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City of Asbury Park v. Jersey Urban Renewal

October 1, 2010

CITY OF ASBURY PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY AND CITY COUNCIL OF THE CITY OF ASBURY PARK, IN THE COUNTY OF MONMOUTH, PLAINTIFF-APPELLANT,
v.
JERSEY URBAN RENEWAL, LLC, DEFENDANT-RESPONDENT, AND BRITWOOD COURT, LLC, AMBOY NATIONAL BANK AND ASBURY PARK SEWER AUTHORITY, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2973-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 1, 2010

Before Judges R. B. Coleman, Alvarez and Coburn.

In this condemnation action, the plaintiff, City of Asbury Park, appeals from an order of judgment fixing just compensation and an order denying plaintiff's motion for new trial. Plaintiff asserts essentially three arguments on appeal: (1) the judge improperly precluded plaintiff's expert witness from testifying to information outside the scope of the expert's report; (2) the defense expert's testimony regarding project influence in Asbury Park from 1984 through 2000 was a net opinion; and, (3) the motion for new trial should have been granted. For the following reasons, we affirm.

The subject property in this case, identified as Block 159, Lot 26, is located at 212 Second Avenue, Asbury Park; it is one block west of the Atlantic Ocean's beaches, on the southerly side of Second Avenue between Kingsley and Bergh Streets (the Property). The Property is comprised of a 6,074 square foot lot, and is improved with an 11,994 square foot building with twenty developable units.

On February 26, 2003, defendant Jersey Urban Renewal, LLC, an entity consisting of Richard DePetro, Marshall Sigman, and Vincent Gifford, purchased the Property for $962,500. Defendant estimated that rehabilitation of the Property would cost $757,000. Previously, DePetro, an experienced real estate developer, had successfully completed a similar renovation project located near the Property, known as the Britwood.

Plaintiff filed a Verified Complaint and the Declaration of Taking with regard to the Property. On October 7, 2007, plaintiff acquired the Property by eminent domain in connection with the City's Waterfront Redevelopment Project (the Project). Just compensation for the Property was valued at $500,000 by plaintiff's appraiser, Dr. Donald Moliver. Thereafter, a hearing was held before court appointed condemnation commissioners and, on January 22, 2008, the commissioners valued the property at $868,000. Both parties appealed to the Law Division. In the Law Division, trial was conducted before Judge John R. Tassini and a jury over the course of seven days. At the conclusion of those proceedings, the jury returned a verdict in favor of defendant in the amount of $2,024,000. Judgment consistent with the jury verdict was entered on August 10, 2009, and thereafter amended on September 21, 2009.

Moliver served as plaintiff's expert with respect to Asbury Park property values and the value of the Property itself. He testified over the course of four days on topics that included, but were not limited to waterfront redevelopment; evaluation of the Property; photos of the Property and surrounding areas; developmental issues in the 1980s that affected property values in the City of Asbury Park; zoning of the Property; comparable sale analysis used in the evaluation of the Property; project influence on the Property; calculations and estimated value of the Property; and he compared the Property to the neighboring Britwood. Moliver concluded that the value of the Property was $500,000.

Plaintiff sought to elicit testimony from Moliver regarding project influence of the City's declaration of blight and subsequent efforts in Asbury Park between 1984 and 1994; however, defendant objected to such testimony:

Q: . . . Your graph only begins in 1995.

A: Right.

Q: What about all that data from the prior ten or eleven years?

A: Well, that data were [sic] not available by computer. I was able to get some data points, in excess of 100 -

[Defense Counsel]: Well, I am going to object to this. It's not included in any report provided to us. It is outside the scope of his expert report, which is limited to '95.

[Plaintiff's Counsel]: Your Honor, [defense counsel] was provided the data -

[Defense Counsel]: No, I wasn't.

[Plaintiff's Counsel]: Yes, you were after a commissioners' hearing that Dr. Moliver is referring to. ...


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