Court sides with town on train-station testimony

BLOOMFIELD, NJ — A lawsuit between Bloomfield and a private developer regarding the cost of the historic train tunnel on Lackawanna Place has been sent back to trial court by a NJ Appellate Court.

A panel of three Appellate Court judges decided 3-0, on April 10, that testimony favorable to Bloomfield, but ruled inadmissible by a lower court judge, should have been heard by a jury. A jury of six voted 5-1 in favor of the private developer who said his property was worth millions and not the $440,000 given to him by the township after it condemned the land and acquired title.

In June 2016, the jury awarded the private developer, Howard Haberman, $2.9 million for the .62 acres of sloping land that abuts the westbound track of the NJT train station. Haberman had envisioned a mixed-use project of 34 residential apartments built above 12,500 square-feet of retail space. Parking was to have been off-site. Haberman is the principal of the investment company Bloomfield Duval Corp.

In a statement, Bloomfield Mayor Michael Venezia said that in light of the Appellate Court decision, he hoped the former owner of the property will be willing to come to a reasonable settlement with the township.

The land parcel is also the site of a dilapidated and locked NJT-owned tunnel to the eastbound tracks. The township proposed upgrading and opening the walkway, but have only limited development on the land. For this purpose, the property was appraised at $440,000.
Following the jury award of $2.9 million, the township appealed the verdict.

The attorneys for the trial and Appellate Court arguments were Kevin McManimon, for Bloomfield, and Anthony Della Pelle, for Haberman.
McManimon argued in Appellate Court that testimony from a witness for Bloomfield, Andrew Janiw, should have been heard to rebut Haberman’s assertion that his proposed project was financially feasible.

McManimon also argued that the testimony of Jon Brody, a witness for Haberman, should not have been heard by the jury. Brody testified that that highest and best use of the land was Haberman’s project. Consequently, Haberman had the land appraised at $3.2 million. But McManimon argued that Haberman’s proposal was neither legal or financially feasible.

The Appellate Court judges agreed with McManimon that Janiw’s testimony should have been heard, but did not agree with McManimon’s argument that Brody’s testimony should not be heard by a jury.

McManimon argued in Appellate Court that Brody’s testimony should not have been heard by the jury because Haberman’s proposal was illegal since there was no onsite parking. This argument was denied by the judges because, they said, Bloomfield zoning laws did not require onsite parking in the area.

McManimon’s second argument against Brody’s testimony, that the proposal was financially infeasible, was also denied. The Appellate Court judges said McManimon had already made that argument in the lower court where it had been “fully explored” and denied. The Appellate Court judges said they had no reason to reverse that decision.

But the judges agreed with McManimon that Janiw’s testimony should have been heard by the jury. They said it had not been heard for several reasons.

Della Pelle had argued that Janiw lacked an appraiser’s license. But the Appellate Court judges said his lack of a license was something for a jury to weigh after hearing his testimony. His not having an appraiser’s license should not make his testimony inadmissible.
“Janiw was prepared to testify as to the alleged flaws in Brody’s testimony,” the judges said. “This testimony was highly relevant.”

The judges also said Janiw was not going to testify on the value of the property, but the “rate of return on invested capital.”
The Appellate Court judges said they believed the trial court judge seemed to reason that Janiw’s rebuttal of Brody’s methodology would be unnecessary because the same criticisms would have been raised when Brody was cross-examined by McManimon.
“However, an attorney’s questions to not constitute evidence at a trial,” the judges said.

Had Janiw had been allowed to testify, what he said might have supported, in a juror’s mind, the McManimon’s cross-examination of Brody, the judges said. Because of these reasons, the judges agreed with McManimon that Janiw’s testimony should have been admitted.

In an email to this newspaper, McManimon said, “We are very pleased with the Appellate Division’s decision. We believed all along that the trial judge made a mistake when he precluded crucial, relevant evidence at the trial, and that mistake had an enormous impact on the trial’s outcome.

“There is no doubt that evidence would have made a significant difference to the jury. We look forward to the opportunity to challenge the Bloomfield Daval Corporation’s claim that the train station property can be feasibly developed with such a significant project, and it therefore has limited value.”

McManimon said he believes the testimony of Janiw will be admitted by the next trial judge because it was ruled admissible by the Appellate Division. The next step, he said, is to have a case management conference with the trial judge and set a schedule.
An email to Della Pelle requesting a comment about the decision was unanswered by press time.