ERA SOUTH, LLC v. THE MAYOR AND COUNCIL OF THE CITY OF ENGLEWOOD

NOT FOR PUBLICATION WITHOUT THE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-0533-14T3

A-0576-14T3

ERA SOUTH, LLC, SHG ENGLEWOOD

SOUTH I LLC, FLATROCK RESIDENTIAL

COMM. ASSOC., and SHG ENGLEWOOD

SOUTH II, LLC,

Plaintiffs-Appellants,

v.

THE MAYOR AND COUNCIL OF THE

CITY OF ENGLEWOOD, THE CITY OF

ENGLEWOOD, FLATROCK 3, LLC,

WILSON ABOUDI, SY SADINOFF,

NARDHOFF REALTY, S. PARKER

HARDWARE and SHAHE KUPELIAN,

Defendants-Respondents.

___________________________________

FLATROCK 3, LLC,

Plaintiff-Appellant,

v.

MAYOR AND COUNCIL OF THE CITY OF

ENGLEWOOD; BOARD OF LOCAL

IMPROVEMENTS OF THE CITY OF

ENGLEWOOD; CITY OF ENGLEWOOD; TAX

ASSESSOR OF THE CITY OF ENGLEWOOD;

TAX COLLECTOR OF THE CITY OF

ENGLEWOOD; FLATROCK RESIDENTIAL COMM.

ASSOC., INC.; ERA SOUTH, LLC; SHG

ENGLEWOOD SOUTH I, LLC; SHG ENGLEWOOD

SOUTH II, LLC; WILSON ABOUDI; ABOUDI

REALTY INC.; SY SADINOFF; NARDHOFF

REALTY ASSOCIATES; S. PARKER

MANUFACTURING CORP.; SHAHE KUPELIAN

and DSR GROUP, LLC,

Defendants-Respondents.

___________________________________

December 6, 2016

 

Argued February 10, 2016 Decided

Before Judges Ostrer, Haas and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-3930-12 and L-4091-12.

John R. Edwards, Jr. argued the cause for appellants in A-0533-14 and respondents ERA South, LLC, SHG Englewood South I, LLC, Flatrock Residential Comm. Assoc. and SHG Englewood South II, LLC in A-0576-14 (Price, Meese, Shulman & D'Arminio, P.C., attorneys; Mr. Edwards, on the briefs).

Kenneth A. Porro argued the cause for appellant Flatrock 3, LLC in A-0576-14 (Chasan Leyner & Lamparello, PC, attorneys; Mr. Porro, of counsel; Mr. Porro, Daniel J. Granatell and Spencer J. Rothwell, on the brief).

William J. Bailey argued the cause for respondents Mayor and Council of the City of Englewood, the City of Englewood, Board of Local Improvements of the City of Englewood, Tax Assessor of the City of Englewood and Tax Collector of the City of Englewood in A-0533-14 and A-0576-14 (Huntington Bailey, L.L.P., attorneys; Mr. Bailey and Mary Anne Groh, on the briefs).

The opinion of the court was delivered by

OSTRER, J.A.D.

This consolidated appeal involves plaintiffs' challenge to an $8.535 million special assessment they were assigned by the City of Englewood. The assessment was intended to reimburse the City for costs it incurred constructing a new exit off eastbound Route 4 and a new roadway fronted by plaintiffs' properties to the south. Plaintiffs do not contest that their properties benefit from the new roadway, known as Sterling Boulevard. Instead, they contend that owners of other properties that do not directly front the roadway also benefited from the project and should have been assessed.

Plaintiffs challenged the assessment, which the Local Improvement Board approved and the City confirmed, before the trial court. They contended the City's decision was flawed because it relied on an expert's net opinion and failed to properly analyze the impact of the project. But the trial court granted summary judgment to the City, dismissing their cause of action. On appeal, plaintiffs raise similar arguments and further contest the grant of summary judgment on grounds that it was premature and genuine issues of material fact remain.

Having considered plaintiffs' arguments in light of the record and applicable principles of law, we reverse and remand.

I.

Plaintiffs own various properties comprising a roughly twenty-acre area (the Site) bound to the northeast by Route 4, to the northwest by the Overpeck Creek, to the southwest by West Sheffield Avenue, and to the southeast by a boundary line roughly equidistant between West Nordhoff Place to the east and the Overpeck Creek to the west. With the exception of a notch in the upper right corner, the Site forms a rectangle oriented on a northeast-to-southwest axis.

Only about half of the Site's property had been developed when the Board initially reviewed the assessment. That development comprised a cluster of three apartment buildings, containing almost 400 apartments and condominiums, surrounding a parking structure. Two of the residential properties, formally Block 2605, Lots 2.01 and 2.04, were owned by plaintiffs SHG Englewood South I, LLC, and SHG Englewood South II, LLC, (collectively SHG). The third, formally Block 2605, Lot 2.03, was owned by plaintiff Flatrock 3, LLC (Flatrock 3).1 The parking structure was built on Block 2605, Lot 2.02, owned by plaintiff Flatrock Residential Community Association (FRCA). Plaintiff ERA South, LLC (ERA South) owned the remainder of undeveloped properties on the Site, consisting of Block 2602, Lots 3.01, 3.02, 3.03, 3.04, and Block 2605, Lots 1.01 and 1.02.2

The three apartment buildings and parking structure occupy a rectangular area (Sub-Site) that appears to be almost half of the total area of the Site. It is bordered on the southwest by West Sheffield Avenue and on the northwest by the creek. Sterling Boulevard borders the southeast-facing side and most of the northeast-facing side of the apartments.

The project called for a new exit off Route 4 to the south for eastbound traffic and a new road Sterling Boulevard connecting Route 4 to an already existing road network. The new exit includes deceleration and acceleration lanes. Sterling Boulevard travels southwest a short distance; turns southeast upon reaching one of SHG's apartment buildings; then, upon reaching the corner of the apartment building, turns southwest again, bordering the other SHG apartment building. The road terminates at West Sheffield Avenue. The road spans a distance of 1609 feet, or roughly three tenths of a mile. Although the road consists of one lane of traffic in each direction, its overall width and turning radii were designed to accommodate vehicles as large as tractor-trailers. To promote the flow of traffic, no parallel parking is permitted along the roadway.

Flatrock 3's building is located on the west side of the Sub-Site, and does not actually front the new road. The same can be said for the parking structure. Flatrock 3's building is accessible by a private roadway that begins at the western end of West Sheffield Avenue, travels northeast between Overpeck Creek and the apartment buildings, then turns southeast until it meets the leg of Sterling Boulevard between the highway and the apartment buildings.

The City acquired the land to construct the components of the project through separate means. At a cost of over $7 million, the City acquired through condemnation three properties along Route 4, which were used for the deceleration and acceleration lanes and the entrance to Sterling Boulevard. The City acquired the additional land for the Boulevard, which at the time was owned by ERA South, in a swap. Specifically, ERA South acquired the portion of the condemned properties along Route 4 that was not used for the roadway. In exchange, ERA South agreed to surrender the land necessary for the construction of the Boulevard. The swap was based on the City's finding that the exchanged properties were of equal value.

Before the new exit and roadway were built, access to the Site and neighboring properties south of Route 4 was limited. Access from the northwest and southwest was blocked by Overpeck Creek, Overpeck Park, and Interstate 95. Access from the east was limited by a railroad track, over which there was just one grade crossing in the southernmost reaches of the neighborhood. Access to the north was blocked by Route 4 except for a single road, which runs west of and parallel to the railroad track.

The redevelopment of the Site and the neighboring properties was a goal of the City and its planners for many years. The area was occupied by industrial and commercial users. Included among these were, near the site, a storage facility of a local automobile dealer whose retail operation was located elsewhere in the City; a hardware business warehouse and office; a metal fabricator; an electric motor supplier; and a pharmaceutical company. The area was not formally designated an area in need of redevelopment, but zoning changes were adopted to promote redevelopment.

In 2005, the City authorized by ordinance imposition of a special assessment of $8.5 million for the cost of the new road, including land acquisition, construction, and related costs. See Englewood City Ordinance No. 05-19 (Ordinance 05-19). The ordinance noted that access to Route 4 had been restricted, and the City's master plans in 1975, 1988, 1995, 2002, and 2003, recommended a new means of direct access to Route 4 East to promote economic growth. The ordinance stated that the improvements should be deemed local improvements and the benefits specially assessed, pursuant to N.J.S.A. 40:56-1 to 41.5, and N.J.S.A. 40:49-6 to -12.

The ordinance also identified a large area, north and south of Route 4, which would be subject to a special assessment (Study Area). The Study Area included the Site, but was substantially larger. North of Route 4, it was bounded by Overpeck Canal3to the northwest, and Forest Avenue to the northeast. South of Route 4, the area was bounded by the Teaneck-Englewood line to the northwest, and the Leonia-Englewood line to the southwest. The whole area was bounded by the rail line to the southeast. The area consisted of Blocks 2509, 2516, 2517, 2518, 2601, 2602, 2603 and 2604.4

Although the ordinance appeared to mandate assessment on the whole area stating, "[t]he cost of the local improvements . . . shallbespecially assessed upon the lands described" the cross-referenced schedule described properties "which maybeaffected by special assessment." (Emphasis added). Mirroring N.J.S.A.40:56-27, the ordinance directed that the special assessment "shall in each case be as nearly as may be in proportion to and not in excess of the peculiar benefit, advantage or increase in value which the respective lots and parcels of real estate shall be deemed to receive by reason of such improvement." The ordinance authorized appointment of a Local Improvement Board to "perform such duties . . . prescribed by N.J.S.A.40:56-1 et seq."5

The record does not disclose the precise date the exit and roadway were opened to the public. A certification of costs was prepared by the City's independent accountants on November 23, 2010. The $7.15 million land acquisition costs were incurred in 2006 and 2007. Over ninety percent of the $1.140 million construction and demolition costs were incurred in 2008, and the rest in 2009. Other costs brought the total expenditures to $9.023 million. Of the $9.023 million costs incurred, $8.535 million was to be specially assessed. The accountants' report identified each property within the Study Area by block and lot.6 Of the 240 properties listed, 181 were condominiums located on Windsor Park Court.7

The Board conducted public hearings on the assessment on multiple dates in the fall of 2011 and the winter of 2012.8 The Board received a report from McNerney & Associates, Inc., principally authored by Robert McNerney, a licensed real estate appraiser. McNerney also testified before the Board on multiple dates. In his report, McNerney opined: "It has been determined that the special assessment, which is the subject of this report benefits 10 specific properties, therefore it will be these parcels in which a special assessment will be assigned for the local improvement project known as, 'The Route 4 Access Road Project.'" The ten properties in question were those owned by plaintiffs, described above.

McNerney proposed an allocation of cost to these property owners based on a cost-per-foot-of-frontage methodology and a total assessment of $8.535 million. McNerney explained, "In levying a special assessment it is typical to rely upon one of the two analyses for the determination of same, a 'before and after' approach or a quantitative analysis on a cost per linear foot. In this instance we have relied upon the cost per linear foot method."

The report noted that, strictly speaking, not all ten lots abut the roadway. In particular, Flatrock 3's apartment building is separated from the roadway by one of SHG's buildings. Nevertheless, McNerney concluded the property could be included in his analysis. He calculated that the road frontage was 3,217.51 linear feet. He allocated a share of the cost to all the apartment buildings based on their total frontage and then divided that amount by the number of residential units (rental and condominiums), arriving at a per unit assessment of over $8000. Utilizing this per unit assessment, he calculated costs attributed to each apartment building. Based on what he called "a pretty simplistic approach," he arrived at the following allocations

Block

Lot(s)

Proposed or Actual Use

Linear Frontage

Special Assessment

2602

3.01

Office bldg.

297.65 ft

$790,000

2602

3.02

Parking deck

225.00 ft

$595,000

2602

3.03

Hotel

298.32 ft

$790,000

2602

3.04

Retail

772.67 ft

$2,050,000

2605

1.01

Retail

216.61 ft

$575,000

2605

1.02

Retail

237.61 ft

$630,000

2605

2.01-2.04

Apartments/

Parking deck

1,169.65 ft

$3,105,000

Total

3,217.51 ft

$8,535,000

Of the $3.105 million assigned to the apartments and parking deck, $955,000 was assigned to Flatrock 3.

In his testimony before the Board, McNerney reaffirmed that the "sole benefactor[s] of the special improvements" were the owners of the ten lots on Blocks 2602 and 2605. He opined that nothing else in the Study Area benefited. In particular, he asserted none of the properties on West Sheffield Avenue, including the one at the terminus of the new road, experienced any increase in value as a result of the improved access to Route 4.

Although not set forth in his report, he stated he relied on a comparison of assessments in place in October 2006, after a city-wide revaluation, and in October 2010.9 He stated this "mass appraisal approach" was based, without further citation, on guidance of the Division of Taxation and courts of New Jersey. McNerney admitted he did not separately appraise any properties using an income, cost, or comparable sales approach. Nor did he read the master plans or review traffic studies.

At the hearing, owners of other properties neighboring the Site opposed the imposition of assessments. The owner of the lot leased to the automobile dealer asserted the new road was not designed for use by tractor trailers, which continued to use the Interstate and other local roads. He claimed drivers destined for the industrial properties rarely used the new road. Two other owners of long-established businesses asserted they did not ask for the new road; few if any persons used it traveling to and from their locations; and they derived no benefit from it.

Kenneth Albert, who had long served as Englewood's engineer and city planner, described the history of the area, the road, and the development it was hoped to trigger. He stated the primary beneficiary of the new road was plaintiffs' development. He further noted the road was a condition precedent to municipal approvals for the development. He acknowledged the City had hoped the new road would improve access to the rest of the industrial area and spur redevelopment and rising property values elsewhere south of Route 4. But that had not come to fruition, and whether it would ever occur was "totally speculative." He noted that the area was largely in a flood plain and faced other impediments to redevelopment aside from the limited highway access that the new road addressed. He explained properties outside plaintiffs' development were included in the Study Area in the 2005 ordinance because the City did not know what further redevelopment would occur.

In contrast to the testimony of one of the property owners, Albert agreed that the turning radii of the road were designed to accommodate tractor-trailer trucks. He also agreed that Sterling Boulevard was intended to enhance access north of the highway and relieve pressure on the Grand Avenue exit to the east. Parking on Sterling Boulevard was prohibited to ease traffic flow to the multiple destinations contemplated for the development.

The ERA Plaintiffs presented the testimony of a planner, a traffic expert, and a real estate appraiser to support their position that other properties in the Study Area enjoyed a special benefit from the new Route 4 exit and roadway.

George Williams, a licensed planner, described Englewood's master plans from 2003 and 2009 and the city's efforts to redevelop the area including plaintiffs' property. He explained that the Study Area had struggled for years to develop due to its limited access and that the City had consistently tried to overcome that obstacle to its growth. He noted that the 2003 and 2009 master plans explicitly stated that improved access and rezoning had already led to redevelopment investment in twenty-five percent of the Study Area.

He argued that the eastbound exit off Route 4 should be viewed in conjunction with the already existing westbound exit to the north at South Von Brunt Avenue. The westbound exit was located across the highway and slightly to the east of the Sterling Boulevard exit. It provided travelers access to properties north of Route 4. Together, the two exits enabled travelers in either direction on Route 4 to access properties north and south of Route 4.

He thus concluded that the new Route 4 exchanges and Sterling Boulevard were designed "to benefit the entire community." According to Williams, other major goals were easing traffic patterns and improving general traffic circulation throughout the City.

ERA's traffic engineer, Hal Simoff, described how the westbound exit at South Van Brunt Avenue and the eastbound one at Sterling Boulevard formed a full interchange. Based on a single observation period one afternoon, he stated that roughly seventy percent of the traffic utilizing Sterling Boulevard travelled to or from destinations other than the SHG and Flatrock 3 buildings. He also calculated trip times coming from eastbound on Route 4 to destinations in the Study Area north and south of Route 4 and found that the Sterling Boulevard exit reduced travel times by a range of a minute and fifteen seconds to almost two minutes. Simoff opined that Sterling Boulevard also relieved traffic at the Grand Avenue interchange. He concluded the new roadway's benefits were not limited to the Site.

Thomas Stack, ERA's licensed real estate appraiser, critiqued McNerney's opinion because McNerney failed to conduct a "highest and best use analysis." Under such analysis, one measures "whether the properties could be utilized for a different use, which could be considered a higher use, and more valuable than currently exists due to the new access to the property . . . ." He conceded it would be a substantial undertaking to analyze each property in the Study Area, but he nonetheless criticized McNerney because he did not conduct a "before and after" analysis to determine if the road enhanced property values. He also asserted that McNerney's reliance on tax assessments as indicators of property values was unacceptable.

He suggested that the Board consider identifying different tiers of properties in the Study Area, depending on the magnitude of the benefit enjoyed, and impose varying per-foot-of-frontage rates based on proximity to the roadway. Nonetheless, he conceded the further a property was from the project, the less likely a benefit would be conferred. He also acknowledged that some properties may not benefit at all from the roadway. He agreed that the roadway was built for the particular development of the Site, which probably could not have been developed in the manner it was without the roadway.

Douglas Cohen, an ERA executive, testified that ERA had originally planned a narrower road more conducive to pedestrian activity, but the City insisted upon building a broader road so that it could serve a larger area. He testified that he observed car carriers utilize Sterling Boulevard to travel to the car dealer's storage facility on West Sheffield Avenue. Without providing specifics, he also contended that "[a] number of the property owners" had approached ERA offering to sell their property at "excessively high per acre" prices, which reflected the owners' increased valuation of their properties.

At the Board's December 14, 2011 meeting, after hearing closing argument from counsel for ERA and Flatrock 3, the Board decided that ERA and Flatrock should not bear assessments for the entire $8.535 million. However, the Board was at a loss to determine an efficient method for allocating an unknown portion of the costs to outlying areas. The Board agreed to reconvene at a later date to discuss the issue and invited ERA and Flatrock 3 to submit expert reports beforehand.

At its next meeting on February 23, 2012, Stack testified about a report he provided regarding a methodology for assessing properties beyond the Site.10 He suggested that the broader neighborhood could be organized according to a series of "zones." The zone boundaries would be defined using economic variables measuring the project's effect. A zone would be created in an area where the effect was generally uniform.

An appraiser would then determine the common enhancement in land value for each zone. These measures of general benefit would be used to calculate each zone's portion of the total assessment burden. The assessment burden would then be equally distributed to the various individual properties within the zone. Stack also allowed for individual variation within zones upon a demonstration that a particular property was significantly more or less benefited by the project.

In response, McNerney defended his original opinion that only the Site enjoyed a special benefit. He further argued the values of the industrial buildings near the Site had not risen. As evidence of this assertion, he noted that rents had not risen as a result of improved access to Route 4.

On February 29, 2012, the Board determined, by a 4 to 0 vote, to accept the assessment as McNerney proposed. In a letter to the Mayor and City Council setting forth its decision, the Board stated that, after considering the testimony and the appraisers' competing views, McNerney's approach "was far superior, and . . . provided the only fair solution for all of the various stakeholders involved." The Board indicated any benefits from the project experienced by properties outside the Site were not special benefits

It was important during the hearings for the Board to understand the distinction between a particular and general benefit, and how those meanings were defined, not only in accordance with the ordinance, but also with precedents in similar cases. Once this distinction was clear, we believe that the answer to the debate was clear as well.

Given the proximity to the [i]mprovements (as well as ownership of the lots along Route 4), there is a particular benefit to the properties in the McNerney report and that the [sic] benefit that they receive far exceeds the cost allocated to those properties.

As such, our unanimous recommendation is that the report and findings contained within the McNerney report provide the most fair and just allocation for the citizens and businesspeople of the City, and should be adopted in their entirety.

On April 24, 2012, the City Council unanimously confirmed the Board's recommendation by Resolution #113-04-24-12. The Resolution noted

[T]he Board made a just and equitable assessment of the benefits conferred upon certain parcels of real estate by reason of such local improvements and in that regard prepared a report to the City Council adopting the analysis by McNerney & Associates regarding the allocation of the assessment for the local improvement as well as the certified costs analysis performed by [the City's] auditors . . . .

Flatrock 3 and ERA separately filed complaints in lieu of prerogative writ, challenging their respective special assessments. The City filed a counterclaim against ERA, asserting violations of its development agreement.

By March 2013, discovery was still incomplete. In a case management order entered that month, the court issued a discovery schedule. Depositions were to be completed by June 30, 2013. Additionally, a case management conference was to be held on June 26, 2013, at which time the court would set a schedule for expert reports and expert discovery. The order also permitted the parties to file dispositive motions at their discretion in the meantime.

In April 2013, ERA filed a motion for partial summary judgment, which Flatrock 3 later joined, seeking a remand to the Board and City to assess each of the properties in the Study Area, which they claimed the 2005 Ordinance compelled. The City cross-moved for summary judgment dismissal of plaintiffs' appeal from the assessments.

The court heard argument on May 24 and on June 26, the time originally set aside for the case management conference. Plaintiffs contended that the 2005 ordinance compelled imposition of assessments on a broader area than the Board approved. ERA also asserted that McNerney offered a net opinion, he ignored 230 out of the 240 properties located in the Study Area, and the Board erred in relying on McNerney's opinion. Plaintiffs also argued that the roadway served a public purpose and provided a benefit beyond the ten specially assessed lots.

The City responded that the other properties and the City enjoyed a general benefit, not a special benefit subject to assessment. The City further contended plaintiffs bore the burden to prove by clear and convincing evidence that the decision was arbitrary and capricious, but failed to do so.

The court denied plaintiffs' motion and granted the City's motion. The judge stated his task was to determine whether the decision was arbitrary, capricious, or unreasonable. A presumption of reasonableness favored the City. The court held that McNerney's testimony before the Board was not governed by the same standards that would apply in a trial. The court found no "huge hole" in McNerney's work. The court entered a formal order June 26, 2013.

The judge denied a motion to reconsider filed by ERA on July 9, 2013, to which Flatrock 3 later joined. In a written statement of reasons, the court noted that plaintiffs failed to submit "any evidence to support the proposition that the assessments . . . exceeded the value of the benefits to their properties." Further, the record supported the Board's opinion that the "front footage methodology of assessment was the fairest and most just method" for allocation of the assessment. Finally, in rejecting plaintiffs' claim the assessment was unfair because it ignored the surrounding properties, the court held that plaintiffs failed to establish their assessments exceeded the increase in the value of their properties from the road's construction, which was their burden.

ERA filed a second reconsideration motion which a different judge heard as the original judge had retired. ERA argued that the City's summary judgment motion was premature as expert discovery had not yet been scheduled.11 This motion was also denied. This appeal followed.12

ERA and Flatrock 3 argue there were genuine issues of fact regarding whether the non-assessed properties in the Study Area benefited from the roadway. They contend McNerney offered a net opinion, and, according to multiple witnesses, other properties were intended to, and did, benefit from the project. ERA also asserts the City's motion was premature as the parties had not served their expert reports or conducted discovery thereon. Plaintiffs argue they were entitled to a trial with expert testimony, Flatrock 3 contending the court must conduct a trial de novo on the assessments. ERA also argues the court failed to properly consider the proportionality of the assessments.

The City responds that it applied the well-established cost-per-foot-of-frontage methodology. Citing McNally v. Twp. of Teaneck, 75 N.J. 33 (1977), the City asserts that the assessment must be affirmed given the absence of proof that plaintiffs' assessments exceeded the benefit to their properties. The City argues the Board considered but was unpersuaded by the testimony of plaintiffs' various experts. The City also responds its motion was not premature, since plaintiffs themselves sought summary judgment, and they could have presented their own expert proof in opposition to the City's motion.

II.

A.

We consider first our standard of review. We review a grant of summary judgment de novo, applying the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We determine whether the moving party has demonstrated the absence of genuine issues of material fact, and whether the trial court has correctly determined that movant is entitled to judgment as a matter of law, owing no deference to the trial court's legal conclusions. N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 507 (App. Div.), certif. denied, 222 N.J. 17 (2015). We therefore apply the same standard as the trial court in reviewing the municipality's imposition of a special assessment. Cf. Bressman v. Gash, 131 N.J. 517, 529 (1993) (stating that the appellate court is bound by the same scope of review as the trial court over a land use agency decision).

Upon a timely appeal from a municipality's special assessment decision, "[t]he court shall determine whether or not the assessment . . . appealed from is a just and fair assessment or award, and if not shall make an order correcting the same or if the assessment or award is sustained shall so order." N.J.S.A. 40:56-54. If the court rejects the order, then the board is "required to assess anew the benefits which become a lien upon the property." McNally, supra, 75 N.J. at 41 (citing N.J.S.A. 40:56-34). The court's determination shall be made after a trial, with a jury if requested, unless of course the absence of genuine issues of material fact obviates the need for a trial. See N.J.S.A. 40:56-54.

However, in exercising its review, the court presumes that assessments were regularly made and confirmed. N.J.S.A. 40:56-33. A property owner bears the burden of rebutting that presumption by clear and convincing evidence. McNally, supra, 75 N.J. at 44; In re Pub. Serv. Elec. & Gas Co., 18 N.J. Super. 357, 364 (App. Div. 1952). On the one hand, the court does not simply search the record to determine if there is sufficient, credible evidence to support the municipality's decision as it would in review of an administrative agency decision. Cf. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (reciting the scope of review of administrative agency fact-finding). On the other hand, the court does not conduct a trial de novo on the proper assessment, as ERA argues. Instead, the reviewing court or the jury is required to determine whether it is persuaded, by clear and convincing evidence, that the challenged decision was not "just and fair." N.J.S.A. 40:56-54.

B.

Our decision on what constitutes a just and fair assessment is guided by settled principles of law governing special assessments. Our statutes have long permitted a municipality to assess the cost of a "local improvement . . . upon the lands in the vicinity thereof benefited thereby." N.J.S.A.40:56-1. The governing body may pass an ordinance requiring the municipality to bear part of the cost. N.J.S.A.40:56-12. A standing board or officer, or an ad hoc board, may be charged with making the assessments, after examining the work and the vicinity, and conducting a hearing. N.J.S.A.40:56-21, -22, -25.13

The board shall "make a just and equitable assessment of the benefits conferred upon any real estate by reason of such improvement having due regard to the rights and interests of all persons concerned, as well as to the value of the real estate benefited." N.J.S.A. 40:56-26; see also N.J.S.A. 40:56-30 (stating board acts by majority vote).

The assessment must be proportionate to the benefit received

All assessments levied under this chapter for any local improvement shall in each case be as nearly as may be in proportion to and not in excess of the peculiar benefit, advantage or increase in value which the respective lots and parcels of real estate shall be deemed to receive by reason of such improvement.

[N.J.S.A. 40:56-27.]

The total of all assessments cannot exceed the cost of the improvement less any municipal contribution. N.J.S.A. 40:56-24. If the assessments are less than the cost, the municipality shall bear the difference. N.J.S.A. 40:56-37. Furthermore, "[i]f . . . the market value enhancement is less than cost, then the assessment must be reduced accordingly." McNally, supra, 75 N.J. at 43.

The Board's report shall include "a map showing the real estate . . . benefited by the improvement and for which . . . benefits have been assessed."14 N.J.S.A. 40:56-30. The municipality shall receive the report of the board and decide whether to confirm, with or without alterations, at a public meeting. Ibid. As discussed above, judicial review is available. N.J.S.A. 40:56-33, -54.

In reviewing special assessments, our courts have considered the questions of which properties are subject to assessment based on their receipt of a "special benefit"; the significance of the property's proximity to the improvement in determining "special benefit"; the measurement of the benefit in terms of its enhanced market value; and the methodology for allocating assessments among benefited properties. We turn to the final issue first.

The Supreme Court in McNally approved the use of a cost-per-foot-of-frontage formula as "an appropriate tool" for distributing assessments. McNally, supra, 75 N.J. at 41. In that case, Teaneck levied special assessments, recommended by a three-member, ad hoc board, against 313 residential properties for the cost of paving streets and installing curbs the properties fronted. Id. at 36-37.

"[T]he ultimate test is . . . the difference between the market value of the land before and after the improvement. That difference, the incremental value, may be established by the conventional method of expert testimony or by some other reliable proof." Id. at 42 (citations omitted); see also McQueen v. Town of W. N.Y., 56 N.J. 18, 23-24 (1970). Individual property owners have no basis to complain if they pay "inter se, varying amounts." McNally, supra, 75 N.J. at 43. The Court explained, "The statute, N.J.S.A. 40:56-27, refers to the relationship of the betterment to each owner's property and not to the relationship among property owners." Ibid.; see also Id. at 46 ("[T]he statute does not call for a comparison of benefits among property owners."). Thus, the assessments "do not necessarily result in the same percentage of increased value of each parcel." Id. at 46. "So long as neither owner is required to pay more than the benefit received and the method of determining the amount of that benefit is reasonable and applied uniformly to all property owners, the statutory mandate has been satisfied." Ibid.

In McNally, the three commissioners viewed the properties affected to ascertain whether any warranted special treatment. Id. at 37. The commissioners relied on an expert's testimony that the increased values and benefits equaled or exceeded the assessments. Id. at 45. However, the Court noted that certain property owners at trial overcame the presumption of correctness of the assessment through an expert's testimony "that the enhancement in market value . . . was less than the assessed cost." Ibid.

An assessment may not be imposed for a benefit that is enjoyed generally. An assessment is restricted to "the peculiar benefit, advantage or increase in value." N.J.S.A. 40:56-27.

The foundation of the power to lay a special assessment or a special tax for a local improvement of any character, whether it be opening, improving or paving a street or sidewalk . . . is the benefit which the object of the assessment or tax confers on the owner of the abutting property, or the owners of property in the assessment or special taxation district, which is different from the general benefit which the owners enjoy in common with the other inhabitants or citizens of the municipal corporation.

[In re Pub. Serv. Elec. & Gas Co., supra, 18 N.J. Super. at 363.]

"The improvement must benefit the assessed property, and that benefit must be special and local, that is, the benefit to the specific property must be substantially greater than to the public in general." 2nd Roc-Jersey Assocs. v. Town of Morristown, 158 N.J. 581, 592-93 (1999). "Whether the property has been specially benefited by an improvement is generally regarded as a question of fact . . . ." In re Pub. Serv. Elec. & Gas Co., supra, 18 N.J. Super. at 363.

Adjacency to the improvement is not essential.15 "[T]he improvement need not be 'local' in the sense of being specifically affixed or adherent to the assessed property." 2nd Roc-Jersey Assocs., supra, 158 N.J.at 593. In Gabriel v. Borough of Paramus, 45 N.J.381 (1965), the Court held it was appropriate to assess land that did not abut a new sewer line, which was reachable only by a private connection. Id.at 385. "For a special assessment to be levied it is enough that the land be in the vicinity of the local improvement and be benefited thereby. The foundation of the power to levy a special assessment is the benefit or enhancement of value which the improvement confers." Id.at 384 (internal citation omitted). See also In re Appeal of Various Prop. Owners from Sanitary Sewer Assessments, 29 N.J. Super.16, 23 (App. Div. 1953).

Our courts have reached varying results with respect to special assessments upon land near, but not fronting newly opened roads, based on a review of the facts. In Barkman v. City of Hackensack, 114 N.J.L. 506, 507-09 (Sup. Ct. 1935), the court approved, but reduced, a special assessment on property proximate to, but not fronting, a newly extended street because it secured "proximity to a nearby corner and readier access to the leading highway of the city." See also Inhabitants of Plainfield v. Cleary, 11 N.J. Misc. 922, 923 (Sup. Ct. 1933) (affirming assessment of several properties on a street intersecting a newly widened road, citing "[t]he weight of the testimony . . . that there was an enhancement of value"), aff'd o.b., 113 N.J.L. 35 (E. & A. 1934); Overbridge Realty Corp. v. City of Hackensack, 13 N.J. Misc. 702, 710 (Cir. Ct. 1935) ("While corner lots and the land bordering the opened street are necessarily increased in value, it must also affect the value of the contiguous property within the immediate vicinity of the opened highway.").

On the other hand, the court rejected assessments for property owners both fronting and proximate to a newly opened street that principally served the then-newly constructed Pennsylvania Railroad Station in Newark. In re Appeal of Various Prop. Owners, 15 N.J. Misc.131 (Cir. Ct. 1937), aff'd sub nom.City of Newark v. Essex Cty. Circuit Court, 122 N.J.L.548 (Sup. Ct. 1939). The trial court concurred with the objectors' view that the road "was not a needed thoroughfare" to address existing traffic, which was already served by existing roads that were "amply sufficient and suitable." Id.at 134-35. Rather, "the new street was created for a special purpose and use; to provide a plaza for the railroad station and for the use of traffic to and from the station." Id.at 135; see also Lehigh Valley R. Co. v. Mayor of Dover, 80 N.J.L. 63, 66-67 (Sup. Ct. 1910) (mere adjacency may be insufficient to establish a special benefit).

It does not matter that "a landowner has no present, immediate use for the improvement . . . so long as the use of the improvement is accessible and available to the land sought to be assessed." Ridgewood Country Club v. Borough of Paramus, 55 N.J. 62, 68 (1969). Ascertainment of benefit is not "confined" to a property's current use, but also looks to "whether its value was increased for any legitimated use to which it is or may be put." Id. at 69; see also In re Pub. Serv. Elec. & Gas Co., supra, 18 N.J. Super. at 366 (noting that if this were not the rule, an owner could escape assessments based on his current use and intentions, and then "change his mind, throw the property into the market, and realize advantages for which others have been made to pay") (internal quotation marks and citation omitted). On the other hand, the benefit may not be "speculative." 2nd Roc-Jersey Assocs., supra, 158 N.J. at 593; see also In re Appeal of Various Prop. Owners, supra, 15 N.J. Misc. at 140 (rejecting as speculative increases in value projected to occur five to seven years in the future).

As the McNally Court recognized, a benefit is reflected in increased market value. McNally, supra, 75 N.J. at 42. In other words, benefit is "the difference between the market value of the lands before the improvement and the market value of the land immediately after the improvement." In re Pub. Serv. Elec. & Gas. Co., supra, 18 N.J. Super. at 365. Expert appraisals are a common, but not an essential method of calculating benefit. In McQueen, the board utilized a tax research analyst's report measuring an improvement's impact on the land values of nearby properties. McQueen, supra, 56 N.J. at 21-22. The Court approved the approach, in principle

Concededly, the classical and perfect method is to obtain an expert appraisal of the dollar value of each individual parcel of land -- ante and post improvement. This is not to say, however, that some other method may not as well result in a "just and equitable assessment of the benefits conferred." One possible course to pursue to attain that objective is that here employed, i.e., the ascertainment of the actual value of the properties involved immediately preceding the improvement and the percentage of increase in that value immediately succeeding and rationally attributable to the improvement. The keystone to such a method is self-evidently the reliability of the ante and post values.

[Id. at 24.]

Noting the difficulty of obtaining accurate before-and-after appraisals, the court approved application of the percentage to values reflected in a particular year's town-wide re-evaluation. Id. at 24-25.

C.

Applying these principles, we discern genuine issues of material fact regarding whether the special assessments were "just and fair." N.J.S.A. 40:56-54. We are persuaded that the court prematurely granted summary judgment dismissal, denying plaintiffs the opportunity to present expert testimony that the properties outside the Site enjoyed special and peculiar benefits, as a result of which the City's decision was not just and fair.

However, before reaching these points, we address the City's argument, which the trial court adopted, that, under McNally, the court may not consider how much or little other property owners were assessed such as the property owners near the Site to determine if the assessments shall be upheld. Since plaintiffs do not contend that the assessments imposed upon them exceeded the benefit of the roadway to them, the City argues they have no grounds to complain.

We believe the City reads McNally too broadly. Certainly, the Court stated, "[T]he statute does not call for a comparison of benefits among property owners." McNally, supra, 75 N.J. at 46. But, the Court did so in interpreting N.J.S.A. 40:56-27, ibid., and a board's obligation created thereby to impose assessments "in proportion to and not in excess of the peculiar benefit, advantage or increase in value which the respective lots and parcels of real estate shall be deemed to receive by reason of such improvements." N.J.S.A. 40:56-27. The Court did not expressly limit the meaning of N.J.S.A. 40:56-54, which, again, empowers the court reviewing the municipal action to ascertain whether it was just and fair.

Furthermore, McNally did not address the issue of when a special benefit is provided or when property should be assessed at all. The case did not involve the opening of a new roadway. Id. at 36. It involved the repaving and curbing of an existing one. Ibid. Teaneck assessed only those properties along the improved roadway, and no issue was raised that other owners on other streets were specially benefited, but bypassed entirely. Id. at 37.

The trial court in McNally endeavored to devise a method for imposing assessments that would assure that the assessments would bear a uniform relation to the underlying value of the impacted properties. McNally v. Twp. of Teaneck, 132 N.J. Super. 442 (Law Div. 1975), rev'd, 75 N.J. 33 (1977). The Supreme Court held this approach was unjustified. "So long as neither owner is required to pay more than the benefit received and the method of determining the amount of that benefit is reasonable and applied uniformly to all property owners, the statutory mandate has been satisfied." McNally, supra, 75 N.J. at 46.

Here, we deem the point of plaintiffs' appeal to be that omitting any and all property owners not fronting Sterling Boulevard was neither just nor fair pursuant to N.J.S.A. 40:56-54 because they also enjoyed a special benefit from the new roadway. Plaintiffs suggest that it was inherently unfair to shield property owners other than themselves of any responsibility for the new roadway inasmuch as the roadway specially benefited their properties.

Significantly, the Board did not exclude the non-fronting property owners on the basis that sufficient revenues were secured from the fronting property owners, which did not exceed their benefits. Rather, the Board concluded that the non-fronting property owners in fact did not enjoy a special benefit from the roadway.

In sum, the key issue in this case is not the methodology for allocating cost among properties that were specially benefited. The McNally Court's endorsement of the cost-per-foot-of-frontage methodology is not dispositive of plaintiffs' appeal. Rather, the issue is whether the Board and the City appropriately identified the universe of benefited properties including, potentially, those near but not adjacent to the improvement and whether the omission of potentially benefited properties renders the assessment unjust or unfair.

We have held that a board must consider imposing assessments on all properties that enjoy a special benefit. In In re Appeal of Various Prop. Owners from Sanitary Sewer Assessments, supra, 29 N.J. Super.at 23, we held that the law contemplates "that not some but all of the lands benefited by the improvement shall pay the cost thereof when it comes to making the assessment." We recognized that the Court apparently expressed a different view in Wilson v. City of Ocean City, 11 N.J. Misc. 325, 327 (Sup. Ct. 1933), aff'd o.b., 112 N.J.L.97 (E. & A. 1934), stating, "[T]he question is whether any individual lot is assessed in excess of the benefits conferred, and not whether some other lot is assessed at a lower rate or not at all." (Emphasis added). In re Appeal of Various Prop. Owners from Sanitary Sewer Assessments, supra, 29 N.J. Super.at 22. We interpreted the statement narrowly to pertain to lots that were not yet connected to the sewer. Otherwise, it would be at odds with prior authority, including Simmons v. City of Millville, 75 N.J.L.177 (Sup. Ct. 1907) (setting aside assessment for construction of sewage lines imposed solely against properties fronting the main and trunk lines, when nearby properties benefited from the lines), aff'd o.b., 76 N.J.L.821 (E. & A. 1908), and Schlapfer v. Town of Union, 53 N.J.L.67 (Sup. Ct. 1890). In re Appeal of Various Prop. Owners from Sanitary Sewer Assessments, supra, 29 N.J. Super.at 22-24.

We conclude that a frontage-only assessment of a newly opened road is not immune from attack on justice and fairness grounds solely because the objecting property owner cannot establish that its assessment exceeds benefit. On the other hand, the statute does not compel assessment on non-fronting properties. The ultimate question for the court is whether the method of assessment is "just and fair." N.J.S.A. 40:56-54.

When evaluating whether a particular assessment is "just and fair," the court must include in its review both the scope of the assessment's application and whether a substantial benefit was conferred on properties other than those assessed. A court may determine it is just and fair to assess only fronting properties if other properties' increased value falls below a minimal threshold. The same conclusion might be reached if the total value increase beyond the roadway is a relatively small fraction of the overall increase in property values, the outlying properties are numerous and dispersed widely, and costs of calculation are high and subject to greater uncertainty. Cf. 2nd Roc-Jersey, supra, 158 N.J. at 592-93 (stating that a special benefit is one that is "substantially greater than to the public in general"). On the other hand, a court may not determine that a frontage-only assessment is just and fair in a vacuum without regard to proffered evidence of benefit elsewhere. If properties very close to a new roadway, such as properties located at or close to its terminus, enjoy a substantial increase in valuation, a court may conclude it is neither just nor fair to exclude them. See Inhabitants of Plainfield, supra, 11 N.J. Misc. at 923 (stating "[i]t stands to reason" that properties on the section of road near the intersection of a newly widened one "would be more valuable").

The trial court failed to engage in this fact-sensitive analysis. Had it done so, it would have been evident that the genuine issues of material fact prevented the grant of summary judgment. Specifically, a material issue of fact in plaintiffs' appeal of the assessment is whether the non-fronting properties experienced a special benefit, and if so, how much. See McNally, supra, 75 N.J. at 42 ("Whether the property subject to assessment has been benefited and, if so, the extent thereof are factual issues.").

The Board concluded that the non-fronting properties did not experience a special benefit. Were the court's task simply to determine whether there was sufficient evidence in the record to support that finding, we would not disturb it. The Board relied expressly on the McNerney opinion.16 It also heard evidence of other witnesses that values did not increase, flood hazard issues complicated potential redevelopment, and redevelopment was speculative. Although plaintiffs' witnesses contended that non-fronting properties benefited, none attempted to quantify the particular benefit of any single property. The Board may have concluded that even if these witnesses were credible, the benefit they described was at most a general one.

However, as discussed above, the reviewing court's role is not limited to determining whether substantial evidence supported the Board's decision. The court shall conduct a trial to determine whether the objectors can establish by clear and convincing evidence that the assessment was neither just nor fair. In reaching that conclusion, a key fact is whether the non-fronting properties were specially benefited, and how much. At the close of discovery, a court may certainly find that the absence of genuine issues of material fact enable it to determine the question as a matter of law. In this case, discovery was incomplete. Most significantly, the court had not yet even set the deadline for completion of expert discovery. That was to occur at the case management conference at which the court granted summary judgment.

We agree with plaintiffs that summary judgment was premature because expert discovery was incomplete. See Oslacky v. Borough of River Edge, 319 N.J. Super. 79, 87 (App. Div. 1999) ("The numerous cases interpreting summary judgment motion practice, R. 4:46, adhere to the principle that summary judgment should not be granted when discovery is incomplete."); J. Josephson, Inc. v. Crum & Forster Ins. Co., 293 N.J. Super. 170, 203 (App. Div. 1996) ("[C]ase law has made plain, a matter is not 'ripe' for summary judgment where discovery is incomplete."). We recognize that the evidence plaintiffs would offer is not solely within the possession of the moving parties. See Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988) ("Generally, we seek to afford every litigant who has a bona fide cause of action . . . the opportunity for full exposure of his case." (internal quotation marks and citation omitted)). They seek the opportunity to present their own experts' evaluations of the roadway's impact on values of neighboring properties. Given the scheduling of discovery, and the time-consuming nature of the appraisal expert's task, it is unreasonable to assume that plaintiffs could have responded to the City's cross-motion for summary judgment with its affirmative expert evidence.

Nor are we convinced that plaintiffs' motion for summary judgment estopped them from arguing prematurity. "In general, cross motions for summary judgment do not obviate a plenary trial of disputed issues of fact, where such exists; nor do cross-motions constitute a waiver by the litigants to such a trial." O'Keefe v. Snyder, 83 N.J.478, 487 (1980) (internal quotation marks and citation omitted). Plaintiffs here sought, by way of a motion for partial summary judgment, a remand to the Board for reconsideration. No material issues of fact would have barred such a remand if the court accepted the argument that the assessments were invalid because the Board relied on McNerney's net opinion or because the Board failed to evaluate and assess all properties within the Study Area. However, absent a remand based on those arguments, plaintiffs contended that non-fronting properties in fact specially benefited from the road, compelling a change in the assessments. "Although a [moving party] may assert that, according to his theory of the case, the material facts are undisputed, he must be allowed to show that if [cross-movant's] theory is adopted there remains a genuine issue of material fact." Ibid.17

In sum, we conclude that summary judgment dismissal was premature. Plaintiffs should be afforded the opportunity to obtain expert reports to support the claim that the assessments were neither just nor fair. We do not preclude the possibility that, at the close of discovery, the City may again seek summary judgment based on the complete record at that time.

Reversed and remanded. We do not retain jurisdiction.

1 The apartments in Flatrock 3's building are condominiums. The record does not reflect the precise relationship between Flatrock 3 and the condominium owners, their association, or the liability of any of the individual condominium owners for the assessment imposed on Flatrock 3.

2 ERA South, SHG and FRCA (collectively, ERA) filed one complaint. Flatrock 3 filed another.

3 Apparently, the body of water is known as Overpeck Canal north of Route 4, and Overpeck Creek south of Route 4.

4 The ordinance did not identify Block 2605, now occupied by the apartment buildings, within the described boundaries of the area. See Bergen County Tax Map, http://gis.co.bergen. nj.us/appbase/ (last visited October 26, 2016), of which we take notice, pursuant to N.J.R.E. 202(b) and N.J.R.E. 201. We surmise that Block 2605 was created out of Block 2602 sometime after the City adopted the ordinance.

5 Although the ordinance authorized appointment of a seven-person board, the board ultimately consisted of four members. The record does not explain the discrepancy. Cf. N.J.S.A. 40:56-22 (stating that a governing body may appoint an ad hoc board of "three discreet freeholders" to make assessments, if an officer or board of assessments does not already exist by the means set forth in N.J.S.A. 40:56-21). Plaintiffs do not challenge the Board's formation.

6 Block 2519 was not listed in the schedule of properties included in the ordinance. On the other hand, the accountants' list, like the ordinance, omitted Block 2605.

7 These apartment buildings are located west of Overpeck Creek, just inside the Teaneck-Englewood line, and served by Windsor Park Court, which is a dead-end street off of Route 4 with no access to the new roadway. Thus, the new exit and roadway provide no alternative route to these buildings.

8 The record does not include a complete transcript of the October 17, 2011 session.

9 He noted that the properties at issue were assessed at $26 million before the roadway and $101 million afterwards, but he acknowledged that the apartment buildings and condominiums were also added as improvements; he did not separate out the benefit to the properties from the roadway. He also noted the assessments were the subject of a tax appeal.

10 The report is not included in the record before us, which makes understanding his testimony difficult.

11 It is unclear from the record whether plaintiffs had argued prematurity earlier in their briefing; as discussed below, the City does not challenge the timeliness of the prematurity argument.

12 The City dismissed its counterclaim with prejudice, providing finality to the court's orders.

13 Although three Board members stated on the record that they drove on the new road, there is no evidence in the record that they fully complied with the directive in N.J.S.A. 40:56-25. Flatrock 3's attorney repeatedly offered to accompany the Board members on a tour of the area. But plaintiffs do not raise this as an issue on appeal.

14 We note that neither the report of the Board nor the attached McNerney and auditor's reports included such a detailed map.

15 Prior statutes have expressly required that only properties fronting a new street shall be assessed. See Allison Land co. v. Borough of Tenafly, 68 N.J.L. 205, 206 (Sup. Ct. 1902) (discussing 1897 statute abrogated by subsequent enactments). No such express limitation exists in current statutes.

16 We acknowledge that as presented in his report, his conclusion that non-fronting properties experienced no special benefit was a net opinion. See Townsend v. Pierre, 221 N.J. 36, 53-54 (2015); N.J.R.E. 703. However, the Rules of Evidence do not apply to hearings conducted by a board of assessment commissioners. See N.J.R.E. 101(a)(2); cf. Baghdikian v. Bd. of Adjustment of Borough of Ramsey, 247 N.J. Super. 45, 49 (App. Div. 1991) (stating that a zoning board "cannot be equated with courts" and "procedural safeguards employed in judicial proceedings" should not be "imported wholesale" into proceedings before land use board (quoting City of Hackensack v. Winner, 82 N.J. 1, 29 (1980))). In reviewing a decision of a land use body that considered a net opinion, we focus on whether there was substantial evidence to support the decision. Concerned Citizens of Princeton, Inc. v. Borough of Princeton, 370 N.J. Super. 429, 463-64 (App. Div.) (citing N.J.S.A. 40:55D-10(e)), certif. denied, 182 N.J. 139 (2004). A special assessment board is not subject to more stringent evidential standards.

17 Liberty Surplus Insurance Co v. Nowell Amoroso, P.A., 189 N.J. 436, 450 (2007), is not to the contrary, as the court adopted movants' theory of the case. See also Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 177 (App. Div.) (although finding cross-motions were ripe for decision, court acknowledges "there is no per se rule that the existence of cross-motions for summary judgment precludes a party from seeking, as alternative relief, a trial as to certain issues."), certif. denied, 195 N.J. 85 (2008).