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Thursday, June 21, 2012

BOROUGH OF SADDLE RIVER VS. 66 EAST ALLENDALE, LLC A-2886-10T3


BOROUGH OF SADDLE RIVER VS. 66 EAST ALLENDALE, LLC
 A-2886-10T3

In this condemnation case, we consider whether the trial
judge correctly made his threshold determination that "the
record contains sufficient evidence of a probability of a zoning
change to warrant consideration by the jury" in its assessment
of fair market value, as required by State, by Commissioner of
Transportation v. Caoili, 135 N.J. 252, 261-62 (1994).  We also
consider whether the judge erred by performing this gatekeeping
role before summations, rather than before the trial commenced.

 We conclude that the judge correctly determined there was
sufficient evidence of a reasonable probability of a zoning
variance.  Further, although it is preferable for a judge to
make the threshold determination prior to the commencement of
the trial, we do not read Caoili to require that the judge must,
in every case, conduct a pretrial plenary hearing.  Likewise, we
do not read the dicta in County of Monmouth v. Hilton, 334 N.J.
Super. 582, 592 (App. Div. 2000), that evidence of probable
change is considered by the jury "[i]f the judge is satisfied
that a preliminary showing has been made," to require a pretrial
hearing in every case.    

 Here, because the judge found that his probability
determination would have required testimony from five proposed
experts and a possible seven-day plenary hearing, the judge did
not abuse his discretion by making his findings before summations. 03-26-12