LouisA. Madonia v. Township of Berkeley

Annotate this Case

 
 

NOT FOR PUBLICATION WITHOUT APPROVAL OF

THE TAX COURT COMMITTEE ON OPINIONS

TAX COURT OF NEW JERSEY

Patrick DeAlmeida R.J. Hughes Justice Complex

Presiding Judge P.O. Box 975

Trenton, New Jersey 08625-0975

(609) 292-8108 Fax: (609) 984-0805

June 12, 2015

Louis A. Madonia

277 Evergreen Drive

Bayville, New Jersey 08721

Michael J. Gilmore, Esq.

Gilmore & Monahan, PC

Ten Allen Street

P.O. Box 1540

Toms River, New Jersey 08754

Re: Louis A. Madonia v. Township of Berkeley

Docket No. 013329-2014

Dear Mr. Madonia and Mr. Gilmore

This letter constitutes the court s opinion after trial in the above-referenced matter in which plaintiff challenges the tax year 2014 assessment on real property he owns in Berkeley Township. Because the record contains insufficient credible evidence with which this court can determine the true market value of the subject property on the October 1, 2013 valuation date, the assessment is affirmed.

*

I. Findings of Fact and Procedural History

This letter opinion sets forth the court s findings of fact and conclusions of law after trial. R. 1:7-4.

Plaintiff Louis A. Madonia owns a single-family, waterfront home in Berkeley Township, Ocean County. The property is designated in the records of the municipality as Block 1552, Lot 40 and is known as 277 Evergreen Drive. For tax year 2014, the property was assessed as follows

Land $318,400

Improvements $101,600

Total $420,000

The Chapter 123 average ratio for the municipality for tax year 2014 is 99.73. When the average ratio is applied to the assessment, the implied equalized value of the subject property for tax year 2014 is $421,137.

Plaintiff challenged the assessment before the Ocean County Board of Taxation. On July 18, 2014, the county board issued a Judgment affirming the assessment.

On August 22, 2014, plaintiff filed a Complaint with this court challenging the Judgment of the county board.

The matter was tried on June 3, 2015. The boundaries, characteristics and features of the subject property were a major point of contention at trial. Plaintiff s central allegation is that the assessment on his property includes the value of uplands, a bulkhead, and a pier and dock along Barnegat Bay that he does not own and has no license to use.

The subject property is an area of the township comprised of a grid pattern of lagoons along the western edge of the Bay. The lagoons are lined with residential properties, most of which have access to the waterways that lead to the Bay and, ultimately, the Atlantic Ocean. Plaintiff s property is at the cul-de-sac end of a lagoon. The rear of the property directly faces a vast expanse of water. An expert testified that plaintiff has a breathtaking, 180 degree view of Barnegat Bay from his property.

The court admitted into evidence a deed from 1955 transferring the subject property from the Mabie Brothers partnership to plaintiff s predecessor in title. Credible testimony established that in the 1950s the Mabie Brothers partnership developed the residential lagoons that constitute the subject s neighborhood, known as Glen Cove. In addition, it is undisputed that the Mabie family, through a property holding company, continues to own the riparian rights along the lagoons and Bay in plaintiff s neighborhood.

The 1955 deed contains a metes and bounds description of the property conveyed. In 2013, a licensed surveyor produced a survey depicting the property described in the meets and bounds description in the deed. The survey portrays the land as extending from Evergreen Drive toward the Bay and ending at a point prior to the 115-foot bulkhead now existing at the rear of the property. In addition, the survey depicts an area of uplands between the rear boundary of the property described in the deed and the bulkhead. Thus, according to the survey, the deed transferred to plaintiff s predecessor in title land from which access to the Bay cannot be gained without crossing an uplands area and bulkhead not conveyed in the deed. A map referenced in the deed supports this depiction of the property conveyed in the deed.1

No direct evidence was introduced at trial with respect to whether the uplands and bulkhead not mentioned in the deed existed at the time of the 1955 transfer. A member of the Mabie family, an attorney who is an officer of Atlantic Coast Trading Corp. ( Atlantic Coast ), the entity that currently owns the riparian rights in the neighborhood of the subject property, testified at trial that he has no personal knowledge of the condition of the subject property in 1955. Plaintiff s mother, Leonore Madonia, an erstwhile owner of the property, testified that the parcel had been in her family for decades. She could not recall, however, when she first came to own the property or its condition and features at that time or any time in the past.

What is clear is that in 1992, plaintiff owned the property. How he came to have title to the parcel was not explained at trial. Plaintiff subsequently added his mother to the title as a joint owner with him. Neither plaintiff nor his mother provided any details with respect to this transfer of interest. Both professed not to remember when plaintiff s mother was added to the deed as an owner. Plaintiff introduced no document memorializing the transaction. As a result, it is not possible to determine from the record whether in 1992 plaintiff considered himself to be the owner of the uplands and bulkhead not included in the metes and bounds description in the 1955 deed.

The record establishes that in 2004 plaintiff s mother considered herself to be the owner of the uplands and bulkhead not included in the metes and bounds description in the 1955 deed. She testified at trial that in 2004 she decided that she wanted to have a pier on the property. She hired an engineering firm to survey the property and complete a Department of Environmental Protection ( DEP ) construction application. Although plaintiff jointly owned the property with his mother at the time, the DEP application lists only his mother as the owner of the property. A survey attached to the application, however, indicates that both plaintiff and his mother were the construction permit applicants.

The survey attached to the DEP application shows the existence of the uplands not included in the 1955 deed description, as well as an existing timber bulkhead. The survey also shows an existing boat slip, which is in both the area described in the 1955 deed and the area not described in the 1955 deed. Although the survey acknowledges that construction would be subject to the riparian grant in the vicinity of the subject property, an arrow from that notation points only to a portion of the proposal in which the Madonias requested permission to fill areas then covered by water. The survey does not indicate that the existing uplands, bulkhead and boat slip were on land not owned by the Madonias.

The DEP granted the application and the Madonias replaced the existing bulkhead, filled the existing boat slip and constructed the pier and dock, both of which extend into the Bay from the disputed uplands. According to plaintiff, the engineering company hired by his mother failed to notify Atlantic Coast of the application or subsequent construction activity, including the pier and dock s intrusion into the riparian area.

In 2007, Atlantic Coast filed suit in the Superior Court, Chancery Division, Ocean County, against both plaintiff and his mother. No party introduced the Complaint into evidence. It is not possible, therefore, to determine the exact nature of the claims asserts by Atlantic Coast. The court gleans from the testimony that Atlantic Coast alleged that the construction undertaken by the Madonias impinged on Atlantic Coast s riparian rights. It is not clear if Atlantic Coast claimed ownership to the uplands and bulkhead not included in the 1955 deed description.

Plaintiff and his mother filed an Answer and Counterclaim against Atlantic Coast, alleging estoppel, misrepresentation, and slander of title. A witness credibly testified that in their Counterclaim, plaintiff and his mother alleged that Atlantic Coast was not the owner of the uplands and bulkhead not included in the 1955 deed description. The allegations in the Counterclaim support the conclusion that plaintiff and his mother believed that the 1955 deed conveyed title to the uplands and bulkhead not described in the deed.

While the suit was pending, plaintiff s mother transferred her interest in the subject property. She offered conflicting reasons for the transfer. First, she testified that she had her name taken off the deed because her son was experiencing marital difficulties and she thought it was not in her best interest to have plaintiff s soon-to-be former wife become a partner in something I didn t think she was entitled to. How removing plaintiff s mother from the deed for the subject property would exclude plaintiff s divorcing spouse from gaining an interest in the property was not explained.

Plaintiff s mother later testified that she transferred her interest for different reason. She testified that during the time that she was a joint owner of the property plaintiff acquired a mortgage on the subject property in his name alone without informing the mortgage company that plaintiff s mother had an ownership interest in the property. According to plaintiff s mother she, thought there was something wrong with the fact that her son had said [he was] the owner when here I was a part of it and I thought it best just to have myself removed rather than to be creating some kind of fraud situation. Plaintiff admitted that when he obtained the mortgage he identified himself as the sole owner of the property. He testified that this omission was inadvertent.

Plaintiff introduced no documentary evidence memorializing the transfer of his mother s interest in the property. Both plaintiff and his mother professed not to remember when the transfer took place. Their testimony in this regard is consistent with a pattern at trial of vague recollections and an absence of proof with respect to the chain of ownership of the property.

The municipality offered into evidence a deed dated December 31, 2011 in which plaintiff s mother transferred her interest in the subject property to plaintiff for $1 in consideration. Interestingly, plaintiff and his mother did not inform Atlantic Coast of the change in ownership in the subject property during the pendency of the Chancery Division action. As a result of this omission, when the parties settled the litigation in July 2012, the settlement agreement contained provisions which quite plainly are based on the incorrect premise that plaintiff s mother had an ownership interest in the subject property. Plaintiff s mother explained that she executed the settlement agreement because she thought [she] was entitled to something for what she had been through.

The settlement agreement is signed by both plaintiff and his mother. In addition, the agreement defines Madonia as that term is used in the agreement to include Defendants, Leonore and Louis Madonia. Thus, plaintiff s suggestions at trial that the construction at the subject property, subsequent litigation and settlement were, in effect, controlled solely by his mother and had little to do with him or his ownership rights in the subject property, lack credibility. He was the owner of the subject property when the construction was done. He was the owner of the property when the suit was filed against him. He was the owner of the property when he signed the settlement agreement which contained multiple provisions concerning the disputed uplands area, the pier and the dock. The court does not accept the premise that plaintiff was a passive bystander whose ownership interests in the subject property were not substantively affected by the settlement agreement.

In the settlement agreement plaintiff and his mother acknowledge that Atlantic Coast is the rightful owner of the riparian area in which the pier and dock was constructed by the Madonias. The agreement provides that plaintiff and his mother

hereby enter[] into a lease agreement with Atlantic [Coast] for use of said land which shall be limited to the land under the area enclosed by the present pier and dock and an area of two (2) feet around said dock or pier.

The terms of the lease between the parties, in its entirety, are as follows: Madonia shall, commencing on January 1, 2010 pay an annual fee in the amount of $750.00 to Atlantic as a lease of the land under the area enclosed by the present pier and dock and an area of two (2) feet around said dock or pier.

The settlement agreement contains a series of increases in the rental payments in five-year increments through January 1, 2035 and every five years thereafter. The agreement provides that plaintiff and his mother shall have the right to continue the lease from Atlantic or any of its assignees and subsequent purchasers or successors in interest.

Critical to this matter, the settlement agreement also provides as follows

If Madonias property is sold to a third party, then the third party purchaser shall have the right to assume the remainder of the existing five (5) year lease term between Atlantic and Madonia. At the conclusion of that five (5) year lease term, the third party purchaser shall have the right to continue to lease the property from Atlantic but the third party and Atlantic shall renegotiate the lease amount and renewal periods.

It is quite plain that pursuant to the settlement agreement plaintiff, as the owner of the subject property, has the right to lease the pier and dock from Atlantic Coast. More importantly, any purchaser of the subject property from plaintiff has the right to continue that lease. This, of course, is a valuable attribute of the subject property, given its adjacency to Barnegat Bay, and would have an impact on the subject property s true market value.

On August 2, 2012, a little more than a month after execution of the settlement agreement, the December 31, 2011 deed transferring plaintiff s mother s interest in the subject property was recorded. One might reasonably infer from the timing of the recording that the transfer of Mrs. Madonia s interest in the subject property was concealed from Atlantic Coast until after execution of the settlement agreement. It is possible, however, that the delay in recording the lease was occasioned by other circumstances.

The settlement agreement also provides that Atlantic shall execute a Quit Claim deed conveying title, if any, owned by Atlantic in the disputed uplands. There are two versions of the Quit Claim deed in the record. One version is attached as an exhibit to the settlement agreement. The first page of this version of the Quit Claim deed has a blank space for the date. The second page of this version of the Quit Claim deed is signed by a representative of Atlantic Coast and has a notary s signature dated February 1, 2012, five months before the settlement agreement.

The second version of the Quit Claim deed is dated February 14, 2014, a year and a half after the settlement agreement. It contains a notation that it was recorded with the Ocean County Clerk on February 14, 2014. This version of the Quit Claim deed has no second page. It therefore contains no signature page. Although the first page of this version of the Quit Claim deed appears to contain the same language as the first page of the other version of the Quit Claim deed, it is quite plainly in a different printed format and is not a copy of the first version of the Quit Claim deed. Plaintiff provided no explanation of why there are two versions of the Quit Claim deed or which, if either, he considers to be valid.

In any case, both versions of the Quit Claim deed appear to be between Atlantic Coast and only plaintiff s mother. This is puzzling, given that plaintiff s mother did not own the subject property on the date on either version of the deed. It is possible that the Quit Claim deed identifies only Mrs. Madonia because the deed transferring her interest in the subject property, although executed before the settlement agreement was signed, was not recorded until well after the settlement agreement was signed.

Plaintiff offered the theory at trial is that one of the versions of the Quit Claim deed, or both, transferred ownership of the disputed uplands area to his mother alone. There are multiple flaws in plaintiff s position. First, the record does not contain a complete copy of a recorded Quit Claim deed signed by Atlantic Coast after execution of the settlement agreement. It is not possible, therefore, for the court to make a determination of what interest was transferred by the Quit Claim deed or who owns the disputed uplands area.

Second, [a] quit claim deed . . . purports to transfer whatever interest the grantor might have possessed in the land. Hyland v. Kirkman, 204 N.J. Super. 345, 367 (Chan. Div. 1985). In this instance, plaintiff and his mother alleged in their Counterclaim that Atlantic Coast had no interest in the disputed uplands area. Although plaintiff asserted at trial that the Chancery Division determined that the 1955 deed did not transfer the uplands area, he introduced no evidence that that judicial determination was made. In fact, the settlement agreement is proof that the issue was not resolved by the court, given that Atlantic Coast agreed to file a Quit Claim deed conveying title, if any that it had in the uplands area. Even if the record contained a complete copy of the Quit Claim deed, there is no evidence in the record of what, if any, interest Atlantic Coast had in the disputed area at the time that the Quit Claim deed was filed. The deed could well have been nothing more than a memorialization that Atlantic Coast has abandoned any claim to have an interest in the disputed uplands.

Third, because Mrs. Madonia did not own the subject property at the time that either version of the Quit Claim deed was filed, the interest conveyed would not merge with an ownership interest in the adjoining subject property. Thus, according to the municipality, a conveyance in the Quit Claim deed to Mrs. Madonia would be a nullity, as it would constitute an attempt to create an illegal subdivision of Atlantic Coast s property, which under plaintiff s theory included the disputed uplands area and large adjoining riparian areas in a single block and lot prior to the filing of the Quit Claim deed.

Attached to the agreement is a Memorandum of Lease for the pier and dock, the first page of which has a blank space for a date. The final page was signed by an Atlantic Coast representative on February 1, 2012, several months before execution of the settlement agreement. Mrs. Madonia signed the Memorandum of Lease on July 5, 2012, the same day that the settlement agreement was executed. This was after Mrs. Madonia transferred her interest in the subject property to her son in a deed which she executed six months earlier but did not record. It is clear that Atlantic Coast believed Mrs. Madonia had an ownership interest in the subject property when she executed the Memorandum of Lease. The Memorandum of Lease contains a provision stating that [i]n the event Tenant sells her own property located at Block 1552, Lot 40 [the subject property] to a third party, that third party may assume said Lease . . . .

Plaintiff offered the testimony of a licensed real property appraiser as an expert witness. He opined that the subject property had a true market value of $290,000 on October 1, 2013, the relevant valuation date. Plaintiff s expert relied on six comparable sales to reach this conclusion. To each comparable sales price the expert made a significant adjustment for the amount of waterfront access at the comparable sale as compared to the subject property. The expert based waterfront adjustments on the survey showing the property as having only 10.6 feet of waterfront bulkhead.

For example, to one comparable sale the expert made an approximately 44% negative adjustment to account for the subject s minimal waterfront area. The expert testified that other differences between the subject property and the comparable sales such as number of bedrooms, number of bathrooms, and square feet of living space -- were minimal and minor differences to which the market does not give a whole lot of value.

At the time that he prepared his report, the expert was not aware that the dispute over the uplands had purportedly been resolved through the filing of a Quit Claim deed in favor of Leonore Madonia. Nor was he aware when he reached his opinion that plaintiff and Atlantic Coast had executed a settlement agreement given plaintiff and any of his successors in title the right to execute a lease allowing for the use the pier and dock adjoining the property. In fact, the expert testified that when he reached his opinion of value it was his understanding that plaintiff had absolutely no right to use the pier and dock adjoining his property. This was a crucial omission, given the fact that the expert candidly testified that the existence of a lease to use a pier and riparian area adjoining a property along Barnegat Bay, and the ability to transfer that lease to a subsequent purchaser, would have an effect on the true market value of the adjoining property.

It was not until the morning of trial that plaintiff informed his expert of the settlement agreement, Quit Claim deed to the upland, and the availability of the riparian lease. Plaintiff did not explain why he withheld these critical facts from his expert. Nor did the expert explain during his testimony how his opinion of the true market value of the subject property would change once he considered the important information not given to him until the day of trial.2

The municipal tax assessor offered an opinion that the subject property had a true market value of $500,000 on the valuation date. In formulating this opinion he relied on five comparable sales. He made significant adjustments to the comparable sales prices based on the size of the waterfront on each of the parcels. The assessor considered the subject property to include the entire disputed uplands and bulkhead. He also was aware of plaintiff s right to execute a lease to use the pier and dock and to transfer that lease to a purchaser of the subject property. During cross-examination, the assessor admitted that he relied on an incorrect sales price for one comparable sale. The assessor reported the sale price as $475,000. A property record card attached to his report stated that the sales price was $435,000. When this discrepancy was pointed out, the assessor readily accepted the accuracy of the property record card and testified that the nearly 10% reduction in the sales price had no effect on his opinion of value. In addition, the assessor reported that one of his comparable sales had no riparian access. Cross-examination revealed this assertion to be incorrect. The assessor did not explain if, and to what extent, his opinion of value would change in light of this error.

II. Conclusions of Law

The court s analysis begins with the well-established principle that [o]riginal assessments and judgments of county boards of taxation are entitled to a presumption of validity. MSGW Real Estate Fund, LLC v. Borough of Mountain Lakes, 18 N.J. Tax 364, 373 (Tax 1998). As Judge Kuskin explained, our Supreme Court has defined the parameters of the presumption as follows

The presumption attaches to the quantum of the tax assessment. Based on this presumption the appealing taxpayer has the burden of proving that the assessment is erroneous. The presumption in favor of the taxing authority can be rebutted only by cogent evidence, a proposition that has long been settled. The strength of the presumption is exemplified by the nature of the evidence that is required to overcome it. That evidence must be definite, positive and certain in quality and quantity to overcome the presumption.

Ibid. (quoting Pantasote Co. v. City of Passaic, 100 N.J. 408, 413 (1985)(citations omitted)).

The presumption of correctness arises from the view that in tax matters it is to be presumed that governmental authority has been exercised correctly and in accordance with law. Pantasote, supra, 100 N.J. at 413 (citing Powder Mill, I Assocs. v. Township of Hamilton, 3 N.J. Tax 439 (Tax 1981)); see also Byram Twp. v. Western World, Inc., 111 N.J. 222 (1988). The presumption remains in place even if the municipality utilized a flawed valuation methodology, so long as the quantum of the assessment is not so far removed from the true value of the property or the method of assessment itself is so patently defective as to justify removal of the presumption of validity. Transcontinental Gas Pipe Line Corp. v. Township of Bernards, 111 N.J. 507, 517 (1988)(citation omitted).

In the absence of a R. 4:37-2(b) motion . . . the presumption of validity remains in the case through the close of all proofs. MSGW Real Estate Fund, LLC, supra, 18 N.J. Tax at 377. In making the determination of whether the presumption has been overcome, the court should weigh and analyze the evidence as if a motion for judgment at the close of all the evidence had been made pursuant to R. 4:40-1 (whether or not the defendant or plaintiff actually so moves), employing the evidentiary standard applicable to such a motion. Ibid. The court must accept as true the proofs of the party challenging the assessment and accord that party all legitimate favorable inferences from that evidence. Id. at 376 (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535 (1995)). In order to overcome the presumption, the evidence must be sufficient to determine the value of the property under appeal, thereby establishing the existence of a debatable question as to the correctness of the assessment. West Colonial Enters, LLC v. City of East Orange, 20 N.J. Tax 576, 579 (Tax 2003)(quoting Lenal Props., Inc. v. City of Jersey City, 18 N.J. Tax 405, 408 (Tax 1999), aff d, 18 N.J. Tax 658 (App. Div.), certif. denied, 165 N.J. 488 (2000)).

Only after the presumption is overcome with sufficient evidence at the close of trial must the court appraise the testimony, make a determination of true value and fix the assessment. Rodwood Gardens, Inc. v. City of Summit, 188 N.J. Super. 34, 38-39 (App. Div. 1982)(citations omitted). If the court determines that sufficient evidence to overcome the presumption has not been produced, the assessment shall be affirmed and the court need not proceed to making an independent determination of value. Ford Motor Co. v. Township of Edison, 127 N.J. 290, 312 (1992); Global Terminal & Container Serv. v. City of Jersey City, 15 N.J. Tax 698, 703-704 (App. Div. 1996).

As stated at trial, after according all favorable inferences to plaintiff s evidence, as is required by law, the court concludes that he raised a debatable question regarding the correctness of the assessment on the subject property. If the court accepts as true plaintiff s assertion that he owns only those areas described in the 1955 deed, has no right to the disputed uplands and no license to use the pier and dock, and if the court accepts as true the opinion offered by plaintiff s expert, then a doubt a been raised about the validity of the assessment on the subject property.

This determination alone does not end the court s inquiry. Having found that the presumption of correctness was overcome, it is the court s obligation to determine the true market value of the subject property on the relevant valuation dates.

The comparable sales 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. 2001); Appraisal Institute, The Appraisal of Real Estate, 419 (12th ed 2001)(the comparable sales approach usually provides the primary indication of market value in appraisals of properties that are not usually purchased for their income-producing characteristics. ). This method of valuation has been defined as [a] set of procedures in which a value indication is derived by comparing the property being appraised to similar properties that have been sold recently, applying appropriate units of comparison, and making adjustments to the sales prices of the comparables based on the elements of comparison. Id. at 417. Both experts took this approach to determine the value of the subject property. The court finds that this approach is the best method for determining the true market value of plaintiff s property.

The record, however, contains insufficient credible evidence with which to determine both the size and characteristics of plaintiff s property and its true market value as of October 1, 2013. There is no question that plaintiff and his mother disputed Atlantic Coast s asserted interest in the uplands area not included in the 1955 deed. The ownership of that land was a central dispute in the Chancery Division litigation between the parties. Although plaintiff suggested at trial that the Chancery Division decided that he did not own that land, he introduced no evidence to support that assertion. Instead, the record contains a settlement agreement that quite plainly indicates that the dispute with respect to the uplands was resolved by plaintiff accepting the filing of a Quit Claim deed by Atlantic Coast with respect to that land. The court will not speculate as to why the record does not contain a complete copy of a recorded Quit Claim deed executed after the settlement agreement was signed. Nor will the court speculate as to why the two partial Quit Claim deeds in the record purport to transfer an interest only to plaintiff s mother at a time that she did not own the subject property. Nor will the court speculate as to why the deed transferring plaintiff s mother s interest in the subject property was signed before execution of the settlement agreement, which plainly was drafted on the premise that she had an interest in the subject property, but was not recorded until after the settlement agreement was signed.

It will suffice for the court to conclude that plaintiff has not established by a preponderance of the evidence that he does not have an ownership interest in the disputed uplands area. There is no judicial determination from the Chancery Division with respect to ownership of that land in the record. Plaintiff s mother plainly believed that she owned that land with plaintiff in 2004 when she decided that she wanted to add a pier and dock connected to that land. The application for the construction of those improvements identified both plaintiff and his mother as the applicants. Any attempt to create an ownership interest in Mrs. Madonia alone in that land through the filing of a Quit Claim deed at a time that she did not own the subject property would likely have been defective, given that Atlantic Coast could not unilaterally transfer a fragment of its larger riparian parcel to someone who did not own an adjoining parcel without an approved subdivision.

In addition, even if the court were to accept plaintiff s position that he does not have any ownership interest in the disputed uplands, the record contains insufficient evidence of the true market value of plaintiff s property. Plaintiff elected not to give his expert a copy of the settlement agreement with Atlantic Coast until the morning of trial, long after the expert formulated his opinion of value. As a result, the expert was not aware that plaintiff signed the agreement, which entitled him to execute a lease to use the pier and dock at the property and to transfer that lease to any subsequent purchaser of the subject property. The expert candidly admitted that such a lease and the right to transfer it to a subsequent purchaser would have value in the marketplace. This opinion is credible, given the subject property s adjacency to Barnegat Bay. Surely, the ability of a purchaser to access the Bay for recreational purposes would be a highly relevant consideration when determining the true market value of the subject property.

The expert proceeded on the assumption that any purchaser of the subject property would not have access to the pier and dock, and would not, therefore, have ready access to the Bay for recreational purposes. This is quite plainly incorrect. While plaintiff may not yet have executed a lease with Atlantic Coast (as his mother apparently has), he has the right to do so and the right to transfer such a lease to a purchaser of the subject property. Because the opinion of value of plaintiff s expert is based on a critical incorrect assumption, the court concludes that the expert s opinion of value lacks credibility and is not reliable.

The opinion of value offered by the municipal tax assessor also lacks credibility. The assessor s report contained a significant discrepancy with respect to the sales price of one of his comparable sales. Two sales prices are noted in the report. When confronted with this discrepancy, the assessor readily accepted one of the two sales prices (the one he did not use in formulating a value opinion) over the other without explanation as to why one was correct and the other was not. He also testified with little explanation that the significant change in the sales price did not have an impact on his opinion of value. In addition, the assessor incorrectly identified another comparable sale as having no riparian access. Cross-examination revealed that the comparable does have riparian access. The expert did not explain this error or the impact it would have on his opinion of value for the subject property. In addition, the opinion offered by the assessor is based on the presumption that plaintiff has title to the disputed uplands, a fact not established at trial. In light of these shortcomings, the court finds the assessor s opinion of value to be unreliable.

Plaintiff has the burden of proof in this matter. He has not introduced sufficient credible evidence to establish the size and characteristics of the subject property or its true market value as of October 1, 2013. The Judgment of the county board of taxation is affirmed.

A Judgment will be entered accordingly.

Very truly yours,

/s/Hon. Patrick DeAlmeida, P.J.T.C.

1 The survey depicts a triangular point at one corner of the property described in the deed that includes about 10 feet of bulkhead. This small amount of bulkhead would have no practical use. The improvements consist of a two-story residence constructed in 1965. The home has had renovations and improvements over the years and had an effective age of 10 years on the valuation date. The home is built on pilings, has central air conditioning, a deck and a porch. There are three bedrooms and one and a half baths in 2,068 square feet of living space. The experts opined that the land and bulkhead length are the primary drivers of value for the subject.

2 The court notes that several of the comparable sales used by plaintiff s expert adjoined the subject property. Plaintiff s expert testified that had he been aware of the dispute between plaintiff and the owner of the riparian rights in his neighborhood, the expert would have investigated whether any of the adjoining property owners were disputing ownership and use of the riparian areas adjoining their properties. In addition, the expert offered the extraordinary opinion that Super Storm Sandy, which struck New Jersey in the final days of October 2012, had no effect on real property values in the bay front areas of Brick Township as of October 1, 2013, less than a year later. This opinion is contradicted by the fact that the residences at two of the expert s comparable sales from 2011 were gone and the land vacant as of his inspection of those parcels in 2015. He did not investigate whether those homes were damaged by the storm or were demolished for other reasons. The tax assessor testified that the Glen Cove neighborhood was the hardest hit section of the township in Super Storm Sandy, rendering comparable sales not adjusted or inspected for storm damage suspect as credible evidence of true market value.