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Tuesday, September 16, 2008
White Township’s wallet was recently hit by the Appellate Division’s decision in DSM Nutritional Products v. White Township. In that case, the Appellate Division affirmed reducing the assessment on DSM Nutritional’s property by $77 million dollars for the 2004 tax year and by $74 million dollars for the 2005 tax year. Consequently, White Township must now refund more than $2.5 million dollars in property taxes to DSM Nutritional.
At trial in the Tax Court, Judge Kuskin held that the DSM Nutritional expert’s sole reliance on the cost approach was appropriate due to the fact that “other market data,” such as “comparable sales or leases, [were] scarce or nonexistent.” In addition, at trial, the question of depreciation became a major issue. Addressing this issue, Judge Kuskin noted that “the analysis by plaintiff's appraiser was not error free” but that “defendant presented no depreciation analysis,” or other proofs to challenge the conclusions or adjustments of plaintiff's appraiser. As such, Judge Kuskin evaluated in detail DSM Nutritional expert’s testimony and after noting the need to make corrections and adjustments, Judge Kuskin concluded that the “original assessment [was] unreliable,” and therefore not entitled to “its presumptive correctness.” In so doing, Judge Kuskin ruled that DSM Nutritional overcame the presumption of correctness that normally attaches to a municipality’s assessment. Since the presumption of correctness of the assessment no longer attached to DSM Nutritional’s assessment, Judge Kuskin was under a duty to find the true value of the property. In so doing, Judge Kuskin lowered the assessment of the property by $77 million for the 2004 tax year and by $74 million for the 2005 tax year.
The Appellate Division affirmed Judge Kuskin’s decision. Some sources say that this case will be appealed to the New Jersey Supreme Court.
As it stands now, in order to refund the $2.5 million dollars to DSM Nutritional, the property taxes in White Township are going to be raised by 5 cents per 100 dollars in assessed valuation.
To read about this decision from LehighValleyLive.com, click Property Tax.
To read about this decision from the NJ.com, click Property Tax.
At trial in the Tax Court, Judge Kuskin held that the DSM Nutritional expert’s sole reliance on the cost approach was appropriate due to the fact that “other market data,” such as “comparable sales or leases, [were] scarce or nonexistent.” In addition, at trial, the question of depreciation became a major issue. Addressing this issue, Judge Kuskin noted that “the analysis by plaintiff's appraiser was not error free” but that “defendant presented no depreciation analysis,” or other proofs to challenge the conclusions or adjustments of plaintiff's appraiser. As such, Judge Kuskin evaluated in detail DSM Nutritional expert’s testimony and after noting the need to make corrections and adjustments, Judge Kuskin concluded that the “original assessment [was] unreliable,” and therefore not entitled to “its presumptive correctness.” In so doing, Judge Kuskin ruled that DSM Nutritional overcame the presumption of correctness that normally attaches to a municipality’s assessment. Since the presumption of correctness of the assessment no longer attached to DSM Nutritional’s assessment, Judge Kuskin was under a duty to find the true value of the property. In so doing, Judge Kuskin lowered the assessment of the property by $77 million for the 2004 tax year and by $74 million for the 2005 tax year.
The Appellate Division affirmed Judge Kuskin’s decision. Some sources say that this case will be appealed to the New Jersey Supreme Court.
As it stands now, in order to refund the $2.5 million dollars to DSM Nutritional, the property taxes in White Township are going to be raised by 5 cents per 100 dollars in assessed valuation.
To read about this decision from LehighValleyLive.com, click Property Tax.
To read about this decision from the NJ.com, click Property Tax.
Labels: Court Opinions
Thursday, September 11, 2008
Please congratulate Lee S. Holtzman, partner at Schneck Holtzman LLC, who was recently selected by New Jersey Super Lawyers as a "Rising Star" for being one of "The Top Young Lawyers in New Jersey." Congratulations Lee.
Labels: Schneck Holtzman Success Story
Wednesday, September 10, 2008
According to today’s DailyRecord, “Assembly Republicans denounced new affordable housing regulations that took effect this summer as ‘devastating’ to New Jersey and vowed Tuesday to focus most of their legislative efforts this fall on revising them.” This effort is based on the realization that the new rules will lead, as some believe, to higher property taxes, overdevelopment and less open space. In part, the Republicans are looking to reduce the number of affordable houses required to be built each year from 115,000 to some more reasonable level. One idea to accomplish this is by using New Jersey’s plethora of foreclosed homes to solve the state’s needs for affordable housing. Please click the words Property Tax to read the DailyRecord’s full article.
Labels: Taxpayer News
Monday, September 8, 2008
The Appellate Division recently affirmed ABD Independence, Inc. v. Township of Independence, --- A.2d ----, 2008 WL 3982681 (App. Div. 2008) (Real Estate Property Tax).
In this case, Plaintiff, ABD Independence, Inc. (ABD), owned property in Warren County that was governed by the Highlands Water Protection and Planning Act (Highlands Act), N.J.S.A. 13:20-1 to -35. After trial, the Plaintiff appealed the value assigned to the property by Judge Kuskin, judge of the Tax Court, and argued that the value assigned by Judge Kuskin was excessive and alleged that Judge Kuskin misinterpreted statutory exemptions and thereby allowed development and regulations permitting an extension of public water to the site. The Township of Independence (the Township), cross-appealed and alleged that Judge Kuskin committed error when he found that the improvements had no value. The Appellate Division dismissed both appeals and affirmed Judge Kuskin’s findings.
The subject property in question was a 122.86 acre parcel located along Petersburg Road (Warren County Route 614) about 1200 feet north of the intersection of Petersburg Road and State Highway 46 in the Township. A substantial portion of the subject property is wooded with moderate to steep slopes. A large pond is located near Petersburg Road. A 1910 square foot farmhouse is located on the property close to Petersburg Road. The farmhouse is occupied but in disrepair. There are also miscellaneous accessory structures, such as a barn, sheds and a springhouse, on the property, all in disrepair.
On June 16, 2003, the Township planning board granted preliminary major subdivision approval to plaintiff for a thirty-nine lot clustered residential development. The project also included a single 10.056-acre parcel with the existing house and out-buildings. Each home would be served by public water and individual septic systems. The approval contained several conditions, including issuance of several permits by the New Jersey Department of Environmental Protection (DEP).
The Highlands Act was adopted in August 2004, but major Highlands developments that received certain approvals and/or permits prior to March 29, 2004, were exempt from its provisions. N.J.S.A. 13:20-28a(3); N.J.A.C. 7:38-2.3(a)3. On October 18, 2004, in response to the Highlands Applicability Determination and Water Quality Management Plan Consistency Determination request filed by ABD, DEP advised ABD that the subject property is located in the Highlands Preservation Area. DEP noted that ABD had not received qualifying approvals before March 29, 2004; therefore, ABD's proposed subdivision fell within the Major Highlands Development category, that it did not meet any of the statutory exemptions, and it would be required to obtain a Highland Preservation Area Approval before it could proceed. The Highlands Act prohibits major Highlands development within 300 feet of any Highlands open waters, i.e., 300-foot buffer, N.J.S.A. 13:20-30b(1), -32a; N.J.A.C. 7:38-3.6(a). The subject property's existing structures fell within that buffer.
At trial, Judge Kuskin found that an addition to the residence on the property could be constructed even though the residence was within the 300 foot buffer area. Judge Kuskin interpreted N.J.S.A. 13:20-28b, which provides that the enumerated exemptions do not alter or obviate the requirements of other statutes or regulations, as not including Highlands Act requirements. Judge Kuskin reasoned that any other interpretation would render the seventeen enumerated exceptions, N.J.S.A. 13:20-28a(1) to (17), meaningless. Consequently, Judge Kuskin held that the taxpayer could renovate or construct a single family dwelling within the 300 foot buffer mandated by the Highlands Act. In so doing, Judge Kuskin rejected Plaintiff's contention that an extension of the water line would be prohibited under N.J.A.C. 7:38-2.5(a), which prohibits “the construction of any new public water system and the extension of any existing public water system to serve development in the preservation area,” because N.J.A.C. 7:38-2.5(a) is inapplicable to a development that is “exempt from the Highlands Act pursuant to N.J.A.C. 7:38-2.3.”
The Appellate Division agreed with Judge Kuskin’s logic and affirmed the assessment that Judge Kuskin placed on the property.
In this case, Plaintiff, ABD Independence, Inc. (ABD), owned property in Warren County that was governed by the Highlands Water Protection and Planning Act (Highlands Act), N.J.S.A. 13:20-1 to -35. After trial, the Plaintiff appealed the value assigned to the property by Judge Kuskin, judge of the Tax Court, and argued that the value assigned by Judge Kuskin was excessive and alleged that Judge Kuskin misinterpreted statutory exemptions and thereby allowed development and regulations permitting an extension of public water to the site. The Township of Independence (the Township), cross-appealed and alleged that Judge Kuskin committed error when he found that the improvements had no value. The Appellate Division dismissed both appeals and affirmed Judge Kuskin’s findings.
The subject property in question was a 122.86 acre parcel located along Petersburg Road (Warren County Route 614) about 1200 feet north of the intersection of Petersburg Road and State Highway 46 in the Township. A substantial portion of the subject property is wooded with moderate to steep slopes. A large pond is located near Petersburg Road. A 1910 square foot farmhouse is located on the property close to Petersburg Road. The farmhouse is occupied but in disrepair. There are also miscellaneous accessory structures, such as a barn, sheds and a springhouse, on the property, all in disrepair.
On June 16, 2003, the Township planning board granted preliminary major subdivision approval to plaintiff for a thirty-nine lot clustered residential development. The project also included a single 10.056-acre parcel with the existing house and out-buildings. Each home would be served by public water and individual septic systems. The approval contained several conditions, including issuance of several permits by the New Jersey Department of Environmental Protection (DEP).
The Highlands Act was adopted in August 2004, but major Highlands developments that received certain approvals and/or permits prior to March 29, 2004, were exempt from its provisions. N.J.S.A. 13:20-28a(3); N.J.A.C. 7:38-2.3(a)3. On October 18, 2004, in response to the Highlands Applicability Determination and Water Quality Management Plan Consistency Determination request filed by ABD, DEP advised ABD that the subject property is located in the Highlands Preservation Area. DEP noted that ABD had not received qualifying approvals before March 29, 2004; therefore, ABD's proposed subdivision fell within the Major Highlands Development category, that it did not meet any of the statutory exemptions, and it would be required to obtain a Highland Preservation Area Approval before it could proceed. The Highlands Act prohibits major Highlands development within 300 feet of any Highlands open waters, i.e., 300-foot buffer, N.J.S.A. 13:20-30b(1), -32a; N.J.A.C. 7:38-3.6(a). The subject property's existing structures fell within that buffer.
At trial, Judge Kuskin found that an addition to the residence on the property could be constructed even though the residence was within the 300 foot buffer area. Judge Kuskin interpreted N.J.S.A. 13:20-28b, which provides that the enumerated exemptions do not alter or obviate the requirements of other statutes or regulations, as not including Highlands Act requirements. Judge Kuskin reasoned that any other interpretation would render the seventeen enumerated exceptions, N.J.S.A. 13:20-28a(1) to (17), meaningless. Consequently, Judge Kuskin held that the taxpayer could renovate or construct a single family dwelling within the 300 foot buffer mandated by the Highlands Act. In so doing, Judge Kuskin rejected Plaintiff's contention that an extension of the water line would be prohibited under N.J.A.C. 7:38-2.5(a), which prohibits “the construction of any new public water system and the extension of any existing public water system to serve development in the preservation area,” because N.J.A.C. 7:38-2.5(a) is inapplicable to a development that is “exempt from the Highlands Act pursuant to N.J.A.C. 7:38-2.3.”
The Appellate Division agreed with Judge Kuskin’s logic and affirmed the assessment that Judge Kuskin placed on the property.
Labels: Court Opinions
Thursday, September 4, 2008
The New Jersey Appellate Division decided Rosen v. Plainsboro Township yesterday. In that case, the Plaintiffs argued that Plainsboro Township’s 2006 reassessment of their condominium units should be nullified because no compliance plan was submitted or approved. The Plaintiffs challenged the application of the remediation exception under the applicable regulation, N.J.A.C. 18:12A-1.14, which provides in pertinent part:
The Plaintiffs argued that “property remediation” in section (i)(3)(viii) should be read in conjunction with the preceding language “soil contamination” to except from the compliance plan requirement only property remediation undertaken in connection with contaminated soil, and should not include remediation that they contend amounts to “a concentrated catching-up on deferred maintenance.”
The Appellate Division agreed with the Judge Menyuk, judge of the Tax Court of New Jersey, who found that the remedial work was not simply deferred maintenance but effected physical changes at the conclusion of the remedial work that increased the value of the condominium units from the prior assessment, which reflected only partial improvements to the properties while they were in a state of ongoing remediation. Consequently, the Appellate Division affirmed that the substantial remediation of the subject properties constituted an exception to the requirement of a compliance plan stated in N.J.S.A. 54:4-23.
(i) Assessment maintenance: An assessor proposing to revise and update assessments because he or she has reason to believe that property comprising a part of a taxing district has been assessed at a value lower or higher than is consistent with the purpose of securing uniform taxable valuation of property according to law for the purpose of taxation, or is not in substantial compliance with the law, and that the interests of the public will be promoted by reassessment of such property, shall make a reassessment of the property in the taxing district not in substantial compliance....
*2 ....
3. The following are the criteria to be considered by the county board and Division of Taxation in determining whether to approve a compliance plan.
....
(viii) Assessed value changes due to clerical, typographical, transpositional, physical descriptive or mathematical errors, added assessments, omitted assessments, omitted added assessments, exemptions, demolitions, governmentally imposed restrictions, planning board, and/or zoning board of adjustment approvals, approved revaluations, site contamination, removal of contaminated soil and property remediation; and storm, cyclone, tornado, earthquake, fire, flood, hurricane, vandalism, or other casualty, qualified farmland, subdivisions, mergers and changes resulting from appeals or settlement agreements, do not require the filing of a compliance plan.
The Plaintiffs argued that “property remediation” in section (i)(3)(viii) should be read in conjunction with the preceding language “soil contamination” to except from the compliance plan requirement only property remediation undertaken in connection with contaminated soil, and should not include remediation that they contend amounts to “a concentrated catching-up on deferred maintenance.”
The Appellate Division agreed with the Judge Menyuk, judge of the Tax Court of New Jersey, who found that the remedial work was not simply deferred maintenance but effected physical changes at the conclusion of the remedial work that increased the value of the condominium units from the prior assessment, which reflected only partial improvements to the properties while they were in a state of ongoing remediation. Consequently, the Appellate Division affirmed that the substantial remediation of the subject properties constituted an exception to the requirement of a compliance plan stated in N.J.S.A. 54:4-23.
Labels: Court Opinions
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