                                       SYLLABUS

This syllabus is not part of the Court’s opinion. 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
Court. In the interest of brevity, portions of an opinion may not have been summarized.

           Township of Manalapan v. Anthony Gentile (A-14-19) (083137)

Argued February 4, 2020 -- Decided June 2, 2020

SOLOMON, J., writing for the Court.

        The Township of Manalapan challenges the condemnation award in favor of
defendants entered after a jury trial. The issue is whether it was error to admit testimony
that the condemned property’s highest and best use would require a variance without first
determining whether there is a reasonable probability the variance would be granted.

       Defendants’ property was in an area zoned as R20 (residential) until 2002, when
the Township rezoned it to RE (residential environmental). The R20 zone allows for
single family dwellings on half-acre lots, whereas the RE zone provides for single family
dwellings on lots of no fewer than three acres. Therefore, undivided land in an R20 zone
would have a greater fair market value than the same land in an RE zone.

       At trial, the Township’s expert explained that, in arriving at his estimate of $2.83
million, he assumed the continued application of RE zoning and evaluated the property
by reference to the sale price of similar properties. He acknowledged, however, that
unlike the subject property, those he compared did not have sanitary sewer or municipal
water systems. By contrast, defendants’ expert planner opined, over the Township’s
objection, that the highest and best use of the subject property would be to divide it into
smaller lots, as would be permitted in an R20 zone. He explained that such use of the
property would yield “up to six times the density” under the current RE zoning but that
“the Township committee would have to agree to change the zone.” Importantly, he did
not offer any opinion about the value of the property as is or if a variance were granted,
or even about the probability that such a variance would be granted. Indeed, in ruling on
the Township’s objection to his testimony, the court cautioned defendants’ expert not to
“opin[e] on possibilities or likelihoods or odds or procedures about getting variances.”

       The Township moved for judgment at the close of evidence. The court granted the
motion in part, ordering defense counsel not to argue in closing that, when calculating the
property’s value, the jury could assume a variance will be granted. But the court allowed
the question of fair market value to go to the jury. During closing, defense counsel
reminded the jurors that the subject property is surrounded by an R20 zone and
repeatedly referenced the possibility of rezoning.
                                             1
        The court instructed the jurors to decide the market value of the property using the
expert opinions if they “find those opinions helpful.” The judge instructed that if the
jurors were to reject all expert testimony, then they could “come up with another figure
for the fair market value of the property,” so long as that figure is based on the evidence
presented. The jury returned a unanimous verdict awarding defendants $4.5 million.

        The Township filed post-trial motions claiming that the Court’s decision in
Borough of Saddle River v. 66 East Allendale, LLC, 216 N.J. 115 (2013), required the
trial court to conduct an N.J.R.E. 104 hearing as to the reasonable probability of a
variance before admitting any testimony by defendants’ expert that the subject property’s
highest and best use would require R20 zoning. The trial court denied those motions, and
the Appellate Division affirmed. The Court granted certification, “limited to the issue of
whether the Appellate Division erred in concluding that a plenary hearing regarding the
‘reasonable probability’ of a zoning change was not required before the commencement
of trial.” 239 N.J. 495 (2019).

HELD: As the Court explained in Borough of Saddle River v. 66 East Allendale, LLC,
evidence that risks misleading the jury into assuming a zoning variance for purposes of
calculating a property’s value must not be admitted absent a judicial finding it is
reasonably probable that the variance will be obtained. 216 N.J. 115, 142 (2013).
Therefore, the trial court erred by allowing the jury to consider testimony that the highest
and best use of the subject property would require a variance without first confirming the
probability of securing that variance.

1. A municipality has the authority to take private property for a public use provided that
just compensation is paid to the property owner. Just compensation is the fair market
value of the property as of the date of taking. The fair market value generally considers
“the property’s highest and best use.” To constitute the ‘highest and best use,’ a use must
be ‘1) legally permissible, 2) physically possible, 3) financially feasible, and 4)
maximally productive. (pp. 10-11)

2. Whether potential zoning changes might be considered in determining a property’s
best use or whether such consideration would run afoul of the “legally permissible”
requirement was addressed in Commissioner of Transportation v. Caoili, where the Court
held that “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. 252, 265 (1994)
(emphasis added). (pp. 11-12)

3. In 66 East Allendale, the Court applied those principles in the context of a purported
highest and best use that could be achieved only if a variance were granted and held that,
“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
                                             2
assess a premium based on that zoning change . . . . The gatekeeping function was
assigned to the judge specifically to screen the jury from hearing mere speculation.” 216
N.J. at 142. From 66 East Allendale derives the following overarching approach to
predicating highest and best use analyses on not-yet obtained zoning variances. A use
that does not conform to current zoning is not legally permissible and so cannot be a
property’s highest and best use. See id. at 137. However, while a property’s highest and
best use “is ordinarily evaluated in accordance with current zoning ordinances[,] [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.” Id. at 119. That substantive determination of probability
must account for “the standard that would govern the particular zoning change under
consideration.” Id. at 143. In making that determination, the trial court must examine the
parties’ evidence as to the probability of the zoning change to “determine whether [the
court] can render its required determination based on the papers.” Ibid. If that
determination cannot be made on the written submissions alone, the court shall conduct a
pretrial Rule 104 hearing to resolve the issue. Id. at 142-43. (pp. 12-16)

4. The question presented in this case was answered in 66 East Allendale. The trial court
here neglected its role as gatekeeper by letting the jury consider evidence about a
variance without following the procedures and standards laid out in 66 East Allendale.
Because there was no finding that a variance from RE to R20 would likely be granted, the
jury should not have been permitted to evaluate the property on any basis other than its
highest and best use “in accordance with current zoning ordinances.” See id. at 119
(emphasis added). Given the state of the evidence in this case, a Rule 104 hearing would
have been necessary to make a finding as to the likelihood of obtaining the variance, but
the trial court never held that hearing or made that finding. The result was that “the
quality of the evidence that the jury was allowed to consider undermined the soundness
of the jury’s property valuation.” Ibid. Given that the only opinion put before the jury as
to the value of the property was that of plaintiff’s expert appraiser, who valued the
property at $2.83 million based upon RE zoning, the jury’s $4.5 million verdict was a
manifest miscarriage of justice that shocks the conscience and requires a new trial.
(pp. 16-18)

5. On remand, if defendants seek once again to admit testimony of a highest and best use
that would require a variance, the trial court must conduct a Rule 104 hearing to
determine whether there exists a reasonable probability that a variance would be granted.
Only if the court makes that finding may the jury consider, for valuation purposes, uses
of the subject property that would require a zoning variance. See id. at 142.

       REVERSED and REMANDED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’S opinion.
                                            3
        SUPREME COURT OF NEW JERSEY
              A-14 September Term 2019
                        083137


              Township of Manalapan,
         a Municipal Corporation of the State
                   of New Jersey,

                  Plaintiff-Appellant,

                           v.

         Anthony Gentile, individually and
    as Executor of The Estate of Eugene Gentile,
         Eugene Gentile, and Frank Gentile,
  Administrator of the Estate of Eugene John Gentile,

               Defendants-Respondents.

         On certification to the Superior Court,
                   Appellate Division.

        Argued                       Decided
    February 4, 2020               June 2, 2020


 William J. Wolf argued the cause for the appellant
 (Bathgate Wegener & Wolf, attorneys; William J. Wolf,
 Peter H. Wegener, and Ryan S. Malc, on the briefs).

 Lawrence B. Sachs argued the cause for the respondents
 (Lawrence B. Sachs, on the brief).


JUSTICE SOLOMON delivered the opinion of the Court.




                           1
      When a municipality condemns private property for the purpose of

taking it, the municipality must compensate the owner based upon the fair

market value of the property, which is generally calculated in terms of what

the property would be worth if put to its highest and best use. In this case, the

Township of Manalapan challenges the condemnation award in favor of

defendants Anthony, Eugene, and Frank Gentile entered after a jury trial. The

issue is whether it was error to admit testimony that the condemned property’s

highest and best use would require a variance without first determining

whether there is a reasonable probability the variance would be granted.

      Briefly stated, the Township presented expert testimony that the subject

property as currently zoned was valued at $2.83 million. Defendants’ expert

did not offer any opinion as to the value of the property but testified instead

that the property’s highest and best use would require it to be subdivided into

multiple half-acre lots, although the property was in a zone that permitted lots

of no fewer than three acres. The jury returned a verdict of $4.5 million as

compensation for the defendants, and the Appellate Division affirmed.

      As we explained in Borough of Saddle River v. 66 East Allendale, LLC,

evidence that risks misleading the jury into assuming a zoning variance for

purposes of calculating a property’s value must not be admitted absent a

judicial finding it is reasonably probable that the variance will be obtained.

                                        2
216 N.J. 115, 142 (2013). We therefore hold that the trial court erred by

allowing the jury to consider testimony that the highest and best use of the

subject property would require a variance without first confirming the

probability of securing that variance. Accordingly, we reverse the judgment of

the Appellate Division and remand for a new trial.

                                       I.

      Defendants’ property, a 48.94-acre tract of land, was in an area zoned as

R20 (residential) until 2002, when the Township rezoned it to RE (residential

environmental). As relevant here, the difference between those zones is that

the R20 zone allows for single family dwellings on half-acre lots, whereas the

RE zone provides for single family dwellings on lots of no fewer than three

acres. As noted by defense expert Paul Phillips, land in the R20 zone could

yield “up to six times the density of the [same amount of land in] RE [three-

acre] zoning.” Therefore, undivided land in an R20 zone would have a greater

fair market value than the same land in an RE zone.

      After a nearly decade-long dispute between the parties, the details of

which are not relevant here, the Township commenced condemnation




                                       3
proceedings.1 The court appointed condemnation commissioners to hear the

matter; they issued a report awarding defendants $3.6 million in compensation

for the taking.2 The Township appealed, and the case went to trial before a

jury to determine the subject property’s fair market value. The trial record

reveals admission of the following evidence for consideration by the jury.

      The Township’s expert appraiser, James Stuart, explained that, in

arriving at his estimate of $2.83 million, he assumed the continued application

of the current RE zoning (permitting no more than twelve single-family lots on

the subject property) and evaluated the property by reference to the sale price

of similar properties. He acknowledged, however, that unlike the subject

property, the properties he used for comparison did not have sanitary sewer or

municipal water systems, and that, if the subject property were to yield more


1
  Defendants subsequently filed a counterclaim alleging inverse
condemnation, but the court dismissed defendants’ claims before trial and we
denied defendants’ cross-petition for certification, see 239 N.J. 520 (2019).
2
  “Upon determination that the condemnor is authorized to and has duly
exercised its power of eminent domain, the court shall appoint 3
commissioners to determine the compensation to be paid by reason of the
exercise of such power.” N.J.S.A. 20:3-12(b). “Within 4 months next
following their appointment, or within any extended period in accordance with
the rules, the commissioners, or a majority of them, shall make and file in form
and content fixed by the rules, an award fixing and determining the
compensation to be paid by the condemnor.” N.J.S.A. 20:3-12(g); see also R.
4:73-4. “Any party who has appeared at the hearings of the commissioners,
either personally or through an attorney, may appeal from the award of the
commissioners.” N.J.S.A. 20:3-13(a); see also R. 4:73-6.
                                        4
than twelve lots, “you’ve got a whole different ball game” in terms of property

valuation.

      The Township also offered the expert testimony of planner Jennifer

Beahm, who noted that the subject property is surrounded by an R20 zone and

that a zoning variance would be necessary to use the subject property in ways

not otherwise permitted in its current RE zone.

      By contrast, defendants’ expert planner Paul Phillips opined, over the

Township’s objection, that the highest and best use of the subject property

would be to divide it into smaller lots, as would be permitted in an R20 zone.

He explained that such use of the property would yield “up to six times the

density” than under the current RE zoning, although he noted that, “for R20

zoning to be on the [subject] property[,] the Township committee would have

to agree to change the zone.”

      Importantly, Phillips did not offer any opinion about the value of the

property as is or if a variance were granted, or even about the probability that

such a variance would be granted. Indeed, in ruling on the Township’s

objection to his testimony, the court cautioned Phillips not to “opin[e] on

possibilities or likelihoods or odds or procedures about getting variances.”

      The Township moved for judgment at the close of evidence, noting that

the only issue in the case was the property’s value and that the only expert

                                        5
valuation of the property was Stuart’s estimate of $2.83 million. The court

granted the motion in part, ordering defense counsel not to argue in closing

that, when calculating the property’s value, the jury could assume a variance

will be granted. However, the court also denied the motion in part, holding

that reasonable minds could differ on the value of the property because Stuart

conceded that the property could yield more than twelve lots. Accordingly, the

court allowed the question of fair market value to go to the jury.

      During closing, without expressly inviting the jurors to take a variance

for granted when evaluating the property, defense counsel reminded them that

the subject property is surrounded by an R20 zone. He also repeatedly

referenced the possibility of rezoning the subject property, observing that,

             at least under the current zoning we can get fourteen 3
             lots [on the Gentile property, and that] . . . if anybody
             wanted to do anything with respect to these lots, they
             would have to go [to] the Zoning Board. . . . So that’s
             I think an important consideration for you.

      The court instructed the jurors that they “must decide the market value

of the [subject] property after comparing and considering all the evidence

using the expert opinions,” if they “find those opinions helpful.” The judge

instructed that if, on the other hand, the jurors were to reject all expert



3
  Defense counsel misspoke: the record demonstrates that the property could
be divided into only twelve lots under the current RE zoning.
                                        6
testimony, then they could “come up with another figure for the fair market

value of the property,” so long as that figure is based on the evidence

presented. The jury returned a unanimous verdict awarding defendants $4.5

million for their condemned property.

      The Township filed post-trial motions for judgment notwithstanding the

verdict and for a new trial, claiming that our decision in 66 East Allendale

required the trial court to conduct an N.J.R.E. 104 hearing as to the reasonable

probability of a variance before admitting any testimony by defendants’ expert

that the subject property’s highest and best use would require R20 zoning. The

court denied those motions, and the Township appealed.

      The Appellate Division affirmed, holding in relevant part that the trial

court “properly exercised its discretion by allowing defendants’ planning

expert to testify in a limited manner.” The court found that a Rule 104 hearing

was not necessary under 66 East Allendale because Phillips “did not make any

speculative comments regarding the likelihood of defendants’ obtaining a

variance,” having instead opined only that defendants’ property is best suited

for a use that would require a variance. Relatedly, the court also held there

was no error in denying the Township’s motions for judgment and for a new

trial, since some evidentiary basis existed for the jury to deviate from Stuart’s

estimate of $2.83 million -- Stuart took for granted that the property could be

                                        7
divided into no more than twelve lots, and the properties he looked to for

comparison, unlike the subject property, did not have sanitary sewer or

municipal water systems.

      We granted the Township’s petition for certification, “limited to the

issue of whether the Appellate Division erred in concluding that a plenary

hearing regarding the ‘reasonable probability’ of a zoning change was not

required before the commencement of trial.” 239 N.J. 495 (2019).

                                       II.

      The Township argues that by permitting the defense expert to testify that

the highest and best use would require a variance -- without first holding a

Rule 104 hearing to determine if there is a reasonable probability the variance

would be granted -- the trial court admitted testimony likely to mislead the jury

into calculating the property’s value with an assumption that the variance

would be granted. The Township concludes that the trial court neglected its

role as gatekeeper by admitting that evidence without regard for the

procedures and standards laid out in 66 East Allendale, resulting in a

groundless $4.5 million verdict that the Township asserts shocks the

conscience.

      Defendants distinguish this case from 66 East Allendale on the basis

that, there, testimony about the likelihood of a variance being granted was

                                       8
offered but lacked a proper foundation whereas, here, the defense expert

testified only that the property’s highest and best use would require a variance

without ever testifying about the probability of securing such a variance.

Defendants also point out that the jury had reason to doubt the credibility of

Stuart’s valuation of the property at $2.83 million because Stuart

acknowledged that, when calculating that number, he compared the property to

others that lacked sanitary sewer or municipal water systems and took for

granted that the subject property would be divided into no more than twelve

lots. Thus, defendants assert there is no need to assume that in reaching its

verdict the jury improperly relied on testimony about the variance.

                                       III.

      “The standard of review on appeal from decisions on motions for a new

trial is the same as that governing the trial judge.” Risko v. Thompson Muller

Auto. Grp., Inc., 206 N.J. 506, 522 (2011). Thus, to determine whether the

Township is entitled to a new trial based on the record before us, we consider

whether denying a new trial “would result in a miscarriage of justice shocking

to the conscience of the court.” Id. at 521 (quoting Kulbacki v. Sobchinsky,

38 N.J. 435, 456 (1962)); see also R. 4:49-1(a) (“The trial judge shall grant the

motion if, having given due regard to the opportunity of the jury to pass upon




                                        9
the credibility of the witnesses, it clearly and convincingly appears that there

was a miscarriage of justice under the law.”).

      We therefore must determine whether allowing the jury to consider

evidence that the property’s highest and best use under R20 zoning could yield

“up to six times the density” under the current RE zoning, without first

determining whether there was a reasonable probability that the property

would be rezoned, resulted in a miscarriage of justice. We do so by

considering the applicable constitutional and statutory provisions, as well as

our jurisprudence.

                                        A.

      A municipality, like the Township here, has the authority to take private

property for a public use provided that just compensation is paid to the

property owner. See U.S. Const. amend. V (“[N]or shall private property be

taken for public use, without just compensation.”); accord N.J. Const. art. I, ¶

20; N.J.S.A. 20:3-29 (a section of New Jersey’s Eminent Domain Act, N.J.S.A.

20:3-1 to -50, providing that a “condemnee shall be entitled to compensation

for the property, and damages, if any, to any remaining property, together with

such additional compensation as provided for herein, or as may be fixed

according to law”).




                                        10
      “Just compensation is ‘the fair market value of the property as of the

date of taking . . . .’” Comm’r of Transp. v. Caoili, 135 N.J. 252, 260 (1994)

(quoting Comm’r of Transp. v. Silver, 92 N.J. 507, 513 (1983)). The fair

market value generally considers “the property’s highest and best use,” ibid.,

which can be described as “the use that at the time of the appraisal is the most

profitable, likely use” or, in the alternative, “the available use and program of

future utilization that produces the highest present land value,” so long as that

use has “a probability of achievement,” Hous. Auth. of New Brunswick v.

Suydam Inv’rs, L.L.C., 177 N.J. 2, 20 (2003) (quoting County of Monmouth v.

Hilton, 334 N.J. Super. 582, 587 (App. Div. 2000)). “To constitute the

‘highest and best use,’ a use must be ‘1) legally permissible, 2) physically

possible, 3) financially feasible, and 4) maximally productive.’” Ibid. (quoting

Hilton, 334 N.J. Super. at 588).

      Whether potential zoning changes might be considered in determining a

property’s best use or whether such consideration would run afoul of the

“legally permissible” requirement is a question this Court addressed in Caoili.

There we held,

            consistent with our decision in Gorga, that in
            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

                                        11
            evidence is sufficient to warrant a determination that
            such a change is reasonably probable. If evidence
            meets that level of proof, it may be considered in fixing
            just compensation in light of the weight and effect that
            reasonable buyers and sellers would give to such
            evidence in their determination of the fair market value
            of the property.

            [135 N.J. at 265 (emphasis added) (relying on State
            Highway Comm’r v. Gorga, 26 N.J. 113 (1958)).]

      In 66 East Allendale, this Court applied those principles in the context of

a purported highest and best use that could be achieved only if a variance were

granted. In that case, the defendant and the Borough of Saddle River disputed

the fair market value of the defendant’s property. 216 N.J. at 125. The

defendant proposed “that the highest and best use of the property would be a

bank,” ibid., but that proposal would have required a variance, id. at 121-22.

The defendant had previously applied for the requisite variance in seeking a

development permit but withdrew its permit application upon encountering

opposition to the proposed development. Id. at 121-22, 143. Nevertheless, at

trial, the defendant submitted expert reports and testimony indicating the

experts’ belief that the bulk variance would be granted. Id. at 126-29.

      The Borough of Saddle River moved to strike the defendant’s experts’

opinions “on the reasonable probability of a zoning change,” arguing that those

opinions failed to address the standards under which a bulk variance


                                       12
application would be reviewed and, therefore, “lacked a proper foundation.”

Id. at 123. Alternatively, the Borough asked for a Rule 104 hearing to ass ess

whether there was a reasonable probability that the property would be rezoned.

Ibid. The motion court denied those requests, ibid., and, following a jury trial,

entered judgment in the defendant’s favor, id. at 133. The Appellate Division

affirmed. Id. at 134-36.

      We reversed, holding that because neither the trial court nor the experts

analyzed whether “there exists the reasonable probability of a zoning change

based on the standard that would govern the particular zoning change under

consideration,” the trial court neglected its gatekeeping function by leaving the

determination of probability to be made at trial. Id. at 142-43.

      We specified that, notwithstanding any expert opinion as to the

likelihood a variance will be granted,

            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 . . . . The gatekeeping function was assigned to
            the judge specifically to screen the jury from hearing
            mere speculation.

            [Id. at 142 (citing Caoili, 135 N.J. at 264-65).]

And we explained that, in order to be relevant to the issue of a property’s fair

market value, evidence presupposing a variance must be more than merely

                                         13
speculative. Id. at 138. Our rule did not discriminate between speculative and

irrelevant evidence -- neither is invited through the gate. Accord Caoili, 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. . . . The court can [reduce that] risk by

performing, in effect, a 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.”).

      Though there was some expert testimony in 66 East Allendale as to the

probability that the municipal body would grant the variance necessary for the

proposed use of the property, 216 N.J. at 130-32, our courts have properly

recognized that case’s broader significance by applying its gatekeeping

procedures and standards even when no evidence is presented regarding the

probability of obtaining a variance, see, e.g., N.J. Transit Corp. v. Franco, 447

N.J. Super. 361, 373, 377-78 (App. Div. 2016) (relying on 66 East Allendale to

find “legally inadequate” the opinions offered by the defendants’ experts, who

did not “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”). In short, with or without expert testimony as to the probability

                                        14
of a variance, trial courts must guard against evidence likely to mislead juries

into calculating a property’s fair market value at its highest and best use under

an unsupported assumption that a variance will be granted.

      From 66 East Allendale, therefore, derives the following overarching

approach to predicating highest and best use analyses on not-yet-obtained

zoning variances. A use that does not conform to current zoning is not legally

permissible and so cannot be a property’s highest and best use. See 216 N.J. at

137. However, while a property’s highest and best use “is ordinarily evaluated

in accordance with current zoning ordinances[,] [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.” Id. at 119. That substantive determination of probability

must account for “the standard that would govern the particular zoning change

under consideration.”4 Id. at 143. In making that determination, the trial court

must examine the parties’ evidence as to the probability of the zoning change

to “determine whether [the court] can render its required determination based

on the papers.” Ibid. If that determination cannot be made on the written



4
  The Township’s Board of Adjustment has discretion to grant variances to an
applicant who satisfies certain conditions and who follows procedures laid out
in Township ordinances. Township of Manalapan, Development Regulations
of the Township of Manalapan § 95-4.4 (citing N.J.S.A. 40:55D-70).
                                        15
submissions alone, the court shall conduct a pretrial Rule 104 hearing to

resolve the issue. Id. at 142-43.

                                        B.

      The question before this Court -- whether it was error to admit testimony

that the condemned property’s highest and best use for purposes of valuation

would be one for which a variance would be necessary without first

determining that there is a reasonable probability that such a variance would be

granted -- was answered in 66 East Allendale.

      In this case, the evidence about a variance is as follows: After plaintiff’s

expert appraiser Stuart opined that, under current zoning, the property value

would be $2.83 million, plaintiff’s expert planner Beahm testified that the

property was located in the RE zone and that it could not be used as though it

were in the R20 zone, like surrounding properties, without first obtaining a

variance. Next, after the trial court forbade defendants’ expert planner Phillips

from “opining on possibilities or likelihoods or odds or procedures about

getting variances,” he testified that the highest and best use of the property

would require R20 zoning, which could yield “up to six times the density of

the underlying RE three[-]acre zoning.” However, Phillips conceded on cross-

examination that “for R20 zoning to be on the [subject] property[,] the

Township committee would have to agree to change the zone.” Nevertheless,

                                        16
during closing argument defense counsel referenced how the subject property

is zoned differently than the surrounding properties, reviewed types of

variances that could be secured with municipal approval, and emphasized the

absence of certain barriers to modifying applicable land use regulations .

      The trial court here neglected its role as gatekeeper by letting the jury

consider evidence about a variance without following the procedures and

standards laid out in 66 East Allendale. That case stands for more than the

proposition that speculative testimony about the probability of obtaining a

variance should not be allowed to reach a jury. That is but one way in which

the harm 66 East Allendale identifies and seeks to prevent can occur. Another

is what happened here: the jurors were invited to set a valuation based on a

highest and best use that would require a variance without any judicial

consideration of the probability of obtaining that variance. Whether the jurors

are allowed to consider speculative expert testimony or invited to supply their

own speculation, the result is the same: evidence not demonstrated to be

reliable or relevant is put before the jury. The application of 66 East Allendale

by the trial court, which the Appellate Division affirmed, departed from the

letter and undermined the spirit of that case.

      Here, because there was no finding that a variance from RE to R20

would likely be granted, the jury should not have been permitted to evaluate

                                        17
the property on any basis other than its highest and best use “in accordance

with current zoning ordinances.” See 66 East Allendale, 216 N.J. at 119

(emphasis added). Testimony about a hypothetical highest and best use was

unreliable and misleading because its relevance presupposed an R20 use

variance without evidence that the variance was likely to be granted. Given

the state of the evidence in this case, a Rule 104 hearing would have been

necessary to make a finding as to the likelihood of obtaining the variance, but

the trial court never held that hearing or made that finding.

      The result was that “the quality of the evidence that the jury was allowed

to consider undermined the soundness of the jury’s property valuation.” Ibid.

Given that the only opinion put before the jury as to the value of the property

was that of plaintiff’s expert appraiser, who valued the property at $2.83

million based upon RE zoning, the jury’s $4.5 million verdict was a manifest

miscarriage of justice that shocks the conscience and requires a new trial.

                                       IV.

      In light of the foregoing, the judgment of the Appellate Division is

reversed, and the matter is remanded for a new trial. On remand, if defendants

seek once again to admit testimony that the condemned property’s highest and

best use for purposes of valuation would be one for which a variance would be

necessary, the trial court must conduct a Rule 104 hearing to determine

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whether there exists a reasonable probability that a variance would be granted.

Only if the court makes that finding may the jury consider, for valuation

purposes, uses of the subject property that would require a zoning variance.

See id. at 142.



    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE
SOLOMON’S opinion.




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