Silverman et al. v. Borough of AllenhurstAnnotate this Case
NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
TAX COURT OF NEW JERSEY
Mala Sundar R.J. Hughes Justice Complex
JUDGE P.O. Box 975
25 Market Street
Trenton, New Jersey 08625
Telephone (609) 943-4761
TeleFax: (609) 984-0805
June 7, 2013
BY ELECTRONIC MAIL
Michael A. Mishaan, Esq.
12 Christopher Way, Suite 200
Eatontown, New Jersey 07724
David A. Laughlin, Esq.
Birdsall & Laughlin, L.L.C.
1 720 Highway 34 North, P.O. Box 1380
Wall, New Jersey 07719
Re: Silverman et al. v. Borough of Allenhurst
Block 35, Lot 3
Docket No. 006388-2012______________
This letter constitutes the court s decision following trial in the above-captioned matter. Plaintiffs contest the local property tax assessment for tax year 2012 on the above captioned property located at 108 Cedar Avenue ( Subject ), in Allenhurst Borough ( Borough ). The contested assessment is as follows:
The Chapter 123 ratio applicable to tax year 2012 was 97.39%, with an upper limit of 112% and a lower limit of 82.78%.
Both parties presented the testimony of witnesses who were qualified as experts in real estate appraisal for purposes of the action. Both experts reports were admitted into evidence without objection. Plaintiffs expert opined the value of the Subject as of the October 1, 2011 valuation date as $2,000,000 (which reduces the $2,517,500 assessment to $1,947,800), while the Borough s expert opined the value as $2,700,000 (which would retain the assessment as is).
The court finds that the seven comparable sales used by both experts are reliable indicators of the Subject s value, because all but one are located in the Borough, the other in a competitive neighboring town, and their sales dates are in reasonable proximity to the assessment date. After accepting the experts adjustments which the court finds reasonable and persuasive, rejecting the adjustments made by the Borough s expert for location and effective age, and rejecting Plaintiffs expert s additional adjustment for bedroom count and market adjustments for 2010, the court finds the Subject s value to be $2,350,000. Since the assessed-to-true value ratio exceeds 100%, the court applies the Chapter 123 ratio and reduces the assessment to $2,288,665, or $2,290,000 (rounded).
The Subject is a legally conforming single family home located on a lot sized 14,500 square feet ( SF ). It is located amongst a residential neighborhood comprising of single family detached dwellings of varying styles and ages, and has convenient access to the beach and major/local highways.
The site is improved with a house built in 1907. The Plaintiffs expert deemed the home s effective age as 15 years, while the Borough s expert deemed it as 5-10 years to due to modernized updates which makes the house look brand new.
The house has two stories plus an attic on the third level which is heated and finished. A covered porch wraps around the front and sides of the home. It also has a wooden deck and a stone patio per the Borough s expert report. Plaintiffs expert deemed the style Victorian and the Borough s expert labeled it Colonial.
The house has a total of 13 rooms, of which, eight are bedrooms. It has four full bathrooms and one half-bathroom. The second floor has a sun room. Plaintiffs expert stated the gross living area ( GLA ) above grade as 4,764 SF including the third/attic level as to which she measured the living area from the inside. The Borough s expert stated the GLA was 4,710 SF as measured around the exterior. However, she did not dispute the minor discrepancy. Therefore, the court will use 4,764 SF as the GLA. The basement is full but unfinished and measures 1,546 SF.
Per Plaintiffs expert, the house has seven fireplaces. Per the Borough s expert, only one fireplace was functional, the remaining six being decorative. It has two-car detached garage, and a carport, which with the driveway, can hold up to six cars.
Both experts agreed that the Subject was well maintained, had been subject to improvements/updates over the years, and was in a good to excellent condition.1
Both experts also agreed that the highest and best use of the Subject is its present use as a single family residential home.
CONCLUSIONS OF LAW
A. Standard of Review
Original assessments and judgments of county boards of taxation are entitled to a presumption of validity. MSGW Real Estate Fund, L.L.C. v. Borough of Mountain Lakes, 18 N.J. Tax 364, 373 (Tax 1998). Due to the strength of the presumption, a taxpayer has the burden of proving that the assessment is erroneous with evidence that must be definite, positive and certain in quality and quantity to overcome the presumption. Ibid. (citations and quotations omitted).
Oncethe presumption of correctness is overcome, the court must determine the value based on a fair preponderance of the evidence provided by both parties. Ford Motor Co. v. Township of Edison, 127 N.J.290, 312-13 (1992) (citation omitted). The the court should proceed to weigh and evaluate the evidence and decide the appeal on the merits, whether or not the defendant seeks relief against the assessment. MSGW, supra, 18 N.J. Taxat 378.
The court s independent assessment depends on the evidence before it and the data that are properly at its disposal. F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J.418, 430 (1985). The complainant continues to bears the burden of persuading the court that the judgment under review is erroneous. Ford Motor Co., supra, 127 N.J.at 314-15.
Both experts used the market or comparable sales approach for their respective value conclusions. Plaintiffs expert also used the cost approach to support her value conclusion but placed most reliance on the market approach.
The sales comparison approach is generally accepted as an appropriate method of estimating value for a residence. Brown v. Borough of Glen Rock, 19 N.J Tax 366, 377 (App. Div.), certif. denied, 168 N.J. 291 (2001). The market value for the subject is derived by comparing similar properties that have recently sold, identifying appropriate units of comparison, and making adjustments to the sale prices of the comparable properties based on relevant, market-derived elements of comparison. Appraisal Institute, The Appraisal of Real Estate 301-02 (13th ed. 2008).
The cost approach, on the other hand, is appropriate for valuing new or relatively new construction since cost and market value are more closely related when properties are new. Id. at 382; Congoleum Corp. v. Township of Hamilton, 7 N.J. Tax 436, 443 (Tax 1985). It is also frequently applied to a proposed construction, special-purpose or specialty properties, and other properties [infrequently] exchanged . . . such as public buildings. The Appraisal of Real Estate, supra, at 382. Further, this approach is reliable where there is a lack of market activity that would render the comparable sales approach of limited usefulness. Ibid. It is usually not applicable in valuing properties with older improvements that suffer substantial depreciation, which may be difficult to estimate. Id. at 141.
Here, there was nothing to show that there was a dearth of market activity for one-family residences such that a sales comparison approach was unreliable. Further, Plaintiffs expert s report noted that she placed all weight on the latter approach as it best reflect[ed] the actions of buyers and sellers in the subject market place. Therefore, the court finds it unnecessary to examine the reliability of the cost approach in this matter.
Experts Comparable Sales
Plaintiffs expert used five comparables sales in the Borough. They were all 100+ year old colonial style homes. Sale One was located 0.15 miles west of the Subject at 218 Spier Avenue ( 218 Spier ) and sold on March 9, 2010 for $2.45 million. Sale Two was located 0.22 miles west of the Subject at 9 Corlies Avenue ( 9 Corlies ) which sold on May 10, 2011 for $1.778 million. Sale Three was located 0.20 miles west of the Subject at 231 Corlies Avenue ( 231 Corlies ), and sold on February 28, 2010 for $2.275 million. Sale Four was located 0.27 miles west of the Subject at 300 Corlies Avenue ( 300 Corlies ), which sold on May 18, 2010 for $1.762 million. Sale Five was 0.19 miles west of the Subject at 228 Spier Avenue ( 228 Spier ), which sold August 6, 2010 for $1.135 million.
The expert inspected the exteriors of all the comparables, and the interiors of 9 Corlies and 231 Corlies. Placing equal weight to all five comparables, the expert concluded the Subject s value as $2 million after adjustments to the comparable sales. She stated this was supported by her cost approach value conclusion of $2,029,027.
The Borough s expert also used 9 Corlies and 231 Corlies. In addition, she used a sale of a 26-year old home at 4 Cedar Avenue ( 4 Cedar ) located in the Borough, 0.21 miles to the east of the Subject, which sold for $3.2 million on June 30, 2010, and a 38-year old home at 49 Phillips Avenue located in the neighboring township of Deal ( 49 Phillips ), 1.17 miles north of the Subject, which sold for $3.475 million on January 13, 2011. She conducted a drive-by exterior inspection of all the comparables. Placing lesser weight to the Deal comparable, the expert concluded the Subject s value as $2.7 million.
The court finds the sales used by both experts to be credible since they were located primarily in the Borough and are not that remote in relation to the assessment date as to be unreliable. Plaintiffs expert s rejection of 4 Cedar on grounds the style was contemporary, and thus unlike the Subject, is unpersuasive. The MLS picture of the comparable indicates it is not so dissimilar in appearance to the Subject as to be rejected as a comparable.
2. Experts Adjustments to the Comparable Sales
Both experts made adjustments to their comparable sales for site size, GLA, bathroom count, and amenities (garage, porch, fireplace and the like). Plaintiffs expert also made adjustments for market condition and ocean view, while the Borough s expert made additional adjustments for location (proximity to the beach) and for effective age.
For her five comparable sales, Plaintiffs expert s gross/net adjustments were as follows:
Gross Adj. ($$)
Gross Adj. (%)
Net Adj ($$)
Net Adj (%)
The Borough s expert s gross/net adjustments for her four comparables were as follows:
Gross Adj. ($$)
Gross Adj. (%)
Net Adj ($$)
Net Adj (%)
The credibility of the adjustments is discussed below.
In this connection, it should be noted that in making value determinations, the Tax Court is regarded as an expert, and can adopt, reject, or adapt, all or a portion of the experts value opinions. Jersey City, Div. of Water v. Township of Parsippany-Troy Hills, 16 N.J. Tax 504, 528 (Tax 1997), aff d, 17 N.J. Tax 538 (App. Div. 1998). Although the court must apply its own judgment to valuation data submitted by experts in order to arrive at a true value and find an assessment for the years in question, it cannot make adjustments without sufficient cognizable factual evidence in the record. Township of Warren v. Suffness, 225 N.J. Super. 399, 413-14 (App. Div.) (citations omitted), certif. denied, 113 N.J. 640 (1988). Nor can it arbitrarily assign a value to the property not supported in the record. U.S. Life Realty Corp. v. Township of Jackson, 9 N.J. Tax 66, 79 (Tax 1987). The above principles should be balanced with the reality that very often adjustments made to comparable sales are mainly subjective in nature. Owens-Illinois Glass Co. v. Town of Bridgeton, 8 N.J. Tax 495, 512 (Tax 1986). Thus, the court is left to decide the credibility of the same.
(i) Site Size
Both experts made adjustments for site size at relatively close amounts. Plaintiffs expert used $25 per SF ( PSF ) of surplus land sale value based upon three vacant land sales in the same geographic area (in Deal Township and Elberon Township). She stated that surplus land (land exceeding the required minimum lot size of 14,000 SF) must be depreciated in value, and therefore, $25 PSF was reasonable.
The Borough s expert used $1.5 million per acre (or $34.44 PSF, one acre consisting of 43,560 SF) based upon her analysis of vacant land paired sales in the Borough and in Deal, plus her knowledge and experience of acreage prices in the locality. Neither expert produced evidence of the relied upon data nor did their reports include the same.
It may be true that generally surplus land is not as valuable. The Appraisal of Real Estate, supra, at 214 ( extra or remaining land not needed to support the land s specific use may have a different value than land area needed to support the improvement. ). However, the appraiser has to determine how much of the land is required to support the existing or ideal improvement, before deciding whether the balance is surplus, and then determine or provide a reason why the land is deemed surplus (such as, for instance, lacking necessary street access if an industrial building). Id. at 214-15. Here, Plaintiff s expert s basis for surplusage is simply that the lot size exceeds the minimum lot size of 14,000 SF permitted under the zoning regulations. However, and if the word minimum means that the lot size cannot exceed 14,000 SF, this does not render all land in excess of 14,000 SF as automatically surplus. Although reliance upon a lot size limitation or setbacks can impact the use of land, and thus, its value, a summary conclusion that these zoning limitations (again, presuming here minimum lot size means no more than ) are the only decisive factors for determining that certain area of land is surplus, removes any appraisal judgment or methodologies, out of the analyzing process.
Consequently, the expert s summary conclusion that the Subject has surplus land is not credible. Further, she did not balance her summary conclusion of surplus land with her own statement that the Borough is unique because land is more valuable. There is nothing to show that the land sales she had relied upon indicated one value for the Borough s minimum zoning requirements in the R-1 zone, and another value (at a lesser amount) for the balance.4 Additionally, while making her adjustments, she did not explain her use of $25 PSF even where she considered the Subject superior (i.e., where the comparables lot sizes did not exceed the zoning requirements). The court thus finds the Borough s expert s conclusion of $34 PSF as more credible.
The experts differed by $25 in their adjustments for GLA, with Plaintiffs expert using $100 PSF and the Borough s expert using $125 PSF5. Plaintiffs expert used the PSF improvement costs from the Marshall and Swift handbook which she stated was $125, deducted 20% was for depreciation, thus, arriving at $100. The Borough s expert quantum was based upon her knowledge/experience, her discussions with realtors, and review of the njactb.org website maintained by the Monmouth County Board of Taxation.
Plaintiffs expert did not elucidate why depreciation was merited at 20% (given the Subject s age of 100+ years and the fact that in her report she deemed its effective age as 15 years). In any event, depreciation is used under the cost approach, which is not employed here.6 The court thus finds that $125 PSF is appropriate.
(iii) Market Conditions
Plaintiffs expert provided a negative 2% per year to each of her five comparable sales. She maintained that 2% was based upon statistical research provided by the Multiple Listing Services ( MLS ) and by market abstraction. She also stated that the Chapter 123 ratios showed a general decline of about 4% and land sales showed a down market of about 10% (since land sales are less frequent due to greater financing difficulty) but used 2% since values were slightly more stable for ocean property in 2010 and 2011. Her report noted that property values in the Borough were stable, that marketability of the area was also good, and that although the market declined since 2007 purchasers with good credit rating were able to benefit from favorable mortgages and low interest rates.
The Borough s expert noted that residential sales in the Borough are generally not listed on the MLS. She stated that homes in the Borough are usually summer homes of generally well-to-do, non-New Jersey residents, and sold through word-of-mouth or through one or two realtors mostly for cash. Thus, the Borough was a self-contained market. In the absence of exposure to the market (as would be where the property is listed in the MLS), she opined that the comparables did not any adjustments for time, i.e., general market conditions.
Neither expert had any supporting documentation to either their reports or their testimony. The court finds Plaintiffs expert s reliance upon Chapter 123 ratios is not per se unreasonable. See Newport Center v. City of Jersey City, 17 N.J. Tax 405, 427 (Tax 1998) (although Chapter 123 ratios are not a wholly reliable or accurate measure of real estate value trends because the ratios are influenced by changes in assessments . . . and by the nature and number of properties which sell they can nonetheless suggest a pattern of the market conditions); cf. Township of Parsippany-Troy Hills, supra, 16 N.J. Tax at 531 (use of Chapter 123 ratios as indication of the market conditions less reliable because the study of ratios [are] influenced not only by market trends in residential properties but also by trends in commercial and industrial properties and by prior years market conditions ). However, national real estate market trends are not automatic indictors of local market trends. See generally The Appraisal of Real Estate, supra, at 333 (while a recession tends to deflate all real estate prices, . . . specific submarkets may be affected differently ).
The Chapter 123 ratio for the Borough for 2010 was 99.18% and for 2011 was 88.42% thus indicating a decline of about 10%. However, the comparable sales in the Borough used by the experts indicate a fairly stable market in 2010 and while there was the one sale in 2011 (9 Corlies) showed a drop, that property had a site size much smaller than the Subject (the experts agreeing that land in the Borough is generally more valuable).
In light of all of this information, the court finds that the market was stable for 2010, thus, no adjustments are needed. It will, however, accept the 2% decline for 2011.
Plaintiffs expert did not provide an adjustment for location even though she claimed some of her comparables had a superior location as homes east of the Subject are closer to the ocean and thus more desirable. She testified that there was no market support for an adjustment, yet provided an adjustment of $88,900 to 9 Corlies for its partial ocean view.
The Borough s expert provided an adjustment for location (in significant amounts of $250,000 to $500,000) because she considered the relative proximity to the beach a significant factor. She testified that her adjustment was based on a paired sale analysis (not included in her report), her knowledge of the area and of the land sales therein, and the Assessor Guidelines (not included in her report).
Given the testimony that the Borough is unique as a beach and ocean attraction, the court is persuaded that the Borough s expert reasonably concluded proximity to the beach is a valid adjustment factor. See also The Appraisal of Real Estate, supra, at 336 (there can be a difference in a residence with a pleasant view of the park and one located two blocks away without such view, and location adjustments may be needed for . . . the value contribution of an ocean view ).
Plaintiff s expert s adjustment to 9 Corlies for its ocean view (incorrectly as an upward rather than a downward adjustment) is unexplained. Although the expert claimed the adjustment was supported by market abstraction, the court was not provided with any data in her testimony or report in this regard. Nor were there any photographs of this comparable showing its ocean view. The location map attached to her report (using Google) does not show the ocean or the ocean vis- -vis the comparable in support of its partial ocean view characteristic.
The Borough s expert s upward adjustment of $500,000 dollars for 9 Corlies (her largest adjustment for his comparable) on grounds the property faced a large parking lot as opposed to a residence is questionable. It is undisputed that 9 Corlies is on a beach block as was 4 Cedar, for which she provided the same $500,000 dollar adjustment but as a downward adjustment (thus rendering it superior to the Subject). The court is not persuaded that the view of a parking lot instead of a residence totally nullifies the desirability of 9 Corlies as a premium beach block home and elevates the Subject s desirability in this regard. This is especially where she listed the view for 9 Corlies as residential in her report.
Additionally, there is no evidence to show that the quantum of her adjustments is credible or persuasive. Although she testified that the quantum of her adjustment was based on a paired sales analysis, the details of the same were not provided in court or in her report. Even if her own comparables were taken to indicate a market trend in this regard, the unadjusted sale prices are not supportive of the $500,000 dollar adjustment if close to the beach and $250,000 dollars if 2 blocks away from the beach. For instance, the two comparables closest to the beach, 4 Cedar and 9 Corlies, are about $1.4 million apart in sale price although on the same beach block. And although 231 Corlies is farther away from the ocean (and from 9 Corlies), it sold for more than about $500,000, but less than about $1 million as compared to 4 Cedar.
In the absence of any reliable market driven data or evidence, the adjustments for view by Plaintiff s expert and for location by the Borough s expert cannot be considered or estimated by the court. Suffness, supra, 225 N.J. Super. at 414.
(v) Age/Effective Age
The Borough s expert provided an adjustment for effective age of $10,000 per year. She stated that this was based upon her assessment of the renovations, improvements, and curbside appeal of the comparables. She deemed the Subject s effective age as between 5-10 years because its interior appeared to be brand new and updated (she verified this information with the owner s family member) and the exterior was well-maintained with newer awnings, roof, and windows. Thus, she made a +$100,000 adjustment for 231 Corlies for its effective age of 10-15 years; none for 4 Cedar because it had an effective age of 5-10 years (like the Subject); a +$50,000 adjustment for 9 Corlies because although she had deemed its effective age of 5-10 years, she testified it was closer to 10 years; and a +$100,000 adjustment for 49 Phillips which she deemed had an effective age of 10-15+ years.
The Borough s expert s methodology is not unreasonable. However, the basis and for and quantum of the adjustments is entirely subjective. Effective age is indicated by a building s condition and utility and is based on an appraiser s judgment and interpretation of market perceptions. The Appraisal of Real Estate, supra, at 412. The Borough s expert did not personally inspect the interiors of any of her comparables. It is difficult to assign credibility to an adjustment when the only basis for the same is a drive-by exterior inspection, however attractive that home s curb appeal. Therefore, the court will disregard these adjustments.
(vi) Other Adjustments
Both appraisers made various adjustments to number of bathrooms and other amenities. They both stated that they relied upon data in the MLS and their familiarity with sales in the Borough. The court finds that for the most part, Plaintiffs expert s quantum of adjustments is more reasonable because her gross/net adjustments are more reasonable and not as skewed as the Borough s expert. The court will thus use Plaintiffs expert s quantum of adjustment for the number of bathrooms; basement size and finish; number of garages and carports. However, the court does not find persuasive Plaintiffs expert s additional adjustment for number of bedrooms because that would be accounted for in her adjustment to the GLA. See The Appraisal of Real Estate, supra, at 340 (adjusting for size and for extra area in an extra room should be avoided).
The court will use the Borough s expert s adjustment for fireplaces because her testimony that the Subject had only one functioning fireplace was more credible. To the extent there are discrepancies in the adjustments for site size, basement and garage/carport for the commonly used comparables, the court will use Plaintiff s expert s adjustments because she personally inspected the interiors of the same while the Borough s expert did not.7
3. Subject s Value Conclusion
Based on the above analysis, the court finds the following as the adjusted sale prices for the 7 comparables as follows:8
Placing equal weight to all sales except 49 Phillips, for which low weight is provided, the court finds the Subject s value to be $2,350,000. The assessed-to-true value ratio is 107% requiring the application of the Chapter 123 ratio of 97.39%, providing the Subject s true value as $2,288,665, or $2,290,000 (rounded).
The Clerk of the Tax Court will enter a judgment reducing the assessment as follows:
Improvements: $ 898,000
Very truly yours,
Mala Sundar, J.T.C.
1 The Subject was purchased by Plaintiffs in 2008 for about $2,591,000. The Borough s expert s report indicated that the 2008 transaction was an estate sale per that tax records.
2 The comparison grid in the expert s report indicates upwards adjustments for the comparable s inferior features and negative adjustments for superior features. However, while she considered 9 Corlies superior because it had a partial ocean view she provided an upward rather than negative adjustment of $88,900. If considered as a negative adjustment, the net adjustments would be $182,659 or 10.3%.
3 The comparison grid in the expert s report indicates upward adjustments for the comparable s inferior features and negative adjustments for superior features. Thus, she deemed a full but partially finished basement as a superior condition in 9 Corlies meriting a -$50,000 adjustment. However, she did not make any adjustment for 4 Cedar which, according to her report, also had a full but partially finished basement. If she provided the same -$50,000 adjustment for 4 Cedar, the gross adjustments would be $1,063,210 (or 33.2%), and the net adjustments would be negative $506,790 or 15.8%.
4 The expert had determined a land value for the Subject as $1.4 million under her cost approach and noted that it exceeded 60% of the total value of the Subject, which was typical to the area and consistent with assessed values since land was more desirable in the Borough.
5 The Borough s expert testified to the use of $125 PSF. In addition,the supplemental addendum portion of her report started that Gla adjustments are $125/sf relative to subject. However, the court notes that her comparison grid is based on $165 PSF. Since there was no basis for this change, either to her report or during her testimony, the court will use $125 PSF as her basis of adjustment for GLA.
6 If the expert s value conclusion of $2 million is subtracted from the land value of $1.4 million (used by the expert in her cost approach), and the remaining $600,000 (attributable to improvements) is divided by the Subject s GLA of 4,764 SF, it provides a PSF value of about $125.
7 Indeed, the Borough s expert s report contained a MLS picture of 9 Corlies which was distinctly different from that comparable s picture in the Plaintiffs expert s report, and appears to be the same as the picture of 49 Phillips.
8 Unless the court has found otherwise, lack of an adjustment by an expert for an amenity feature will not be provided an adjustment by this court due to lack of evidence or data before it in this regard.
9 Since the court has accepted a 2% annual decline for 2011, time adjustments are calculated for 2011 months only. For example, 216 Spier requires an adjustment for 9 months, i.e., 1/1/11 to 10/1/11. 9 Corlies requires an adjustment for 5 months, i.e., 5/10/11 to 10/1/11.
10 Plaintiff s expert s report made a positive adjustment although the comparable was superior to the Subject with a full but partially finished basement. For the same feature in 228 Spier, she made a negative adjustment. The court will therefore use a negative adjustment.
11 Plaintiff s expert s report made a positive adjustment of $8,000 for a 1-car detached garage although she used +$5,000 for every other comparable that had a 1-car detached garage. The court thus will use $5000 as the quantum of adjustment.