LYDIA CIMILLO v. RIVER EDGE BOROUGH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3613-05T13613-05T1

LYDIA CIMILLO,

Plaintiff-Appellant,

v.

RIVER EDGE BOROUGH,

Defendant-Respondent.

_________________________________

 

Argued: January 17, 2007 - Decided February 2, 2007

Before Judges Coburn, Axelrad and Gilroy.

On appeal from the Tax Court of New Jersey, Docket No. 5587-2005.

Edward T. Ehler argued the cause for appellant.

Alan P. Spiniello argued the cause for respondent.

PER CURIAM

Taxpayer Lydia Cimillo appeals from the judgment of the Tax Court reducing the assessment on her single-family residence located at 810 Summit Avenue, Borough of River Edge, for the 2005 tax year from $648,800 to $605,000. She asserts the following arguments on appeal:

POINT I

THE TRIAL COURT ERRED IN DETERMINING PROPERTY VALUE WHEN IT RESORTED TO THE AVERAGING OF COMPARABLE SALES, WITHOUT CONSIDERING AND WEIGHING THE PARTICULAR FEATURES OF EACH COMPARABLE BEARING ON ITS RELIABILITY AS AN INDICATOR OF VALUE OF THE SUBJECT PROPERTY.

POINT II

THE TRIAL COURT FAILED TO CONSIDER PLAINTIFF'S DISCRIMINATION CLAIM, WHICH WAS SET FORTH IN THE COMPLAINT BUT NEVER ADDRESSED OR EVEN MENTIONED BY THE COURT.

The scope of appellate review from a Tax Court determination is the same as that applicable to a non-jury determination of any other trial court. 125 Monitor St. v. Jersey City, 23 N.J. Tax 9, 13 (App. Div. 2005). "[J]udges presiding in the Tax Court have special expertise; for that reason their findings will not be disturbed unless they are plainly arbitrary or there is a lack of substantial credible evidence to support them." Alpine Country Club v. Bor. of Demarest, 354 N.J. Super. 387, 390 (App. Div. 2002) (quoting Glenpointe Assoc. v. Township of Teaneck, 241 N.J. Super. 37, 46 (App. Div.), certif. denied, 122 N.J. 391 (1990)).

At trial the taxpayer presented evidence of two sales that she contended were comparable to her property and testified about alleged errors in the municipality's property record card in support of her position that the fair market value of her property as of the assessment date was $450,000. The taxpayer made no adjustments to her comparable sales and presented no expert testimony of value. Although Judge Pizzuto could have dismissed the taxpayer's appeal at the conclusion of her case based on her failure to present sufficient competent evidence to overcome the presumption of correctness of the municipal assessment, he denied the municipality's Pantasote motion and required it to defend its assessment, presumably as an accommodation to the taxpayer's pro se status.

The tax assessor explained about the revaluation, his inspection of the taxpayer's property and the information contained on the property record card. He also presented evidence as to how the assessment was derived using the cost approach, as substantiated by three comparable sales, with appropriate adjustments as compared to the subject property. The assessor also made adjustments to the taxpayer's comparable sales. He concluded the $648,800 assessment represented the fair market value of the taxpayer's property.

Judge Pizzuto averaged the taxpayer's comparable sales and made a time adjustment to the assessment date to reach a "reasonable value indication" to be derived from the comparable sales offered by the taxpayer. Concluding that the municipality's sales should be given essentially the same significance in the determination of value, the trial judge averaged that number with the average of the municipality's adjusted comparable sales, reducing the assessment to $605,000, which also represented fair market value, as 2005 was a revaluation year.

It would have been within the Tax Court's discretion to have given no weight to the taxpayer's unadjusted comparable sales and to have affirmed the municipal assessment. Instead, again clearly as an accommodation to the taxpayer, the court made a reasonable adjustment to her comparable sales, gave them the same weight as those presented by the municipality, and reduced the assessment. We defer to the court's special expertise, and discern no basis to second-guess the court's determination.

We also reject the taxpayer's second argument as she did not articulate a true "discrimination" claim in her complaint, nor did she attempt to present one at trial. As there was a borough-wide revaluation for the 2005 year and all properties were assessed at 100% of true value, the taxpayer would not have had a viable claim. See Continental Paper Co. v. Vill. of Ridgefield Park, 122 N.J. Super. 446, 450 (App. Div.), certif. denied, 63 N.J. 328 (1973) (to make out a case of actionable discrimination, one of the elements is proof that the real property generally in the municipality was assessed at less than true value). The taxpayer's actual complaint, voiced at trial, was that her assessment was more than some of her neighbors. As the court explained, she is not entitled to have the same assessment as her neighbors, but is only entitled to have her assessment adjusted in light of current market value with reference to comparable properties and a correct property record card. We are satisfied that was done.

Affirmed.

 

Pantasote Co. v. City of Passaic, 100 N.J. 408, 412 (1985).

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A-3613-05T1

February 2, 2007