Before Judges Pressler, Kestin and Ciancia.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2000
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
This condemnation case requires us to address the question of whether and if so, the extent to which, the prospect of a future assemblage of the subject property with contiguous property owned by others in order to create a single integrated unit may affect the subject property's fair market value and hence the compensation for its taking that must be paid by the condemning authority. We hold that the reasonable probability of such an assemblage in the near future, as calculated from the taking date, may be found to enhance the value of the condemned property as of that date but that the property may not be valued by the finder of fact as if the assemblage had already then taken place. Because the testimony of the condemnee's expert misled the jury as to the effect of a prospective assemblage and the charge to the jury did not explain the significance and the proper use of prospective- assemblage evidence, we reverse the judgment entered in the condemnee's favor based on the jury verdict, and we remand for a new trial.
The facts relevant to our determination are largely undisputed. The subject property, owned by defendant Robert E. Hilton, is located in Long Branch and fronts on Ocean Avenue, directly across the street from the beach. It is approximately one-half acre in area and has a frontage of 104 feet. There was on the property on the date of taking, sometime between September 20 and October 3, 1996, *fn1 a large Victorian house built at the end of the nineteenth century, which had been converted into a five-family house and periodically updated and renovated. Defendant resided on the third floor and each of the first two floors had two occupied apartments. The property was a protected prior non-conforming use, the Long Branch zoning ordinance having been previously amended to place it in the RC-1 zone, which excludes single- family residences, imposes a one-acre and 200 front-foot minimum and lists, as permitted uses, various types of multi-family developments, including mid-rise structures not exceeding six stories, townhouses, and waterfront mixed residential uses. The ordinance also permits specifically enumerated commercial uses, including restaurants, outdoor dining establishments, retail food stores, professional offices, and financial, insurance, and real estate services.
Defendant's property is located at the northern end of Long Branch, a concededly less desirable area than the upscale southern end, known as the West End and Elberon sections. There are two multifamily residential developments in the West End section. One property, now known as the Renaissance, was purchased by its developers in 1997. It includes 87 residential units of mixed residential use, comprises 9.2 acres, and is located on the ocean side of Ocean Avenue and hence is waterfront property, not waterview property as is defendant's. The second, known as The Villas, on the site of the former Harbor Island Spa, was purchased by its developers in 1993. It includes 55 units of mixed residential development, comprises 5.4 acres, and is also waterfront property.
With respect to the immediate area of defendant's property at the time of taking, just to its south were three contiguous vacant lots, *fn2 each in separate ownership, and each non-conforming in both area and frontage. Immediately south of those three lots and occupying the balance of the block to its southerly corner were two mid-rise multifamily dwellings built in the 1980s. Immediately to the north of defendant's property was another vacant lot, and north of that lot and running to the northerly corner was a group of older houses that had also been converted to multifamily use. The purpose of the condemnation by plaintiff County of Monmouth was to enlarge its Seven Presidents Oceanfront Park by the addition of defendant's property and the three vacant lots to the south. We further note that although all four of these parcels were included in the complaint, the condemnation of defendant's parcel was tried separately, and the other three are not before us.
The report of the commissioners appointed by the court to value defendant's property assigned a fair market value as of the date of taking of $293,000. Defendant appealed to the Superior Court pursuant to R. 4:73-6, and a jury trial ensued, resulting in a verdict fixing fair market value at $310,000. The court, however, granted defendant's motion for a new trial, and the matter was then retried. Following the second trial, the jury found the fair market value of defendant's property as of the date of taking to be $600,000. Plaintiff appeals, challenging both the new trial order and the basis of the jury verdict in the second trial. While we affirm the new trial order for the reasons we hereafter set forth, we are satisfied that the jury verdict in the second trial was so tainted by error as to require its reversal and a remand for a third trial.
We review the evidence at trial in the context of fundamental principles of condemnation. First, it is clear that private property may be taken for public use only upon the payment of "just compensation." N.J. Const. art. I, ¶20. Just compensation in its most general terms means the fair market value as of the date of the taking determined by what a willing buyer and a willing seller, neither being under any compulsion to act, would agree to. See State v. Silver, 92 N.J. 507, 513-14 (1983) (further explaining that fair market value is "the value that would be assigned to the acquired property by knowledgeable parties freely negotiating for its sale under normal market conditions based on all surrounding circumstances at the time of the taking"). It is also well settled that in assigning fair market value, the 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. See, e.g., Ford Motor Co. v. Township of Edison, 127 N.J. 290, 301 (1992); State by Com'r of Transp. v. Hope Road Associates, 266 N.J. Super. 633, 641 (App. Div. 1993), certif. granted, modified by 136 N.J. 27 (1994). And "highest and best use" in turn is broadly defined as "'the use that at the time of the appraisal is the most profitable, likely use'" or alternatively, "'the available use and program of future utilization that produces the highest present land value'" provided that "use has as a prerequisite a probability of achievement." Ford Motor Co. v. Township of Edison, supra, at 300-01 (quoting Inmar Associates, Inc. v. Township of Edison, 2 N.J. Tax 59, 64-65 (Tax 1980). See also American Institute of Real Estate Appraisers, The Appraisal of Real Estate, 275, 280-282 (10th ed. 1992) (defining highest and best use as "the reasonably probable and legal use of an improved property which is physically possible, appropriately supported, financially feasible, and that which results in the highest value, i.e. most profitable").
Based on this general formulation, a four-prong test, routinely employed by the Tax Court in assessment determinations, has evolved by which highest and best use is determined. It is that use that is 1)legally permissible, 2)physically possible, 3)financially feasible, and 4)maximally productive. See, e.g., Entenmann's Inc. v. Totowa Borough, 18 N.J. Tax 540, 546 (Tax 2000); Schimpf v. Little Egg Harbor Tp., 14 N.J. Tax 338, 343-344 (Tax 1994); Chesterfield Associates v. Edison Tp., 13 N.J. Tax 195, 210, n.6 (Tax 1993), aff'd, 14 N.J. Tax 181 (App. Div. 1994); Unit. Jersey Bk. v. Lincoln Park Bor., 11 N.J. Tax 549, 567 (Tax Court 1991). Thus, highest and best use is determined not only by the applicable legal and physical constraints, but "by competitive forces within the market where the property is located." Schimpf v. Little Egg Harbor, supra, 14 N.J. Tax at 344. That is to say, "'[t]he proper determination of highest and best use requires a comprehensive market analysis to ascertain the supply and demand characteristics of alternative uses.'" Six Cherry Hill, Inc. v. Cherry Hill Tp., 7 N.J. Tax 120, 131 (Tax 1984), aff'd, 8 N.J. Tax 334 (App. Div. 1986) (quoting Barret, "A Restatement of Highest and Best Use," Real Estate Appraiser and Analyst, November-December 1979 at 8).
The sole witnesses at trial were plaintiff's expert appraiser, Kenneth L. Walker, and defendant's experts, John P. Brody, his expert appraiser, and Robert J. Gorski, an architect. Plaintiff's expert opined that the highest and best use of the subject premises was its continuation as a protected pre-existing non-conforming five-family dwelling. On this basis, he considered all three methods of valuation, namely, cost less depreciation, income production, and comparable sales, concluding, based on the data he described, that these methods yielded a value of $314,000, $295,000, and $246,000, respectively. Explaining his reasons for believing that the comparable sales method was most reliable, his opinion was that the fair market value of the property was $295,000. He also testified that he had considered the value of the property as vacant land and as part of a prospective assemblage with the three southerly lots and had concluded that market conditions, including the high vacancy rates of the two mid-rise buildings on the same block, interdicted another mid-rise as a possible highest and best use of a prospective assemblage of the four parcels. He opined that the highest and best use of such an assemblage would be either townhouse or restaurant use and had concluded, based on the data he recited, that the land value in that case would be less than the fair market value of the present use.
Defendant took an entirely different tack. First, he had Gorski lay out a proposed plan for a mid-rise building on the hypothetical four-lot assemblage. Gorski testified that by complying with all the bulk requirements and restrictions of the zoning ordinance, he had designed a building with 92 units on an assemblage of defendant's property and the three southerly vacant lots. As we further understand his testimony, he asserted that the zoning officer had informally confirmed to him the compliance of his plan with the zoning ordinance. No building permit had, however, been applied for and no site-plan approval sought. Brody, in turn, testified that the highest and best use of defendant's property was a mid-rise building containing 92 residential units. He then proceeded to appraise the as-vacant land value of the property as if an assemblage of the four lots had already occurred as of the date of taking and a 92-unit multifamily project met prevailing market conditions as well as the other definitional standards of highest and best use. By applying comparable sales data involving five other multifamily developments, four in Long Branch and one in Holmdel, and making a variety of adjustments, including a 400% percent adjustment for the density of the proposed 92-unit mid-rise, he then concluded that the fair market value of defendant's property as of the date of taking was $729,000. It is apparent that the jury gave considerable weight to Brody's evaluation by returning a verdict fixing the value at more than twice Walker's appraisal and only 20% less than Brody's.
We pass what we regard as significant flaws in Brody's analysis of his underlying data *fn3 because we regard the basic premise of his methodology as erroneous. In sum, we are persuaded that appraising the value of defendant's property as if a four-lot assemblage had already taken place as of the date of taking and then basing highest and best use on ...