Jersey Schools Construction Corporation v. David Lopez

In this condemnation action involving property located at



1501 Palisade Avenue, Union City, plaintiff, New Jersey Schools



Construction Corporation (plaintiff or SCC),1 challenges certain



rulings of the Law Division on in limine motions: (1)



determining that the value of the improvements to the property



made after the owner, defendant David Lopez, received a notice



of interest (NOI) letter from plaintiff are included in setting



just compensation; (2) excluding evidence attacking the validity



of variance and site plan approvals issued by the Union City



Zoning Board of Adjustment (Zoning Board); and (3) holding that



defendant had no obligation to inform the Zoning Board of his



receipt of the NOI letter. The case below focused on the



question of whether defendant and his agents had knowledge of



the imminent condemnation of the property, and with that



knowledge constructed a building on the property for the sole



purpose of enhancing the condemnation award. Following the



ruling on plaintiff's last in limine motion, memorialized in an



order of March 12, 2008, the parties negotiated a settlement,



which provided that plaintiff pay $1,825,000 as just



compensation for the property. As part of the settlement,



plaintiff reserved the right to appeal the Law Division's



interlocutory rulings, including the latest embodied in the



March 12, 2008 order. On April 25, 2008, the Law Division judge



entered a consent order for final judgment memorializing the



settlement, from which plaintiff now appeals.



Some background is in order. When defendant and his two



brothers bought the property in 1996, the structure that once



stood there had already been torn down. The plan was to erect a



new building, but in the meantime to use the lot for parking



spaces. So until construction of the new building commenced in



2003, the property was used as a parking lot. The Lopez



brothers' first attempt to develop the property was in November



1999, when the Union City Planning Board denied their



application to construct a three-story mixed



residential/commercial structure because a use variance from the



Zoning Board was required. The matter was abandoned for lack of



financing.



The next attempt in 2003 was more successful, eventually



resulting in a three-story structure consisting of a dental



office and four-car garage on the first floor, and four



apartments on the second and third floors. Each floor consisted



of 2500 square feet and the building covered one hundred percent



of the lot. Title was placed in defendant's name on April 24,



2003, in order to secure financing because he enjoyed the best



credit rating of the three brothers. Another brother, Daniel,



managed construction of the improvements to the property. The



third brother, Samuel, a licensed dentist, planned to reside at



the property and use the ground floor for his dental practice.



Their parents lived in a home next door.



An architect was hired in March 2003 and prepared site



plans dated May 22, 2003. On April 25, 2003, the Union City



Planning Board again rejected defendant's development



application because a use variance was required, and advised



that defendant must go before the Zoning Board. On April 30,



2003, defendant retained an attorney to prepare a zoning



application. On June 3, 2003, defendant applied for site plan



approval and variances for the property.



Defendant's property sits adjacent to the Christopher



Columbus Middle School, in the Union City School District



(School District), a designated "Abbott District." 2 On March 15,



1999, the facilities management plan for the School District,



which called for construction of a new school and acquisition of



other adjacent lots, did not contemplate use of the Lopez



property. However, a later plan, adopted at the December 6,



2002 meeting of the New Jersey Economic Development Authority,



did call for the use of defendant's lot. On December 18, 2003,



the Union City Board of Education approved the site acquisition



of adjacent lots, including defendant's, for construction of a



new school. On February 5, 2004, the Board of Education sought



the approval of the SCC, the State agency charged with the



responsibility of implementing the State's school construction



program under Abbott v. Burke, supra.



Meanwhile, on August 27, 2003, plaintiff wrote a NOI letter



to defendant at 1501 Palisade Avenue, stating that plaintiff was



considering the property for development of a school facility.3



It also stated: "This letter does not represent an offer on the



part of NJSCC to purchase your property, as no final decision to



acquire your property has been made at this time." The letter



indicated that plaintiff was seeking to exercise its right of



preliminary entry onto the property to conduct an engineering



and site feasibility investigation, which would include surveys,



soil sampling, underground storage tank investigations, and soil



borings.



After discussing the NOI letter with his attorney,



defendant was advised to proceed with the zoning application



because there were a number of such notices being sent around



and there was no way of knowing whether any legitimate



condemnation proceedings would evolve. The attorney did not



inform defendant that he had an obligation to disclose the NOI



letter to the Zoning Board. Architect Feld also saw the NOI



letter and did not advise defendant to stop construction.



On September 11, 2003, less than two weeks after receipt of



the NOI letter, defendant's application before the Zoning Board



proceeded to a public hearing, at which no objection was voiced.



The Board voted to approve the application with the proposed



variances.



4 On October 9, 2003, the Board passed a resolution of



findings and conclusions memorializing the approval.



On November 26, 2003, the Zoning Board granted a



construction permit for "footings only at owner[']s risk," with



$400,000 listed as the cost of construction. Building



Department plan review logs show that plumbing subcode review



was approved on November 21, 2003; building subcode review was



approved on April 15, 2004; and fire and electric subcode review



was approved on May 18, 2004.



In June 2004, the building was about eighty percent



completed. On October 26, 2004, defendant received condominium



certification from the Department of Community Affairs allowing



for the sale of five units at 1501 Palisade Avenue. The dental



office was completed with dental chairs, a phone line, special



hookups, an intercom system, piping, bathrooms, and a



handicapped ramp.



The Department of Environmental Protection gave plaintiff



approval for the school construction project some time in the



summer of 2004. On September 10, 2004, plaintiff made a formal,



written offer of $326,000 to defendant for 1 501 Palisade Avenue (called the "notice of intent to acquire"), claiming it



represented the total fair market value of the property, as



appraised by plaintiff's expert on May 26, 2004, with the



partially completed building. Defendant rejected the offer as



inadequate, but agreed to halt the final stages of construction



in exchange for the SCC filing a condemnation action and



updating its appraisal report.



On December 1, 2004, plaintiff filed a verified complaint



against defendant and four other entities appearing to have an



interest in the property: two apparent holders of mortgages, an



assignee/holder of a tax sale certificate, and Union City.



Plaintiff sought judgment that it was authorized to acquire the



property being condemned, and also sought an order appointing



commissioners to fix the compensation to be paid.



On December 2, 2004, an order to show cause was issued as



to why judgment should not be rendered appointing three



disinterested commissioners to fix the just compensation to be



paid for taking of the property. On December 17, 2004,



plaintiff filed a declaration of taking and deposited $326,000,



the amount it estimated was the value of the property, with the



court. On January 7, 2005, defendant was authorized to withdraw



the estimated value of the property that had been deposited.





Defendant's appraiser issued a report on February 1, 2005,



setting value of the property as of November 10, 2004, at



$2,250,000. Plaintiff reappraised the property to determine



value on the date the complaint was filed, determining that it



See N.J.S.A. 20:3-30. Plaintiff deposited that was $1,480,000.



amount, less $326,000 already paid to defendant, with the court



on February 4, 2005. On February 14, 2005, a final judgment



adjudicating SCC's authority to condemn the Lopez property and



appointing commissioners was entered. On February 15, 2005,



defendant moved to withdraw the deposited funds ($1,154,000,



plus interest), and on March 4, 2005, an order for the



withdrawal was issued. On March 10, 2005, the condemnation



complaint was dismissed without prejudice, so the case would



proceed to a hearing before the commissioners.



On February 26, 2006, plaintiff moved to exclude value



evidence of zoning approvals and related improvements to the



property for purposes of determining just compensation, arguing



bad faith on defendant's part. That motion was denied for want



of jurisdiction by order of May 8, 2006, determining that a



plenary hearing was necessary. After the parties agreed to



waive a commissioner hearing and proceed directly to a jury



trial, on February 28, 2007, an order was entered vacating the



appointment of commissioners.



Thereafter, defendant filed an in limine motion, seeking to



exclude evidence relating to the Zoning Board process and the



validity of the variance approvals issued for the property. The



Law Division judge, in an order of August 23, 2007, granted the



motion in part and denied it in part. The order precluded



plaintiff from attacking the validity of Zoning Board approvals



and the Zoning Board resolution pertaining to this property,5 but



allowed plaintiff to present evidence as to whether defendant



sought the approvals and made the subsequent improvements to the



property for the sole purpose of enhancing the condemnation



award, and whether defendant's actions constituted bad faith.



See State by Comm'r of Transp. v. F & J P'ship, 250 N.J. Super. 19, 26-27 (App. Div. 1991).



Plaintiff then re-filed its original in limine motion,



seeking to exclude evidence of the value of the improvements to



the property and zoning approvals for purposes of determining



just compensation. After four days of hearings, the judge



rendered an oral decision and order of March 12, 2008, denying



plaintiff's motion, finding that plaintiff failed to demonstrate



bad faith on defendant's part, and noting, in part, that "[a]t



no time did the State prior to the notice of intent indicate in



any way that it was going to use this site, that it was going to



select this site when in fact other sites had been considered



and rejected." The judge further concluded that whether the



Zoning Board should have granted approval, and whether there was



any collusion or inappropriate behavior by the Zoning Board or



other officials, were not issues properly before the court. The



matter was then set for trial to determine the issue of



valuation.



As noted, following entry of this order, the parties



negotiated a settlement, later embodied in a Consent Order for



Final Judgment, resolving the issue of just compensation at



$1,825,000, but preserving plaintiff's right to appeal the Law



Division's evidentiary rulings.6



Although this appeal is taken from the April 25, 2008



consent order "for final judgment[,]" it is directed at the



evidentiary rulings allowing proof of the value of improvements



to the property and zoning approvals to determine just



compensation and excluding evidence collaterally attacking the



validity of those municipal approvals. Those rulings, however,



did not effectively resolve plaintiff's action altogether. On



the contrary, the critical factual issue of valuation of the



condemned property remained for the jury to determine. As such,



the threshold issue presented by this appeal is whether the



April 25, 2008 consent judgment is appealable.



It is well-settled that interlocutory orders may be



challenged when final judgment is entered, and to be appealable,



as of right, a matter must be resolved in the trial court as to



all issues and all parties. Pressler, Current N.J. Court Rules,



comment 2.2.2 on R. 2:2-3 (2010) (citing e.g. Parker v. City of



Trenton, 382 N.J. Super. 454, 457 (App. Div. 2006)). See also



Grow Co. v. Chokshi, 403 N.J. Super. 443 (App. Div. 2008); Mango



v. Pierce-Coombs, 370 N.J. Super. 239, 245 n.1 (App. Div. 2004);



Caggiano v. Fontoura, 354 N.J. Super. 111, 123 (App. Div. 2002).



As we stated in Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545 (App. Div. 2007) (Janicky I):



Under R. 2:2-3(a)(1), an appeal as of right may be taken to the Appellate Division only from a "final judgment." To be a final judgment, an order generally must "dispose of all claims against all parties." "This rule, commonly referred to as the final judgment rule, reflects the view that 'piecemeal [appellate] reviews, ordinarily, are [an] anathema to our practice.'"



[Id. at 549-50 (internal citations omitted).]



It is equally clear than an "order . . . consented to by



the attorneys for each party . . . is . . . not appealable."



Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950); see also Pemberton v.



Pemberton, 41 N.J. Eq. 349 (E. & A. 1886); Janicky v. Point Bay



Fuel, Inc., 410 N.J. Super. 203, 207 (App. Div. 2009) (Janicky



II); O'Loughlin v. Nat'l Cmty. Bank, 338 N.J. Super. 592, 602



(App. Div.), certif. denied, 169 N.J. 606 (2001); DeAngelis v.



Rose, 320 N.J. Super. 263, 281 (App. Div. 1999). This is



because the rule allowing an appeal as of right from a final



judgment contemplates a judgment entered involuntarily against



the losing party. See Cooper Med. Ctr. v. Boyd, 179 N.J. Super. 53, 56 (App. Div. 1981). Thus,



[a] party may not seek appellate review of an adverse interlocutory order without seeking relief from the outcome of the litigation as embodied in the judgment. A litigant satisfied with the judgment cannot have an advisory appellate evaluation of an alleged interlocutory error.



[Magill v. Casel, 238 N.J. Super. 57, 62 (App. Div. 1990).]



Even where the so-called consent final judgment expresses a



party's desire to preserve appellate review, the practice is



disapproved of because it preempts the appellate court's



authority to decide whether to hear an interlocutory appeal and



it "'foist[s] jurisdiction'" upon the appellate court.



Caggiano, supra, 354 N.J. Super. at 124 (quoting CPC Int'l, Inc.



v. Hartford Accident & Indem. Co., 316 N.J. Super. 351, 366



(App. Div. 1998), certif. denied, 158 N.J. 73 (1999)). Indeed,



simply "'[b]y saying that he reserved the right to appeal, the



plaintiff cannot thereby make appealable an order otherwise



unappealable.'" Palmieri v. DeFaria, 88 F.3d 136, 141 (2d Cir.



1996) (quoting Evans v. Calmar S.S. Co., 534 F.2d 519, 522 (2d



Cir. 1976)).



There is, however, an exception to this general rule



against appealability where parties to a consent judgment



reserve the right to appeal an interlocutory order "by providing



that the judgment would be vacated if the interlocutory order



were reversed on appeal[.]" Janicky II, supra, 410 N.J. Super.



at 207. See also Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower



Project, L.P., 154 N.J. 141, 149 (1998); Capital Fin. Co. of



Del. Valley v. Asterbadi, 398 N.J. Super. 299, 307 (App. Div.),



certif. denied, 195 N.J. 521 (2008); Arias v. Figueroa, 395 N.J.



Super. 623, 627 (App. Div.), certif. denied, 193 N.J. 223



(2007); Pressler, Current N.J. Court Rules, comment 2.2.3 on R.



2:2-3 (2010) ("If, however, the consent judgment reserves a



single issue for appeal, the settlement of all other issues will



not preclude appeal of the trial court's order on the reserved



issue.").



Here, although the consent judgment does not expressly



provide that the judgment would be vacated if the interlocutory



orders at issue were reversed on appeal, such a proviso is



implicit in the consent final judgment and no party argues



otherwise. Indeed, defendant acknowledges that should we



reverse the evidentiary rulings and remand, then SCC would have



the opportunity to potentially recover the funds it already paid



out and which defendant has withdrawn. See N.J.S.A. 20:3-23.



In other words, defendant would not be entitled to retain the



approximately $1.4 million he already withdrew if unsuccessful



on this appeal. Moreover, the balance of the funds -- $325,000 --



remains on deposit with the court and awaits resolution of this



dispute on appeal. Consequently, unlike the plaintiffs in



Janicky II, supra, who were entitled to retain the amount



awarded regardless of the outcome of the appeal because the



consent judgment did not provide otherwise, 410 N.J. Super. at 207, here, the parties have an economic stake in a ruling by



this court as to the propriety of the trial court's evidentiary



rulings. In light of the pecuniary interest affected by the



judgment in question, there exists a justiciable controversy



between the parties and our resolution, therefore, will not



simply amount to an advisory opinion. See Howard Sav. Inst. v.



Peep, 34 N.J. 494, 499 (1961); Janicky II, supra, 410 N.J.



15 Super. at 208; see also N.J. Ass'n for Retarded Citizens v. N.J.



Dep't of Human Servs., 89 N.J. 234, 241 (1982).



Having found the consent judgment appealable, we proceed to



address the issues raised. Plaintiff's essential challenge is



to evidentiary rulings of the trial court on the issue of



valuation, which is pivotal in a takings case. Indeed, the



United States and New Jersey Constitutions provide that when



private property is taken by the government for public use, the



U.S. Const. amend. V; government must pay just compensation.



N.J. Const. art. I, � 20. The object of an eminent domain award



is to compensate the owner for loss of that property. State, by



State Highway Comm'r v. Gallant, 42 N.J. 583, 587 (1964). Just



compensation "'implies full indemnity to the owner.'" State, by



Comm'r of Transp. v. William G. Rohrer, Inc., 80 N.J. 462, 467



(1979) (quoting 4 Nichols on Eminent Domain � 12.21 at 12-86.1



(3d ed. 1978)). It is the property's fair market value on the



date of the taking that establishes the general measure of just



N.J.S.A. 20:3-30. Fair market value is compensation.



"determined by what a willing buyer and a willing seller would



agree to, neither being under any compulsion to act." State, by



Comm'r of Transp. v. Silver, 92 N.J. 507, 513 (1983).



Equally clear is that a trial judge's decisions about the



admission or exclusion of evidence are discretionary. Benevenga



v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif.



denied, 163 N.J. 79 (2000). In fact, "whether to admit evidence



of value in a condemnation case is 'liberally entrusted to the



sound discretion of the trial judge.'" State, by Comm'r of



Transp. v. Caoili, 262 N.J. Super. 591, 595 (App. Div. 1993)



(quoting N.J. Highway Auth. v. Rudd, 36 N.J. Super. 1, 3 (App.



Div. 1995)), aff'd, 135 N.J. 252 (1994). Thus, such exercises



of discretion "are entitled to respectful review under an abuse



of discretion standard." Serenity Contracting Group, Inc. v.



Borough of Fort Lee, 306 N.J. Super. 151, 157 (App. Div. 1997),



certif. denied, 153 N.J. 214 (1998). Measured by this standard,



we find no abuse of discretion in the trial court's evidentiary



rulings.



Plaintiff argues, to the contrary, that the value of



defendant's improvements should have been excluded from the



"just compensation" determination because defendant received



plaintiff's NOI and failed to disclose the receipt to the Zoning



Board. We reject this argument as unfounded. The NOI letter in



itself was not sufficient to convey an imminent intent to take



so as to trigger a duty either to disclose or abandon



development.



In Far-Gold Constr. Co. v. Borough of Chatham, 141 N.J.



Super. 164, 169 (App. Div. 1976), we noted that a borough's



adoption of resolutions expressing the desire to acquire a



property "for park purposes and authorizing applications for



state and federal funds with which to accomplish that . . .



result had no legal impact on the ownership, possession or use



of the . . . tract." We explained: "No option was created



thereby nor did it result in an actual, substantial destruction



of beneficial use. Those holding an interest in the property



were as free to deal with or dispose of it as they were before



the resolutions were adopted." Ibid.



In Rieder v. State, Dep't of Transp., 221 N.J. Super. 547,



555-56 (App. Div. 1987), we held similarly:



The object of the filing is to accord fair "notice to all persons of the system of highways proposed to be established by subsequent proceedings of condemnation." Bauman v. Ross, 167 U.S. 548, 597, 17 S. Ct. 966, 985, 42 L. Ed. 270, 291 (1897). The filing itself "does not restrict in any way the use or improvement of lands by their owners before the commencement of proceedings for condemnation . . ., nor does it limit the damages to be awarded [in the event of] such proceedings." Ibid.



So too, in Kingston E. Realty Co. v. State, 133 N.J. Super. 234,



240 (App. Div. 1975), we held that a property owner may continue



to utilize and develop its property even though it is aware of



plans for public acquisition, and noted that "[t]he mere



plotting and planning in anticipation of condemnation without



any actual physical appropriation or interference does not



constitute a taking . . . ." Id. at 239.



Indeed, this principle was recognized as early as 1873 in



State v. Carragan, 36 N.J.L. 52, 54 (Sup. Ct. 1872), where the



court held that a property owner was entitled to compensation



for improvements erected in the right of way of a proposed



future street because the planned public acquisition was



uncertain when the improvements were erected. Significant,



however, for present purposes, the court also stated that "[i]f



the improvements should be made in bad faith, with intent to



throw an undue burthen on the public, another element would



enter into the consideration of the question, which might



perhaps produce a different result." Ibid.



Thus, in F & J P'ship, supra, 250 N.J. Super. at 26, we



upheld the exclusion of evidence of zoning approvals for a



condemned property based on findings that the property owner had



knowledge of an impending condemnation, and with that knowledge,



obtained the approvals for the sole purpose of enhancing the



condemnation award. We concluded that the trial court was



correct to exclude evidence of value based on those approvals



because the improvements were made in bad faith. Id. at 27.



The California Court of Appeals also drew the same



distinction in Escondido Union Sch. Dist. v. Casa Sue�os De Oro,



Inc., 29 Cal. Rptr. 3d 89, 106 (Cal. Ct. App. 2005). In holding



the cut-off date for work on a compensable improvement when the



property owner gains knowledge of impending condemnation



proceedings to be the day the owner is served with the



condemnation complaint, the court explained:



[T]he plans of a governmental agency to condemn land for a public use often are delayed or do not come to fruition. Therefore, requiring property owners to stop all work on a project as soon as they learn that a governmental agency may possibly condemn their land does not strike us as just or fair. Absent bad faith, such a restriction on a property owner's use of his or her land based on a mere possibility of government action would be an undue deprivation of property rights.



[Id. at 106-07 (emphasis added).]



The court stated that the applicable standard is whether



the property owner acted in bad faith, that is, "conduct that is



not consistent with 'the natural, ordinary, and legitimate use



of real property,' but rather is conduct undertaken 'for the



sole purpose of enhancing the damages to be recovered in an



Id. at 107 (quoting State ex rel. eminent domain action.'"



Herman v. Schaffer, 515 P.2d 593, 600 (Ariz. 1973)). Indeed,



"[g]ood faith has been equated with what an ordinarily prudent



businessman would do under similar circumstances, and with the



natural, ordinary, and legitimate use of the property."



Annotation, Eminent Domain: Recovery of Value of Improvements



Made with Knowledge of Impending Condemnation, 98 A.L.R.3d 504,



517-18 (1980) (footnotes omitted). One commentator has stated:



[T]here comes a time when a condemnee should not be able to improve his or her property and receive compensation from the condemnor for such improvements. If this were not the case, an unscrupulous owner could improve the property for the sole purpose of increasing the compensation due from the condemnor. Such improvements would be made in bad faith and not in the course of an ordinary and legitimate use of the property. Improvements are made in bad faith if they are not made in the natural, ordinary and legitimate use of real property, but are made for the sole purpose of enhancing the damages to be recovered in an eminent domain proceeding.



[4 Nichols on Eminent Domain � 13.12[3] at 13-108 to -109 (3d ed. 2002) (footnotes omitted).]



Here, the trial judge's evidentiary ruling not to exclude



proof of the value of the property's improvement was in



accordance with relevant law and her predicate findings of lack



of bad faith were supported by sufficient credible evidence in



the record. We therefore perceive no error in the court's



determination.



Nor was it error to disallow the entire transcript of the



Zoning Board hearing into evidence. Significantly, the judge



did not exclude all evidence of conduct before the Zoning Board,



especially as it related to the applicable standard of whether



defendant sought approvals and developed his property for the



sole purpose of enhancing the compensation award. In any event,



the validity of that proceeding had never been directly and



See R. 4:69-1. We, therefore, find no properly challenged.



"palpable abuse of discretion" in the court's ruling. Brenman



v. Demello, 191 N.J. 18, 31 (2007) (citing Green v. N.J. Mfrs.



Ins. Co., 160 N.J. 480, 492 (1999)).



We also find, under present circumstances, no error in the



evidentiary rulings based on defendant's breach of a claimed



duty of disclosure. While perhaps a factor in the "bad faith"



determination, it is not, in our view, dispositive of the



evidentiary issue. Indeed, plaintiff cites no authority



compelling disclosure of receipt of a NOI letter to a local



zoning board. Here, the NOI letter did not necessarily indicate



a taking and plaintiff's formal offer did not occur until well



after the Zoning Board proceeding.7



The present matter is unlike F & J P'ship, supra, where the



Department of Transportation (DOT) sent plans in November 1987



to the engineering firm hired by the principals of F & J showing



it intended to acquire five acres of F & J's property for a



road-widening project. 250 N.J. Super. at 25. The trial judge



in F & J P'ship found that the principals of F & J "understood



after their March 23, 1988 meeting with DOT officials that the



Nevertheless, they failed property would be condemned." Ibid.



to reveal the anticipated condemnation to the Board of



Adjustment at the May 19, 1988 hearing on their site plan



application for a hotel and restaurant. Ibid.



While we concluded that the property owners in that case



might not have obtained site plan approval if they had made a



full and accurate disclosure to the Board of Adjustment, our



conclusion rested on the fact that the property owners acted in



bad faith. We stated:



[E]ven if F & J had made full disclosure to the Board and obtained site plan approval, evidence of the approval would nevertheless have been inadmissible because the record supports the trial court's finding that F & J's sole purpose in pursuing its application was to enhance the award in the anticipated condemnation action.



[Id. at 29-30.]



Here, unlike the property owners in F & J P'ship, supra,



the proof establishes that defendant had no knowledge, much less



confirmation, of any impending taking of his property. The NOI



letter, although part of the process in determining whether a



taking may be appropriate, hardly connotes imminent or final



action since the SCC may very well have decided not to go



forward with the condemnation.8 Indeed, the condemnation



complaint in this matter was not filed until fifteen months



after receipt of the NOI letter and the Zoning Board approvals.



Under present circumstances, given the passage of so much time,



the absence of bad faith as found by the motion judge, and its



lack of relevance to any of the N.J.S.A. 40:55D-70 criteria for



assessing whether variances should issue, we agree with the Law



Division that no adverse consequence befalls defendant for not



disclosing the NOI letter to the Zoning Board.



* * *



See:

Affirmed.