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Semi Private Golf Course Assessment is Affirmed by Tax Court

SteveK — Thu, 29 Dec 2011 16:12:38 +0000

In an recently reported decision the Tax Court affirmed the assessment of a semi private golf course in Gale & Kitson Fredon Golf v Township of Fredon.

Fredon Township conducted a revaluation and the owners of the golf course appealed the new assessment. After trial, the Tax Court, however, did not make a determination of the market value of the golf course. Instead, Judge Vito Bianco held that neither of the parties’ expert appraisers met the burden of proving any adjustment to the assessment at issue was warranted. Stated another way, Judge Bianco found deficiencies in both appraisers opinions to the point of not being able to arrive at anything other than the existing presumed valid assessment.

The taxpayer’s expert used the income capitalization approach in valuing the property. The Court found numerous deficiencies in the development of the capitalization rate. But, more importantly, Judge Bianco held that the cost approach was a more appropriate valuation method than the income capitalization approach for a semi private golf course.

The revaluation firm was the appraisal expert for Fredon and used the cost approach. However, the Court found deficiencies in the land sales used by their appraiser. The Court criticized the use of deed restricted land sales to public and not for profit entities, and held in part that these comparable properties were therefore not of the same highest and best use as the subject golf course.

As stated at the outset, this case is unreported and of limited precedential value. That being said, we have little in the way of any Tax Court decisions on valuing golf course properties. We are also awaiting a decision on another golf course case from Presiding Judge DeAlmeida. It will be interesting to see if Judge DeAlmeida agrees with Judge Bianco’s analysis that the cost approach is the correct valuation method in that golf course case.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

Too Many Appraisals, Too Little Credibility A Cautionary Tax Court Tale

SteveK — Tue, 06 Dec 2011 19:22:06 +0000

The Tax Court in a recent unreported decision allowed evidence, including adjustments to comparable sales by a pro se taxpayer at trial. However, the case, Kula v. Township of Downe, provides a more important strategic lessons to municipal attorneys and tax assessors. Sometimes it is better not to put a case on at all.

The pro se taxpayer did not have an appraiser. But, unlike the town’s appraiser she relied upon comparable sales in the subject municipality. A lay person generally is not permitted to provide expert testimony. But, it appears that the lack of credibility of the municipal appraiser may have influenced the court’s decision to reduce the assessment on the property and give more than the usual weight to valuation evidence provided by a lay person.

The pro se taxpayer effectively cross examined and apparently destroyed the town’s appraiser. The taxpayer was able to show that the appraiser for the municipality produced three different appraisal reports, first, at the County Tax Board, then secondly in Discovery, and then a third, at trial at the Tax Court. The appraiser made widely different adjustments on the same properties in each report. In addition, the appraiser used sales outside of the subject municipality. The Court therefore found that the town’s appraiser lacked credibility and relied upon the pro se taxpayer’s comparable sales and even her adjustments.

It is, of course, easier to criticize trial strategy after a case is over. But, perhaps in this instance, it would have been better for the town to leave well enough alone and not put on its case at all.

The case can be found at the Tax Court web site: http://www.judiciary.state.nj.us/taxcourt/tax_unpublished/13984-09opn.pdf

Jeff Lehrer receives the William M. Cox award for exemplary service to the legal profession and to local government

SteveK — Sun, 20 Nov 2011 20:12:40 +0000

We are pleased to announce that our partner, Jeffrey Lehrer was recently honored by at the N.J League of Municipalities Convention with the William Cox Award for exemplary service to the legal profession and to local government. Bill Cox is well known in New Jersey for his knowledge and skill in local government and planning and zoning law, and is the author of New Jersey Zoning and Planning Administration, the bible for lawyers throughout the state in the field.

This is a special honor for Jeff and for this law firm.

Martin Allen obtains dismissal of tax appeal where property owner did not provide information in response to a “may dismiss” letter.

SteveK — Thu, 20 Oct 2011 19:37:38 +0000

In James Dale Enterprises v. Berkeley Heights, 26 N. J. Tax 117 (Tax 2011), Martin Allen, chairman of the firm’s Real Estate Tax Department successfully argued that a tax assessor’s request for income and expense information pursuant to Chapter 91 (N.J.S.A.54:4-34) does not require an unequivocal statement that a tax appeal will be dismissed. The inclusion of a copy of the law with the request is adequate notice to the property owner of the possible consequences of non-compliance. The assessor’s letter to the property owner stated that a failure to provide income and expense information “may” result in the taxpayer’s tax appeal being dismissed.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq

Martin Allen Panelist for Upcoming Municipal Tax Appeal Programs

SteveK — Thu, 18 Aug 2011 20:07:55 +0000

Martin Allen, partner in the firm, will be a panelist on “A Mock County Board Hearing” at the Annual Meeting of the New Jersey Association of County Tax Boards. Friday, September 2, 2011 at 9:00 am at The Grand Hotel, Cape May. Martin will be acting the role of municipal defense attorney on the panel.

Martin will also be participating in a similar program at the League of Municipalities convention on Thursday, November 17th at 9 am at the Convention Center in Atlantic City.

The title of that program is: “League Tandem Session with the Association of Municipal Assessors of New Jersey and the New Jersey Institute of Local Government Attorneys: Tax Appeals – Trials and Tribulations.” The League program is described as: “Being ‘Trial-Ready’ is a crucial strength in the appeal process as, unfortunately, not all cases are resolved through ‘negotiation’. Join this experienced panel and explore the process through a mock trial which resolves the appeal of a ‘trophy’ single family residence.” Martin is one of the experienced panelists for this program.

US SUPREME COURT INSULATES MUNICIPALITIES FROM FIRST AMENDMENT SUITS

SteveK — Thu, 21 Jul 2011 18:39:31 +0000

In a decision unifying the approach to what are referred to as “petition clause” cases, The United States Supreme Court reversed a Third Circuit decision upholding a jury verdict in favor of a public employee. In Borough of Duryea v. Guarnieri the plaintiff, a municipal employee, claimed the municipality retaliated against him after he filed a lawsuit. The employee claimed his lawsuit was a protected activity under the First Amendment because he was “petitioning” the government with his grievances. Under the existing Third Circuit jurisprudence, the trial court agreed and submitted the matter to the jury. The jury returned a verdict against the municipality. The Supreme Court reversed indicating that there is a requirement that in order for an activity to be protected pursuant to the Petition Clause of the First Amendment, the “petition” or grievance, or lawsuit, must involve a matter of public concern. AS a result, the municipality was therefore absolved of liability. Therefore, if a grievance or complaint by an employee involves an internal matter, the municipality cannot be held liable under the petition clause of the First Amendment.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

Developers benefit from “Time of Application” law passed on May 5.

SteveK — Fri, 06 May 2011 16:14:26 +0000

On May 5, 2010, Governor Christie signed into law P.L. 2010, Chapter 9, known as the “Time of Application” law, which protects the rights of a developer by requiring the municipality to apply the zoning in place when application is filed. The law does away with the “Time of Decision” rule, which has been in place since the 1995 decision by the New Jersey Supreme Court in Manalapan Realty v. Township Committee, which allowed a municipality to change its zoning to negatively affect or prohibit a project which was already under review by a planning board.

The “Time of Application” law, effective May 5, 2011, requires that the development regulations in effect at the time a developer submits an application to a municipal land use board apply to that particular project. The only exception would be where a municipality makes changes to a development ordinance involving the issues of health and public safety, whereby such changed health and public safety ordinance would apply to the filed application.

As New Jersey and our Nation begin to rebound from the economic crisis that has slowed development, this law enhances the climate for developers to begin constructing projects in New Jersey. This change provides land use developer a better ability to plan its development applications.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in zoning, land use and local government matters. For additional information about the matters in this bulletin or in the firm’s land use, zoning and municipal please contact Jeffrey B. Lehrer, Esq.

Tax Court Developments

SteveK — Mon, 12 Apr 2010 18:01:24 +0000

In Davanne v. Edison, (see previous blog entry of Feb. 19,2010) Martin Allen successfully argued before the New Jersey Supreme Court that the 8th Amendment prohibition against unreasonable and excessive fines does not apply to a dismissal of a tax appeal because of an income producing property owner’s failure to respond to a request from a tax assessor for income and expense information.

More recently, in Stellakis v South Plainfield, an unreported decision of the Tax Court, we argued, and the Court determined that taxpayer’s counsel failed to present any evidence at the County Tax Board despite calling the Assessor as his witness and referring him to comparable sales referred to in a settlement letter. The Tax Court, after reviewing an audio recording of the County Board hearing, held that the hearing was a sham and dismissed the Tax Court appeal pursuant to N.J.S.A. 54:51A-1(c), which precludes review by the Tax Court if the County Board matter was dismissed for lack of prosecution.

Firm Argues That Hospital’s Offsite Physical Therapy Services at “Wellness Center” Is Not Entitled to Exemption

SteveK — Fri, 19 Feb 2010 15:36:34 +0000

Martin Allen recently argued before the NJ Appellate Division in the case of Hunterdon Medical Center v. Readington. In that case, the N J Supreme Court reversed in part and remanded the matter to the Tax Court to determine if the physical therapy services provided at the off site heath and wellness center owed by the hospital are exempt from taxing under N.J.S.A. 54:4-3.6. On remand the Tax Court agreed with the argument that in the particular facts of the case, the portion of the property where the physical therapy was conducted is taxable. The hospital has appealed that decision which was recently presented to the Appellate Division.

Martin Allen speaks to Monmouth County Tax Assessors

SteveK — Fri, 19 Feb 2010 15:34:12 +0000

Mr. Allen appeared on February 4 as a speaker at the Monmouth County Assessor’s 4th Annual Conference. The topic of his talk was the “Legal Pathway through the Appeal Process” in which he discussed the procedural defenses and technical issues that may be employed by a municipality in a tax appeal. Mr. Allen will be speaking at the New Jersey Assessor’s Association Conference at Forsgate Country Club in Monroe Township on March 18th.