ROMINGER
LEGAL
New Jersey Court Cases and Opinions -
NJ Legal Research
NOT
FINDING WHAT YOU NEED? -RESEARCH
|
ROMINGER
LEGAL
|
||||||||||
|
New Jersey Court Cases and Opinions -
NJ Legal Research
|
||||||||||
| Need Legal Help? | ||||||||||
|
NOT
FINDING WHAT YOU NEED? -RESEARCH
|
||||||||||
|
|
|
|
|
|
|
|
|
|
|
This
court case was taken from the web sites of the NJ Courts. Search
our site for more cases - CLICK
HERE |
|
|
Case Law - save on Lexis / WestLaw. Original WP 5.1 Version This case can also be found at 16 N.J. Tax 304.
TAX COURT OF NEW JERSEY
:
Decided: December 3, 1996
On remand from the Superior Court
Thomas LaConte for plaintiff. SMALL, J.T.C. These nineteen tax appeals are before me on remand from the Appellate Division of the Superior Court “for reconsideration of the trial testimony.” For the tax year 1993, each of the nineteen named defendants appealed the tax assessment on his or her residence in the Township of Nutley to the Essex County Board of Taxation. It appears that the testimony before the county board was perfunctory. Mr. Pandolfi, the municipal superintendent of parks and superintendent of recreation of the Township of Nutley testified that he was present at the hearing before the Essex County Board of Taxation, no appraiser or real estate broker appeared for the plaintiffs, and no market data was presented to the county tax commissioner hearing the matter. It appears that what the tax board heard were the complaints of the taxpayers about the increased traffic, noise, litter, parking, and other activities in their neighborhood, resulting from the construction and opening of the creative playground in Nichols Park, which is adjacent to their homes. The record before the county board is not before me, is not evidence in these cases, and is irrelevant as a matter of law, because the proceeding in the Tax Court is a trial de novo. N.J.S.A. 2B:13-3(b). Nevertheless, what appears to have taken place is recited in order to give a complete picture of the history of the appeals of these assessments. At the conclusion of the county tax board hearing, the commissioners issued judgments reducing the tax assessments on each of the nineteen appealed properties by 10%. These actions are summarized in the table which constitutes the appendix to this opinion. Nutley filed nineteen separate complaints in the Tax Court of New Jersey challenging each of the nineteen county tax board judgments. At the conclusion of the bench trial, I affirmed each of the nineteen judgments of the Essex County Board of Taxation, not because I found that the county tax board's decisions were correct, but because I found that the plaintiff, Township of Nutley, had failed in each of the nineteen cases to meet its burden of proof by showing that the
quantum of each of the nineteen reduced assessments ordered by the Essex County Board of
Taxation was wrong.See footnote 1
1
The trial testimony before this court described, in detail below, centered on: (1) the construction and subsequent use of the creative playground and, in particular, what the taxpayers and the municipality viewed as its impact on their neighborhood; (2) the fact that the Essex County Board of Taxation had heard no valuation testimony; (3) the fact that the county board action in reducing the assessments by 10" was not consistent with certain paired sales data; and (4) the conflicting opinions of the plaintiff municipality's, and the defendants homeowners' experts that the creative playground either had no impact on the value or reduced the value of the properties which are the subject of this appeal. On the key piece of evidence in any real property tax appeal, the value of the subject property (in this case, nineteen properties) on October 1st of the pre-tax year, there was absolutely no evidence. See Rabstein v. Princeton Tp., 187 N.J. Super. 18, 22 (App. Div. 1982)(stating that on appeal to the Tax Court from a local property tax assessment, it is the function of the Tax Court to conduct a de novo hearing in which the ultimate fact sought to be determined is the full fair value of the property). The testimony of the only two witnesses qualified to give an opinion of value is clear. Mr. Marashlian, the municipal expert, testified: Q I take it you were not asked and therefore you don't have an opinion on the specific values of the properties under appeal.
A I have no knowledge of any of the properties under appeal. I didn't make a specific
appraisal of any property. [Emphasis added.]
Mr. Bate, the defendants taxpayers' expert testified:
When asked whether he had done a full appraisal with respect to each of the 19 properties, The plaintiff called four witnesses: Thomas A. Pandolfi, the superintendent of parks of the Township of Nutley; Louis Constantine, a real estate broker active in Nutley; Richard Marashlian, the municipal appraisal expert; and Joseph F. Reilly, the tax assessor of the Township of Nutley and the defendant in one of the nineteen cases before me. Mr. Pandolfi testified at length about the planning and construction of the creative playground in 1992, about the town's efforts to deal with the parking and other problems created by the increased traffic resulting from the opening of the playground, about what happened at the county tax board hearing, and about the general level of upset of the neighbors because of the increased traffic resulting from the opening of the playground. He indicated that, although the traffic was substantial on the opening of the playground, it has declined somewhat. He also indicated that a parking problem was created. Mr. Constantine testified principally about the sale of a property at 46 Funston Place the sale of which was intended to close on August 1, 1995, after the trial, for $147,000. Although not an expert appraiser, he testified that the park had no influence on the value of the houses in the neighborhood and that there has been a steady decline in values in Nutley since 1987. He also testified that “I wouldn't want to live in Joe's house,” meaning the house of Mr. Reilly, the assessor, which is near the park. Mr. Marashlian indicated that he was engaged by Nutley to evaluate the impact of the creative playground on the value of the surrounding properties. He found that there was no negative impact on those values. He indicated that in general, parks were amenities. He examined in particular the sale of two properties to see whether there was any consequence with respect to the value of nearby houses after the opening of the creative playground. The property at 10 Funston Place sold in January of 1986 for $139,000, and again in November of 1992 for $156,000. The property at 44 Funston Place sold in December 1986 for $165,000, and in June 1993 for $182,000. Based on these paired sales, Mr. Marashlian concluded that there should be no negative adjustment as a result of the opening of the park in 1992. As a matter of logic, Mr. Marashlian's conclusion is not necessarily supported by the data. First, it appears that the property at 10 Funston Place was substantially improved between the two sale dates. Second, in each case, the initial sale was more than five years before the opening of the creative playground. It is possible that the value of those two properties increased radically up to the date of the opening of the creative playground, and then dropped radically to a value somewhat greater than the 1986 sale price after the opening of the playground. I find that, although Mr. Marashlian analyzed that data to indicate that the park had no impact on property values, that is not a proper inference to be drawn in either logic or law. He could, and did, conclude that, from 1986 to the date of the second sale of each property, their values increased. I find his conclusion that the opening of the park had no influence on value is not a conclusion that is supported by this data. There was a five-year period between each of the two paired sales. During that time period the values of real estate were influenced by many factors; the opening of the creative playground was only one of these factors. Mr. Reilly testified that the 1993 assessment roll was essentially a carryover from the 1977 assessment roll. For each year after 1977, assessments were carried forward unless there had been physical changes to the subject property or zoning changes effecting the subject. He testified that no changes had been made to any of the nineteen properties as a result of the construction of the creative playground because that did not involve a physical change to the nineteen properties or a zoning change effecting the nineteen properties. The defendants presented three witnesses: Mr. Halter, one of the taxpayer defendants; Ms. McGowan, another of the taxpayer defendants; and Mr. William Bate, the taxpayer's expert. Mr. Halter testified as to the increased activity resulting from the opening of the playground with respect to noise, parking, and litter. Ms. McGowan's testimony was similar; she emphasized the problems of trespass, illegal parking. and blocked driveways. I find that there clearly was increased traffic,
litter, parking problems, and noise resulting from the opening of the playground.
value this court cannot revise an assessment. Rabstein, supra. In short, the factual evidence in this case cannot support a finding of the value of any of the nineteen subject properties on October 1, 1992. Given that failure of proof, in fact the failure of either party to offer any proof of value, the ultimate resolution of this case turns on the proper application of the law. There are only two possible conclusions: the assessment of each property must be restored to the original assessment or the appeals of Nutley from the reduced assessments ordered by the Essex County Board of Taxation must be dismissed.
The law on the presumption of correctness of tax assessments in tax appeal proceedings is stated in Aetna Life Ins. Co. v. Newark, 10 N.J. 99 (1952): The settled rule is that there is a presumption that an assessment made by the proper authority is correct and the burden of proof is on the taxpayer to show otherwise. L. Bamberger & Co. v. Division of Tax Appeals, supra [1 N.J. at 159]. And the taxpayer has not met this burden unless he has presented the appellate tribunal with sufficient competent evidence to overcome the presumption, that is, to establish a true valuation of the property at variance with the assessment. Riverview Gardens v. North Arlington Borough, 9 N.J. 167, 175 (1952). In other words, it is not sufficient for the taxpayer merely to introduce evidence: the presumption stands until sufficient competent evidence is adduced to prove a true valuation different from the assessment. Such evidence must be definite, positive and certain in quality and quantity to overcome the presumption. Central R.R. Co. of N.J. v. State Tax Dept., 112 N.J.L. 5, 8 (E&A 1933).
[Id. at 105.] The same rule expressed in Aetna also applies to the presumption of correctness to be accorded to county tax board judgments. See Byram Tp. v. Western World, Inc., 111 N.J. 222, 235 (1988) (stating that “[w]hile a municipality's original assessment is entitled to a presumption of validity, this presumption attaches to the assessment of the county board when it is the determination of
that body that is challenged before the Tax Court”).See footnote 2
2
Riverview Gardens v. North Arlington
Bor.,
9 N.J. 167, 175 (1952) (holding that “[t]he weight of the presumption so accorded the
assessment or the judgment of the county board is overcome where, on the hearing de novo on
appeal, the appellate tribunal is presented with sufficient competent evidence to determine the
true valuation of the property”); see also Glenwood Realty Co., Inc. v. East Orange,
78 N.J.
Super. 67, 70 (App. Div. 1963); Passaic v. Botany Mills, Inc.,
72 N.J. Super. 449, 454 (App. Div.
1962); Passaic v. Gera Mills,
55 N.J. Super. 73, 88 (App. Div. 1959). [Id. at 414-15.] Although the plaintiff attacks the underlying rationale of the Essex County Board of Taxation's judgments in this matter, there is nothing to suggest that the quantum of those judgments is far wide of the mark of true value. (A ten percent difference can hardly be “far wide of the mark.”) The proceeding in the Tax Court is a trial de novo, N.J.S.A. 2B:13-3(b), not a review of the county board proceeding or an examination of the sufficiency of proof before the county board. See generally Chevron USA, Inc. v. Perth Amboy, 9 N.J. Tax 571, 581 (Tax 1988) (citing Black's Law Dictionary “on hearing 'de novo' court hears matter as a court of original and not appellate jurisdiction.”). As a result, no examination of the underlying rationale of the county tax board is warranted. I have reviewed the testimony adduced at trial to determine whether the Township of Nutley has put forth, by a preponderance of the evidence, values of the nineteen properties that are different from the nineteen values established by the county tax board. This is the approach that has been adopted by the Tax Court, and explained in Rumson Bor. v. Peckham, 7 N.J. Tax 539 (Tax 1985): Although plaintiff thus carried its burden of production, merely overcoming the presumption of correctness in a Tax Court proceeding does not entitle plaintiff to a judgment in its favor. A trial in the Tax Court (formerly the Division of Tax Appeals) “is a de novo one in which the ultimate fact sought to be determined is the full and fair value of the subject property.” Rek Investment Co. v. Newark, 80 N.J. Super. 442, 557, 194 A.2d 368 (App. Div. 1963); Atlantic City v. Moltich, 3 N.J. Tax 147, 153 (Tax Ct. 1981); N.J.S.A. 54:51A-1. Throughout the Tax Court proceedings, plaintiff retains the burden of ultimate persuasion to upset the county tax board judgment fixing the assessment for the subject property. Herman Holding Corp. v. Montvale, 5 N.J. Tax 199, 200 (Tax Ct. 1983); cf. Anderson v. Exxon Co., supra, 89 N.J. at 483, 446 A.2d 486 (1982). This burden is met only when the court can conclude by a preponderance of the credible evidence that plaintiff's opinion of value represents the true value of the subject property. Samuel Hird & Sons, Inc. v. Garfield, 87 N.J. Super. 65, 208 A.2d 153 (App. Div. 1965). . . . . In the present case the presumption disappeared once plaintiff met its burden of production of sufficient, competent evidence and overcame the presumption of correctness of the judgment of the Monmouth County Board of Taxation. In order to prevail ultimately, the borough [plaintiff] must also
persuade the court by a preponderance of the credible evidence that its opinion of
value corresponds to the value of the subject property.
[Id. at 550-51.]
This approach is entirely consistent with the Appellate Division's decision in North Bergen Tp.
v. Diekmann's Est.,
37 N.J. Super. 221 (App. Div. 1955), where the court remanded the case to
the Division of Tax Appeals for a full consideration of the trial testimony following a finding
that the presumption of correctness of the county tax board had been overcome by the township.
See also Passaic v. Gera Mills, supra, 55 N.J. Super. at 88 (rejecting the city's argument that,
after the presumption of correctness of the county tax board is overcome, the presumption in
favor of the original assessment is revived and the taxpayer assumes the burden of proof).
has met its burden of production of evidence. The presumptions of correctness of the original
assessments are not revived by the plaintiff municipality's having met its burden of production of
evidence. Passaic v. Gera Mills, supra, 55 N.J. Super. at 88. The evidence is insufficient to find
any values. Neither party has met its burden of persuasion. Accordingly, plaintiff's claim must
be dismissed. Rumson Borough v. Peckham, supra, 7 N.J. Tax at 549-50.
determination rested with the county prosecutor and deference to that decision was appropriate).
The Township of Nutley, the plaintiff in this court, has the burden of ultimate persuasion to upset
the county tax board judgment. It presented its case; it rested; it failed to carry that burden.
Passaic v. Gera Mills, supra, 55 N.J. Super. at 89. Although the Appellate Division has found
that the plaintiff has met its burden of production of evidence, I find that it has not met its burden
of persuading this court by evidence that is definite, positive, and certain in quality and quantity
of the true value of each of the nineteen properties. It follows that this court cannot disturb the
nineteen county tax board judgments..
Footnote: 1 1 With regard to whether Tax Court judgments should affirm assessments or dismiss complaints see Southgate Realty Assocs. v. Bordentown Tp. 246 N.J. Super. 149 (App. Div. 1991) (holding that when a taxpayer fails to comply with N.J.S.A. 54:4-34 commonly referred to as Chapter 91 (L. 1979, c. 91, §1) a judgment of dismissal rather than affirmance should be entered). After the trial of these cases, I could not find value. Accordingly, it would have been more appropriate to have entered judgments dismissing the complaints for failure of proof rather than affirming judgments in amounts which this court could neither replace with other values or verify as correct. Footnote: 2 2 Note our Supreme Court's use of the term “the assessment of the County Board” rather than the county board judgment. In effect the judgment of the county board revising an assessment becomes a new assessment. The original assessment and the presumption that it is correct when challenged at the county board, disappear after the entry of the county board judgment. Footnote: 3 *** See fn 1 in text of opinion Page 15 of 2
This archive is a service of Rominger Legal.
|
|
|
NOW - CASE
LAW - All 50 States - Federal Courts - Try
it for FREE
We
now have full text legal news
drawn from all the major sources!!
Pennsylvania Lawyer Help Board
TERMS
OF USE - DISCLAIMER - LINKING POLICIES
Created and Developed by
Rominger Legal
Copyright 1997 - 2009.
A Division of
ROMINGER, INC.
