STATE OF NEW JERSEY, by the DEPARTMENT OF ENVIRONMENTAL PROTECTION VS. BAY HEAD IMPROVEMENT ASSOCIATION (L-2904-17, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2413-19

STATE OF NEW JERSEY,
by the DEPARTMENT OF
ENVIRONMENTAL
PROTECTION,

Plaintiff-Respondent,

v.

BAY HEAD IMPROVEMENT
ASSOCIATION,

Defendant-Appellant.
__________________________

Argued June 21, 2021 – Decided July 12, 2021

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-2904-17.

Peter H. Wegener argued the cause for appellant
(Bathgate, Wegener & Wolf, PC, attorneys; Peter H.
Wegener, of counsel and on the briefs; Daniel J.
Carbone, on the briefs).

Jason M. Hyndman argued the cause for respondent
(Decotiis, Fitzpatrick, Cole & Giblin, LLP, attorneys;
 George G. Frino, of counsel; Jason M. Hyndman, on the
brief).

PER CURIAM

As part of the Manasquan Inlet to Barnegat Inlet storm damage reduction

project (the project), the State of New Jersey, Department of Environmental

Protection (plaintiff or DEP) took an easement over beachfront property owned

by Bay Head Improvement Association (defendant or BHIA). The court-

appointed commissioners valued the property and fixed just compensation at

more than $2 million. A jury determined defendant was entitled to zero

compensation for the taking, finding the property plaintiff offered as a substitute

was similar to what plaintiff had taken and enhanced the value of defendant's

remainder property, because it was larger and had greater storm protection.

Defendant was unsuccessful on its motions for judgment notwithstanding the

verdict (JNOV) and a new trial.

On appeal, defendant argues that the judge improperly permitted the jury

to consider whether defendant mitigated its damages, the evidence did not

comply with the requirements of State, by Comm'r of Transp. v. Weiswasser,

149 N.J. 320, 330 (1997), and the evidence did not support the verdict.

We are unpersuaded by these contentions and affirm.

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 I.

We reject defendant's argument that the judge erred by permitting the jury

to consider the doctrine of mitigation of damages because—as defendant points

out—it was not seeking severance damages. We conclude that even though

defendant did not explicitly seek severance damages, the judge correctly

instructed the jury to consider mitigation because the evidence supported a

finding that the condemnation was a partial taking and the remnant retained

some value.

The judge instructed the jury that defendant was entitled to just

compensation—the difference between the fair market value (FMV) of

defendant's property before and after the taking. Additionally, the judge

instructed:

[I]n determining the [FMV] of the taking[,] you must
consider the property owner's duty to mitigate damages
resulting from the taking by applying a cost to cure
analysis to the computation of damages. Under this
analysis you must consider evidence of availability and
use of similar replacement property when under all of
the surrounding circumstances such property would
reasonably affect the [FMV] of the property. . . .
Accordingly, both parties' appraisers have concluded
that the highest and best use for these properties is for
beach recreation.

What is critical in a cost to cure evaluation is not
whether a property owner may be compelled to acquire

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a substitute property[,] but whether under all of the
surrounding circumstances reasonable and willing
parties would consider . . . the availability and use of
such property as bearing on the market value of the
owner's remaining property. . . . The threshold issue in
the analysis of cost to cure mitigation is the
comparability of the replacement property. That is the
extent to which the replacement property is sufficiently
similar to the property taken. The similarity of such
property bears on whether it may be considered useful
and available in conjunction with the remainder
property. The similarity of the property in this context
requires the jury to evaluate not only the location and
the physical characteristics of the property as the
proposed substitute property but you as jurors . . . also
evaluate the ownership interest and the quality of the
title to the property being offered as a substitute
property as that property taken from [defendant]. The
basic issue that you must evaluate is whether it is
reasonable and fair to consider the proposed property
as an adequate substitute for the property taken. The
cost to cure measure of damages is . . . applicable only
when the replacement property would totally cure the
damage caused by the condemnation to that portion of
the land not condemned. The evidence must show that
[defendant] will be as well off with the replacement
land as it was with the land it lost prior to the actual
taking. The issue of similarity of replacement property
is primarily factual. The degree of similarity is relevant
to the issue of whether under all of the circumstances
[it is fair] for [defendant] to accept the nature and the
quality of the property being offered as substitute
property it lost through the imposition of the [S]tate's
easement.

In the event the jury determines that the property
proposed as substitute by [plaintiff] is similar to the
property lost by [defendant,] the jury must then go on

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 to consider under all of the surrounding circumstances
whether the substitute property would reasonably affect
the [FMV] of the remainder of property.

In deciding defendant's motion for a new trial, the judge acknowledged

that defendant had not sought severance damages, but instead, had requested a

finding that the property was a worthless economic remnant. The judge noted

that defendant's expert considered the property after the taking to be worth

$350,000, and, therefore, not worthless. The judge also expressed that the

substitute land offered to defendant was beachfront property that had been

created by the project's distribution of "hundreds of thousands of tons of sand"

that had "redefined the shore-line" and shifted the water's edge in an easterly

direction.

Fair compensation for the value of property taken pursuant to

condemnation is the difference between the value of the parcel before the taking

and the value of the remainder after the taking. State, by Comm'r of Transp. v.

William G. Rohrer, Inc., 80 N.J. 462, 464 (1979). Where a partial taking has

drained the property of all economic worth, the result is the creation of an

"uneconomic remnant." Id. at 464-65. "If as a result of a partial taking of

property, the property remaining consists of a parcel or parcels of land having

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little or no economic value, the condemnor, in its own discretion or at the request

of the condemnee, shall acquire the entire parcel." N.J.S.A. 20:3-37.

When the State takes private property for a public
purpose under the provisions of the Eminent Domain
Act of 1971, the property owner is entitled to just
compensation. Where the whole of a property is taken,
the measure of damages is the [FMV] of the property as
of the date of the taking, determined by what a willing
buyer and a willing seller would agree to, neither being
under any compulsion to act.

....

[W]here only a portion of a property is condemned, the
measure of damages includes both the value of the
portion of land actually taken and the value by which
the remaining land has been diminished as a
consequence of the partial taking. The diminished
value of the remaining property constitutes the
severance damages visited upon that property as a
result of the taking.

[State, by Comm'r of Transp. v. Silver, 92 N.J. 507,
513-14 (1983) (citations omitted).]

New Jersey courts have used two methods to compute severance damages.

Id. at 514. One method is to take the market value of the land taken, plus the

difference in FMV before and after the taking of the remainder area. Ibid. The

other method is to take the difference between the FMV of the entire tract before

the taking and the value of the remainder area after the taking. Ibid.

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 FMV is the value assigned "by knowledgeable parties freely negotiating

. . . under normal market conditions based on all surrounding circumstances at

the time of the taking." Ibid. A determination of FMV requires a finding as to

the "highest and best use of the property." State, by Comm'r of Transp. v. Hope

Rd. Assocs., 266 N.J. Super. 633, 641 (App. Div. 1993). "Highest and best" use

is "[t]he reasonably probable and legal use of . . . an improved property, which

is physically possible, appropriately supported, financially feasible, and that

results in the highest value." Id. at 641-42 (alterations in original) (citing

Chevron U.S.A., Inc. v. City of Perth Amboy, 10 N.J. Tax, 114, 145 (1988)).

In Weiswasser, the Court held that a condemnee seeking severance

damages in a partial condemnation case has a duty to mitigate damages resulting

from the taking by applying a "cost to cure" analysis to the computation of

damages in a partial taking. Weiwasser, 149 N.J. at 330 (citing 4A Nichols on

Eminent Domain § 14A.04 (3d ed. rev. 1997)). To determine just compensation

and whether a condemnee has properly mitigated damages in a partial taking

condemnation case, evidence may be admitted regarding the "availability and

use of similar replacement property, when, under all of the surrounding

circumstances, such property would reasonably affect the [FMV] of the

remainder property." Id. at 337-39. The Weiswasser Court considered other

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jurisdictions' determinations regarding requiring a condemnee to accept

substitute property instead of monetary compensation. Id. at 331-34, 343.

Nevertheless, [the FMV analysis] is not one which is
mandated in every condemnation matter. Where the
property involved has a single special use by virtue of
controlling ordinances or covenants, it is within the
power and discretion of the factfinder to utilize other
approaches which may be more realistically applicable
to the unusual circumstances.

So long as the determination is rational, is supported by
the evidence, and constitutes the "just compensation"
mandated by the New Jersey Constitution, the means of
arriving at such determination may be varied and
flexible, dependent upon the character and use of the
property involved.

[Middlesex Cnty. v. Clearwater Vill., Inc., 163 N.J.
Super. 166, 173 (App. Div. 1978) (citation omitted).]

In Jersey City Redevelopment Agency v. Kugler, 58 N.J. 374, 383-84,

(1971) (citing United States v. Cors, 337 U.S. 325, 332 (1949)), the New Jersey

Supreme Court stated:

There is no precise and inflexible rule for the
assessment of just compensation. The Constitution
does not contain any fixed standard of fairness by
which it must be measured. Courts have been careful
not to reduce the concept to a formula. The effort has
been to find working rules and practical standards that
will accomplish substantial justice such as, but not
limited to, market value.

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 Construction of a dune for purposes of shore protection is, by definition,

a benefit to oceanfront property owners. Borough of Harvey Cedars v. Karan,

214 N.J. 384, 414 (2013).

A different method of compensation is used when the condemnation

involves a taking of public lands. State, by Comm'r of Transp. v. S. Hackensack

Twp., 65 N.J. 377, 383-84 (1974). In such circumstances, the property may be

valued under the substitute facilities doctrine. Ibid. This method is based upon

the "inadequacy and incongruity of a monetary award as compensation for" the

condemnation of public property. Id. at 383. In such cases, "just compensation

should take, not the form of market value, but rather the cost of replacing the

facility with a substitute or replacement." Id. at 383-84.

The condemnor must furnish "an adequate, substantially equivalent

substitute facility" but it does not need to be "an exact duplicate of what has

been taken." Id. at 385. To apply the substitute facilities doctrine, the

condemnee must be a municipality or some other agency of government. Ibid.

In Matthews v. Bay Head Improv. Assoc., 95 N.J. 306 330 (1984), the

New Jersey Supreme Court found as follows with respect to defendant:

The Association's activities paralleled those of a
municipality in its operation of the beachfront. The size
of the beach was so great that it stationed lifeguards at
five separate locations. The beach serviced about 5,000

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 members. The lifeguards performed the functions
characteristic of those on a public beach. They posted
warnings with respect to the safety of swimming. They
stood ready to render assistance to anyone in need of
aid. These guards were available daily throughout the
summer months. The beach was maintained and kept
clean by crews who worked each day. These crews
cleaned the beach from end to end, including properties
not leased to the Association. Membership badges were
sold and guards were stationed at entrances to the beach
to make certain that only those licensed could gain
admittance. Further, some guards patrolled the beach
to make certain that members and guests complied with
the Association's rules and regulations. When viewed
in its totality—its purposes, relationship with the
municipality, communal characteristic, activities, and
virtual monopoly over the Bay Head beachfront—the
quasi-public nature of the Association is apparent.

Defendant argues that even though the judge acknowledged defendant had

not requested severance damages, it nonetheless believed it was constrained by

Weiswasser to permit the jury to consider mitigation of damages. This was

incorrect, according to defendant, because the taking was total, thereby

rendering the remainder an uneconomic remnant. In fact, the remainder land

where the dune was constructed was merely a walkover to the beach that could

not be used or occupied. Because it maintained that the taking was total and not

partial, defendant never requested severance damages, and therefore, defendant

contends the judge should not have permitted the jury to consider whether its

damages were mitigated.

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 Plaintiff responds that defendant's argument rests on "simultaneously

accepting the contradictory positions" that on the one hand, the 2.93 acres

encumbered by the easement and the 2.37 acres of unencumbered land lost all

economic value, and, on the other hand, that there was no severance damage to

the remainder. Plaintiff also asserts that even if defendant did not explicitly

request severance damages, it did, in fact, pursue those damages. This is

because the easement encumbered only 2.93 acres of the 5.30 acres of land, but

defendant's own appraiser valued the entirety of the properties and reduced the

value of the property from $20 to $2 per square foot, including the 2.37 acres of

unencumbered land. This, according to plaintiff, essentially established

defendant's claim for severance damages.

We disagree with defendant's characterization of the remainder property

as an uneconomic remnant. As the judge noted, Graziano valued the property

after the taking as having an FMV of $350,000. Graziano considered the price

per square foot after the taking to have been reduced from $20 per square foot

to $2. Although this represents a significant decrease, based on defendant's own

calculations, we nevertheless do not agree that the remainder property had no

economic value.

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 Because the remainder was not an uneconomic remnant, the taking was

partial and not total. Thus, despite the fact that defendant did not formally

request severance damages, the judge correctly instructed the jury to consider

mitigation. Weiswasser stands for the proposition that where there is a

remainder property that retains value, the defendant must mitigate damages. 149

N.J. at 337-39. Weiswasser does not require a defendant to request severance

damages in order for mitigation to apply.

When determining whether jury instructions were erroneous, the question

is whether the charge was clearly capable of producing an unjust result. Prioleau

v. Ky. Fried Chicken, Inc., 223 N.J. 245, 257 (2015). Instructions given in

accordance with the model charge, or which closely track the model charge, are

generally not considered erroneous. Mogull v. CB Commercial Real Est. Grp.,

Inc., 162 N.J. 449, 466 (2000). Here, the judge instructed the jury on whether

the substitute property would affect the FMV of the remaining property.

Moreover, the judge's instruction closely tracked Model Jury Charges (Civil),

"Condemnation—Partial Taking (Severance Damages)" (approved Apr. 1996).

Therefore, even if the judge did not explicitly use the term severance damages

in his instructions, and even if defendant did not specifically request those

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damages, the judge clearly instructed the jury about them. We do not believe

the charge as a whole was capable of producing an unjust result.

Defendant argues that the judge erred by allowing plaintiff to present a

substitute facilities theory under the guise of mitigating damages. We disagree.

The analysis of mitigation in Weiswasser requires consideration as to whether

substitute property offered by the condemnor is similar and adequate to cure the

loss caused by the condemnation. Weiswasser, 149 N.J. at 337-39. Thus, to

properly analyze whether damages were mitigated requires an analysis of the

substitute property offered. However, as noted, the substitute facilities doctrine

espoused in Hackensack is only available for the condemnation of public lands.

65 N.J. at 383-85.

Here, the judge was very clear that the substitute facilities theory was not

applicable because defendant was not a public entity, but instead a private non -

profit corporation. We do not agree with defendant that the judge permitted

plaintiff to present a substitute facilities argument under the guise of mitigating

damages. The judge's instructions were clearly in conformance with the

mitigation theory of Weiswasser and not with the substitute facilities theory of

Hackensack.

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 II.

"Determining the [FMV] of a parcel is not a science, but rather it involves

an estimation based on a number of variables." Borough of Merchantville v.

Malik & Son, LLC, 429 N.J. Super. 416, 433 (App. Div. 2013) (quoting City of

Asbury Park v. Asbury Park Towers, 388 N.J. Super. 1, 9 (App. Div. 2006)).

"Where . . . no part of the land is taken in fee, but only a limited interest in the

land, the measure of the owner's damages is the difference in the [FMV] of the

property before and after the taking." Tenn. Gas Transmission Co. v. Maze, 45

N.J. Super. 496, 501-02 (App. Div. 1957). "To segregate the owner's loss by

way of the diminution of the value of the fee in the easement strip itself . . .

would ordinarily be impracticable[.]" Id. at 502.

"[C]ost to cure and replacement cost are not of themselves precise

mathematical measures of damages, but they are useful evidence and tools in

arriving at a proper award." Weiswasser, 149 N.J. at 334 (citation omitted). The

similarity of replacement property "bears on whether it may be considered useful

and available in conjunction with the remainder property. The basic issue is

whether it is reasonable and fair to consider that property as a substitute for the

property taken." Id. at 336.

The issue of the similarity of replacement property is
primarily factual. The degree of similarity is relevant

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 to the issue of whether under all of the circumstances it
would be reasonable for the condemnee to accept
property that is available and contiguous to the
remainder property as a suitable substitute or
replacement for the property taken when that will
reduce or eliminate the damages to the remainder
property. It is an issue that can be presented readily
through testimony and evidence, including the opinions
of experts, and determined by the fact-finder.

Accordingly, we now hold that a condemnee seeking
severance damages in a partial-taking condemnation
action has a duty to mitigate those damages. The court
may consider evidence of the availability and use of
similar replacement property, when, under all of the
surrounding circumstances, such property would
reasonably affect the [FMV] of the remainder property.
Such evidence may be used in mitigation of damages in
determining just compensation in a partial-taking
condemnation case.

[Id. at 337.]

Defendant distinguishes Weiswasser because, there, the State offered

substitute property with a fee simple interest. Here, the substitute property

offered by the State was not in fee simple. In essence, defendant argues that

plaintiff's proposed riparian easement did not under "all of the surrounding

circumstances" reasonably affect or enhance the market value of the remainder

property. This is because prior to the taking, defendant owned the property in

fee simple and now owns it subject to the storm damage reaction easement

(SDRE).

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 But Weiswasser does not require that ownership rights in the condemned

property and the substitute property be equivalent. Ibid. Rather, the Court

requires consideration of "the availability and use of similar replacement

property, when, under all of the surrounding circumstances, such property would

reasonably affect the [FMV] of the remainder property." Ibid. The FMV of the

remainder property is not exclusively a matter of ownership interest.

In fact, it was the province of the factfinder to determine whether the

property offered by plaintiff was an adequate substitute to cure the loss from the

condemnation. The jury heard Graziano's testimony that the ownership interests

had changed, and the riparian easement and tidelands license were worthless.

The jury also heard Graziano's hypothetical analogy of "[y]ou can live in my

house, [and] give me your house." The jury considered all the circumstances

and found that the substitute property was reasonable. This factual finding is

supported by evidence in the record.

Defendant argues that, at a pretrial hearing, plaintiff stated it would set

forth through its expert testimony evidence that there was still a market for the

underlying fee. According to defendant, Brodowski did not introduce evidence

of the market value for the underlying fee. In fact, defendant argues, the

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underlying fee can no longer be transferred, and its property now has virtually

no marketable value.

It is true that at the pretrial hearing plaintiff stated it would set forth

evidence of the market value for the underlying fee. Brodowski provided

evidence of the value of the entire tract before and after the taking.

Nevertheless, she acknowledged the scarcity of evidence for this type of

appraisal because most vacant beach land is owned by a municipality, and

because there are few comparable sales for properties before and after placement

of a dune. In any case, both experts provided evidence of the value of the

property, and this was sufficient to comply with the requirement in Weiswasser

to determine "the availability and use of similar replacement property, when,

under all of the surrounding circumstances, such property would reasonably

affect the [FMV] of the remainder property." 149 N.J. at 337.

According to defendant, continued operation of the beach does not

mitigate its losses and is not relevant to a determination as to the value of the

remaining property. Instead, defendant argues that plaintiff should be required

to pay just compensation for the property taken, or the difference between the

before and after value as determined by the jury as $1,961,700.

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 Defendant is a non-profit which operates the local beaches. Defendant

has never sold any of its property, but instead is dedicated to providing public

access to the beach for the benefit of the Bay Head community. The jury's

finding that defendant's damages were mitigated was based on competent

evidence in the record.

Defendant notes in a footnote that the judge did not address the issues

raised in the motion for the new trial, but, instead, deferred to the Appellate

Division for guidance. Rule 2:6-2(a)(5) does not permit arguments to be raised

in the footnote of a brief. Almog v. Israel Travel Advisory Serv., Inc., 298 N.J.

Super. 145, 155 (App. Div. 1997). Nevertheless, because the judge requested

guidance from this court, we will provide some brief remarks.

During oral argument on the motion for a new trial, the judge raised a

concern that defendant was receiving substitute property with inferior ownership

quality (because it was less than a fee simple, as a result of the easement) and

with less control (because defendant was not permitted to use the area where the

dune was constructed). The judge also expressed concern as to whether the jury

should determine whether substitute facilities are adequate when there is a

change in the title and quality of ownership, or whether that should be

determined by the judge, as a matter of law.

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 The judge noted that in other beach litigation currently before New Jersey

courts, the parcels contain residences, and the jury must determine if the benefit

from the beach improvement project offsets the loss to the property owners. But

here, the property had no residence and instead was entirely beach front and

used for public recreation. Thus, the judge requested guidance from this court

as to whether an alteration in the title should prevent the jury from evaluating

whether the substitute property is substantially similar. The judge suggested

that if a similar matter arose in the future, a trial judge could make a preliminary

determination as to whether the quality of the title is similar, and the jury could

thereafter determine whether the usage and functioning of the property provides

an adequate remedy.

However, in State v. 1 Howe St. Bay Head, 463 N.J. Super. 312, 345 (App.

Div. 2020), we addressed a similar easement, and the court determined that "it

was reasonable for the appraisers to conclude the properties would be more

valuable after the condemnation because the Project overall would enhance

shore protection for the entire area." The quality of ownership of the parcel was

not the main consideration, but rather the judge considered the benefit to the

shore as a whole. Also, State v. N. Beach 1003, LLC, 451 N.J. Super. 214, 233-

39 (App. Div. 2017), stands for the notion that DEP, for purposes of shore

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protection, may take a perpetual easement and is not required to take a fee

simple. Even though the perpetual easement in that case, similar to the SDRE

here, impacted the fee simple ownership of the condemned land, this court

approved of the appraiser's valuation of the condemned property. Id. at 245.

We did not require the factfinder to make a separate determination as to how the

change in ownership affected the value of the condemned land. Ibid.

It is a factual determination for the jury whether the substitute property is

adequate, and part of that determination might be the change in ownership. The

key issue is not whether there is a residence benefiting from the shore protection,

because, in fact, the whole shore benefits from the project. Ibid. In our view, it

would be reasonable for the trial judge to explain to a jury the meaning of terms

used for describing ownership such as "easement" and "fee simple." However,

our case law establishes that the ultimate factual determination as to whether the

substitute property mitigates damages is a fact question for the jury.

III.

Next, defendant argues the judge erred by permitting the jury to consider

whether the substitute property interests offered by plaintiff mitigated its

damages.

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 In ruling on a pretrial application, the judge agreed that defendant was not

a public entity, and therefore, the substitute facilities theory espoused in

Hackensack did not apply. The judge determined that defendant was a private

non-profit corporation, notwithstanding the Supreme Court's findings in

Matthews.

As noted, the judge instructed the jury to determine whether the property

interest offered by plaintiff was an adequate substitute for the property taken,

and whether the replacement property would "totally cure the damage caused by

the condemnation."

At oral argument on the motion for a new trial, the judge noted that had

he been the finder of fact, it might have found differently than the jury because

the level of ownership in the property changed as a result of the SDRE.

Nevertheless, the judge concluded that the adequacy of the substitute property

was a factual determination for the jury, and here, the jury verdict was supported

by the evidence.

In deciding the motion for a new trial, the judge stated:

Substitute property is not to be evaluated in terms of
worthiness for an in-kind exchange for the land which
was taken through condemnation. The availability of
substitute property is strictly a "cost to cure" analysis.

....

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 Comparability of substitute land requires the fact finder
to undertake an evaluation of the before and after utility
of the property in the condition once the substitute
property has been acquired by the condemnee. Because
the alternate property is a substitute by definition, it is
not the same. No two properties will ever be the same,
however, the fair and reasonable consideration of a
substitute requires a broader evaluation. Does the
substitute property remedy the damage suffered by the
remainder from the taking? Does the substitute
property permit the remainder to function in its highest
and best use as it would have prior to the taking? The
perception that no two parcels of real property are alike
does not call for the reflexive and rigid rule that
evidence of replacement property must be equated with
the forced acquisition of the property.

The parties did not appeal the judge's determination that the substitute facilities

doctrine did not apply. Nevertheless, defendant argues that notwithstanding the

judge's determination, he applied the doctrine of substitute facilities as

enunciated in Hackensack. For example, defendant argues that on the one hand,

the judge stated he was constrained by Weiswasser, but then "reversed" himself

and conflated the doctrine of mitigation with the doctrine of substitute facilities.

Defendant surmises that perhaps the judge was trying to create a hybrid by

characterizing defendant as a quasi-public trust.

We do not agree that the judge created a hybrid valuation method or

confused the doctrines of mitigation and substitute facilities. The judge was

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clear that Hackensack did not apply because the property did not encompass

public lands, and the judge never revisited that determination. Nevertheless, as

noted, in Weiswasser, a consideration of substitute property was a necessary part

of the analysis as to whether a defendant's damages were mitigated. Thus, the

judge was correct to instruct the jury to consider substitute property in the

context of mitigation of damages.

Weiswasser and Hackensack utilize the term "substitute" for the land

offered by the condemnor. But in Hackensack, as noted, the analysis only

pertains to public lands. Here, the judge did not consider defendant's property

to be public lands, although there was support in the record for such a finding,

given defendant's devotion to promoting the public welfare in Bay Head.

Further confusing the issue, at a point, the judge referred to defendant as a

"quasi-public entity," a term that was used in Matthews to describe defendant.

The judge's point was that before the taking, defendant's sole purpose was to

promote the public welfare through the operation of the beach in Bay Head, and

after the taking this was still defendant's purpose. But the judge's statement is

not tantamount to a finding that because defendant was a public entity, the

substitute facilities doctrine espoused in Hackensack should apply.

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 In response to the judge's statement that defendant was a quasi-public

entity, defendant argues at length distinguishing the holding in Matthews where

the Supreme Court found that defendant was a quasi-public entity because of its

dedication to the public good. But the analysis in Matthews would only be

relevant if the judge had applied the doctrine of substitute facilities espoused in

Hackensack. As noted, the judge declined to do so.

In any case, we do not agree that the judge intended to create a hybrid of

the valuations described in Weiswasser and Hackensack. As noted, the judge's

charge closely tracked the model jury charge for severance damages, as

discussed in Weiswasser, and was not capable of producing an unjust result.

Instead, the judge correctly instructed the jury that in a partial taking, a

defendant must mitigate damages, and part of that cost to cure analysis is

whether the substitute property offered by plaintiff is similar and adequate to

the land that was condemned.

IV.

Defendant argues that the evidence in the record did not support the jury's

verdict. We disagree.

The judge may have created some confusion during oral argument on the

motion for JNOV when he expressed concern that Brodowski did not provide a

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value for the property encumbered by the SDRE. Nevertheless, the judge

ultimately correctly determined the verdict was supported by adequate evidence

in the record.

"A jury verdict shall not be reversed as against the weight of the evidence

'unless it clearly appears that there was a miscarriage of justice under the law.'"

Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 134-135 (1990) (quoting

R. 2:10-1). "[W]hat the trial judge must do is canvass the record, not to balance

the persuasiveness of the evidence on one side as against the other, but to

determine whether reasonable minds might accept the evidence as adequate to

support the jury verdict[.]" Velop, Inc. v. Kaplan, 301 N.J. Super. 32, 48 (App.

Div. 1997) (citing Kulbacki v. Sobchinsky, 38 N.J. 435, 444-45 (1962)).

A trial judge's denial of a motion for JNOV shall not be reversed unless it

"clearly appears that there was a miscarriage of justice under the law." R. 2:10-

1. Our review focuses on whether the evidence submitted to the jury, and any

legitimate inferences which can be drawn from that evidence, support the jury

verdict. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). A jury's factual

determinations will be disturbed only if this court finds that the jury could not

have reasonably used the evidence to reach its verdict. Sons of Thunder v.

Borden, Inc., 148 N.J. 396, 416 (1997).

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 This standard also applies to expert testimony. In re Accutane Litig., 234

N.J. 340, 392 (2018). We accept the factual findings of the trial judge unless

they are shown to be clearly erroneous. Allstate Ins. Co. v. Northfield Med.

Ctr., P.C., 228 N.J. 596, 619 (2017).

An expert opinion may be based upon "facts or data" so long as they are

of the type reasonably relied upon by experts in that field. N.J.R.E. 703. Experts

may not state bare conclusions, unsupported by factual evidence, which are

inadmissible as a "net opinion." Davis v. Brickman Landscaping, Ltd., 219 N.J.

395, 410 (2014).

The net opinion rule requires an expert witness to give the why and

wherefore of his or her expert opinion, not just a mere conclusion. Davis, 219

N.J. at 410 (citing Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344,

372 (2011)). The failure of an expert to give weight to a factor thought important

by an adverse party does not reduce his or her testimony to an inadmissible net

opinion, if he or she otherwise offers sufficient reasons which logically support

the opinion. Rosenberg v. Tavorath, 352 N.J. Super. 385, 401-02 (App. Div.

2002).

For expert testimony to be admissible,

(1) the intended testimony must concern a subject
matter that is beyond the ken of the average juror; (2)

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 the field testified to must be at a state of the art that
such an expert's testimony could be sufficiently
reliable; and (3) the witness must have sufficient
expertise to offer the intended testimony.

[DeHanes v. Rothman, 158 N.J. 90, 100 (1999).]

Expert opinions must "be grounded in 'facts or data derived from (1) the

expert's personal observations, or (2) evidence admitted at the trial, or (3) data

relied upon by the expert which is not necessarily admissible in evidence but

which is the type of data normally relied upon by experts.'" Townsend v. Pierre,

221 N.J. 36, 53 (2015) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583

(2008)).

A judge's evidentiary rulings are entitled to substantial deference. Est. of

Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-85 (2010). The

judge's determination to admit evidence will not be reversed absent a finding of

abuse of discretion. Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016). The

valuation of real estate generally requires expert testimony. See Torres v.

Schripps, 342 N.J. Super. 419, 430 (App. Div. 2001).

Defendant argues plaintiff did not present facts as to the value of the

remainder after the taking, or as to the effect the proposed property interests

offered by DEP would have on the value of defendant's remaining properties .

Defendant also claims Brodowski offered a net opinion because she did not

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analyze the value of the new beach land created as a result of the project, the

value of the revocable license offered by the State, or the value of the riparian

easement plaintiff offered. Notably, defendant did not object at trial to

Brodowski's opinion and did not expressly raise this argument below. However,

at oral argument on the motion for a new trial, defense counsel referred twice to

Brodowski's opinion as "net." The judge made no ruling in this regard. On

appeal, defendant states that its motion for a new trial was primarily based on

its argument that Brodowski's opinion was net. This was not, however, clear

from the record.

Issues not raised below will not be considered on appeal. Zaman v. Felton,

219 N.J. 199, 226-27 (2014). In any case, we conclude that Brodowski did not

give a net opinion.

Brodowski testified it was difficult to find comparable properties to

facilitate her appraisal. This is because most properties sold in the market place

were not beachfront parcels used as public beaches. Despite the scant market

information available to her, Brodowski gave her reasoning as to the appropriate

valuation of defendant's property before the taking and why the property interest

was enhanced as a result of the larger beach and increased shore protection. She

gave a value for the remainder property, inasmuch as she stated that the entire

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property was devalued by fifty percent, but the net value was increased by five

percent because of the benefits of the project. Brodowski clearly explained the

"why and wherefore" as to how she arrived at her analysis that there was a five

percent enhancement to the property as a result of the construction of the dune.

Given the constraints and scarcity of market comparables, her opinion was

grounded in facts and data of the type normally relied upon by experts, and also

derived from her personal observations. Townsend, 221 N.J. at 53. Thus,

Brodowski did not render a net opinion.

Next, defendant argues that because there was no evidence presented, the

jury was forced to speculate, which is evidenced by the jury verdict sheet. For

example, in question four, the jury valued the property after the placement of

the easement at $2,311,700. But according to defendant, there was no basis in

the record for this determination, given that Brodowski valued the property

before the taking at $2,311,700, and after the taking at $2.4 million. Defendant

argues that a simple calculation establishes that in Brodowski's opinion, the

property lost forty-five percent of its value, or approximately $1,040,265,

without taking into consideration mitigation. But the jury verdict sheet did not

reflect the calculations of either expert. Defendant notes that even the judge

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acknowledged at oral argument that there was no testimony as to the value of

the proposed substitute property.

But "the factfinder may accept some of the expert's testimony and reject

the rest." Torres, 342 N.J. Super. at 430. Also, "a factfinder is not bound to

accept the testimony of an expert witness, even if it is unrebutted by any other

evidence." Id. at 431.

Brodowski provided sufficient evidence to determine the difference in

value between the property before and after the taking notwithstanding the

judge's statements at oral argument. The jury verdict sheet did not indicate the

jury was confused. Instead, it showed that the jury found that the mitigation of

damages—the substitute lands given by plaintiff combined with the riparian

easement and tidelands license—mitigated defendant's damages. The jury found

that the value before and after the taking was the same. The jury was not

required to accept all of the experts' calculations. Instead, it was permitted to

accept some of Brodowski's opinion and reject other aspects of it, which it did.

Defendant argues the jury verdict was not based upon any facts in

evidence and the judge's decision was devoid of any recitation of facts or

testimony to support the jury's verdict. In his oral decision, the judge referenced

his prior written decision that contained a recitation of facts. The judge made

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findings that: the parcels consisted of vacant beach parcels; defendant was a

non-profit organization providing beach access; the commissioners made a

valuation; defendant lost vacant beach land; plaintiff created new beach land

adjacent to what was condemned; plaintiff deposited hundreds of thousands of

tons of sand to create the new beach; and defendant's expert established the value

of the remainder to be $350,000. The judge also noted Graziano's statement of

"you take my house and I'll live in yours." The judge correctly concluded there

were adequate factual grounds for the jury's decision.

In sum, Brodowski did not render an inadmissible net opinion, and there

exists sufficient evidence in the record to support the jury's verdict.

Affirmed.

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