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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2342-15T1

GLOUCESTER COUNTY IMPROVEMENT
AUTHORITY,

        Plaintiff-Respondent,

v.

GALLENTHIN REALTY DEVELOPMENT,
INC.,

        Defendant-Appellant,

and

STATE OF NEW JERSEY, BOROUGH
OF PAULSBORO, COLONIAL PIPELINE
CO., ATLANTIC CITY ELECTRIC
CO., and PAULSBORO ACQUISITION
CORP.,

     Defendants.
__________________________________

              Argued October 23, 2017 – Decided July 24, 2018

              Before Judges Sabatino, Ostrer and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Burlington County, Docket No.
              L-2718-10.

              Peter H. Wegener argued the cause for
              appellant (Bathgate, Wegener & Wolf, PC,
              attorneys; Peter H. Wegener, on the briefs).
           James M. Graziano argued the cause for
           respondent (Archer & Greiner, PC, attorneys;
           James M. Graziano, on the brief).

PER CURIAM

     In   this    condemnation        case,     defendant     Gallenthin     Realty

Development   (GRD)      appeals     from     the    jury   verdict    establishing

$750,000 as just compensation for the April 23, 2010 taking by

defendant Gloucester County Improvement Authority (Authority) of

roughly   three     acres     of    GRD's      sixty-three-acre       property     in

Paulsboro.

     GRD's sole point on appeal pertains to an evidentiary ruling.

GRD sought to confront             a testifying Authority expert with a

document which, GRD argued, tended to establish that the property's

proximity to a rail line and navigable water enhanced its value.

GRD also intended to introduce the document into evidence.                       The

court sustained the Authority's objection and barred GRD's use of

the document.     The court also denied GRD's motion for a new trial,

in which GRD revisited the issue.                     Applying our deferential

standard of review, we reject GRD's argument that the trial court

erred in its evidentiary ruling, and we affirm the final judgment.

                                         I.

     We previously affirmed the trial court's order approving the

Authority's      power   to    condemn        the    property,   and     appointing

commissioners to fix compensation.                  Gloucester Cnty. Improvement

                                         2                                  A-2342-15T1
Auth. v. Gallenthin Realty Dev., Inc., No. A-2214-10 (App. Div.

Aug. 8, 2012).      The matter proceeded to a jury trial after GRD

appealed from the Commissioners' report.

     This was only the most recent round in governmental efforts

to obtain GRD's property.        The Borough of Paulsboro previously

designated   all    of   GRD's   property   as   an   "area   in   need    of

redevelopment" pursuant to N.J.S.A. 40A:12A-5, which would have

made the entire property subject to condemnation.             Zoned for a

marine industrial business park, the property is mostly wetlands.

Slightly less than one third, at the northern end, consists of

developable land.    The Mantua Creek, which empties at its northern

end into the Delaware River, lies on the property's eastern edge.

A rail spur runs along the western side of the property, although

it was uncertain whether it could carry rail traffic because it

was unclear whether it satisfied Conrail standards.           To the north

of the site is the planned Paulsboro Port redevelopment property,

which includes land once used by British Petroleum (BP) as a

packaging site, and land owned by Dow/Essex Chemical.                   That

property is bounded to the north by the Delaware River, and to the

east by the Mantua Creek.

     In 2003, the Borough joined Gallenthin's property in its

redevelopment plans with the larger property to the north, which

had already been designated an area in need of redevelopment.

                                    3                               A-2342-15T1
Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 191 N.J.

344, 350-54 (2007).      However, GRD appealed, and the Supreme Court

invalidated the designation.       Id. at 373.

       After the Supreme Court's decision, the Authority sought the

more limited taking at issue here.          It condemned 3.395 acres in

fee simple, 0.256 acres in permanent easements, and a 1.73 acre

temporary construction easement.         Of the 3.395 acres, slightly

over one acre was utilized for a new roadway, to link the site to

the north with a connection to I-295 to the south.           The roadway

entered Gallenthin's property by a bridge over the Mantua Creek,

and then followed a northerly and then north-westerly path across

the uplands portion of GRD's property.           Slightly over two acres

of the condemned property consists of a triangle of land to the

north of the road, bounded to the east by the Mantua Creek, but

accessible to the rest of Gallenthin's property by the embankment

along the creek.

       The main point of contention at trial was the highest and

best use of the property.       The Authority's expert, Jerome McHale,

testified that just compensation was $489,400 since the highest

and best use was future industrial.          The Authority's witnesses

depreciated the value of the parcel's access to the Mantua Creek,

contending it was too shallow and narrow to accommodate vessels

that   would   support   a   commercially   viable   marine-related   use.

                                     4                           A-2342-15T1
McHale noted there were many waterfront properties in the area

that did not utilize water access.                Authority witnesses also

contended    that   utilizing   the       rail   line    for   an   intermodal

transportation facility on GRD's property would be uneconomical.

McHale asserted there were many industrial properties with rail

lines in the area that were unused because trucking was preferable.

McHale asserted that neither the existing rail line, nor the

property's location on the Mantua Creek, enhanced the property's

value.

     GRD took the opposite position.             George A. Gallenthin, III,

an owner of GRD, contended that the creek could accommodate barges,

before the bridge destroyed the feasibility of doing so, in part

because it left only twenty-five feet of clearance between the

creek and the bridge bed.       He also testified that the rail spur

had been repaired and utilized by a neighboring landowner in recent

years.    GRD argued that its proximity to the Paulsboro Port made

it a desirable location for ancillary port-related uses.

     GRD's    appraiser,   Anthony    Graziano,         testified   that   just

compensation was $2,123,000.      He explained that the highest and

best use of the property involved the water access and the rail

line.    Specifically, he opined that the property could be used for

a dredge transfer station or marine cargo terminal.                   Graziano



                                      5                                A-2342-15T1
opined that rail access and water access each enhanced the value

of industrial property by fifteen percent.

       During McHale's redirect examination, he recounted that GRD

had not commercially used its waterfront since 1964.            He asserted,

"[I]n 2010 and as of today [the trial was in September 2015] there

is no demand for this type of waterfront property.             There[] [are]

other old facilities out there . . . all along the waterfront that

are available if you want to put them to waterfront use.                There's

just no demand for that."

       On   recross-examination,     GRD    attempted   to   rebut     McHale's

assertion about the lack of demand.          GRD's counsel inquired about

Paulsboro's effort to add GRD's property to the redevelopment area

that included the Paulsboro Port.            He asked, "And you're aware

that   back   in   2005,    the   Borough   of   Paulsboro    had    started    a

redevelopment project for the Paulsboro port.                Right?"     McHale

answered, "They did, right, about ten years ago."               Counsel then

followed, "Right.          And the Borough of Paulsboro wanted this

property . . . "     At that point, the Authority's counsel objected.

       An extended colloquy followed.        GRD's counsel stated that he

intended to confront McHale with a 2005 "certification" from former

Paulsboro Mayor John J. Burzichelli, which was filed by the Borough

of Paulsboro in the first litigation to support the area-in-need-



                                       6                                A-2342-15T1
of-redevelopment designation.1         GRD's counsel argued that McHale

had opened the door to proof that there was demand for the property

for   waterfront   use;   and   that       the   Burzichelli   certification

demonstrated such demand.        Counsel also stated his desire to

introduce the certification into evidence.               He proffered the

certification, which stated:

           2.   The Borough has signed a Ground Lease
           with BP Products North America in order to
           build a marine terminal and distribution
           center along the Delaware River. The Borough
           is completing negotiations with the South
           Jersey Port Corporation for construction and
           operation of a marine terminal.

           3.   Independent studies have concluded the
           development will have an estimated total
           impact of over $300 Million Dollars and will
           create   thousands  of   new  jobs    in   the
           municipality. The project will revitalize the
           entire   community,  strengthen   the    local
           economy, and draw new business to the
           surrounding area.

           4.   The Gallenthin's property is part of the
           overall redevelopment area and essential to
           the overall redevelopment of the area.

           [(Emphasis added).]

      GRD contended that Burzichelli's statement in paragraph 4

meant the property was essential to a port project, which in turn



1
  Although denominated a "certification," Burzichelli did not
comply with Rule 1:4-4(b).      Instead, he certified that his
statements were "true to the best of my knowledge, information and
belief . . . ."

                                       7                             A-2342-15T1
meant it was essential because of its water and rail access.             GRD

cited references in Gallenthin Realty Dev., Inc. to studies,

preceding designation of GRD's property, which noted that the

property was "not fully productive" as evidenced by the fact that

it was vacant and unimproved, and the rail line was underutilized.

See 191 N.J. at 352.       That study made no mention of use of the

property for access to the planned port project to the north.

Ibid.     GRD contended Paulsboro, in 2005, did not want the GRD

property included in the redevelopment area in order to provide

road access to the Paulsboro Port; GRD noted that a study at the

time instead recommended a vehicle route north of the GRD property.

     The Authority responded that Burzichelli's certification said

nothing    about   why   Paulsboro   believed   the   GRD    property    was

essential.    In particular, it failed to say the property was

essential because of its access to Mantua Creek.             The Authority

noted that the redevelopment area already had direct access to the

Delaware River.    Nor did the certification state that the property

was essential because the rail spur passed through it.                   The

Authority noted that GRD had the opportunity to call Burzichelli

as a witness, but did not.

     The court sustained the objection, explaining: "I don't think

there's enough before me to say that Paulsboro wanted it for rail

and water, as opposed for some ancillary reason.            Integral to the

                                     8                              A-2342-15T1
port can be a lot of things."           The judge noted that Paulsboro's

successor in interest, the Authority, wanted GRD land for a bridge

and   road,   "I   need   something   more     to    show    that    [the   desired

objective in] 2005 was for the rail or water . . . ."                 Noting that

the Authority's objection was based on relevance grounds, the

judge disavowed reliance on N.J.R.E. 403, stating, "There's no

prejudice.    This isn't a[n] [N.J.R.E.] 403 issue."

      In denying GRD's motion for a new trial, the court amplified

the reasons for its ruling, stating that the document would lead

to speculation by the jury.             "I think it's still very, very

speculative and it doesn't talk in terms of what the Borough was

contemplating its use for."           The court also indicated it was

concerned about the hearsay nature of the certification, stating,

"I was worried about Burzichelli not being able to be cross-

examined on it when he could have been available to testify as to

what the plans were . . . ."

                                      II.

      GRD's sole point on appeal is that the court erred in (1)

barring   GRD      from   confronting       McHale    with     the    Burzichelli

certification on re-cross-examination; and (2) barring GRD from

introducing the certification into evidence. GRD and the Authority

renew and amplify arguments they presented to the trial court.



                                        9                                   A-2342-15T1
     We are guided by a deferential standard of review.         "The

trial court is granted broad discretion in determining both the

relevance of the evidence to be presented and whether its probative

value is substantially outweighed by its prejudicial nature."

Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).   Likewise,

a trial court exercises "broad discretion in determining the scope

of cross-examination."   Manata v. Pereira, 436 N.J. Super. 330,

343 (App. Div. 2014) (quoting State v. Silva, 131 N.J. 438, 444

(1993)).   In applying this standard, an appellate court may not

"substitute its judgment for that of the trial court, unless 'the

trial court's ruling was so wide of the mark that a manifest denial

of justice resulted.'"   State v. Perry, 225 N.J. 222, 233 (2016)

(quoting State v. Marrero, 148 N.J. 469, 484 (1997)).     There is

no error if there is adequate, substantial, and credible evidence

in the record to support the decision.   Estate of Hanges v. Metro.

Prop. & Cas. Ins. Co., 202 N.J. 369, 384 (2010).

     We view the court's exclusion of Burzichelli's certification

as a ruling on relevance.    "'Relevant evidence' means evidence

having a tendency in reason to prove or disprove any fact of

consequence to the determination of the action."     N.J.R.E. 401.

In determining relevance, the trial judge should focus on "the

logical connection between the proffered evidence and a fact in

issue, i.e., whether the thing sought to be established is more

                               10                           A-2342-15T1
logical with the evidence than without it."                  State v. Hutchins,

241 N.J. Super. 353, 358 (App. Div. 1990).

      The   test   for   relevance    is     broad     and    generally     favors

admissibility.     State v. Deatore, 70 N.J. 100, 116 (1976).                  "The

burden of establishing this connection is not onerous: 'if the

evidence makes a desired inference more probable than it would be

if the evidence were not admitted, then the required logical

connection has been satisfied.'"           State v. Garrison, 228 N.J. 182,

195 (2017) (quoting State v. Williams, 190 N.J. 114, 123 (2007)).

      We have no doubt that proof of demand for the GRD property

because of its water or rail access would pertain to "a fact of

consequence" in the case.        A key issue at trial was whether those

two   attributes   of    the   property     enhanced    its    value,     or   were

inconsequential.         The   crux   of    this     appeal    is   whether     the

Burzichelli certification made an inference of such demand – by

Paulsboro in particular – more probable than it would be absent

the document.

      We recognize the trial court did not recite the standard for

assessing relevance found in N.J.R.E. 401.               The court addressed

whether the evidence was sufficient to enable it to conclude – as

opposed to a jury – that Paulsboro wanted the property for its

water and rail access.         However, we are satisfied that the court

nonetheless applied the essential test of N.J.R.E. 401 – whether

                                      11                                   A-2342-15T1
the evidence tended to establish GRD's proposition that Paulsboro

wanted    the   property   in   2005   for    its   water   and    rail   access.

Applying our deferential standard of review, we uphold the trial

court's assessment that the certification did not support such an

inference.

     GRD's proposed use of the certification required multiple

inferential steps.      First, the jury would have had to infer that

because    Paulsboro       deemed    the     property   essential         to    the

redevelopment area, Paulsboro specifically deemed the property

essential to the port project to the north.                       Alternatively,

Paulsboro could have deemed the property essential because it was

a vacant, underutilized property.            Indeed, the crux of the issue

before the Supreme Court was whether the property was subject to

designation under the redevelopment law simply because it was not

fully productive.      Gallenthin Realty Dev., 191 N.J. at 348.                GRD's

expert before the Paulsboro Planning Board contended that the

property "was not necessary for the BP/Dow Redevelopment Area."

Id. at 353 (emphasis added).               GRD's expert also noted that a

Borough expert's recommendation to designate the property in need

of redevelopment "was based exclusively on N.J.S.A. 40A:12A-5(e),

not . . . that the property may be an important adjunct to the

BP/Dow Redevelopment Area."         Ibid. (emphasis added).         Hence, GRD's

prior position undermines its present arguments.

                                       12                                 A-2342-15T1
      Second, even if the jury made that first inferential leap,

it would also need to infer the property was essential to the port

project because of the property's own water and rail access.                        As

noted, the port project's land already had water access directly

to the Delaware, and to the same rail spur that passed through

GRD's property. Paulsboro could have deemed the property essential

to   the    port       project   because    the   property    could   be   used   for

ancillary purposes – such as providing road access, or providing

industrial uses that did not exploit the site's own water and rail

access.

      Third, even if the jury made those two inferential leaps, it

would      need    to    conclude   that    Paulsboro's      demand   in   2005   was

reflective        of    market   demand,    and   therefore    probative     of   the

property's value, in 2010.                 Authority witnesses addressed the

lasting negative impact of the 2008 recession on property values

in April 2010.            The witnesses contrasted the 2010 economy with

headier times before the recession, and the economic recovery by

the time of trial.

      Although not a basis for our decision, we also note that the

Burzichelli            certification       was    hearsay,     and,    apparently,

inadmissible.           The certification was an out of court statement,

offered for the truth of the assertion that the property was

essential to the redevelopment area.                 See N.J.R.E. 801(c).         The

                                            13                               A-2342-15T1
Authority ultimately hired Burzichelli ten years later,2 but there

is no evidence that when he made the statement in 2005, he did so

as an agent of the Authority, so as to qualify as a statement of

an agent of a party opponent.     See N.J.R.E. 803(b)(4).   We are

aware of no other exception to the hearsay rule that would have

enabled GRD to introduce Burzichelli's certification into evidence

for its truth. The fact that the document appeared to be certified

did not make it admissible, putting aside the non-compliance with

Rule 1:4-4.   See Jacobs v. Walt Disney World, Co., 309 N.J. Super.

443, 454 (App. Div. 1998) (stating that "factual assertions based

merely upon 'information and belief' are patently inadequate").

     In sum, applying the narrow scope of review applicable to

evidentiary rulings in civil trials, we discern no persuasive

grounds to set aside the jury's award and the        corresponding

judgment.

     Affirmed.




2
 We separately grant Gallenthin's motion (M-1601-17) to supplement
the record with evidence of Burzichelli's subsequent employment.

                                14                          A-2342-15T1
