                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-3802-12T4

NEW JERSEY TRANSIT CORPORATION,

      Plaintiff-Appellant/          APPROVED FOR PUBLICATION
      Cross-Respondent,
                                         October 19, 2016
v.
                                         APPELLATE DIVISION

MARY FRANCO, CAROL FRANCO,
M & C FRANCO & CO.,

      Defendants-Respondents/
      Cross-Appellants,

and

NORTH COUNTY COLLISION, INC.;
VANESSA EXPRESS CO., INC.; CITY
OF HOBOKEN; TOWNSHIP OF WEEHAWKEN;
CITY OF UNION CITY; COUNTY OF HUDSON;
PUBLIC SERVICE ELECTRIC AND GAS COMPANY;
UNITED WATER COMPANY; NORTH HUDSON
SEWERAGE AUTHORITY; NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL PROTECTION,

      Defendants.

______________________________________

          Argued January 5, 2016 – Decided October 19, 2016

          Before Judges Reisner, Leone, and Whipple.

          On appeal from the Superior Court of New
          Jersey, Law Division, Hudson County, Docket
          No. L-6300-09.

          Victoria A. Flynn argued the cause for
          appellant/cross-respondent       (DeCotiis,
          FitzPatrick & Cole, LLP, attorneys; Michael
            J. Ash, of counsel and on the briefs; Ms.
            Flynn, on the briefs).

            Paul V. Fernicola argued the cause for
            respondent/cross-appellant (Paul V. Fernicola
            & Associates and Joseph R. Torre, P.A.,
            attorneys; Mr. Fernicola, of counsel and on
            the briefs; Robert E. Moore, on the briefs).

    The opinion of the court was delivered by

LEONE, J.A.D.

    Plaintiff New Jersey Transit Corporation appeals from the

March 4, 2013 final judgment for $8,150,000, which the jury

awarded as just compensation for plaintiff's condemnation of a

property   ("Property")       owned   by      defendants   Mary   Franco,   Carol

Franco,    and   M   &   C   Franco   &   Co.     Defendants      cross-appeal    a

February 12, 2014 order placing $1,967,865 in escrow to cover

estimated costs for environmental cleanup of the Property.

    We hold defendants' proposal to build a cul-de-sac on its

Weehawken lots to serve proposed apartment buildings on other

lots requires either a use variance for a private driveway or

acceptance by Weehawken as a public street.                 Because defendants

failed to show a reasonable probability that Weehawken would

have granted either form of relief, we reverse the March 4, 2013

final judgment and remand for a new trial on just compensation.

Because the trial court properly calculated the escrow based on

the estimated remediation cost for the highest and best use used




                                          2                              A-3802-12T4
to calculate defendants' award, we affirm the February 12, 2014

order.

                                     I.

    The 1.89-acre Property was comprised of three parcels in

three different municipalities.           A 51,362-square-foot parcel was

in the City of Hoboken's "Light Industrial" zone but was cut off

from the rest of Hoboken by the tracks of the Hudson-Bergen

Light Rail System on the Property's southern border.                A 21,687-

square-foot   parcel    was   in   the    City   of    Union   City's   "Multi-

Family – Residential" zone but was cut off from the rest of

Union City by the Palisades Cliffs on the Property's western

border.     The   remaining    9585-square-foot         parcel    was   in    the

Township of Weehawken's R-3 "One, Two (2) and Three (3) Family

Residence Zone."       The Property's northern border was West 18th

Street and its elbow intersection with West 19th Street, two

one-way    Weehawken      streets        which    provided       road    access

respectively from and to the Property.                The Property's eastern

border was an industrial building.               The Property contained an

industrial garage in 2009 and previously had other industrial

uses.

    In 2009, plaintiff filed a complaint in condemnation to

acquire the Property for public use pursuant to N.J.S.A. 27:25-

13(b).    Plaintiff offered $934,500 for the Property, subject to




                                     3                                  A-3802-12T4
the need to remediate any contamination.                         Commissioners awarded

just   compensation          of    $1,350,000.              Plaintiff    and     defendants

sought a trial de novo in the Law Division.

       Plaintiff's original appraisal report valued the Property

at $990,000 if used for industrial development.                                Defendants'

original appraisal report valued the Property at $9,996,000 if

used     for:       a    twelve-story,           seventy-two-apartment            high-rise

building in the Union City parcel; a four-story, fifty-four-

apartment         mid-rise    building      in       the    Hoboken    parcel;    and   five

townhouses in the Weehawken parcel.                          Defendants proposed road

access       to    the      Property      by     a     private     driveway       extending

Weehawken's West 19th Street.

       The    trial      court      adjourned         the    trial     date,     permitting

plaintiff to produce a new appraisal report and defendant to

respond.          Plaintiff's      second      appraisal        report    recognized     the

highest      and     best    use    of    the        Property    was     for   multifamily

dwellings.         The report valued the Property at $1,650,000 if used

for thirty-five multifamily residences.

       Defendants' second appraisal report valued the Property at

$9,273,655         if    used      just   for        the     high-rise     and     mid-rise

buildings.          The report deleted the five townhouses from the

Weehawken parcel, which would instead be used for a cul-de-sac

providing access from West 19th Street.




                                                4                                  A-3802-12T4
    Plaintiff       produced    rebuttal      reports,    stating       defendants'

proposed     project    would    not    receive      municipal        approval    and

estimating     remediation      would     cost      $1,967,865.           Defendants

produced    final   concept     plans   containing       the    cul-de-sac.         On

October 3, 2012, the court denied plaintiff's motions in limine

seeking to exclude defendants' concept plans and expert reports.

    After      a    seven-day     trial,      the     jury      determined       just

compensation for the Property was $8,150,000, plus interest and

costs.     The court's March 4, 2013 order entered final judgment

for $8,150,000, ordered the deposit in escrow of $1,967,865 as

the estimated cost to remediate the contamination, and denied

defendants' motion to bar plaintiff from filing a cost recovery

action.    Plaintiff appealed, and defendants cross-appealed.

    We     temporarily    remanded      for   a   hearing      on   the    estimated

remediation    costs.      On    February      12,    2014,     the    trial     court

entered an order keeping the $1,967,865 in escrow.                        Defendants

amended their cross-appeal to appeal that order.

                                        II.

    We must hew to our standard of review.                     Plaintiff's appeal

challenges the trial court's denial of its requests to exclude

expert testimony and reports concerning municipal approval of

defendants' proposal.         We must apply a "deferential approach to

a trial court's decision to admit expert testimony, reviewing it




                                         5                                  A-3802-12T4
against an abuse of discretion standard."           Townsend v. Pierre,

221 N.J. 36, 53 (2015) (citation omitted).             However, we must

also   consider    whether   a   variance   "was   needed   in   the   first

instance.   That is purely a question of law . . . subject to de

novo review."      Nuckel v. Borough of Little Ferry Planning Bd.,

208 N.J. 95, 102 (2011).

                                   III.

       "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."      Borough of Saddle River v. 66 East Allendale, LLC,

216 N.J. 115, 119 (2013).        "To constitute the 'highest and best

use,' a use must be . . . 'legally permissible'" in that zone.

Hous. Auth. v. Suydam Inv'rs, L.L.C., 177 N.J. 2, 20 (2003)

(citation omitted); see 66 East Allendale, supra, 216 N.J. at 137.

       However, "[c]ertain 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."          66 East Allendale, supra, 216

N.J. at 119.      "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




                                     6                             A-3802-12T4
the evidence is presented to the jury, and it must be made

clearly to enable appellate review."           Ibid.    Thus, "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."   Id. at 142.

     The crucial issue on appeal is whether the creation of a

cul-de-sac on the Weehawken parcel of the Property would have

required and received approval by Weehawken.1               State law provides

"[n]o permit for the erection of any building or structure shall

be issued unless the lot abuts a street giving access to such

proposed   building    or    structure."        N.J.S.A.      40:55D-35.        To

provide access from the high-rise and mid-rise buildings to an

abutting     street,   and     to   provide    a   driveway        between     the

buildings' parking garages and the street, defendants proposed a

cul-de-sac extending Weehawken's West 19th Street.                  The cul-de-

sac would occupy the majority of each of the lots in Weehawken.




1
   Plaintiff also notes the complexity of seeking land-use
approvals for a property in three different municipalities.
However, on appeal plaintiff does not contest that the high-rise
building in the Union City parcel could be developed as of
right.    Nor does plaintiff show that Hoboken would not have
granted a use variance allowing the construction of the mid-rise
building.    Indeed, Hoboken's 2004 Master Plan proposed the
section of Hoboken cut off by the Light Rail tracks be rezoned
as residential to be more similar to Weehawken's zoning.



                                      7                                 A-3802-12T4
                                    A.

    Use of defendants' Weehawken parcel as a cul-de-sac would

be a "use" of that land.      The Township of Weehawken Code (Code)

provides: "Use shall mean the specific purpose for which land or

a building is designed, intended, occupied or maintained."             Code

§ 23-3.1.    "No building or premises shall hereafter be erected

or used for any purpose other than a purpose permitted in the

zone in which the building or premises is located[.]"            Code §

23-4.2.     A driveway is not included in the definition of a

"[s]tructure,"    and   is   thus   not   within    the   definition    of

"[b]uilding," but it remains a use of the land and the premises.

Code § 23-3.1.

    The permitted uses for lots in Weehawken's R-3 "One, Two

(2) and Three (3) Family Residence Zone" were one-, two-, and

three-family dwellings; townhouses with driveways covering not

more than twenty-five percent of the lot; clubs; and specified

accessory uses.    Code §§ 23-5.2 to -5.4.         The R-3 Zone did not

list the use of a lot solely or primarily as a street, driveway,

or cul-de-sac as a permitted, conditional, or accessory use.

    The situation here resembles that in Nuckel.             There, our

Supreme Court considered whether a developer who proposed to

place a driveway on one lot to service a hotel on the adjacent

lot was "required to obtain variances under the Municipal Land




                                    8                           A-3802-12T4
Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, specifically N.J.S.A.

40:55D-70(d)(1)         and    (2)."        Nuckel,        supra,        208    N.J.      at     97.2

N.J.S.A.    40:55D-70         provides      "[t]he        board     of    adjustment           shall

have the power to . . . d. [i]n particular cases for special

reasons,    grant       a   variance     .     .    .     to   permit:         (1)    a    use    or

principal structure in a district restricted against such use or

principal structure[.]"

    In Nuckel, supra, the zoning ordinance did "not address

driveways,    access         roads,    or     the       like   as    permitted            uses    or

conditionally permitted uses in the [zone]."                              208 N.J. at 98.

The Supreme Court observed that was "likely because, as a rule,

. . . a driveway is considered an accessory use."                                    Id. at 104.

However,    the    Court       emphasized          that    the    zoning        ordinance         in

Nuckel defined an accessory use as "a use which is customarily

incidental and subordinate to the principal use of a lot or a

building and which is located on the same lot."                            Ibid. (citation

omitted).         The       Court     ruled        such    language        "precludes            the

characterization of a driveway on [one lot] as accessory to the

hotel on [another lot]."               Ibid.        The Court then reasoned: "[I]f

it is not accessory, what is the nature of the driveway?                                          We

conclude that it must be a new principal use."                            Id. at 105.

2
  Here, the only issue is a variance under N.J.S.A. 40:55D-
70(d)(1), which is also referred to as a "use variance," "D
variance," or "(d)(1) variance."



                                               9                                          A-3802-12T4
       Though    acknowledging       the     argument      that    "[a]    driveway      in

itself is neutral," the Court in Nuckel ruled that, under such

an argument, "neutrality only allows a driveway to 'take[] color

from     the    uses'"     which    it     serves.         Ibid.    (alterations        in

original) (quoting Beckmann v. Township of Teaneck, 6 N.J. 530,

536 (1951)).         "It does not prevent a driveway from constituting

a new 'use' in and of itself."                    Ibid.    In any event, such an

"argument, at best, would allow the driveway to be characterized

as a new principal hotel use, but not an accessory use."                         Ibid.

       In Nuckel, the lot containing the driveway was zoned for

hotels but already had a principal use, an auto-body shop.                              Id.

at 97-98.       The Court held, because the municipal "Code prohibits

more than one principal use, a (d)(1) variance is required" for

use as a driveway.          Id. at 105.

       Like    the   zoning      ordinance       in    Nuckel,    Weehawken's     zoning

ordinance provides: "Use, Accessory shall mean a use which is

customarily incidental and subordinate to the principal use of a

lot or a building and located on the same lot therewith."                            Code

§ 23-3.1.       Therefore, using the Weehawken lots for a cul-de-sac

to     serve    as   the    driveway       for    the     high-rise       and   mid-rise

apartment buildings in the adjacent lots would constitute "a new

principal use."           Nuckel, supra, 208 N.J. at 105.                 Because that

principal      use   is    not   permitted        in    Weehawken's    R-3      zone,    "a




                                           10                                    A-3802-12T4
(d)(1) variance [was] required."               Ibid.; see Cox & Koenig, N.J.

Zoning & Land Use Admin. § 38-1, at 786-77 (2016).

    Similarly here, a use variance would be required even if

the cul-de-sac could be viewed as taking its color from the uses

which it would serve.         Nuckel, supra, 208 N.J. at 105.                  Such an

argument,     at     best,     would     allow       the        cul-de-sac         to    be

characterized as a new principal use, namely high-rise and mid-

rise apartment buildings.            See Cox & Koenig, supra, § 38-5, at

795-96    (finding     it    "logical    that       construction       of     accessory

driveways on [lots on which there was no preexisting use] should

imbue them with the characteristics of the use they served" on

adjacent    lots).       Because     such     a   use     was    not   permitted         in

Weehawken's R-3 zone, a use variance would be required even

under this argument.          See Angel v. Bd. of Adjustment, 109 N.J.

Super. 194, 196-99 (App. Div. 1970) (requiring a variance for a

driveway on one lot serving a use in another lot where that use

is not permitted in the former lot).

    Accordingly, we hold a use variance was required to the

extent    defendants     sought    to    use      their    Weehawken        lots    as   a

private     cul-de-sac       connecting       the     high-rise        and     mid-rise

apartment     buildings      to    the      Weehawken       streets.          However,

defendants'     experts      never      opined      there       was    a     reasonable

probability Weehawken would grant such a variance.




                                         11                                    A-3802-12T4
      Defendants'      principal        experts       were     engineer     Robert       L.

Costa,     planner   Peter    G.   Steck,       and    appraiser      Jon    P.     Brody.

Based on Costa's original proposal for a private driveway to

connect West 19th Street to the high-rise and mid-rise apartment

building use in the other lots, Steck testified in his November

28, 2011 deposition that "there would probably need to be a D

variance approval in Weehawken for the driveway" because "the

accessory     component      of   the    use    takes    the    coloration        of    the

principal use."3       However, Steck did not opine on the likelihood

Weehawken would grant a use variance.                     Steck's original April

19,   2011    report    failed     to     mention       the    need   for     this      use

variance.        Brody also failed to mention the need for a use

variance from Weehawken either in his April 20, 2011 original

appraisal report or his November 28, 2011 deposition.

      On   January     20,   2012,      the    trial    court    heard      plaintiff's

motion      to    strike      defendants'         original        expert      reports.

Plaintiff's      counsel     argued     Steck's    report       was   "deficient        for

failure to recognize that Weehawken and Weehawken's land use

boards had jurisdiction over both the improvements in Hoboken


3
  At trial, Steck confirmed that because "a private driveway
through Weehawken" would be an "accessory use [which] takes on
the coloration of the principal use, . . . it would have
triggered the need for a use variance."    Steck acknowledged he
"didn't form an opinion" on whether Weehawken would have granted
a use variance.



                                          12                                      A-3802-12T4
and Union City by virtue of the access through the Weehawken

parcel."   Defendants' counsel agreed Steck "overlooked the fact

that that private driveway, because it provides access to the

permitted use in Union City and to the Hoboken parcel[,] . . .

is as much a part of those high-rise and mid-rise developments

as the buildings themselves and that it technically required a

use variance from Weehawken for that private driveway" because

"the Weehawken zone only allows townhouses."

     Defendants' counsel "wanted to amend the report to resolve

the access issue to eliminate the need for the use variance."

Thus, defendants filed three revised expert reports right before

the January 20, 2012 argument on plaintiff's motion to strike

defendants' original expert reports.4

                               B.

     Defendants' revised expert reports tried to avoid the need

for Weehawken's approval by offering to dedicate the cul-de-sac

as a public street.    Costa's January 16, 2012 revised concept


4
  On January 23, 2012, a motion judge denied plaintiff's motion
to strike defendants' original expert reports.        The court
instead allowed plaintiff to re-depose defendants' three experts
and to produce rebuttal reports in response to defendants' new
expert reports.     Plaintiff has not expressly appealed that
order. Plaintiff has expressly appealed the May 24, 2012 order
by another motion judge denying defendants' motion to strike
plaintiff's rebuttal reports but allowing defendants to produce
rebuttal reports. In any event, plaintiff has not shown either
order was an abuse of discretion.



                               13                       A-3802-12T4
plan    included     the       cul-de-sac          as    a    "proposed          right    of     way

dedication    to     West      19th    Street."              Steck's      January        17,    2012

revised     report        proposed          "the        entire       9,585        square        foot

[Weehawken]       parcel       would        be    dedicated         to     the       Township     of

Weehawken as a public right-of-way thereby providing compliant

lot    frontage    and     public      road       access       to    the       Union     City   and

Hoboken portions of the tract."                          Steck's report claimed this

would "not involve any zoning review and consequently would be

permitted in Weehawken's R-3 Zone."                          Brody's January 18, 2012

revised appraisal report agreed the "highest and best use is for

[the     Weehawken       parcel]       to        be     employed      as       [a]     cul-de-sac

extension     of     West       19th        Street       providing         access        for    the

development of the balance of the site, [namely] those lands

lying in Hoboken and Union City."                        Brody again assumed no need

for approval by Weehawken.

       However, "[a]n individual cannot, at his pleasure, create

public    highways       for    his    own       benefit      upon       his    own    land,    and

impose upon the public the burthen of maintaining them."                                   Holmes

v. Mayor of Jersey City, 12 N.J. Eq. 299, 308 (E. & A. 1857);

see Roger A. Cunningham & Saul Tischler, Dedication of Land in

New Jersey, 15 Rutgers L. Rev. 377, 381-82 & nn.29-31 (1961).

"Of    course,     the    public       is    not      under     any      duty     to     accept    a

dedication of land."             Cunningham & Tischler, supra, 15 Rutgers




                                                 14                                       A-3802-12T4
L. Rev. at 395 & n.99.             Thus, "[a] city is not required to

accept a dedicated street."             N.J. Junction R.R. Co. v. Mayor of

Jersey City, 68 N.J.L. 108, 109 (Sup. Ct. 1902), aff’d o.b., 70

N.J.L.    826   (E.   &   A.   1904).     "Dedication     and   acceptance     are

separate and distinct matters."               Englander v. Township of West

Orange, 224 N.J. Super. 182, 188 (App. Div. 1988).                        "It is

settled    that    mere    dedication      of   streets    .    .   .   does   not

constitute them public highways, unless or until such streets

are in some way accepted by public authorities[.]"                        Highway

Holding Co. v. Yara Eng'g Corp., 22 N.J. 119, 127 (1956).

    "Once an owner of land makes an offer of dedication, . . .

[t]he offer remains in place until the municipality accepts or

rejects it[.]"        Township of Middletown v. Simon, 193 N.J. 228,

241 (2008).       Generally, "the actual dedication to public use is

consummated when the dedication is accepted by an appropriate

ordinance or resolution of the municipality."                   State v. Birch,

115 N.J. Super. 457, 464 (App. Div. 1971).                The Legislature has

provided: "The governing body of every municipality may make,

amend, repeal and enforce ordinances to . . . accept any street,

highway, lane, alley, square, beach, park or other place, or any

part thereof, dedicated to public use, and thereafter, improve

and maintain the same."           N.J.S.A. 40:67-1, -1(b); see N.J.S.A.




                                         15                              A-3802-12T4
40:67-2.5    Acceptance of "dedication may also be accomplished by

other 'official conduct which manifests an intent to treat the

land in question as dedicated to the public use.'"                   Englander,

supra, 224 N.J. Super. at 188 (quoting Birch, supra, 115 N.J.

Super. at 464); see State v. Township of South Hackensack, 111

N.J. Super. 534, 539 (App. Div. 1970) (requiring acceptance by

conduct to be "unequivocal, clear and satisfactory"), certif.

denied, 57 N.J. 433 (1971).            Thus, whether by ordinance or by

official    conduct,    it   would   be     Weehawken's   choice    whether    to

accept defendants' offer to dedicate the cul-de-sac.

     Steck's revised report suggested Weehawken's engineer could

simply review defendants' offer of dedication.                  However, it is

generally the governing body which accepts the dedication.                     In

his February 14, 2012 deposition, Steck acknowledged defendants

could only make "an offer to the governing body of Weehawken to

accept [the cul-de-sac] as a public street."                  Neither Steck nor

defendants' other experts ever opined there was a reasonable

probability    Weehawken's       governing       body     would    accept     the

dedication.

     Absent Weehawken's acceptance of defendants' "dedication,"

defendants    would    "retain[]     ownership"    of   the    Weehawkin    lots.

5
  Similarly, "[a] municipality that wishes to reject a dedication
may pass an ordinance to that effect."    Simon, supra, 193 N.J.
at 242; see N.J.S.A. 40:67-1, 19.



                                       16                              A-3802-12T4
Township of Middletown v. Simon, 387 N.J. Super. 65, 75 (App.

Div. 2006), aff'd in part, rev'd in part, 193 N.J. 228.                                 Thus,

the proposed cul-de-sac would remain the private driveway of

defendants, who "as the titleholder at all times had the right

to     use     the    property     lawfully,         subject,       however,       to     the

dedication."          Osterweil v. City of Newark, 116 N.J.L. 227, 231

(E. & A. 1936).             However, as set forth above, a use variance

would be required to use the Weehawken parcel lawfully as a

private driveway.

       Thus, Weehawken's approval was necessary whether the cul-

de-sac was private or dedicated for public use.                                 Indeed, it

would be contrary to the purposes of the municipal regulation of

land use to allow a party to escape the need to obtain a use

variance by making an offer to dedicate which the municipality

will not accept.            "It is the intent and purpose of" the MLUL

"[t]o encourage municipal action to guide the appropriate use or

development of all lands in this State" and "[t]o ensure that

the development of individual municipalities does not conflict

with     the       development     and      general       welfare     of    neighboring

municipalities."         N.J.S.A. 40:55D-2(a), (d).

       Although       ordinances      accepting      or    rejecting       an    offer    to

dedicate       a     driveway    as    a    public     street       are    not     "zoning

ordinances,"         they    reflect       "zoning    considerations."              Howell




                                             17                                    A-3802-12T4
Props., Inc. v. Township of Brick, 347 N.J. Super. 573, 581

(App. Div.), certif. denied, 174 N.J. 192 (2002).                       Therefore,

under 66 East Allendale, we hold defendants were required to

show a reasonable probability Weehawken would either grant a use

variance for the cul-de-sac or accept the dedication of the cul-

de-sac as a public street.          See N.J. Transit Corp. v. Mori, 435

N.J. Super. 425, 428, 432-33 (App. Div. 2014).                      Defendants'

experts   offered     neither      opinion,     rendering       their    opinions

legally inadequate.       Indeed, they offered the legally-inaccurate

opinion that Weehawken had no say in the matter.

                                       C.

     Prior to trial, plaintiff filed a motion in limine to bar

introduction of the revised concept plans prepared by Costa and

the revised expert reports by Steck and Brody, and to bar their

testimony.6     Plaintiff contended the experts' opinions failed to

analyze   whether    there   was   a   reasonable       probability     Weehawken

would   grant   a   use   variance.         Plaintiff    also   argued     it   was


6
  Plaintiff earlier filed a motion to strike defendants' expert
reports and concept plans.    A third motion judge denied that
motion on August 10, 2012, stating only "no prejudice shown to
moving party for 10 day late service of report."      Plaintiff
appeals that order but has not shown it was an abuse of
discretion to grant that extension or to allow the slightly
altered July 3, 2012 concept plans.   To the extent plaintiff's
motion to strike raised the larger issues raised by its motion
in limine, it is sufficient that we address the motion in
limine.



                                       18                                 A-3802-12T4
speculative that Weehawken would accept dedication of the cul-

de-sac.       As a result, plaintiff moved to strike the experts'

opinions as net opinions.                 Alternatively, plaintiff asked the

court    to     hold   an    evidentiary        hearing      under   N.J.R.E.    104   to

determine the admissibility of the experts' opinions.

      After hearing argument, the trial court denied plaintiff's

motion on October 3, 2012.                 The court ruled the opinions of

defendants'       experts      were      not    net     opinions,       and   found    the

development was legally permissible, for two reasons.

      First,      the       trial    court          relied   on   Steck's      testimony

concerning the Residential Site Improvement Standards (RSIS).

The     court    found      "it     is   reasonably          probable    in   light    of

anticipated compliance with RSIS that Weehawken would approve

development of the cul-de-sac."                     However, Steck did not testify

the RSIS made it reasonably probable Weehawken would accept the

cul-de-sac as a public street.                  Rather, Steck testified that the

proposed cul-de-sac was in full compliance with the RSIS, that

the municipality was obligated to accept those standards, and

that, if a site plan was required, "Weehawken would be obligated

to accept it as a conforming RSIS cul-de-sac."                          However, Steck

testified he would "leave it up to the attorneys to say whether

in such a situation Weehawken would be obligated to accept it as

a public street."




                                               19                               A-3802-12T4
       In any event, the RSIS are "a uniform set of technical site

improvement standards" that address the "technical requirements"

for "construction work on, or improvement in connection with,"

site improvements such as streets in residential developments.

N.J.S.A. 40:55D-40.1, -40.2(e), -40.2(f); see Northgate Condo.

Ass'n v. Borough of Hillsdale Planning Bd., 214 N.J. 120, 143

(2013).     For example, the RSIS establish a cul-de-sac's maximum

average daily traffic, width, radius, grade, and construction

materials.     N.J.A.C. 5:21-4.1, -4.2 nn.(e), (m), -4.19.                 Such

RSIS    provisions     "supersede     any       site   improvement   standards

incorporated     within      the    development         ordinances    of    any

municipality."       N.J.S.A. 40:55D-40.5.

       However, the RSIS do not purport to determine whether cul-

de-sacs may be built on one lot to serve a use on another lot,

whether use variances should be granted, or whether offers of

dedication should be accepted.             Rather, the Legislature stressed

such    "policymaking     aspects     of    development     review   are   best

separated     from     the   making        of   technical    determinations."

N.J.S.A. 40:55D-40.2(g); see N.J. State League of Municipalities

v. Dep't of Cmty. Affairs, 158 N.J. 211, 218, 226 (1999).                   The

Legislature expressly provided: "Nothing contained in this act

shall in any way limit the zoning power of any municipality."

N.J.S.A. 40:55D-40.6.        Similarly, "[n]othing contained in these




                                       20                             A-3802-12T4
rules shall be construed to limit the powers of any municipality

to   establish    and   enforce      any   requirement   concerning    .   .   .

reservation      of   areas    for    public   use,"     including    streets.

N.J.A.C. 5:21-1.5(d), (d)(1); see N.J.S.A. 40:55D-38(b)(4), -44.

Accordingly, defendants, by proposing a cul-de-sac constructed

in compliance with the RSIS, could not deprive Weehawken of its

power to decide whether to grant a use variance or accept an

offer of dedication as a public street.7

      Second, the trial court cited the opinion of plaintiff's

planner that the cul-de-sac was unnecessary because defendants'

Property was not "landlocked."              Plaintiff's planner claimed a

narrow finger of the Property, protruding between the adjacent

industrial    building   and    the    Light   Rail    tracks,   connected     to

"Adams Street," a paper street on the Hoboken parcel.                There was

a dispute whether the paper street could be developed as it was

cut off from the streets of Hoboken by the Light Rail tracks.

Further, even if developed, the paper street would still route

traffic from the Property onto the same Weehawken streets.




7
  Plaintiff also contends the trial court improperly prohibited
it from responding to Costa's revised concept plans and from
offering testimony on whether they satisfied the RSIS.       On
remand, to the extent defendants assert those concept plans
satisfy the RSIS, plaintiff shall have an opportunity to
respond.



                                       21                             A-3802-12T4
       More importantly, defendants' experts admittedly did not

propose use of that paper street or that narrow finger of the

Property to provide road access.                        Indeed, such use would be

inconsistent with defendants' proposed development, which placed

the mid-rise building as close as legally possible to both the

Light Rail tracks and the adjacent industrial building, thus

precluding     any    vehicular         access     from   either       the   mid-rise         or

high-rise buildings to the narrow finger or the paper street.

       Instead, defendants' experts opined road access was needed

through a cul-de-sac on the Weehawken parcel.                          The issue before

the trial court was the validity of their opinion that Weehawken

did not need to approve the cul-de-sac.                       Their opinion would

have   been    undermined         by    the    possibility        of    alternate          road

access.    See Angel, supra, 109 N.J. Super. at 198 (upholding the

denial    of   a     use    variance      for      an    access    road      because         the

developer's    property       was       not   "landlocked"        and    had      "a    viable

alternative" means of access).                     Further, using that alternate

access would have been incompatible with the proposed 126-unit

development on which defendants based their appraisal.

       Thus,   we    reject       the    trial      court's   reasons        for       denying

plaintiff's        motion    in     limine         to   exclude    the       opinions          of

defendants' experts, which were inadmissible because they were

legally   inadequate        and     legally        inaccurate.          As   in    66      East




                                              22                                       A-3802-12T4
Allendale,     supra,       the    trial       court     did     not     perform       its

"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."                           216 N.J.

at 138 (quoting State v. Caoili, 135 N.J. 252, 264 (1994)).8

                                          D.

     The erroneous admission of defendants' expert testimony was

prejudicial.       Before the jury, Costa testified Weehawken's land

use ordinance had no "jurisdiction or authority over the cul-de-

sac."      Steck     testified     that    "Weehawken          does    not     have    any

discretion," that "when an owner builds something in accordance

to the RSIS standards, the municipality must accept it," and

that "[a]pproval is not needed from Weehawken."                          He told the

jury the authorities in Weehawken "have to accept the cul-de-

sac."      Brody testified he relied on Costa and Steck.                             Thus,

"[t]he experts' testimony did not cure the deficiency in the

required     analysis       for    reasonable           probability"          but     only

compounded    it.      66   East   Allendale,          supra,    216   N.J.     at    145.

Because    their     testimony     was     legally       incorrect       and    legally

inadequate,    "the     quality    of     the   evidence        that   the     jury    was


8
  Because the reports were inadmissible for the reasons set forth
above, we need not consider whether they were also inadmissible
as net opinions or whether the trial court should have held a
hearing under N.J.R.E. 104.



                                          23                                    A-3802-12T4
allowed   to    consider      undermined     the     soundness         of   the    jury's

property valuation determination."              Id. at 119.

     Moreover, it was unclear whether there was a reasonable

probability     Weehawken      would   grant     a      use    variance      or    accept

defendants' offer to dedicate the cul-de-sac as a public street.

The proposed cul-de-sac would have been considered a "Street" as

defined in Weehawken's Code § 23-3.1, but it was not depicted on

an   official     map    or    Weehawken's       most         recent    Master       Plan.

Weehawken requires such streets meet certain requirements:

           Streets not shown on the Master Plan or
           Official Map shall be arranged so as to
           provide   the   appropriate  extension   of
           existing streets and shall be suitably
           located to accommodate prospective traffic
           and to provide access for firefighting
           and/or emergency equipment and shall be
           coordinated so as to compose a convenient
           system consistent with the Official Map, if
           any, and with streets shown on the Master
           Plan.

           [Code § 22-10(c)(1) (emphasis added).]

     Plaintiff's        rebuttal     reports    included        a   traffic       review,

which   stressed      West    19th   Street     and     West     18th       Street    were

"narrow   local       streets"     restricted      to    one-way       traffic       which

"experience     low     traffic    volume    demand      and     are    difficult        to

navigate by large vehicles."            Plaintiff's traffic expert opined

it would be hard for fire trucks to access the cul-de-sac.                               He

added that there was "[n]o provision for circulation around the




                                        24                                        A-3802-12T4
[proposed high-rise and mid-rise buildings] for fire access,"

that "safe access for emergency vehicles is not provided," and

that "[t]he lack of access and the limitations of the cul-de-sac

may be unacceptable to the local fire departments and emergency

services."       Plaintiff's      engineering        expert   noted    the    vast

majority of the units in both the high-rise and the mid-rise

buildings    were      inaccessible    to     fire    apparatus,      which    was

unlikely "to be approved by the local fire department."

    The report of plaintiff's planning expert noted defendants'

proposed     high-rise     and    mid-rise     apartment      buildings       were

inconsistent      with     the    surrounding         Weehawken       low-density

residential neighborhood and "the Weehawken Master Plan, which

places an emphasis on preserving the character of its                         one-,

two- and three-family and townhouse residential neighborhood."

He opined Weehawken would object due to "the lack of capacity on

West 18th and West 19th Streets to handle traffic generated by

the development."        He reasoned, as the proposed development was

inaccessible from the rest of Hoboken and Union City, that those

cities would ask Weehawken to provide fire and other emergency

services    to   the    high-rise     and    mid-rise    buildings      and   that

Weehawken would object given the limits on emergency access.

    Plaintiff's        planning     expert    opined:     "The     notion     that

Weehawken would ever grant use variance approval for any plan




                                       25                                A-3802-12T4
that accommodates what amounts to dense residential development

projects    in    an   area    served     exclusively      by   local    residential

streets without providing any benefit to Weehawken whatsoever is

beyond   comprehension."             Similarly,    he    opined   it    was     "highly

unlikely that Weehawken Township would accept the public road

dedication" of the cul-de-sac because it would require Weehawken

taxpayers    to    pay    "to       maintain   a   roadway      that    is     utilized

exclusively by residents of developments who do not pay property

taxes in Weehawken."

    Thus, Weehawken's approval could not be assumed.                          See Menlo

Park Plaza Assocs. v. Planning Bd., 316 N.J. Super. 451, 461-62

(App. Div. 1998) (rejecting the "[p]laintiff's desire for an

outlet     road    from       its     proposed     development         into     another

municipality," which would "turn a quiet dead-end residential

street into a busy thoroughfare," "would detrimentally alter the

character of the neighborhood," and would "provide[] no benefit

to" that municipality), certif. denied, 160 N.J. 88 (1999); cf.

Howell Props., supra, 347 N.J. Super. at 579-88.

                                          E.

    Accordingly, the prejudicial error in denying plaintiff's

motion in limine, and thus allowing defendants' experts to offer

trial    testimony       which      was   legally       inadequate      and     legally

incorrect, "necessitate[s] a new trial on the issue of just




                                          26                                   A-3802-12T4
compensation."          66    East      Allendale,         supra,     216   N.J.    at     119.

Prior to the new trial, the trial court shall permit defendants

to prepare amended reports to alter the project proposed in the

three    municipalities           or    to     proffer       legally-adequate           expert

opinion on whether there was a reasonable probability Weehawken

would either grant a use variance for, or accept the dedication

of, the cul-de-sac.            The court shall allow plaintiff to respond

to any amended reports or opinions offered by defendants.                                    The

court must then "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."       Id. at 143.        If not, the court shall hold "a pretrial

N.J.R.E. 104 hearing."             Ibid.       "[O]nly 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[.]"      Id. at 142.

       We express no opinion on whether defendants will be able to

show    such    a   reasonable         probability.              Nonetheless,     we    reject

plaintiff's         argument      that       testimony           showing    a     reasonable

probability would be improper because the cul-de-sac has not yet

been constructed or because approval has not yet been received

or is not certain.            See, e.g., id. at 139 (noting a jury could




                                               27                                      A-3802-12T4
consider      the     reasonable          probability       of     "future      variance

approval[,] . . . potential subdivision," and "future site plan

approval when determining fair market value"); State v. Hope

Road Assocs., 266 N.J. Super. 633, 645 (App. Div. 1993) (noting

a   jury    could    consider      "the    township's       willingness        to    accept

. . . a means of ingress and egress"), modified in part, 136

N.J.   27   (1994);        see   also   Caoili,    supra,        135    N.J.   at     267-70

(distinguishing State v. Inhabitants of Phillipsburg, 240 N.J.

Super. 529 (App. Div. 1990)).                If the court finds a reasonable

probability,        "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."                              66 East

Allendale, supra, 216 N.J. at 140; see State v. 200 Route 17,

L.L.C., 421 N.J. Super. 168, 179 (App. Div. 2011).

                                            IV.

       We   next    consider       defendants'         cross-appeal,      which      arises

from the undisputed fact that the Property is contaminated.                                In

Suydam,     supra,    our    Supreme      Court    held    "contaminated        property

that is the subject of condemnation is to be valued as if it has

been   remediated."          177    N.J.    at    7.      "[T]he       condemnor     should

appraise as if remediated and deposit that amount into a trust-

escrow account in court."               Id. at 24.         The contamination issue




                                            28                                      A-3802-12T4
is reserved for a subsequent "cost-recovery action" in which the

condemnor can "recover any remediation costs."             Id. at 22, 24.

      Pending the cost-recovery action, "the condemnor may seek

an order requiring a portion of the award to be set aside to

satisfy the condemnee's clean-up and transfer obligations."                   Id.

at 7.    "When there is a dispute over the amount however, a

trial-type hearing will be held under R. 4:73-9(b) at which the

condemnor will bear the burden of supporting the estimate of

[such] transactional costs."        Id. at 26; see Casino Reinvestment

Dev. Auth. v. Teller, 384 N.J. Super. 408, 416 (App. Div. 2006)

("Cleanup      and   remediation     costs   are        transactional      costs

attendant to the condemnation proceeding.").

      Here, we remanded for such a Suydam hearing.               The parties

submitted expert testimony and exhibits, including plaintiff's

original and revised Property Acquisition and Environmental Cost

Estimating (PAECE) reports.          Plaintiff relied on its revised

PAECE report, which called for removal of contaminated soil,

hazardous materials, drums, and underground storage tanks.

      In particular, plaintiff proposed to remove up to two feet

of soil significantly contaminated by polychlorinated biphenyls

(PCBs) from the northern two-thirds of the Property and to cap

the Property with asphalt.         Plaintiff asserted such remediation

was   needed    to   meet   the   requirements     of    the   United    States




                                     29                                 A-3802-12T4
Environmental Protection Agency (EPA) for remediating PCBs in

"[h]igh       occupancy       areas."      40     C.F.R.       §   761.61(a)(4)(i)(A)

(2016).       The EPA defines a "[h]igh occupancy area" as any area

where    an    unprotected       individual       would       spend      more    than    "an

average of 16.8 hours or more per week," such as "a residence."

40   C.F.R.     §    761.3.      The    cost     of   remediating        PCBs    for    such

sustained      occupancy       accounted    for       most    of   the    revised      PAECE

report's total estimated remediation cost of $1,967,865.

      Defendants contended the remediation of PCBs should be only

that required for a "[l]ow occupancy area," with exposure of

less than 16.8 hours per week.                 Ibid.        As a result, defendants'

expert estimated remediation would cost below $500,000.

      Defendants stressed that plaintiff originally condemned the

Property with the intent to use it as the location of a shaft

for the construction of the ARC Commuter Tunnel under the Hudson

River.    Thereafter, that project was cancelled.                        In its revised

PAECE    report,      plaintiff        stated:    "The       proposed      use   of     this

property has not been finalized, although NJ TRANSIT intends to

use it for Public Transportation purposes."

      After      a    three-day        hearing,       the    trial       court   credited

plaintiff's evidence and discredited defendants' expert.                                 The

court found that "[p]laintiff met its burden to prove that [its]

cost estimation is not 'frivolous or exaggerated,' and that such




                                           30                                     A-3802-12T4
estimate is founded on reasonable and extensive environmental

assessment of the property."                 On February 12, 2014, the court

ordered     the   $1,967,865        to     remain       in     escrow     pending     final

determination of remediation costs at a cost-recovery action.

       Defendants contend the estimate of remediation costs should

have    been   based    on    the    use    of    the    Property        which   plaintiff

originally intended — a tunnel shaft.                         Plaintiff contends the

trial court properly based the estimated remediation costs on

the     highest   and    best       use    for     the       Property     —    residential

development.

       In   considering       these       contentions,         we    find     guidance   in

Suydam.        There,   our    Supreme      Court        chose      to   value   condemned

contaminated property "as if remediated" rather than "as is."

Suydam, supra, 177 N.J. at 23.                   The Court stressed that "'[t]he

inquiry is not limited to the actual use of the property on the

date of taking but is, rather, based on its highest and best

use.'"      Id. at 20 (citation omitted).                      The Court ruled "that

valuing     property    as    if    remediated          assures      just     compensation

insofar as it relates to the notion of 'highest and best use.'"

Id. at 23.        The Court rejected valuing the property "as is"

because "its contaminated state will necessarily circumscribe

its    uses,    concomitantly        diminishing         its     fair    market     value."

Ibid.




                                            31                                    A-3802-12T4
      Moreover, the Court in Suydam was concerned that parties

not get "a windfall."              See ibid.        The Court emphasized the value

of   the    property       "as     if   remediated"             was    an     "enhanced         value

[which] is to be generated by the incurring of a transactional

cost."      Id. at 25.           "[T]he estimated value in a contamination

case has a component that is altogether outside the property

itself — the transactional cost that will be incurred to give

the condemnee the benefit of the as if remediated value."                                         Id.

at   26.       The    Court        found   "withholding                only       the    estimated

transactional costs, which, in reality, do not belong to the

condemnee," resulted in "no unfairness to the condemnee."                                       Ibid.

"What would be unfair would be to value the property as if

remediated and allow the condemnee to withdraw that enhanced

amount without a withholding to secure the transactional costs."

Ibid.

      Here, the trial court awarded defendants the enhanced value

of   the     Property      if      used,   and        remediated,             for       residential

development.         Placing one "residence" or more on the Property

would      involve    sustained         occupancy          sufficient          to       make    it   a

"[h]igh      occupancy        area"      and        thus        require       more       extensive

remediation     under        EPA   standards.              40    C.F.R.       §     761.3.        The

estimated      cost     of       such   remediation              was    "folded          into     the

estimate"      of    the     Property's        value        and        did    not       belong       to




                                               32                                          A-3802-12T4
defendants.         Suydam, supra, 177 N.J. at 25-26.                     Withholding that

estimated      cost    was       not    unfair      to     defendants.          By   contrast,

defendants would receive an unfair windfall if they were awarded

the   enhanced        value       of    the    Property       as     if    remediated       for

residential development, without withholding the cost of such

remediation.

      Accordingly, we hold the escrow for the estimated costs of

environmental         cleanup      of     a    condemned        contaminated          property

should be based on the remediation necessary to achieve the

highest    and      best    use    of    the     property      used   to        calculate   the

amount    of    the    condemnation           award.         This   approach,        like   the

approach       adopted      in     Suydam,         "most    fairly    treats         both   the

condemnor and the condemnee."                  See id. at 27.

      Defendants rely on Borough of Paulsboro v. Essex Chemical

Corp., 427 N.J. Super. 123 (App. Div.), certif. denied, 212 N.J.

460 (2012).         However, there "both parties' experts and the trial

court attributed a lower value to the property because . . . [it

was] occupied by a closed landfill."                          Id. at 131.            Here, by

contrast, defendants received a higher value for the Property

because        it     was     treated         as     remediated           for     residential

development.

      Defendants contend the Property would have been a "[l]ow

occupancy area" if used for a tunnel shaft, the contaminated




                                               33                                     A-3802-12T4
soil would have been removed in constructing the shaft, and they

should not have to escrow for construction costs.                           However,

defendants' contentions lost their premise when the ARC Commuter

Tunnel    project       was    cancelled.        In     any   event,     defendants'

contentions do not address the correct use.                    Because defendants

were awarded compensation based on the highest and best use of

residential        development,       it    is   appropriate      to     escrow    the

estimated amount needed to remediate for that use.

    For the same reason, it is not dispositive what, if any,

alternate use plaintiff will have for the Property now that the

tunnel project has been cancelled.                Indeed, defendants argue it

would    be    unfair    to    make   the    remediation      estimate    depend   on

plaintiff's ultimate choice of an alternate use.

    Defendants          argue    plaintiff       will     never    remediate       the

Property to the level needed for residential development.                         That

concern       is   addressed    in    Suydam.         Under   Suydam's     approach,

defendants will receive the portion of the escrowed amount which

plaintiff does not spend to remediate the Property:

               [A] portion of the award sufficient to cover
               cleanup costs is escrowed or held in trust
               until the exact amount of cleanup costs has
               been determined.   Once response costs are
               determined,    a     corresponding    amount
               representing the owner's liability is then
               disbursed from the trust or escrow account.
               Only the surplus, if any, is paid to the
               owner.




                                            34                              A-3802-12T4
             [Suydam, supra, 177 N.J. at 25 (quoting 7A
             Nichols on Eminent Domain § 13B.03(4), at
             13B-68 (Patrick J. Rohan & Melvin A. Reskin
             eds., 3d ed. 2002)).]

Thus, if plaintiff does not incur the full cost of remediating

the   Property   to     the    "high    occupancy"          level,    defendants       will

receive the resulting surplus funds from the escrow.

      Defendants      challenge        the    calculation        of    the    estimated

remediation costs.            We may not "'disturb the factual findings

and legal conclusions of the trial judge unless we are convinced

that they are so manifestly unsupported by or inconsistent with

the competent, relevant and reasonably credible evidence as to

offend the interests of justice.'"                     Klumpp v. Borough of Avalon,

202   N.J.    390,    412     (2010)    (citations          omitted).         We     reject

defendants' challenges for substantially the reasons given in

the trial court's February 12, 2014 written opinion.

      The trial court's Suydam hearing served to "obviate the

concern"     raised   by     defendants       "over       frivolous    or    exaggerated

cleanup cost[]" estimates which "tie up the condemnee's award."

Suydam, supra, 177 N.J. at 26-27.                      Defendants fault the pace of

remediation, but they will be entitled to interest on any unpaid

balance due to them when the escrow is distributed.                             N.J.S.A.

20:3-31.

      Defendants      stress        plaintiff's            original     PAECE        report

estimated     cleanup       costs   would         be    only   $158,254.           However,



                                             35                                    A-3802-12T4
plaintiff's initial appraisal asserted the highest and best use

of   the   Property     was    industrial.          Defendants         then    convinced

plaintiff and the trial court the highest and best use of the

Property was residential development.                   The revised PAECE report

stated "the appraisers for NJ TRANSIT and the property owner

have found a highest and best use of residential development,"

so the more stringent EPA requirements would have to be met "due

to   the   high     occupancy      development      scenario      for     the    subject

property."       Thus, it was appropriate for plaintiff to change its

estimate    of     remediation     costs    to    reflect       the    more    stringent

remediation       requirements      for    such    sustained          occupancy.        40

C.F.R. § 761.61(a)(4)(v).9

      Furthermore, plaintiff's original PAECE report was merely

"a   preliminary       environmental        assessment"          based    on     limited

testing     done    while      defendants        were    in     possession      of    the

Property.     Suydam, supra, 177 N.J. at 26.                  In Suydam's companion

case, the Supreme Court stated "a complete initial environmental

investigation       prior     to   condemnation         is    neither    possible     nor

desirable in many cases because of the extent of the disruption

it might entail."           N.J. Transit Corp. v. Cat in the Hat, LLC,


9
  Defendants claim plaintiff's changed estimate was triggered by
the cancellation of the tunnel project.     Even if true, it is
irrelevant, as remediation costs were properly estimated based
on the use on which defendants' just compensation was awarded.



                                           36                                   A-3802-12T4
177   N.J.    29,     42     (2003).         The   Court     recognized         that,    as    a

practical      matter,        "the     most    invasive       environmental           testing

ordinarily takes place after condemnation when construction of a

project      begins.         That     is     why     the   value    as     if    remediated

including transactional costs is merely an estimate" and why the

condemnor     can     increase       its     estimate      based    on    later      testing.

Ibid.

      As     set     forth    in     the     trial    court's      opinion,          plaintiff

advised      defendants       the    estimate        might   increase.           We     reject

defendants'        argument        that    plaintiff       failed    to     "turn       square

corners" regarding the revised estimate.                        F.M.C. Stores Co. v.

Borough of Morris Plains, 100 N.J. 418, 426 (1985) (citation

omitted); see State v. Town of Morristown, 129 N.J. 279, 286

(1992).

      Defendants       argue       plaintiff       waived    its    right       to    bring    a

cost-recovery         action.          However,       plaintiff      has    consistently

reserved      that    right     in     its    complaint      and    thereafter.             See

Suydam, supra, 177 N.J. at 24; Cat in the Hat, supra, 177 N.J.

at 41.     We find "no factual foundation for" waiver.                          Hous. Auth.

v. Suydam Inv'rs, L.L.C., 355 N.J. Super. 530, 544 (App. Div.

2002), aff’d o.b. in part, rev'd in part, 177 N.J. 2, 28 (2003).

      Finally,        defendants           claim      judicial      estoppel           because

plaintiff asserted in other litigation that a different property




                                              37                                      A-3802-12T4
condemned for the ARC Commuter Tunnel may have                           public uses,

including for a different rail tunnel.                         However, plaintiff's

assertions         in    the     other     litigation     made     no     mention       of

defendants'        Property.           Plaintiff     certainly     did     not     assert

defendants' Property would be used for a tunnel shaft, nor did

the    other   court      rely    on     such   an   assertion.      See    Bhagat      v.

Bhagat, 217 N.J. 22, 36 (2014).                      In any event, the escrowed

estimated remediation costs depended on its use for residential

development, as that was the basis for defendants' award.

       Defendants'       remaining        arguments     "are    without     sufficient

merit to warrant discussion."               R. 2:11-3(e)(1)(E).

                                            V.

       We reverse the March 4, 2013 final judgment and remand the

case   for     a   new   trial     on    just    compensation.       We    affirm      the

February 12, 2014 order.               We do not retain jurisdiction.




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