court in Caoili

concluded that a jury could consider future variance approval

and potential subdivision of the property in the valuation

analysis.   Id. at 265, 267.

    Courts have applied the Caoili two-step process to evaluate

opinions as to valuation of property based on a variety of

future changes pertaining to a parcel of property.     The

Appellate Division in Hilton, supra, established that a jury may

take into account the future assemblage of properties to

determine fair market value.   334 N.J. Super. at 594.       The

Appellate Division also has recognized that the jury could

consider the reasonable probability of future site plan approval

when determining fair market value compensation.     State by

Comm’r of Transp. v. Hope Road Assocs., 266 N.J. Super. 633,

647-48 (App. Div. 1993), modified in part, 136 N.J. 27 (1994).

    The utility of a two-step process is demonstrated further

during the jury’s actual determination of a just compensation

award that takes into account a premium based on the reasonable

probability of a zoning change.    See Gorga, supra, 26 N.J. at

                                  32
117 (“At most a buyer would pay a premium for that probability

in addition to what the property is worth under the restrictions

of the existing ordinance.”); see, e.g., State by Comm’r of

Transp. v. Market Assocs., 134 N.J. Super. 282, 285 (App. Div.

1975).   The jury first must value the property in its current

condition, considering the zoning at the time of the taking,

which establishes the base value.        Market Assocs., supra, 134

N.J. Super. at 285.      And, second, the jury may consider the

probability of the future zoning change or variance approval in

determining the premium a buyer and seller would fix to the

property.   Ibid.     That premium is added to the base value and

includes an assessment of the risk of the change occurring or

being approved.      Ibid.

    That authority guides our determination in this dispute.

                                  III.

                                   A.

    In this instance, the Borough claims the trial proceedings

were flawed because the trial court did not bar East Allendale’s

experts’ testimony expressing opinions on the issuance of a c-2

bulk variance.      To reiterate, the Borough’s argument, simply

stated, is as follows.

    The Borough contends that Hals, Steck, and Brody proffered

net opinions in their reports, and as elucidated through

deposition testimony prior to trial, by concluding that a bulk

                                   33
variance was reasonably probable to be granted.   Specifically,

the Borough argues that the experts never properly addressed how

the benefits to the community and to the zoning plan would be

advanced by granting the variance from O-1 zoning requirements

and how those benefits substantially outweighed any detriments

to the zoning plan, which is what as the Zoning Board would be

required to do before granting a c-2 flexible variance.   See

N.J.S.A. 40:55D-70(c)(2).   The Borough contends that the reports

of those experts lacked a proper foundation for the opinions

rendered and that the trial court erred in not resolving the

evidential issue at that stage of the proceeding by striking the

reports and prohibiting the testimony.   The Borough argued that

the court had a duty to perform its gatekeeping role under

Caoili to make a finding on the reasonable probability of the

issuance of a bulk variance prior to allowing the jury to hear

the experts’ testimony on valuation that was premised on the

assumption that the bulk variance was reasonably probable to be

granted by the Zoning Board.   According to the Borough, if the

trial court was unwilling or unable to reach a determination on

reasonable probability based on the experts’ reports and the

deposition testimony presented pretrial by the Borough, then the

Borough alternatively contended that it was entitled to have the

issue determined through an N.J.R.E. 104 hearing where, it



                                34
asserted, it would have been demonstrated that East Allendale

was unable to satisfy the standard for reasonable probability.

    East Allendale’s argument is simply that the trial court

did not commit an abuse of discretion in handling the

proceedings as it did, in the interests of economy and

efficiency, pursuant to its authority under N.J.R.E. 611.     It

contends, further, that the experts’ opinions on the reasonable

probability of a bulk variance issuing for this property were

based on an ample and proper foundation.

                                B.

    Both Gorga and Caoili addressed the trial court’s

gatekeeping duty to assess whether there exists sufficient

evidence of a reasonable probability of a zoning change to

permit an alternate use for a property taken under eminent

domain to be considered when valuing property for just

compensation.   See Gorga, supra, 26 N.J. at 117; Caoili, supra,

135 N.J. at 264-65.   Nevertheless, this appeal demonstrates the

existence of some confusion as to how and when that gatekeeping

function is to be exercised.   The trial court and the Appellate

Division both believed that so long as a determination of

reasonable probability was made prior to the jury’s deliberation

on just compensation, the two-step process set forth in Gorga,

and more particularly in Caoili, would be satisfied.     We cannot

agree.

                                35
    The goal of Caoili, supra, was to avoid having the jury

hear and consider speculative evidence that a zoning change was

reasonably probable when assessing what a reasonable buyer and

seller would be willing to pay for the property.   See 135 N.J.

at 264 (“The risk of unsound and speculative determinations

concerning fair market value is real when that determination is

based on evidence of a future change that is inherently vague or

tenuous because it suggests no more than the possibility of

change.”).   Although typically the highest and best use of a

property is determined based on current zoning conditions, see

Gorga, supra, 26 N.J. at 116, condemnation actions may include

competing experts opining over the likelihood of obtaining a

zoning change if the court first determines that there is a

reasonable probability of such a change.   For this reason, only

when the trial court has first determined that the evidence is

of a quality to allow the jury to consider the probability of a

zoning change should the jury be permitted to assess a premium

based on that zoning change, as Caoili, supra, explained.     See

135 N.J. at 264-65; see also Gorga, supra, 26 N.J. at 117

(stating same).   The gatekeeping function was assigned to the

judge specifically to screen the jury from hearing mere

speculation.

    The trial court’s pretrial ruling in the present matter,

which left the determinations to be made at trial, simply failed

                                36
to satisfy the gatekeeping function that was envisioned, and

described in detail, in Caoili, supra, 135 N.J. at 264-65.        If,

as the trial court here concluded, the issue could not be

resolved to the court’s satisfaction on the basis of paper

submissions, then the Borough’s request for a pretrial N.J.R.E.

104 hearing should have been granted and the issue thoroughly

heard and resolved prior to the commencement of the trial in

order that both parties’ trial strategies could be properly

focused.

    That said, we do not suggest that every condemnation action

involving a future zoning change will require the trial court to

conduct an N.J.R.E. 104 plenary hearing prior to trial.     The

trial court should examine the evidence proffered in support of

the reasonable probability of a zoning change and determine

whether it can render its required determination based on the

papers.    However, the court must render its determination that

there exists the reasonable probability of a zoning change based

on the standard that would govern the particular zoning change

under consideration -- here the standard that would govern the

Board’s determination about whether or not to grant a c-2 bulk

variance.   Neither the court nor the experts who were permitted

to opine before the jury on the Board’s issuance of a bulk

variance for the improved lot coverage in the O-1 portion of the

property engaged in that analysis completely.    We cannot view

                                 37
the existence of expert testimony in this record, even as a

whole when amplified before the jury, as sufficient for the

required threshold finding on reasonable probability that the

court should have made in this matter.

    It is not sufficient for experts to opine in conclusory

fashion that such a bulk variance would have been issued in this

matter without addressing all the criteria that the Board would

have to find in order to grant the variance, particularly in

light of the fact that the identical application had been

presented previously to the Board, only to be withdrawn prior to

final Board action after the application had been subjected to

critical Board questioning and citizen opposition.    Having an

expert merely repeat the statutory standard for a c-2 bulk

variance, and opine that the application would meet it, is an

insufficient showing on which a court should base a finding of

reasonable probability of the grant of a c-2 bulk variance,

under Caoili, to allow the jury to hear that testimony and

consider the change in zoning when determining just

compensation.   An expert must “‘give the why and wherefore’ that

supports the opinion, ‘rather than a mere conclusion.’”

Pomerantz Paper v. New Cmty Corp., 207 N.J. 344, 372 (2011)

(quoting Polzo v. Cnty of Essex, 196 N.J. 569, 583 (2008)).

This is evidence that has a strong capacity to influence the

jury’s valuation decision.   The valuation of property taken by

                                38
eminent domain must be based on sound evidence.   The public’s

money is at stake.   A property holder is entitled to just

compensation, not a windfall.

    In this matter, review of the reports of Hals and Steck

submitted pretrial, and as augmented by deposition testimony

submitted in connection with the Borough’s pretrial motions,

reveals that the analyses inadequately addressed all the

considerations that a Board must consider before it may grant a

c-2 bulk variance.   The MLUL sets forth positive and negative

criteria that the Board would have had to consider before the

bulk variance in respect of this property could have been

granted.   See N.J.S.A. 40:55D-70(c)(2); see also TSI E.

Brunswick, LLC v. Zoning Bd. of Adjustment of E. Brunswick, 215

N.J. 26, 45-46(2013) (discussing quality of proofs necessary to

establish positive and negative criteria).   Neither Halls nor

Steck addressed how granting the bulk variance permitting this

particular property a more intense use than otherwise permitted

by zoning ordinance would “actually benefit the community in

that it represents a better zoning alternative for the

property.”   Kaufmann v. Planning Bd. for Twp. of Warren, 110

N.J. 551, 563 (1988).   They also failed to illustrate how the

variance could “‘be granted without substantial detriment to the

public good and w[ould] not substantially impair the intent and

the purpose of the zone plan and zoning ordinance.’”     See Lang

                                39
v. Zoning Bd. of Adjustment, 160 N.J. 41, 57 (1999) (quoting

N.J.S.A. 40:55D-70(d)).     As noted earlier, all the experts

pointed to in this respect were zoning actions taken in other

towns, which ordinarily are not relevant to a particular

municipality’s zone plan, and properties in Saddle River that

were improved at a time that long preceded enactment of the

current ordinance and therefore were governed by a more lax

standard for improved lot coverage then in place.     Put another

way, neither Hals nor Steck explained the “why or wherefore” as

to whether the benefits to the community “substantially

outweigh[ed] any detriment” to the zoning plan as required by

N.J.S.A. 40:55D-70(c)(2).    See Pomerantz Paper, supra, 207 N.J.

at 372.9   Furthermore, Brody’s opinion on valuation relied on

Hals’s opinion in respect of the probability of the bulk

variance being granted.     Therefore, Brody’s opinion provided no

separate support on that issue.    Due to the failure to address

these essential components of a bulk variance application, the

opinions expressed by Hals, Steck, and Brody lacked a proper

foundation for their conclusions and, thus, their opinions

provide an inadequate basis for the finding of a reasonable


9
  The Appellate Division relied on Hals’s conclusions in his 2010
report; however, those conclusory statements fail to address,
analyze, and compare the positive and negative criteria outlined
in the standard articulated by the Legislature in N.J.S.A.
40:55D-70(c)(2).


                                  40
probability of a zoning change that the trial court is required

to make in fulfilling its gatekeeper function under Caoili.

     The Borough had requested a pretrial hearing as an

alternative to the striking of the experts’ reports prior to

trial in the event that the trial court did not agree that the

reports contained opinions that lacked a proper foundation for

the conclusions reached therein.     The court rejected that

application, estimating that a pretrial hearing on the experts’

opinions would be too time-consuming,10 and opted instead to

allow for enhancement of the testimony at trial where an

appropriate foundation might be established.     The experts’

testimony did not cure the deficiency in the required analysis

for reasonable probability of issuance of a c-2 bulk variance

for the property.

     Thus, the result of the court’s deferral was to permit the

jury to hear speculative testimony about the reasonable

probability of a zoning change authorizing a c-2 bulk variance

for the property.   That result was at odds with the careful two-

step approach established in Caoili, which took pains to avoid

having the jury hear such evidence unless and until the trial

court has performed its gatekeeping role and has made a valid

10
  In fact, a Rule 104 pretrial hearing would only have been
necessitated for Hals’s and Steck’s opinions that a reasonable
probability existed for the issuance of a bulk variance because
that is the threshold issue for which the court is responsible
under Caoili.
                                41
finding as to reasonable probability of the zoning change.   The

court’s determination must use correct standards for the zoning

change involved, rest on a sound evidential foundation, and be

explained on the record to facilitate appellate review.

    Because of the procedures followed in this matter, the

condemnation award in this matter cannot stand.   A new trial on

just compensation is required.

                                 IV.

    The judgment of the Appellate Division is reversed, and the

matter is remanded for a new trial on just compensation.

     JUSTICES HOENS and PATTERSON join in JUSTICE LaVECCHIA’s
opinion. JUSTICE ALBIN filed a separate, dissenting opinion, in
which CHIEF JUSTICE RABNER joins. JUDGES RODRIGUEZ and CUFF
(both temporarily assigned) did not participate.




                                 42
                                         SUPREME COURT OF NEW JERSEY
                                          A-126 September Term 2011
                                                    070525

BOROUGH OF SADDLE RIVER,

    Plaintiff-Appellant,

          v.

66 EAST ALLENDALE, LLC,

    Defendant-Respondent.


    JUSTICE ALBIN, dissenting.

    By ignoring the record, the majority overthrows a damages

award rendered by a jury in a condemnation case after a ten-day

trial.   Although the majority and dissent have different

opinions about this case, the majority is not entitled to its

own facts.     The majority’s decision cannot be reconciled with

the record.    Nor can it be reconciled with the deferential

standard of review that cautions this Court against substituting

its judgment for evidentiary rulings made by the trial court and

factual determinations made by the jury.

    The Borough of Saddle River (Borough) took property of 66

East Allendale, LLC (East Allendale) through its power of

eminent domain.     East Allendale was entitled to just

compensation for the taking based on the highest and best use of

the property.     East Allendale presented expert testimony that

the highest and best use of the property was the construction of

                                   1
a 10,000-square-foot bank.    Because construction of a bank

required a bulk variance, East Allendale also presented expert

testimony that it was reasonably probable that the zoning board

of adjustment would have granted such a variance.   In contrast,

the Borough offered expert testimony that a bulk variance would

not have been granted.

    Based on the record, which included hearing all of the

expert testimony, the trial judge performed his gatekeeping role

and made thorough and careful evidentiary findings.   He

concluded that a reasonable probability existed that the zoning

board would have granted a bulk variance.    It was for the jury

to determine whether a bulk variance would have been granted and

the fair market value of the property taken by the Borough.

After considering the expert testimony of both sides, the jury

returned an award in favor of East Allendale in the amount of

$5.25 million.

    In a thoughtful and well-reasoned opinion by Judge

Fasciale, and joined by Judges Rodríguez and Sabatino, the

Appellate Division affirmed the trial judge’s rulings and the

jury’s award.    Borough of Saddle River v. 66 E. Allendale, LLC,

424 N.J. Super. 516 (App. Div. 2012).    In reversing the jury,

the trial judge, and the Appellate Division, the majority states

that there was not a foundational basis for East Allendale’s

expert testimony.   But to reach that conclusion the majority has


                                  2
to turn a blind eye to the meticulously detailed testimony of

East Allendale’s experts.   I dissent because the majority has

failed to give proper deference to the trial court’s evidentiary

rulings and, more importantly, to the factfindings of the jury.

This Court should not be the decisive juror.

    Because the majority’s errors flow from its failure to give

East Allendale the benefit of a fair and faithful reading of the

record, it is to the record that I turn.



                                I.

    East Allendale owned a 2.13-acre tract of property in the

Borough of Saddle River on which it had been attempting to

construct a bank.   Saddle River, a community zoned 98%

residential, acquired the property through eminent domain for

the purpose of developing a park.

    East Allendale’s property straddled the Borough’s office

and residential zones, with one-third of the lot in the office

zone and two-thirds in the residential zone.   The Borough’s

ordinances contained an improved-lot-coverage maximum, which

required buildings and accompanying parking lots constructed in

the office zone to occupy no more than 30% of a lot’s total

surface area.   East Allendale, however, claimed that the highest

and best use of the property would be the construction of a




                                 3
10,000-square-foot bank building that, with the parking lot,

would cover 42% of the lot’s surface area.

     The parties did not dispute that the construction of a bank

would be the highest and best use of the property.    Indeed, one

of East Allendale’s experts, a retail and bank developer,

testified that the property was located in a prime spot for a

bank.   The Borough also conceded that the zoning board would

have granted East Allendale a use variance to allow parking in

that portion of the lot zoned residential.

     The battle lines between the parties were drawn over

whether the zoning board of adjustment would have granted a bulk

variance for East Allendale’s proposed construction of a bank.

So long as the trial judge was persuaded that the grant of a

bulk variance was reasonably probable, then the impact of a

potential variance on the fair market value of the property was

for the jury’s ultimate determination.    See State by Comm’r of

Transp. v. Caoili, 135 N.J. 252, 265 (1994) (“[T]he jury may

consider a potential zoning 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.”).   The trial judge determined that East

Allendale met its evidentiary burden.    That the judge made his

ruling after hearing the trial testimony of East Allendale’s

experts clearly would not be a reason for throwing out the


                                 4
jury’s verdict.   The judge exercised caution in not rendering a

decision until after hearing the experts’ testimony.

    Boiled down to its essence, the question is whether East

Allendale’s experts gave a foundation for their conclusions.    An

expert witness must “give the why and wherefore that supports

the opinion,” and not present a mere conclusion.   Pomerantz

Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)

(citations omitted).   East Allendale’s experts did just that --

they did not give “bare opinion[s] that ha[ve] no support in

factual evidence or similar data.”   See ibid.

    East Allendale, through its experts, merely had to

establish that there was a reasonable probability that the

variance would have been granted.    See Caoili, supra, 135 N.J.

at 265; State by Highway Comm’r v. Gorga, 26 N.J. 113, 116

(1958).   For the grant of a bulk variance, as with any variance,

an applicant must satisfy “positive” and “negative” criteria

under N.J.S.A. 40:55D-70c(2) of the Municipal Land Use Law

(MLUL).   See Smart SMR, Inc. v. Borough of Fair Lawn Bd. of

Adjustment, 152 N.J. 309, 323 (1998).   In order to establish

that it was reasonably probable that the zoning board would

grant the bulk variance, East Allendale had to address the

positive criteria -- that (1) the MLUL’s purposes “would be

advanced by a deviation from the zoning ordinance” and that (2)

“the benefits of the deviation would substantially outweigh any


                                 5
detriment,” N.J.S.A. 40:55D-70c(2), and the negative criteria --

that a variance (3) could be “granted without substantial

detriment to the public good” and (4) “[would] not substantially

impair the intent and the purpose of the zone plan and zoning

ordinance,” N.J.S.A. 40:55D-70.       See Kaufmann v. Planning Bd.

for Twp. of Warren, 110 N.J. 551, 553 (1988).

    The experts, through their trial testimony and pretrial

reports, presented opinions not only based on an extensive

factual record, but also firmly anchored in the law.

                                  A.

    East Allendale offered as experts David Hals, a

professional engineer and planner with degrees in applied

science and civil engineering, and Peter Steck, a professional

planning consultant with degrees in civil engineering and city

and regional planning.    In their reports and testimony, they

expressed their expert opinions that there was a reasonable

probability that the zoning board of adjustment would have

granted a bulk variance for the construction of a bank

(comprising 7.11% lot coverage) and a parking lot (comprising

34.89% lot coverage).    Jon P. Brody, a certified general

appraiser, also testified that, based on Hals’s proposed plan,

there was a reasonable probability that a variance would have

been granted.   Brody concluded that the market value of East




                                  6
Allendale’s property under Hals’s proposed plan was $5,250,000

as of November 8, 2006.

      East Allendale’s experts addressed each of the positive

and negative criteria in considering whether a bulk variance was

reasonably probable.1

                                1.

     East Allendale proposed replacing an aging gas station and

constructing a modern bank building.   Hals explained in detail,

in his report and testimony, that the substitution of a bank

building for a decrepit gas station was a benefit to the

community because a bank was more consistent with the commercial

character of the area, and thus a more “appropriate development

of the land.”   Thus, the bulk variance “would encourage the

appropriate use or development of land” and “promote a desirable

visual environment through good civic design.”   See Kaufmann,

supra, 110 N.J. at 562-63 (noting that c(2) “purpose”

requirement may be met by advancing “specific purposes of zoning

set forth in the MLUL”).   Additionally, according to Hals, the

proposed parking area behind the bank would preserve open space


1
  Steck also opined that it was reasonably probable that the
zoning board would have granted a variance to the parking-space
minimums set forth in the Borough’s ordinance. Under Steck’s
alternative plan, which complied with the 30% improved-lot-
coverage maximum, the zoning board would have approved a bank
building of the same size but with a smaller parking lot. It
does not appear that this alternative theory was pressed by East
Allendale.

                                 7
and maintain sight lines, while embankments and landscaping

would promote a desirable visual environment.   Hals emphasized

that a bulk variance was necessary because the existing zoning

ordinance made development of the land nearly impossible.    Hals

testified that it was not practicable to construct a 10,000-

square-foot building in a zone with a 30% improved-lot-coverage

maximum.

    Consistent with his expert report, Hals explained that none

of the commercial property in Saddle River complied with the 30%

improved-lot-coverage maximum.   The other properties in the

office and business zones had improved-lot coverage of between

65% and 85%.    Significantly, the Borough’s present 30% coverage

requirement rendered all the properties in the office and

business zones non-conforming uses.    Thus, without the grant of

a bulk variance, only East Allendale’s property would be

required to comply with the coverage requirement.   Hals’s report

also explained that Saddle River’s improved-lot-coverage maximum

was one-half of that permitted in the ordinances of nearby

municipalities.   Therefore, restricting East Allendale to a 30%

improved-lot-coverage maximum was atypical not only in Saddle

River, but also in surrounding communities.

    Steck’s report and testimony supported much of Hals’s

presentation.   Steck too testified that all the uses in the

Borough’s office zone exceeded the 30% lot coverage and that a


                                  8
failure to grant a bulk variance would not have been consistent

with the MLUL.   From his viewpoint, the strict application of

the zoning ordinance would cause an “extreme hardship” because

the property otherwise could not be feasibly developed for

commercial purposes.

                                2.

    Hals also explained that the benefits of the variance would

substantially outweigh any detriment.    Hals underscored that the

benefits of a variance included development of the space with an

adequately sized building and parking area, while nonetheless

preserving 58% of the lot for landscaping, greenery, and wooden

areas.   Hals also stated that East Allendale intended to place

the parking lot behind the building, thereby screening the

parking lot from view on the street.    Meanwhile, any detriments,

such as light pollution and water runoff, were minimized by the

plan’s design.

    Steck also concluded that the proposed bank building

conferred significant developmental benefits that outweighed any

detriments.   In particular, he stated that Hals’s planned

landscaping and rainwater detention facilities would “address

what would otherwise be looked at as negative aspects.”

                                3.

    Hals testified that the grant of a variance would not have

imposed a substantial detriment to the public good.   Hals noted


                                 9
that the proposed development, including its lot coverage, would

be consistent with the businesses in the Borough’s commercial

area.   Hals maintained that the proposed improved coverage of

42% was not a “large scale development,” was not “overbuilding

the property,” and that any resulting water runoff could be

readily managed.   Hals added that the plan called for adequate

screening between the street and the parking area, and between

the bank and residential areas.

    Steck pointed out that the other businesses in the

Borough’s commercial area had lot coverage of over 60%, and thus

the proposed development would be consistent with the office and

business zones.    He also maintained that the plan’s proposed

driveways and parking layout were designed with safety in mind.

                                  4.

    In concluding that a variance in this case would not

substantially impair the intent and purpose of the zone plan,

Hals considered the existing and past zone plans and that the

proposed bank building would be consistent with the other

commercial uses in the zone.    Hals highlighted that the proposed

use was a permitted use in the office zone.

    Steck concurred that the proposed bank was consistent with

the office zone and “the history of [the Borough’s] master plan

documents.”   He further noted that the Borough had recognized

that, along East Allendale Road, residential use was decreasing


                                  10
and commercial use was increasing and, on that basis, the

Borough had recommended a review of the zoning plan in that

area.   Steck stressed that East Allendale’s plan would enable

“reasonable use” of its property given its location in the

Borough’s commercial area.



                                II.

                                A.

    The trial judge denied the Borough’s motion to strike East

Allendale’s expert opinions.   The judge concluded that the

opinions of East Allendale’s experts were grounded in the

record.   In denying the Borough’s motion for a new trial, the

judge cited to the evidentiary support for his conclusion that

there was a reasonable probability that a bulk variance would

have been granted.   The judge pointed out that:   (1) the Borough

had granted similar variances in the past; (2) no existing

properties in the office zone complied with the 30% improved-

lot-coverage maximum, and past developments had 65-80% improved-

lot coverage; and (3) the proposed plan would conform to the

physical characteristics of the surrounding commercial

properties and not adversely impact nearby residential

properties.

                                B.




                                11
    Hundreds of pages of reports, deposition testimony, and

trial testimony amply support the trial judge’s determination

that both Hals and Steck gave the “why and wherefore” of their

opinions.    No fair reading of this record suggests that their

opinions were lacking in factual and legal support.    Moreover,

the majority has seemingly raised the bar for obtaining a bulk

variance.    If this record does not show that there was a

reasonable probability that a zoning board would or should have

granted a bulk variance, then we are unlikely ever to see such a

record.   In this regard, the majority’s opinion may have

unintended consequences in typical applications for bulk

variances.

                                 C.

    Today, the majority holds that the determination of whether

a zoning variance was reasonably probable should be decided in a

pretrial hearing.    Neither Gorga nor Caoili instructs trial

judges to perform the gatekeeping function before witness

testimony is presented to the jury.

    Indeed, nothing in N.J.R.E. 104(a) suggests that the trial

judge could not have proceeded as he did.    The judge did not

feel prepared to make the admissibility determination based on

the expert reports and deposition testimony -- the cold record.

Instead, he wanted to hear from the witnesses themselves, and,

to conserve judicial resources, he decided not to conduct a


                                 12
multi-day dry run.   In accordance with N.J.R.E. 104(a), he

permitted the expert witnesses to testify and withheld the

admissibility determination until a later time.     See N.J.R.E.

104(a) (“When the . . . admissibility of evidence . . . is

subject to a condition, and the fulfillment of the condition is

in issue, that issue is to be determined by the judge.”).

Although N.J.R.E. 104(a) permits a judge to “hear and determine

such matters out of the presence or hearing of the jury,” he is

not required to do so.    Judges are given broad discretion to

manage the presentation of witnesses to “avoid needless

consumption of time.”    N.J.R.E. 611(a).   So long as the trial

judge correctly decided the admissibility of the expert

testimony and correctly submitted to the jury the zoning

variance issue, there is no reason to overturn the jury’s

verdict.

                                 D.

    To summarize, it is not the function of this Court to

substitute its evidentiary decisions for those of the trial

court.   “[W]e apply . . . [a] deferential approach to a trial

court’s decision to admit expert testimony, reviewing it against

an abuse of discretion standard.”     Pomerantz Paper, supra, 207

N.J. at 371-72 (citing Kuehn v. Pub Zone, 364 N.J. Super. 301,

319-21 (App. Div. 2003), certif. denied, 178 N.J. 454 (2004));

see also Carey v. Lovett, 132 N.J. 44, 64 (1993) (“Ordinarily,


                                 13
the competency of a witness to testify as an expert is remitted

to the sound discretion of the trial court.    Absent a clear

abuse of discretion, an appellate court will not interfere with

the exercise of that discretion.”) (citing Henningsen v.

Bloomfield Motors, Inc., 32 N.J. 358, 411 (1960)).

    The majority has merely substituted its judgment for that

of the trial judge, who not only had the opportunity to hear the

witnesses’ testimony, but also had the feel of the case, which

can never be conveyed by the cold record.   The record clearly

supports the trial judge’s decision to admit the expert

testimony and to submit the issue concerning the zoning variance

to the jury.   Even if this case were a close call, which it is

not, we would be required to defer.    In my view, the majority’s

decision to reverse both the trial judge and the Appellate

Division is without foundation.

    For this reason, I respectfully dissent.

    CHIEF JUSTICE RABNER joins in this opinion.




                                  14
                SUPREME COURT OF NEW JERSEY

NO.    A-126                                    SEPTEMBER TERM 2011

ON CERTIFICATION TO           Appellate Division, Superior Court




BOROUGH OF SADDLE RIVER,

      Plaintiff-Appellant,

               v.

66 EAST ALLENDALE, LLC,

      Defendant-Respondent.




DECIDED             October 21, 2013
                Chief Justice Rabner                            PRESIDING
OPINION BY            Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY          Justice Albin


                                 REVERSE AND
CHECKLIST                                                      AFFIRM
                                   REMAND
CHIEF JUSTICE RABNER                                                X
JUSTICE LaVECCHIA                          X
JUSTICE ALBIN                                                       X
JUSTICE HOENS                              X
JUSTICE PATTERSON                          X
JUDGE RODRÍGUEZ (t/a)           ------------------------   --------------------
JUDGE CUFF (t/a)                ------------------------   --------------------
TOTALS                                     3                        2




                                                       1
