NEW JERSEY TRANSIT CORPORATION, AN INSTRUMENTALITY OF THE STATE OF NEW JERSEY, PLAINTIFF--APPELLANT,
EUGENE E. MORI, DEFENDANT--RESPONDENT, AND PNC WEALTH MANAGEMENT AND TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS
Argued September 11, 2013
Approved for Publication May 6, 2014.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1616-09.
Ryan P. Kennedy argued the cause for appellant ( Hill Wallack LLP, attorneys; Mr. Kennedy, of counsel and on the briefs).
William J. Ward argued the cause for respondent ( Carlin & Ward, P.C., attorneys; Mr. Ward and James M. Turteltaub, of counsel and on the brief; Scott A. Heiart, on the brief).
Before Judges FUENTES, SIMONELLI and FASCIALE.
[435 N.J.Super. 427] OPINION
This matter involves the valuation of approximately one acre of vacant land in the Township of North Bergen owned by defendant Eugene E. Mori and acquired by plaintiff New Jersey Transit Corporation (NJ Transit) through condemnation proceedings (the taking area). There is no dispute the taking area contains [435 N.J.Super. 428] navigable waters of the United States under the exclusive jurisdiction of the United States Army Corps of Engineers (ACOE).
NJ Transit claimed the taking area was wetlands, as determined by the ACOE, and valued it at $61,000. NJ Transit also argued there was no reasonable probability the ACOE would have granted a private developer the right to construct a two-story self-storage facility by obtaining a regulatory exemption known as a Section 404 permit. According to Mori's expert on land value, a two-story self-storage facility represented the property's best and highest use. Mori countered that the taking area was uplands valued at $858,000, and if wetlands, valued at $666,000 because there was a reasonable probability the ACOE would have granted a Section 404 permit for the proposed private development. The jury awarded Mori $425,000 plus interest without indicating whether it valued the taking area as wetlands or uplands.
NJ Transit appeals from the August 2, 2012 order of judgment, and from the denial of its motion in limine to bar Mori's
land value expert from testifying that the taking area was not wetlands, or if wetlands, there was a reasonable probability the ACOE would issue a Section 404 permit for the proposed development. As a threshold issue, we conclude the ACOE has exclusive jurisdiction to determine whether the taking area falls under the category of wetlands. The trial court thus erred in submitting this issue to the jury for its determination.
We also conclude it was error for the trial court to submit to the jury the question of whether the ACOE would have granted a Section 404 permit to a private developer without the court first conducting the gate-keeping function the Court ordered in Borough of Saddle River v. 66 East Allendale, LLC, 216 N.J. 115, 119, 77 A.3d 1161 (2013). Under these circumstances, the trial court was obligated to conduct an N.J.R.E. 104 pre-trial hearing to determine whether there existed sufficient evidence of a reasonable [435 N.J.Super. 429] probability the ACOE would have granted a permit for the proposed private development. Accordingly, we ...