Petition — Bergen County Associates v. Borough of East Rutherford

Supreme Court brief1978

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IN THE

Supreme Court of the United eK, se, crerx

Ocroper Term, 1977

77-1045

BERGEN COUNTY ASSOCIATES, EAST RUTHER-

FORD INVESTMENT CORP., BRANCASONS, INC.,

DEANNA INDUSTRIES, INC., INDUSTRIAL CON-

STRUCTION ASSOCIATES, and BERGEN COUNTY

ASSOCIATES SUNOCO,

Petitioners,

vs.

BOROUGH OF EAST RUTHERFORD, a Municipal Cor-

poration, and DIVISION OF TAX APPEALS IN THE

DEPARTMENT OF THE TREASURY, STATE OF

NEW JERSEY,

Respondents.

(Consolidated Cases)

ae mc ere ES

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION

onmene ————————————

Marvin H. Guiapstonz,

Counsel for Petitioners,

39 Hudson Street,

Hackensack, New Jersey 07601.

Wim B. SHepp |

Of Counsel

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

TABLE OF CONTENTS

PAGE

I TD cmcenincsisceniinsntidemiians j 2

IN oii enteeaeedan 2

QUESTIONS PRESENTED FOR REVIEW .........-....--0-00-00ee0----- 2

TR 4

NE I iccichittcisiniiiniicintinssimiciantattiaitricmnslaaen 4

Proceedings in the Administrative Tribunals .... 4

Proceedings in the Courts -............. 4)

Reasons FOR GRANTING THE WRIT ............---.--.--0--c--ce+e0ees 4)

SD scccisicrsniiiaiciscciiisausitatauninisiscihcesiuiiiisiiiiiisaieinaapdiliaiia 8

IE isis cissreisscinscienninintiisesimaiiicsinichiidilhipiliesbinlatasiinabaaililsaiaes 13

APPENDIX:

Order Denying Petition for Certification -........... la

Petition for Certification Filed with Supreme

Court of New Jersey ..............-.--0----- 2a

Opinion and Judgment of Appellate Division,

SN I oicisiaecsctinicneepeneeniionuiaetinipitnintinscetens 29a

Opinions and Judgments of Division of Tax

Appeals Filed May 13, 1974 and October 16,

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ID xepccenrennteniennttininntsedvensininnstnmtgetnninmennnititnite 62a

li TABLE OF CONTENTS

PAGE

Cases Cited

Cappture Realty Corp. v. Board of Adjustment,

126 N. J. Super. 200, 313 A. 2d 624 (L. Div.

1973), aff'd 133 N. J. Super. 216 (App. Div.

SPST. iesceseseleiliiclinindonaiekditiertheusslasuiilciliachddbNignsiatbadiaiatidiesin 9

East Jersey Water Co. v. Roat, et al., In re, 45

Atl. 910 (Sup. Ct. N. J. 1900) (not officially re-

II” inisiideteiehaiiiesieteliceiiissiicabiatiatadaamneniiednsdeiadletadlagsibs 12

Hackensack Redevelopment Agency v. Hackensack

Meadowlands Development Comm., 119 N. J. Super.

072, 293 A. 2d 192 (App. Div. 1972), cert. den.

ee es, Ae SD eeaiineseninesteninesseiipeatincieireieileatinsniibesbaintatetaiies 9

Supervisors of Assessments v. Bay Ridge & Proper-

ties, Inc., 270 Ind. 216, 310 A. 2d 773, 777 (Ct.

ED cntcinianaiiiinsncsnicineiittaneiiniiadgenesciiiabeeaiaiiiasaiaineail 9

Twin Lakes Golf and Country Club v. Kings County,

87 Wash. 2d 1, 548 Pac. 2d 538 (Sup. Ct. 1976) 9

Village of Euclid vy. Ambler Realty Co., 272 U. S.

365, 47 8. Ct. 114, 71 L. Ed. 303 (1926) -.002... 8

United States Constitution Cited

a 4,10

New Jersey Constitution Cited

1947—

Article 6, Section 5, Paragraph 4 .00000000000000... 13

TABLE OF CONTENTS

Statutes Cited

SR SUITE suphstibsTh die taaeinl acca cciadilaensaeses Sasha sciabaanbaniunbipeinnnbeiin

27 U.S.C.:

Sie TTITED cincscasdabecveeuusivesnbiiciabaaaiabaitiiietcsinasddcdnaiaeiceensgeiapniaui

Rule Cited

File HOPED - ceiestssslasncniiniosataitinsiiiniiitesiileeaicdnaitiieniinaisulbisnientetanieenin

PAGE

IN THE

Supreme Court of the United States

Octoser Term, 1977

No.

——<@—_—

BERGEN COUNTY ASSOCIATES, EAST RUTHER-

FORD INVESTMENT CORP., BRANCASONS, INC.,

DEANNA INDUSTRIES, INC., INDUSTRIAL CON-

STRUCTION ASSOCIATES, and BERGEN COUNTY

ASSOCIATES SUNOCO,

Petitioners, .

vs.

BOROUGH OF EAST RUTHERFORD, a Municipal Cor-

poration, and DIVISION OF TAX APPEALS IN THE

DEPARTMENT OF THE TREASURY, STATE OF

NEW JERSEY,

Respondents.

(Consolidated Cases)

- >

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION

To the Honorable Chief Justice and Associate Justices of

the Supreme Court of the United States:

Petitioner prays that a writ of certiorari issue, to re-

view the final judgment of the Superior Court of New

Jersey Appellate Division, entered in these consolidated

eases on March 3, 1977, certification having been denied

by the Supreme Court of New Jersey on October 25, 1977.

Opinion Below

Neither the October 25, 1977 final order (without opin-

ion) of the Supreme Court of New Jersey denying certifi-

eation, nor the opinion of the Superior Court Appellate

Division rendered March 3, 1977, has as yet been reported.

The order denying certification and the lower court and

agency opinions are set forth in full in the Appendix to

this Petition (Pla, P29a to P38a, and P39a, et seq., Te-

spectively).

Jurisdiction

The order of the Supreme Court of New Jersey denying

certification entered on October 25, 1977, finalized the

March 3, 1977 judgments of the Appellate Division. The

jurisdiction of this Court is invoked under 27 U.S.C.

§1257(3).

Questions Presented for Review

1. Where, in the proper exercise of legislatively-con-

ferred police power, a moratorium against any eco-

nomie use of vacant land is imposed and enforced

by a political subdivision of the State during a tax

year, may the vacant land thus burdened be sub-

jected to ad valorem property taxes for that tax

year as though it was free of the burden of the

moratorium?

2. Where:

(a) the sovereign State of New Jersey officially as-

serts a riparian claim of legal title to vacant

land, record title to which is in a non-tax ex-

empt entity; and

(b) the State’s contested claim, if valid, renders the

land tax exempt; and

' obtained or ean obtain judicial disposition of

the contested claim of title for many years not-

withstanding diligent prosecution by the private

claimant; and

(d) a political instrumentality of the State (of

which the local taxing entity is a constituent

geographic and political element, and which is

itself a beneficiary of the taxes assessed and

collected) by formal regulation prohibits all

economic use of the taxpayer’s land whether

claimed or not claimed by the State; and

(e) no mechanism exists whereby taxes may be

deferred pending judicial resolution of the title

dispute, i.e., the question whether the land is

taxable or tax exempt except at the peril of

strict tax foreclosure by the local taxing entity,

then, given all of the foregoing, may the land ren-

dered thus inutile be properly assessed for local

ad valorem property taxation as though it were

immediately and fully marketable and buildable?

. If vacant lands thus rendered economically inutile

are assessed as though the moratoria are non-ex-

‘istent and in accordance with the same standards of

valuation applied to vacant lands not so encum-

bered, is the result not a denial of equal protection

and substantive due process and a violation of the

14th Amendment to the United States Constitution?

. Where arithmetical errors in the administrative de-

termination of an assessment appear on the face

of the record and are called to the attention of the

courts, and correction is declined by judicial inat-

tention, does not such inattention constitute a denial

of procedural due process?

Constitutional Provisions

The federal constitutional provisions involved are the

equal protection and due process clauses of United States

Constitution Amendment 14.

Because venue is laid in the Appellate Division of the

Superior Court in actions in lieu of prerogative writs

addressed to final decisions of state administrative agen-

cies, R. 2:2-3(a), the Appellate Division is the court of

original jurisdiction. Such in liew actions are prosecuted

in a manner similar to appeals from lower courts, hence

constitutional questions are raised in the appellate briefs.

See Appendix to this Petition, P34a, as well as P5a-6a

and P27a.

Statement of Case

Proceedings in the Administrative Tribunals

The several petitioners herein are taxpayers holding

record titles to vacant “meadowlands” located in the re-

spondent Borough of East Rutherford Bergen County,

New Jersey. They filed tax appeal petitions challenging

the several assessments pursuant to statute (N.J.S.A.

54:2-33 et seq.) with the Bergen County Board of Taxa-

tion for the years 1969 through 1972. That Board either

confirmed the assessors’ valuations or made adjustments

unsatisfactory to the taxpayers and administrative ap-

peals were taken accordingly to the New Jersey Division

of Tax Appeals, in the Department of the Treasury.

The Division held hearings in 1973 and 1974 on these

then-consolidated appeals (which covered assessments for

the tax years 1969 through 1972 and also, by stipulation,

1973) and thereafter rendered decisions on May 13 and

October 16, 1974. The opinions and decisions are set

forth in the Appendix to this Petition (P39a et seq.).

Proceedings in the Courts

Consolidated appeals (in the form of original actions

in lieu of the prerogative writ of certiorari, R.* 2:2-3(a))

were taken to the Appellate Division which rendered a

decision on March 3, 1977 ‘affirming the judgments of Di-

vision of Tax Appeals. Its opinion is set forth in the Ap-

pendix to this Petition (P29a to P38a). That opinion has

not as yet been reported.

A Petition for Certification was denied by the Supreme

Court of New Jersey without opinion on October 25,

1977. The order of denial has not as yet been reported.

It is set forth in the Appendix to this Petition (Pla).

Denial of equal protection and due process were raised

and argued by petitioners below but the state statutory

proceedings were held not to have conflicted with the cited

federal constitutional requirements.

Reasons for Granting the Writ

1. Certiorari should be granted because:

(a) the decisions below affirmed municipal tax assess-

ments of vacant lands which were subject to

governmentally-imposed prohibitions against any

* Rules Governing the Courts of the State of New Jersey.

practical economic use thereof, as though said

lands were not so restricted, utilizing the same

valuation standards as were applied to lands

not so restricted;

(b) the governmentally-imposed prohibitions against

construction rendered the lands so restricted

substantially less valuable than lands not, so

restricted for the several tax years in ques-

tion;

“equally” is as much a violation of the Equal

Protection Clause as is the tax treatment of

like properties dissimilarly; and

(d) municipal refusals to recognize reductions in

land values resulting from official construction

moratoria are problems of growing and wide-

spread dimension by reason of the increasing

incidence of building moratoria against vacant

lands burdened by flood plain designations, sew-

erage and other environmental problems, plan-

ning and zoning revisions, ete.

This case merits review because of the “Hobson’s

Choice” to which the State of New Jersey’s claims

of riparian ownership puts the private record title-

holder, and the due process implications thereof.

The State has been asserting a generalized claim

of title to interior meadowlands since 1960 (and,

by specific statutory notices of claims, since 1968)

resulting in a series of conflicting published claims

maps and overlays since January 4, 1970. Most

of these claims are not even today fully decided

and have, as both a legal and a practical matter,

prevented any development of the petitioners’ and

SAN 6 A ONL. °

OR ED Ae

others’ vacant meadowlands for many years last

past and currently. The municipal taxing author-

ity, however, has continued to assess these lands

as though there were no official impediments to

development. The private titleholder is thus put

to a “Hobson’s Choice”. If it should be finally de-

termined that the State’s title claims are valid,

the land is tax exempt and any payments would have

been made as a volunteer and would not be re-

coverable. If, on the other hand, the private rec-

cord titleholder does not pay the taxes as assessed,

year by year, then he runs the risk of losing his

lands by im rem tax foreclosure.

This “catch-22” situation has now continued for

in excess of 10 years without meaningful resolution,

as the State of New Jersey attempts by a series

of trial-and-error mappings to meet the statutory

standards for asserting its claims. Those efforts

whipsaw the private record titleholder between the

interminable delays in establishing or disestablish-

ing the State’s claims, and the immediate demands

for taxes by the State’s municipal taxing instru-

mentality or alter ego. The private record title-

holder cannot obtain a prompt determination of

his title or interest (or the lack thereof) and is

deprived of due process by being compelled to pay

full taxes for an excessive length of time on prop-

erty, all or part of which may some day be declared

state-owned and tax exempt.

. This case merits review because the court of original

jurisdiction below (in these cases the Appellate

Division) has ignored and disregarded admissions

and arithmetical errors appearing on the faces of

the record and of the opinions it was reviewing, not-

SS ET

withstanding these arithmetical errors and admis-

sions were specifically brought to its attention. The

literal affirmance by judgment of briefed arithmetical

errors manifests such gross inattention by a court

of original jurisdiction as to constitute a denial of

procedural due process; and it exposes the ostensibly

erudite address of that court to the issues, as an

exercise in the creation of illusions of hearings and

reviews.

ARGUMENT

1. The first question raised is of increasing significance

because of the growing incidence of building moratoria

in response to time-suspension requirements relating to

flood plain, sewerage capacity and other environmental

problems, and municipal replanning activities designed

to accommodate judicial and legislative mandates for pro-

vision for law and moderate income housing, and other

crisis demands.

One of the prohibitory provisions here involved is a

moratorium imposed for some 2% years (May, 1970 to

November, 1972) of the five tax years in issue, to give the

Hackensack Meadowlands Development Commission, a

State agency, time to complete a master plan covering in

excess of 10,000 acres of tidal swamp and meadow lo-

cated in some 14 New Jersey municipalities in two coun-

ties. This project was a public endeavor of undoubted

importance to the future of this large and significant

area, lying less than three miles from the heart of New

York City. The burden thus placed upon the private

record titleholder comes within the ambit of the zoning

power to regulate private property without compensation,

Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47

S. Ct. 114, 71 L. Ed. 303 (1926) and the many following

;

eases (and see also Hackensack Redevelopment Agency V.

Hackensack Meadowlands Development Comm., 119 N. J.

Super. 572, 293 A. 2d 192 (App. Div. 1972), cert. den.

62 N. J. 72 (1972), upholding the validity of the mora-

torium).

But such police power restrictions against free develop-

ment of vacant land however widely and increasingly per-

mitted, create a concomitant diminution of the value

thereof to the owner, for the tax years in which the mora-

torium is in effect.

Land taxes reflect the share which each property owner

contributes to the common upkeep of government accord-

ing to the value of his property. That property has value

to him according to what he can do with it. Land re-

stricted by zoning to single family residence use is not

expected to carry the same burden of government support

as, for example, land on which a shopping center or high-

rise office building may be located. And land which is

zoned to a loss operation may carry no tax burden at all.

Twin Lakes Golf and Country Club v. King County, 87)

Wash. 2d 1, 548 Pac. 2d 538 (Sup. Ct. 1976); ef. Super-

visors of Assessments v. Bay Ridge Properties, Inc., 270

Md. 216, 310 A. 2d 773, 777 (Ct. App. 1973).

See also Cappture Realty Corp. v. Board of Adjust-

ment, 126 N. J. Super. 200, 313 A. 2d 624 (L.Div. 1973),

aff'd 133 N. J. Super. 216 (App. Div. 1975) where the

trial court noted:

“Plaintiff also argues it is being assessed for taxes

as if the land were not under a moratorium, and

is paying property taxes under protest. It appears

obvious that the moratorium establishes as a mat-

ter of law that the subject land is temporarily re-

stricted, and presumably the tax assessor estab-

lishes true value accordingly for that period. See

N. J. Const. (1947), Art. VIII, $1, par. 1(a), and

N.J.S.A. 54:4-2.25 and regulations thereunder. The

taxing authorities cannot have it both ways. It

may be noted that L.1972, C.1975, §10 (N.J.S.A. 58:

16A-61) would require tax assessors to consider the

impact of rules or regulations issued pursuant to

that act in establishing full value of lands desig-

nated as floodways or as flood fringe areas. The

court considers this merely a restatement of pre-

sent ‘aw.”

The taxpayer here is caught in a pincers, the arms of

which are the zoning instrumentality of the State of New

Jersey on the one side and on the other, the taxing instru-

mentality of the State of New Jersey, i.¢., the respond-

ent municipality. The first arm forbids use of the land

for the tax year; the second taxes the land as though it

was free of any zoning impediment and can be developed

at the will of the owner.

It should be noted that taxes are assessed and collected

one year at a time and the varying states of encumbrance

by moratoria can be accurately reflected in the assess-

ment year by year. Valuation for taxation is not like

valuation for condemnation, or constructive condemnation

(which, like diamonds, are “forever”); rather, tax valu-

ations last for only one year and can be and are changed

on an annual basis as the values of properties assessed

also change.

To assess such encumbered lands at the same rates and

in accordance with the same standards of value as land

free and clear of such encumbrances is discriminatory, a

denial of 14th amendment equal protection and due pro-

cess rights.

2. The second question of constitutiona] dimensions

arises because of the ‘Hobson’s Choice” imposed upon the

record titleholder by his sovereign (and its alter ego

municipal taxing instrumentality).

This question when disposed of as the tribunals below

have done, results in a taking of property without either

due process or just compensation; and effectuates a de-

nial of equal protection by taxing properties dissimilarly

circumstanced as though they were similarly situate.

The mere statement of this Kafkaesque dilemma of the

record titleholder explains the dearth of case law on the

subject. Three arms or instrumentalities of the State each

pursuing its own respective statutory duty present the

private record titleholder with clear but equally difficult

alternatives; (i) inutile idleness of his land while paying

full measure of taxes; (ii) loss of his payments if the

State should be determined the owner of the land; or

(iii) nonpayment of taxes based upon gross overassess-

ments and questionable title, leading to tax foreclosure

and loss of the land if the record titleholder might other-

wise be determined the owner thereof.

Assertion of a claim by the State puts the taxpayer’s

title in danger. The rules and ordinances of the Hacken-

sack Meadowlands Development Commission (a State in-

strumentality) prohibit issuance of a fill or a building per-

mit if his title is not cleared with the State, or if there

is a moratorium in effect.

The Borough of East Rutherford assesses the land

(and is upheld in the administrative and judicial appeals)

as if there were no impediment to immediate and full use

of the land.

The State has fashioned, whether knowingly or in total

ignorance of the interrelated consequences, a perfect in-

strument for confiscating meadowlands by presenting the

record titleholder with wunreconcilable alternatives, all

pointed toward loss of his land, uncompensated by the

usual devices responsive to due process and just compen-

sation.

The combination and concentration of these forces de-

prives the meadowland private record titleholder of- due

process and metes to him unequal treatment under the

law. If owners outside the meadowland areas suffer

moratoria against construction, such may be responsive

to tax adjustment. In addition the State advances against

upland owners no riparian claims. Those State claims

asserted against meadowlands enjoy a demonstrated

power to defer virtually indefinitely the final determina-

tion of the clouds on title as the State repeatedly changes

its positions and files revised claims maps.

3. The third question is whether, if the municipality con-

cedes on the record an error in computation of an assess-

ment (due to a reduction in acreage as a result of a eon-

demnation by the State); and arithmetieal errors also ap-

pear on the face of the record, and they are briefed and

argued, should not courts eure such errors? See in re

East Jersey Water Co. vy. Roat, et al., 45 Atl. 910 (Sup.

Ct. N. J. 1900) (not officially reported).

The attention of both courts below was called to these

errors in the administrative opinions and decisions. For

example the Division of Tax Appeals utilized a technique

whereby it took raw meadowland and attributed improved,

finished (i.e., diked, filled and served by streets and util-

ities) acreage values to it by reference to alleged com-

parable sale of such improved, finished acreage. It then

deducted the proved costs of the necessary improvements

to arrive at raw land values. One of those accepted

tote neni: mbeedllll

{

proved costs for deduction purposes was 900’ of diking at

$50 per foot. The Division multiplied and found a deduc-

tion of $4,500 instead of $45,000! This and other errors

were noted also in the Petition for Certification filed with

the Supreme Court, and in the brief filed with the Appel-

late Division below.

The Appellate Division affirmed an arithmetical error!

The Supreme Court denied certification.

This affirmance by the Appellate Division (in these cases

the court of original jurisdiction) truly establishes that

the hearing and review to which petitioners were entitled

as of right (see N.J. Const. Art. 6, §5, par. 4 (1947)) was

denied to them, and the apparent consideration given the

matter by the Appellate Division was really non-existent

and an illusion only.

The oft-repeated shibboleth that courts will defer to

“administrative expertise” does not require affirmances

of arithmetical errors. It is submitted that litigants are

denied procedural due process when courts give such

minimal attention to their briefed and argued grievances

as to affirm arithmetical errors to which the court’s atten-

tion is directed.

CONCLUSION

For the foregoing reasons this Petition for a Writ

of Certiorari should be granted

Respectfully submitted,

Marvin H. GiapsTone,

Counsel for Petitioners.

[AppenpDrix Fo.iows }

a ee ee

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APPENDIX

Order Denying Petition for Certification

(Filed—October 25, 1977)

Supreme Court or New JERSEY

C-136—September Term 77

—-~>

Bercen County Associates,

Petitioner-Pctitioner,

vs.

Borovucu or East RuTHERFORD,

Respondent-Respondent.

To Appellate Division, Superior Court:

A petition for certification having been submitted to this

Court, and the Court having considered the same,

It is hereupon Orperep that the petition for certification

is denied with costs.

Wirnvess, the Honorable Worrall F. Mountain, Presiding

Justice, at Trenton, this 25th day of October, 1977.

STEPHEN W. TownsenpD

Acting Clerk

[la]

Petition for Certification Filed with Supreme Court of

New Jersey

(Filed—July 18, 1977)

SupreMeE Court or New JERSEY

Docket No. .

—

Bercen County AsSociATEs,

Petitioner-Avpellant,

vs.

Borovew or East Ruruenrorp,

Respondent-Respondent,

AND

ConsotipateD Cases (Appellate Division Docket Nos.

A-3043-73 to A-3053-73 inclusive—Remaining Captions

Not Included—Set Forth in Brief and Appendix Covers

Filed Below)

Sat Below:

Hatrern, Aticorn and Borrer, JJ.A.D.

Giapstonr Hart Mannis Ratue & SHepp

A Professional Corporation

Court House Towers

39 Hudson Street

Hackensack, New Jersey 07601

(201) 343-2900

Attorneys for Petitioners

Marvin H. Guiapstone

Of Counsel and on the Petition

RS eee EL RT Lee Ohne ae

ON sen ere

Petition for Certification Filed with Supreme Court of

New Jersey

Grounds for Certification

R. 2:12-4 recites as grounds for certification presentation

of a question of general public importance which has not

but should be settled by the Supreme Court; conflict be-

tween the decision which is the subject of the Petition and

any other decision of the same or a higher court; and

vindication of the interest of justice.

A. Public Importance

Two questions of general public importance are pre-

sented:

1. Where, in the proper exercise of legislatively-con-

ferred police power, a moratorium against any eco-

nomic use of vacant land is imposed and enforced

by a political subdivision of the State, may the vacant

land thus burdened be subjected to ad valorem prop-

erty taxes as though it was not burdened by the

moratorium?

2. Where

(a) the sovereign State of New Jersey officially as-

serts a claim of legal title to vacant land, record

title to which is in a non-tax exempt entity; and

(b) the State’s contested claim, if valid, renders the

land tax exempt; and

obtain judicial disposition of the contested claim

for many years notwithstanding diligent prose-

cution by the private claimant; and

Petition for Certification Filed with Supreme Court of

New Jersey

(d) a political subdivision of the State which is a

constituent element of the local taxing entity as

well as a beneficiary of the taxes assessed, by

formal regulation prohibits all economic use of

either the land area claimed, or the land areas

not claimed which are part of the same tax lot;

and

(e) no mechanism exists whereby taxes may be de-

ferred pending judicial resolution of the title

dispute, i.e., the question whe:her the land is

taxable or tax-exempt, except at the peril of

strict foreclosure;

Then, given all of the foregoing, may the land rendered

thus inutile be properly assessed for local ad valorem

taxation as though it was immediately and fully market-

able and buildable?

Both of the foregoing questions are of general public

importance because, as to the first, approximately 10,000

acres of land were involved during the 2%4-year mora-

torium®* (all said years being encompassed by the years

under appeal); and, as to the second, approximately 27,000

acres have long been and are still affected.

Neither question has been settled by the Supreme Court.

Both questions should be so settled.

* The ultimate effective period of the “Freeze” was May 1, 1970-

November, 1972. Although initially scheduled to terminate May 1,

1972, it was thereafter twice extended. See Meadowlands Req., etc.

v. Hackensack, etc., infra (119 N. J. Super. 572 at pp. 575-6).

(ae le aay le alta ate

A AOE tO te ee

Petition for Certification Filed with Supreme Court of

New Jersey

B. Conflict

In declining to entertain (and, indeed, in denigrating)

the argument that valid restrictive land use regulations

create legally appropriate bases for ad valorem property

tax relief, the decision below conflicts with the numerous

holdings of the Appellate Division and of this Court

wherein zoning restrictions are established as an essential

element of the valuation process in both ad valorem prop-

erty taxation and eminent domain.

C. Interest of Justice

It is unjust to assess nonsalable and nonusable vacant

land as thought it was salable and usable, where the re-

strictions against sale and the prohibitions against use are

created by a constituent element of the taxing entity itself,

or of the State of New Jersey, which is the creator of the

political subdivision and alter ego thereof.

It is unjust to confront the taxpayer with the Hobson’s

Choice of paying taxes on non-economic vacant land which

the State contends is exempt from taxation, with no re-

covery thereof if the State is correct, or failing to pay at

the peril of losing the title which he may hold, through

strict foreclosure, by a creature of the State and the alter

ego thereof.

D. Equal Protection

Although this is a Petition for Certification and not an

appeal, the Petitioners nevertheless hereby raise the issue

of denial of equal protection of the laws governing local

taxation of real property, that issue having been set forth

Petition for Certification Filed with Supreme Court of

New Jersey

as such in all of the proceedings below. Unreasonable

classifications of properties essentially similarly situate for

the purpose of imposing a disproportionately high burden

of taxation on some of them would violate the equal pro-

tection clause of the 14th amendment as well as N.J. Const.,

Art. 8 §1 {1(a). It is no less a violation to refuse to

classify properties dissimilarly situate, for the purpose of

imposing the same tax burden on certain of them having

substantially lesser values, as that imposed upon the

properties enjoying greater values.

Here, the assessment by respondent of Petitioners’ non-

salable, nonbuildable vacant lands according to the same

standards applied to salable and buildable vacant lands,

violates both cited constitutional provisions.

Statement of Procedural History

The several Petitioners filed timely appeals with the

Bergen County Board of Taxation contesting multiplica-

tions of prior municipal assessments of various parcels of

raw, vacant meadowlands for the tax years 1969 through

1972. Petitions in respect of virtually all parcels and

years and, as to some parcels and years cross-petitions,

were timely filed with the Division of Tax Appeals by the

respective parties. The Division consolidated the petitions

for 1969 through 1972 for hearings which were held on

various dates August through October 1973. Prior to

closure of those hearings County Board petitions had been

filed for the tax year 1973 and the parties therefore stipu-

lated that the anticipated judgments for 1972 would also

apply to 1973. Similar petitions as to most, if not all

parcels (and, as to some, cross-petitions) were thereafter

Se ee ey

ee ee ee ee

Land

Petition for Certification Filed with Supreme Court of

New Jersey

timely filed for the tax years 1974 through 1976 with the

Division of Tax Appeals from adverse “state board pend-

ing” judgments entered by the County Board, and those

remain pending among the huge State Division backlog.

At this writing, 1977 County Board petitions are being

prepared for filing on or prior to the August 15, 1977

statutory deadline.

The State Division judgments covering the tax years

1969 through 1972 (the latter, by stipulation, being applica-

able to 1973) were entered May 13 and October 16, 1974.

Most of the appeals therefrom to the Appellate Division

were timely filed; a few (by apparently inadvertent con-

fusion in captioning the Notices of Appeal), may not have

been timely filed.

The Appellate Division affirmed all of the State Division

judgments (including one based upon a manifest and

briefed arithmetical error and others based upon manifest,

briefed and admitted incorrect computations of acreage)

by opinion dated March 3, 1977.

Thereafter a somewhat confused effort by counsel of

record at the time, to file a Notice of Petition for Certifica-

tion (Pal) ensued. Misconceiving R. 2:12-3 to limit the

time for filing the Notice to 20 days next following receipt

(rather than rendition) of the Appellate Division decision,

counsel presented the Notice directly to an Associate Jus-

tice of this Court on the 20th day after its receipt of the

decision, but the 21st day after the date thereof. Appar-

ently also under the incorrect impression that the presen-

tation of the Notice in the manner indicated would result

in its being marked “filed” that date, former counsel be-

lieved it had timely filed the Notice. Substituted counsel,

being so advised, presented for filing a Substitution of

Attorney (Pa21) together with a motion (Pa4-10) to ex-

Petition for Certification Filed with Supreme Court of

New Jersey

tend the 10-day time limit for filing the Petition. The

Notice, however, not having been timely submitted for

filing, the Clerk properly declined to file the same, or to

file either the Substitution or the motion, since the non-

filing of the Notice of Petition left this Court withdut a

matter or docket in which the Substitution or the motion

could be filed. The procedural dilemma was thereafter

solved by filing a motion (Pall-20) to extend the time

limited for filing the Notice of Petition to permit it to be

filed, thereby permitting the filing of the Substitution and

the motion to enlarge the time limited for filing the Peti-

tion. Both motions (to file the Notice out of time and to

enlarge the Petition filing time) were apparently granted

by this Court on June 17, 1977, and the Substitution was

apparently filed, but no notice thereof was sent to substi-

tuted counsel*, they having been orally advised of these

dispositions by the Clerk’s Office on July 7. Since prepara-

tion of the Petition was deferred pending notice of dis-

position of the motion to file the Notice out of time, and

Petitioners were given ten days from date of telephoned

notice of the June 17 dispositions of the two motions, the

grant of the petition-extension application was effectively

negated.

Statement of Facts

This Petition seeks certification of the Appellate Divi-

sion’s affirmance of numerous judgments of the State

Division of Tax Appeals adjudicating taxable values of

* Former counsel has advised that after inquiry and following a

search of its files, it did not receive the June 17 order either.

tT ee tae OLE ol OA ne nee eee:

Petition for Certification Filed with Supreme Court of

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diverse parcels of vancant* land, all located in the East

Rutherford portion of the Hackensack Meadows.

All of the parcels were, during 2% of the four tax years

appealed, subject to a prohibition against landfilling or

otherwise improving the same, lawfully imposed by a

Hackensack Meadowlands Development Commission mora-

torium. See Meadowland Regional Development Agency v.

Hackensack Meadowlands Development Commission, 119

N. J. Super. 572 (App. Div. 1972), cert. den. 62 N. J. 72

(1972).

The East Rutherford tax assessor as well as the three

tribunals below, all declined to recognize any diminution

in the taxable value of any of the parcels for the 24% years

in question, by reason of the prohibition against filling or

building.

Virtually all of these vacant parceis were also burdened,

for all of the years in question, by claims of legal title to

all or portions thereof, repeatedly officially asserted by the

State of New Jersey through the Natural Resource Coun-

cil, purportedly pursuant to N.J.S.A. 13:1B-13.4.** Fur-

‘* A small portion of one parcel only. ct 24A in Block 105B is

improved with a temporary bank trailer, 19 parking stalls adjacent

thereto and some landscaping.

** Even the above-footnoted Lot 24A in Block 105B (whereon the

temporary bank trailer stunds), in respect of which a prior quit-claim

deed was obtained, was affected, because (1) the 1970 “gray-white

map” and the 1973 claims overlay published by the Council asserted

claim to all or part thereof; (2) none of the maps indicated those

areas previously quit-claimed or granted by overlay or otherwise ; and

(3) the State has, until recently, challenged the validity of its prior

grants and quit-claim deeds as “gifts” of public trust properties. See,

e.g., New Jersey Sports & Exposition Authority v. Smila-Rutherford,

Inc., et als. (consolidated cases) (unreported cases App. Div. Docket

nos. A 1651-75 and A 3555-75).

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Petition for Certification Filed with Supreme Court of

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ther,.and perhaps more importantly, the policy of the

Hackensack Meadowlands Development Commission has

been to refuse applications for “zoning certificates” unless

there is presented therewith either “i. [a] duly executed

riparian instrument releasing the State’s interest; [or] ii.

[a] permit or other authorization duly executed by the

Natural Resource Council authorizing the applicant to

proceed with the placement of certain improvements; [or]

iii. [a] final judgment rendered by a court of competent

jurisdiction declaring that the State has no interest in

the subject property.” This requirement, theretofore un-

officially applied, was subsequently codified as N.J.A.C.

19:4-4.134(b) (3). N.J.A.C. 19:4-4.133(a) further codified

an existing prohibition against even commencement of

placement of fill in these properties without a zoning cer-

tificate.

All efforts to reasonably expeditiously obtain adjudica-

tions of tideland title disputes have been unavailing be-

cause of the State’s repeated changes of position and the

lack of judicial manpower to handle the great host of

cases.*

* This court may or should take judicial notice of the fact that,

despite the authorization of L. 1973, ¢.76, §1 and c.78, §1, N.J.S.A.

2A :21, to the Governor to appoint at the request of the Chief Justice,

six additional judges to hear and decide tideland disputes, no such

appointments have ever been made. The result has been delays of

many years in efforts to adjudicate titles. Further, the original

statutory mandate required the Natural Resource Council to “make

its determinations as to interest of the State in meadowlands . . . on

or before Dec. 31, 1974.” This deadline has been annually ad-

journed by Amendment and now reads “December 31, 1977”. N.J.

S.A. 13:1B-13.6. The Council's repeated, contradictory claims map-

(Footnote continued on following page)

AOD ot Oe DPB Oh DOU. OO ne ow

lla :

Petition for Certification Filed with Supreme Court of

New Jersey

N.J.S.A. 13:17-1 (the Hackensack Meadowland Reclama-

tion and Development Act) was, after some considerable

delays, approved January 13, 1969. 1.1968, ¢.404. Sec-

tion 103 of the statute purported to make it retroactively

effective as of July 1, 1968.

The Act creates a “Hackensack Meadowland District”

comprising portions of municipalities in Bergen and Hud-

son Counties on both sides of the Hackensack River.

N.J.S.A. 13:17-4. It also creates the Hackensack Meadow-

lands Development Commission and vests it with broad

supervening (as against the constituent municipalities)

planning, zoning and other land use-related powers.

N.J.S.A. 12:17-5 and 6. The statute and the powers it

confers were held constitutional in Meadowlands Regional

Development Agency v. State, 112 N. J. Super. 89 (App.

Div. 1970), affirmed 63 N. J. 35 (1973), appea dismissed

414 U.S. 991 (i973).

Article 9 of the Act provides for “intermunicipal tax

sharing” with respect to ratables located in those areas of

the constituent municipalities which are encompassed by

the Hackensack Meadowlands District. N.J.S.A. 13:17-60

et seq. Although the intermuncipial tax-sharing provi-

sions are somewhat complex and obtuse, they are based

upon the proposition that the anticipated regional planning

and execution thereof, together with other activities of the

Commission would ultimately result in ratable increases

(Footnote continued from preceding page)

ping project results have been repeatedly rejected. See State v.

Council (Superior Court docket No. L-12561-68, 9/8/71, appealed

on other grounds 60 N. J. 199 (1972)) ; City of Newark v. Natural

Resource Council, 133 N. J. Super. 245 (L. Div. 1974) and the

several prior and subsequent interlocutory orders therein.

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Petition for Certification Filed with Supreme Court of

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from which the constituent municipalities should benefit

pursuant to equitable formulae. See “Purpose”, ete.,

N.J.S.A. 13-17-60(a).

An essential element of the intermunicipal tax-sharing

scheme was the creation of a “base year” against which

the constituent municipalities’ obligations for each subse-

quent year (“adjustment year”) would be determined.

N.J.S.A. 13:17-61(a) and (e).

A “guarantee payment” by the intermunicipal account to

each constituent municipality is then provided for by

N.J.S.A. 13:17-68. That provision seeks to codify (with

some exceptions and adjustments) the concept or notion

that no constituent municipality should receive less tax

revenues from those of its ratables lying within the Dis-

trict, in any “adjustment year”, than the revenues which

would have been produced by those ratables as reflected

by the tax duplicate in the “base year”.

In other words, the “base year” ratables became the

“floor” for each constituent municipality, and there was no

ceiling.

The retroactive effective date of July 1, 1968 is signifi-

cant because the “base year” initially legislated was 1969.

(The “base year” was changed by the 1972 amendment to

1970). The taxable values of properties for 1969 were,

theoretically, fixed as of October 1, 1968, N.J.S.A. 54:4-23.

The theoretical October 1 “valuation”, however, is never

as a matter of practice fixed on that date, but is fixed as of

that date by assessments which are filed with the County

Boards usually toward the middle of the following year.

To maximize the guaranteed minimum to be receivable

under the intermunicipal tax-sharing provision, most of

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Petition for Certification Filed with Supreme Court of

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the constituent municipalities “revalued” those ratables

within the district in early 1969, “as of” October 1, 1968.

The temptation to maximize meadowlands assessments im-

mediately it appeared the Meadowlands bill might, after

long debate, become law was understandably and necessar- —

ily overwhelming.

East Rutherford did its “revaluation” in early 1969 and

the result was, not merely increases but, literally, multi-

plications of assessments of properties east of Route 17,

ie., that area of the municipality within the Hackensack

Meadowlands District.

Most, if not all of the vacant properties which are the

subject of this Petition were the subjects of tax appeals

and judgments for the years 1966-68. The 1969 “revalua-

tion” magnified the assessments fixed by judgment for

those three prior years. The grossly inflated assessments

were largely affirmed (there were a few significant excep-

tions) by the Bergen County Board and the State Divi-

sion, and by the Appellate Division in the decision which

this Petition addresses. These affirmances of multiplied

assessments (as compared with the 1966-68 adjudications)

were notwithstanding the properties have, since 1970, been

rendered nonsalable and unusable by administrative

moratoria, prohibitory regulations, and inability to move

tideland title disputes through the courts.

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Petition for Certification Filed with Supreme Court of

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ARGUMENT

POINT I

The decision below should be certified because it

holds, in effect, that vacant lands subject to moratoria

against development are nevertheless to be assessed

at the same values as lands not so restricted.

Prohibitions against construction during planning

phases, if reasonably limited in duration, may be valid

exercises of the police power. Deal Gardens, Inc. v. Loch

Arbor, 48 N. J. 492 (1967). The particular prohibition

here involved was held invalid in Hackensack Regional, ctc.

v. Hackensack Meadowlands Dev. Comm., 119 N. J. Super.

572 (App. Div. 1972), cert. den. 62 N. J. 72 (1973).

In disregarding the effect of an official, valid prohibition

against development upon the fair market values of these

vacant meadowlands during two of the years in question,

the court below held:

“The activities of the Hackensack Meadowlands

Development Commission in planning for the com-

prehensive growth and development of the area,

could very well have caused an appreciation of the

value of constituent parts of the meadowlands. .. .”

(Pa27)

There is no evidence in this record of any such presumed

“appreciation” of nonbuildable lands. But even if the

conjecture be sound, it misses the most important point

that property tax assessment is an annual, not a perennial

matter. If, therefore, relief is granted during the mora-

torium period and, as a result of the “planning” supposed

ew A ee

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Petition for Certification Filed with Supreme Court of

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to be going on during the moratorium the values of the

properties increase, then the assessments should likewise

be increased in such subsequent tax year or years. But

to opine that, during a period of prohibition when nothing

may be done but await the fruits of the “planning” effort

to find out how much it will hurt or help, borders on the

ludicrous.

The two year moratorium established by the Hackensack

Meadowlands Development Commission burdened these

vacant meadowlands in the same manner as lands sub-

jected, e.g., to the “flood hazard” moratorium. In Cappture

Realty Corp. v. Bd. of Adj. Elmwood Park, 126 N. J.

Super. 200 (Law Div. 1973), affirmed 133 N. J. Super. 216

(App. Div. 1975) the trial court correctly observed:

“Plaintiff also argues it is being assessed for taxes

as if the land were not under a moratorium, and is

paying property taxes under protest. It appears

obvious that the moratorium establishes as a matter

of law that the subject land is temporarily re-

stricted, and presumably the tax assessor estab-

lishes true value accordingly ‘or that period... .

The tax authorities cannot have it both ways.” 126

N. J. Super. at p. 217.

This question was not addressed on appeal in the Capp-

ture case.

The trial court also noted that if “the tax assessor fails

to take the moratorium ordinance into account, plaintiff

may have been damaged by such excess assessment. Plain-

tiff has an avenue for redress, through tax appeals, which

should be sufficient.”

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Petition for Certification Filed with Supreme Court of

New Jersey

They were obviously insufficient in these consolidated

matters, Petitioners having raised the issue below in all

three tribunals to no avail. Must the Petitioners, their

properties having been zoned into temporary sterility,

accept that state of affairs and continue to pay taxes

as though their inutile properties were fully salable and

buildable? Cf. Harrington Glen Inc. vy. Board of Adj. ef

Leonia, 52 N. J. 22, 21 (1968).

The moratorium coupled with the Hackensack Meadow-

lands Development Commission regulation prohibiting fill-

ing or other development absent an instrument releasing

the State’s claim (or a Natural Resouree Council per-

mit) has rendered most of these vacant properties un-

salable, and all of them nonbuildable during the tax years

in issue. Real property being annually assessable, relief

may and should be granted during those years when those

disabilities obtain.

Since the holding in Deal Gardens, supra, cautiously

validating development prohibitions of limited duration

during planning and replanning periods, we have seen

such moratoria being imposed with increasing frequency.

Many developing municipalities have established such

while replanning and rezoning to conform with the re-

quirements of So. Burlington Cty. N.A.A.C.P. v. Mt.

Laurel Tp., 67 N. J. 151, appeal dismissed and cert. den.

423 U. S. 808 (1975). The implications inherent in the

decision below, to which certification is here sought, is

that vacant lands frozen from development during such

prohibitory periods may nevertheless have their assess-

ments validity multiplied because at some unknown fu-

ture time, the fruits of such replanning may increase the

values thereof.

That proposition reserves review by this Court.

naa

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Petition for Certification Filed with Supreme Court of

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POINT II

Certification should be granted because of the far-

reaching implications of that portion of the decision

below which erroneously equated State claims of

riparian title (the very assertion of which precludes

development by law and which, if established, would

render the property tax-exempt) with private title dis-

putes (which do not preclude development and which

would not render the property tax-exempt whichever

private claimant should prevail); and Damsil v. Se-

caucus, followed below, should be reviewed.

In the opinion to which certification is sought, the Ap

pellate Division held that Petitioners’ properties burdened

by the State’s claims of riparian title are not entitled to

any reduction from “market value” by reason thereof. In

so holding, the Appellate Division relied upon Town of

Secaucus v. Damsil, Inc., 120 N. J. Super. 470 (App. Div.

1972), cert. den. 62 N. J. 90 (1972). It is the contention

of Petitioners that the holding in Damsi is erroneous

and should be overruled and, in any event, should have

been held inapplicable to the facts at bar.

The Seeacus tract involved in Damsil which had been

purchased for $35,500 from the town at a public sale was

expressly sold subject to “tidelands or riparian rights

which might be claimed by the State of New Jersey”.

Subsequently, the town assessed the property at $92,000,

that assessment being thereafter reduced to the sales

price of $35,500 by the Division of Tax Appeals.

The Appellate Division reversed, holding that the

“bona-fide sale” test of value referred to in N.J.S.A. 54:4-

23 meant the sales price of the land “including all inter-

18a

Petition for Certification Filed with Supreme Court of

New Jersey

ests therein, not the sales prices of the purported owner's

title in a case where, as here, there is a cloud on that

title.” The Appellate Division also stated (by way of

conclusion and without discussion) that the fact that the

sale was subject to outstanding rights of the’ State,

rather than of a private party was not of “any significant

relevance”. It then remanded the case to the Division of

Tax Appeals for entry of judgment in the amount of

$90,000, the figure previously conceded by the parties to

represent the value of all interests in the land.

The Damsil opinion does not reflect the fact that the

appellant had theretofore applied for a deed from the

State; that its application had been granted and awaited

only the signature of the Governor; and that it was in

fact finalized after the tax year in dispute.

Of particular importance to the Petitioners and to all

record title holders in the Hackensack Meadows, is the

quoted statement equating State claims of riparian title

with private claims of title. These two classes of clouds

on title have enormously different effects upon the uses

and the values of property.

The Hackensack Meadows, some 27,000 acres in size,

have for many years been the subject of persistent and

continuing title disputes between private claimants and

the State of New Jersey. O'Neill v. State Highway De-

partment, 0 N. J. 307 (1967). In a title dispute between

private claimants, the adverse claim has absolutely no

effect whatever on the power of the taxing district to

either assess or tax the property. Regardless which of

the private individuals may ultimately prevai!, the prop-

erty will remain subject to assessment and _ taxation.

Where, however, the State is the adverse claimant, the

ee ee eee

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Petition for Certification Filed with Supreme Court of

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property would be exempt from taxation should it pre-

vail. N.J.S.A. 54:4-3.3.

Neither Damsil nor the Court (or the Division) below

recognized either that (a) a riparian cloud (unlike a

private title dispute) is an assertion by the State of the

property’s tax-exempt status; or (b) a State riparian

elaim (unlike a private dispute) invokes a prohibition

against filling or building under N.J.A.C. 19:4-4.133 and

4.134(b)(3); or (c) title-clearing procedures in tideland

disputes are infinitely more compelx and involve years of

delays compared with ordinary quiet title actions involv-

ing private disputes.

According to the Damsil holding (and the decision be-

low which followed it) the record titleholder must pay

taxes based upon the full theoretical market value of the

property, as though salable and buildable, while he is dis-

abled through no fault of his (and only because the State

rather than a private party claims title to it) from mak-

‘ing any use of it whatsoever.

The record titleholder is faced with the “Hobson’s

Choice” of either paying full taxes on land he cannot sell,

mortgage, subdivide, fill or otherwise use, at the peril of

an ultimate adjudication that he does not own it, and that

it has been exempt from taxation (in which event he

loses both his land and all of the taxes he has paid); or

refusing to pay taxes and losing such interest in the

property as he may have, by way of strict foreclosure by

the taxing district.

The Damsil holding which creates this “Hobson’s

Choice” contravenes the underlying rationales of deci-

sions of this Court, and of statutory and common law

principles governing valuations of real property. The

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Petition for Certification Filed with Supreme Court of

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general rule of evaluation of real property for assess-

ment purposes is set forth in N.J.S.A. 54:4-23:

“The assessor shall . . . determine the full and fair

value of each parcel of real property situate in

the taxing district at such price as, in his judgment,

it would sell for at a fair and bona fide sale by

private contract... .”

In construing that language, this Court has consistently

held that the true value of real property is the price

which would be paid by a buyer wiling but not obliged to

buy and a sel’er willing but not obliged to sell. Greenwich

Township v. Gloucester County Bd. of Taxation, 47 N. J.

95 (1966); Gibraltar Corrugated Paper Co. v. North Ber-

gen Tp., Hudson County, 20 N. J. 213 (1956); City of

New Brunswick y. State Division of Tax Appeals, Dept.

of Treasury, 39 N. J. 537 (1963); City of Newark v. West

Muford Tp., Passaic County, 9 N. J. 295 (1952); North

Bergen Tp. in Hudson County v. Bergen Blvd. Holding

Co., 1383 N. J. L. 569 (E. & A. 1946).

In determining value, consideration is given to the

actual condition in which the owner holds it. Colwell v.

Abott, 42 N. J. L. 111, 115 (Sup. Ct. 1880); State v. State

Board of Tax Appeals, 134 N. J. L. 34, 43 (Sup. Ct.

1946); Aetna Life Insurance Co. v. City of Newark, 10

N.J. 99, 110 (1952).

Thus, e.g., in Englewood Cliffs v. Estate of Allison, 69

N.J. Super. 514 (App. Div. 1961), the land was burdened

by significant legal restrictions and public rights, and the

court ordered the assessment of approximately $52,000

reduced to $5,000.

A AR mat il, Nene acetate

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Petition for Certification Filed with Supreme Court of

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An essential element in determining the true value of

property is the fitness and availability thereof for par-

ticular uses, whatever the actual use may be. City of Clif-

ton v. North Jersey Disi. Water Supply Commission, 104

N. J. Super. 147 (App. Div. 1969); Appeal of City of

East Orange, 80 N. J. Super. 210 (App. Div. 1963);

Div. of Tax App. v. Ewing Tp., 72 N. J. Super. 238 (App.

Div. 1962). Delaware, etc. Railroad Company v. City of

Hoboken, 16 N. J. Super. 543 (App. Div. 1951).

Applying these principles to the case at bar, Petitioners

are entitled to relief from the excessive assessments of

their properties. In determining the true value of Peti-

tioners’ properties, no consideration was given to their

actual condition as held by them. These properties, like

much of the Hackensack Meadows, are claimed by the

State. The State, through the Department of Navigation,

notified all town assessors and all title companies of its

claims in 1962. As a necessary result, none of the private

record titleholders have been able to make any economic

use of their properties in the absence of a grant or quit-

claim deed from the State, for some 15 years.

The regulations of the Hackensack Meadowlands De-

velopment Commission and, in particular, N.J.A.C. 19:4-

133 and 4:134(b)(3) prohibiting filling in or building on

any lot in which the State claims an interest, however

small, are in the nature of zoning ordinances and gov-

ern Petitioners’ permissible uses of their lands. They

necessarily affect, therefore, those lands. Cf. State v.

Gorga, 26 N. J. 113 (1958) ; Overpack Land Corp. v. Vil-

lage of Ridgefield Park, 104 N. J. L. 402 (E. & A. 1928).

They should have been considered by the assessor in mak-

ing that determination, and by the three lower tribunals

in adjudicating appeals from his assessments.

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Petition for Certification Filed with Supreme Court of

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The decisions in both Dainsil v. Secaucus and the cases

below erroneously equated tideland disputes with private

title disputes, and they should be addressed by this Court

because they affect an entire region of the State; they

contravene established principles of ad valorem property

taxation; and they are and will continue to be productive.

of gross inequities and injustices if they remain unre-

viewed.

POINT III

The 1968 State Division judgments should be ac-

corded the benefit of the Freeze Act under Rothman

v. Borough of River Edge.

The taxable values of virtually all of the properties

here in issue were adjudicated for the tax years 1966,

1967 and 1968, by the same judge of the Division of Tax

Appeals who heard the appeals and rendered the decisions

aflirmed below in this case.

Former counsel's failure to brief the applicability of

the Freeze Act, N.J.S.A. 54:2-43 should be excused be-

cause Rothman v. Borough of River Edge, 149 N. J. Super.

434 (App. Div. 1977) had not yet been decided. That

opinion is published in the July 8, 1977 advance sheets.

Prior to Rothman it was generally conceived that an

assessment established by a judgment rendered in respect

of consolidated appeals covering more than one year,

was “frozen” by the Act for only the first such year, plus

the two succeeding years (even if one of them was a year

covered by the judgment). By way of illustrating that

conception if, as to the instant tax lots, judgments were

rendered for 1966, 1967 and 1968, the three year “freeze”

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Petition for Certification Filed with Supreme Court of

New Jersey

period would have been exhausted and the taxing dis-

trict was at liberty to multiply, as it did, the assessments

for 1969, subject to appeal on the merits.

Rothman holds otherwise. There, 1970 and 1971 assess-

ments were adjudicated in the Division and final judg-

ments rendered, based upon a prior 1969 judgment, the

Division having applied the Freeze Act. The Appellate

Division reversed and remanded by an unreported opin-

ion on June 18, 1975, for taking of testimony and fixing

of the assessment without regard to the Freeze Act. The

parties then settled at a stipulated value of $800,000. The

settlement figure was reduced to judgment for 1970 and

1971 on August 13, 1975. In the interim the taxpayer, but

not the borough, had appealed the 1972 and 1973 assess-

ments, and the borough argued that the 1971 judgment

governed the two subsequent years under the Freeze Act,

notwithstanding it had not appealed those two years. The

Appellate Division agreed, thus holding that the 1971 and

1972 judgment froze the assessments for 1973 and 1974.

Thus, the control year for application of the statutory

3-year freeze was 1972 and not 1971.

Rothman makes a lot of sense for reasons not set forth

in the opinion as well as those articulated therein. In the

absence of a genuine* municipal-wide revaluation in-

creases in values resulting from general appreciation of

real property are fairly uniform and continuation of the

assessments avoid the discriminatory effects of individual

adjustments to “true value.” Annual equalization adjust-

ments for county and regional tax purposes even out

*i.e. not the kind of partial “revaluation” designed to “maximize

the minimum” guarantee under the intermunicipal tax sharing pro-

vision of the Hackensack Meadowlands Development Act, supra.

24a

Petition for Certification Filed with Supreme Court of

New Jersey

intermunicipal disparities during the vears between gen-

eral, municipal wide revaluations which bring all prop-

erties uniformly up to “true value.”

Application of Rethman to the cases at bar is particu-

larly appropriate because of the double-pronged freeze *

on development of these vacant properties, hereinbelow

briefed. Indeed, nothing could be more appropriate than

to accord the benefits of the “Freeze Act” to vacant lands

“frozen” from development.

Application of Rothman to the cases at bar would ae-

cord each tax lot which was the subject of a 1968 State

Division judgment, the benefit thereof for 1969 and 1970.

Those assessments should be thereafter continued until

the properties are “unfrozen” from the regulatory pro-

hibition against improvement.

It is respectfully suggested that this Court exercise its

original jurisdiction to permit filing of the 1968 State

Division judgments, N. J. Const., Art. 6, §6, par. 3, to

the end that the Freeze Act may be applied to those

assessments covered thereby, for the tax vears 1969 and

1970.

25a

Petition for Certification Filed with Supreme Court of

New Jersey

POINT IV

Although it may appear that the facts and some of

the issues were seriously addressed by the State Divi-

sion and the Appellate Division, that appearance is

deceptive and petitioners’ appeals were in fact given

little consideration.

It is recognized that the highest court of the State

cannot and does not concern itself on a Petition for Certi-

fication with mundane points of error below.

It should, however, concern itself with the increasing

tendency (by reason of well-publicized heavy work loads)

of the State Division to accord superficial attention to

important factual and legal questions; and of the Appel-

late Division to affirm pro forma. It is submitted that

much of the verbiage in the opinions below merely serves

to camoflage less-than-adequate attention to the facts and

consideration of the implications of the holdings.

In the conclusion of their brief below Petitioners noted,

inter alia, that Judge Savino’s “decision is replete with

factual errors, inconsistencies and omissions of material

deductions.” Most of them were well-detailed in the 71

pages preceding that conclusion.

Among the many “factual errors” was an uncontested

and incontestible arithmetical error. It was called to the

Appellate Division’s attention at page 13. Judge Savino

had taken a questionable “improved” value of $60,000 per

acre and deducted therefrom the costs of non-existent

“improvements”. One such was diking wherein he accep-

ted expert testimony of a $50 per foot cost. He multi-

plied 900’ x $50 and came up with $4,500 instead of $45,-

"Oa

Petition for Certification Filed with Supreme Court of

New Jersey

000 as a “deduction.” See page 13 of Petitioners’ brief

below.

The Appellate Division affirmed this mathematical er-

ror! If we assume, as we must, that the court below can

both read and multiply, the only explanation for affirming

a multiplication error which was briefed, is inattention to

the facts of the ease as briefed.

The brief below was replete with examples of similar,

if slightly less obvious, mathematical miscalculations.

A variant, for example, is found briefed at p. 53. The

Borough continued to assess 3.63 acres of Lot 26 NC in

Block 108 as 11.14 aeres. The difference in acreage re-

sulted from a 1968 taking by the State Highway Depart-

ment to widen Route 3, and the assessor had failed to

adjust the acreage, notwithstanding the Borough was a

party to the condemnation proceeding. Counsel to the

Borough acknowledged that “it looks to me like they didn’t

adjust this... .” The discrepancy was called to the at-

tention of the Appellate Division as well as the State

Division. The former’s affirmance of the latter’s error

in effect ajudicates 3.63 acres to be 11.14 acres!

Similarly, the appellants’ brief below noted, at pages

52-34, that 8.96 acres comprising Lots 6 & 7 in Block

106B, were assessed at 10.85 acres, the difference being

a railroad right-of-way incorrectly attributed to the pro-

perty. In declining to correct the incorrect computation,

the Court below in effect ajudicated 8.96 acres to be 10.85

acres,

It should he noted that every erroneously-attributed

acre increased the assessment hy $60,000 under the ques-

tionable method used by the Division.

Ee ae eee © ee

red

RR om shit ee ew

27a

Petition for Certification Filed with Supreme Court of

New Jersey

There is no point reiterating in this Petition (the size

of which is limited by Rule) the great host of similar

errors and others of a simple factual character in the

State Division’s opinion. They are well-detailed in the

appellants’ brief below. Petitioners are entitled to more

than a rubber-stamp approval of mathematical and other

errors which substantially inflate their tax liabilities on

vacant lands they cannot use, through no fault of their

own. Indeed, it is a denial of due process to preclude

them from fair considerations of their proofs.

CONCLUSION

For the foregoing reasons it is respectfully sug-

gested certification should be granted and the con-

solidated appeals remanded to the Division of Tax

Appeals for reconsideration of its determinations as

to the taxable values of all properties before it, for

all of the tax years in question; and for decision made

upon all relevant elements of the valuation process.

Respectfully submitted,

GiapstonE Hart Manpis Ratne & Suepp

A Professional Corporation

Attorneys for Petitioners

By Marvin H. Grapstone

28a

Petition for Certification Filed with Supreme Court of

New Jersey

Certification

I certify that the Petition for Certification filed in the

above-entitled actions present substantial questions, and

are filed in good faith and not for purposes of delay.

Marvin H. GLApsToNE

Certification

I certify that I have this date served two copies of the

foregoing Petition for Certification and Appendix thereto,

upon William F. Hyland, Esq. and Alfred A. Porro, Esq.,

by sending the same first class mail to their respective

office addresses.

Marvin H. GLapstone

Dated: July 18, 1977.

ee ee

NS Bee et ee ee ee EO ee. mente te

ed One A renee

29a

Opinion and Judgment of Appellate Division,

Superior Court

(Filed—March 3, 1977)

Superior Court or Niw JERSEY

APPELLATE DIVISION

Bercen County ASssociATEs,

Petitioner-Appellant,

Boroveu or East Rutuerrorp,

Respondent-Respondent.

A-3043-73

A-3046-73

A-3056-73

Boroveu or East RutHerrorp,

Petitioner-Respondent,

Bercen County Associates,

Respondent-Appellant.

A-3044-73

A-3047-73

A-3050-73

—~

30a

Opinion and Judgment of Appellate Division,

Superior Court

Boroveu or East RuTHERFoRD,

Petitioner-Respondent,

East RutruHerrorp INVESTMENT CORPORATION,

Respondent-Appellant.

A-3045-73

Boroucu or East RutrHeER¥FoRD,

Petitioner-Respondent,

Brancasons, Inc.,

Respondent-Appellant.

A-3048-73

Brancasons, Inc.,

Petitioner-Appellant,

Boroucu or East RurHerronrp,

Respondent-Respondent.

A-3049-73

>—

3la

Opinion and Judgment of Appellate Division,

Superior Court

——<——-

Bercen County Associates Sunoco,

Petitioner-Appellant,

BoroucH or East RutTHerrorp,

Respondent-Respondent.

A-3051-73

Deanna Invustrizs, INnc.,

Petitioner-Appellant,

BoroucH or East RuTHERFORD,

Respondent-Respondent.

A-3052-73

Borovcu or East RutHerrorp,

Petitioner-Respondent,

Deanna Inpustriss, INc.,

Respondent-A ppellant.

A-3053-73

> —

32a

Opinion and Judgment of Appellate Division,

Superior Court

—>—

‘ast RutrHerrorp INVESTMENT CORPORATION,

Petitioner-Appellant,

BorovecHu or East RuTHERFORD,

Respondent-Respondent.

A-3055-73

-—¢—

Argued November 16, 1976—Decided Mar 3 1977

Before Judges Halpern, Alleorn and Botter.

On appeal from Division of Tax Appeals, Department

of the Treasury.

Mr. David Carmel argued the cause for appellants

(Messrs. Demetrakis & Dollinger, attorneys).

Mrs. Tonita F. Conaghan argued the cause for re-

spondents (Mr. Alfred A. Porro, Jr., attorney).

Per CurIAM

These 13 appeals,’ which we ordered consolidated, were

taken by taxpayers from various judgments of the Divi-

sion of Tax Appeals (Division). They involve vacant par-

1 This court previously ordered dismissed the appeal, and cross-

appeal by the municipality, bearing docket number A-3054-73, per-

taining to Block 107, lots 92 and 93.

Bed Oe ke oe we

33a

Opinion and Judgment of Appellate Division,

Superior Court

cels of land (except for a temporary bank trailer and

parking area on the parcel designated Block 105B, Lot 24A

located in the Hackensack Meadowlands. On this appeal

the taxpayers contend that the assessments on the various

parcels involved were excessive. The assessments were

fixed by the administrative judge after hearings held on

separate appeals and cross-appeals to the Division from

judgments of the Bergen County Board of Taxation.

The judge fixed $60,000 per acre as the market value

of improved property in 1968 and 1969. This was based

primarily on two sales in the area, one of which was

Block 106A, Lots C and 3B, at $60,000 per acre for 4.8

acres. Appellants contend that the judge erred in using

the sales as comparables and contend that the evidence

does not support the conclusion that $60,000 per acre

was the fair market value of improved property.

We disagree. This finding was supported by sufficient

credible evidence. The taxpayers’ own expert witness,

Peter C. Robinson, testified on direct and on cross-ex-

amination that he used $60,000 as the value of property

in an improved condition. He said that the “$60,000 im-

proved land figure is derived from the comparables* * *”

and that “it’s a consenus of the market” for improved

property which is accessible by roads and is served by

connected utilities. He testified: “I attributed about $60,-

000 as the going market value at that time.”

Appellants also contend that the judge erred in failing

to make allowance from market value for properties

which are burdened by the state’s claim of riparian rights.

We find no error in this regard, however. The law re-

quires that property be assessed at its “full and fair”

34a

Opinion and Judgment of Appellate Division,

Superior Court

market value. N.J.S.A. 54:4-23. The value of the land

is to be assessed, not a particular interest in the land.

The assessment should represent the value of all in-

terests in the land. Secaucus v. Damsil, Inc., 120 N. J.

Super. 470 (App. Div.), certif. den. 62 N. J. 90 (1972);

In re Appeal of Neptune Tp., 86 N. J. Super. 492, 499

(App. Div. 1965); Stack v. Hoboken, 45 N. J. Super.

294, 300 (App. Div. 1957). There is also no merit to the

contention that the imposition of taxes on the property

violates appellants’ due process rights because the State

has asserted title to the properties as riparian lands.

Appellants contend that the property should be deemed

exempt, or should be assessed at minimal values, until

the title dispute is resolved. But the evidence shows

that appellants have sold and substantially developed

similar property despite such claims. Moreover, appel-

lants may succeed in refuting the State’s claims.

Appellants also contend that the value of the proper-

ties should have been depreciated by a factor reflecting

the freeze on development due to temporary zoning re-

gulations of the Hackensack Meadowlands Development

Commission applicable to certain portions of the mea-

dowlands during a planning phase. See Meadowland Re-

gional Development Agency v. Hackensack Meadowlands

Development Commission, 119 N. J. Super. 572 (App.

Div.), certif. den. 62 N. J. 72 (1972). This contention

was rejected below in the absence of proof that pro-

perty values fell because of the temporary halt in de-

velopment. The activities of the Hackensack Meadow-

lands Development Commission, in planning for the com-

prehensive growth and development of the area, could

very well have caused an appreciation of the value of

A Ae Rte eA OS GE Oh bE ee ee Bw

ot et Bt

ot Oe me

35a

Opinion and Judgment of Appellateirision,

Superior Court

constituent parts of the meadowlands, despite, 24 even

during, a temporary stay of development. We fit the

state of the evidence justified the ruling below.

Finding no merit to appellants’ contentions which are

common to all appeals, we consider next whether valua-

tions fixed on specific properties did not conform to or

were not supported by credible evidence. Before dealing

with these contentions, however, it is necessary to enu-

merate the specific parcels of land which are the sub-

ject of these appeals.

We are dealing with 13 appeals, although 18 separate

parcels of land were evaluated below. Separate tax ap-

peals had been filed for each of the various properties

for the years 1969 through 1973, and at the hearing bé-

low it was stipulated that the 1972 assessments would

also apply to 1973. The parcels of land ranged in size

from 3.19 acres (Block 106B, Lot 11) to 34.90 acres

(Block 108B, Lot 26BD).

The Division of Tax Appeals had assigned different

docket numbers to each of the tax appeals. In appeal-

ing from the judgments below, the notices of appeal speci-

fied the particular docket numbers in the Division of Tax

Appeals from which each appeal was taken. The parcel

of land involved and the tax years in question were not

specified in the notices of appeal. The notices simply

say that a named taxpayer appeals from a final judg-

ment entered in the Division of Tax Appeals “in the

within matter” and state the date of the judgment be-

low. In order to determine exactly what assessments

were appealed, it was necessary to corrolate the docket

numbers assigned to each tax appeal in the Division

with specific parcels of property involved in that appeal.

36a

Opinion and Judgment of Appellate Division,

Superior Court

Despite the fact that only 13 appeals are before this

court, appellants’ brief and appendix list captions for

17 separate appeals. Although not appearing in the no-

tices of appeal, appellants also assigned to each of the 17

captions a designated parcel of land allegedly involved in

that appeal. However, we find that these designations

do not correspond to the notices of appeal. In fact,

no appeal has been taken from assessments fixed for

some of the parcels which were involved in the pro-

ceedings below. In some cases, such as in Docket Nos.

A-3043-73, A-3044-73 and A-3055-73, appeals were taken

from judgments entered in cases involving the same par-

cel of land, for different tax years. The three docket

numbers mentioned were taken from judgments entered

in cases below bearing Docket Nos. L-104-72, L-105-72,

L-88-71, L-89-71 and L-98-73, all of which deal with one

parcel of land, Block 105A, Lot 31.

The appeals before us involve the following proper-

ties, with corresponding docket numbers of this Court

and the Division of Tax Appeals (taken from appellants’

notices of appeal):

Parcel Docket Numbers

Appellate Division of

Division Tax Appeals

Block 105A, Lot 31 A-3043 —L-88-71, L-89-71

A-3044 ~=L-104-72, L-105-72

A-3055 L-98-73

Block 105B, Lot 24A A-3045 L-92-71, L-107-72

L-108-72, L-101-73

37a

Opinion and Judgment of Appellate Division,

Superior Court

Parcel Docket Numbers

Appellate Division of

Division Tax Appeals

Block 106A, Lot 19 A-3046 L-110-71, L-127-72

L-119-73

Block 106A, Lot 21 A-3050 ~~ L-111-71, L-112-71

A-3046 L-129-72, L-128-72

Block 106B, Lot 9 A-3048 L-137-72, L-138-72

A-3049 L-126-73

Block 106C, Lot 13 A-3052 L.-143-72, L-144-72

A-3053 L-131-73

Block 108B, Lot 26BD A-3047 L-148-71, L-149-71

A-3056 L-159-72, L-160-72

L-136-73

Block 108, Lot 26 NC A-3047 L-142-71, L-143-71

A-3051 L-150-72, L-135-73

A-3056

We find the determination of the Division supported

by sufficient credible evidence as to the following pro-

perties:

Block 105A, Lot 31

Block 105B, Lot 24A

Block 106A, Lot 19

Block 106A, Lot 21

Block 106B, Lot 9

Block 106C, Lot 13

Block 108, Lot 26 NC

Block 108, Lot 26 BD

38a.

Opinion and Judgment of Appellate Division,

Superior Court

With respect to these parcels, which are the only par-

eels under appeal, the taxpayers’ computations are not

persuasive. In some cases they would yield negative val-

ues, that is, the land would be worth iess than the cost

of improvements. If the market value of improved pro-

perty is less than $60,000 per acre, and if the cost of im-

provements equals or exceeds the market value of an

improved parcel, there would be no explanation for the

continuation of the taxpayers’ costly operations.

The judgments below are affirmed.

29 rtndien,

39a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

Srate or New JERSEY

DEPARTMENT OF TREASURY

Division or Tax APPEALS

~ -~<>—

Bercen County Associates, East RutrHerrorp INVESTMENT

Corp., Brancasons, Inc., Deanna Inpvusrries, Lypus-

TRIAL ConstTRUCTION ASSOCIATES,

Petitioners,

vs.

BorovucH or East RutTHerForp,

Respondent.

Savino, J.

Appearances :

Marvin H. Gladstone, Esq.

Joel Ellis, Esq.

For— Bergen County Associates

East Rutherford Investment Corp.

Brancasons, Ince.

Deanna Industries

Industrial Construction Associates

Tonita Conaghan, Esq.

For—Borough of East Rutherford

40a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

This is a series of 18 tax appeals filed by the petitioners

against the Borough of Kast Rutherford together with a

number of cross-appeals filed by the Borough.

All of the properties are located in the East Ruther-

ford Meadowland complex where a large number of bujld-

ings were built on meadowlands developed by H. Jerome

Sisselman. All of the properties in these appeals are

without improvements. They are in various stages of de-

velopment for future use. Some have completed roads

giving them full access while others do not have complete

roads. Almost all of the properties are raw meadowland

although some have a small amount of fill, mostly meadow

mat, a material excavated from the meadow floor so the

builders could reach clay.

The problem is to establish market value for the prop-

erties in the condition that existed during the tax years.

The petitioners made a strong point of the fact that

the Meadowland Commission that now controls the zon-

ing and granting of permits to build froze all develop-

ment or construction for a period of two years. The re-

spondent subpoenaed George Cascino who identified him-

self as chief engineer of the Hackensack Meadowland De-

velopment Commission located in Lyndhurst, N. J.

Mr. Cascino admitted that all applications for zoning

permits and building permits had to come before him. He

has five full-time engineers working with him. He testi-

fied that the question of piping water would be considered

with each application. He also said there was no require-

ment that Berry’s Creek had to be diked. He did say that

the minimum first floor level for an new construction

had to be no less than ten feet above low tide level.

4ia

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

Under cross-examination Mr. Cascino admitted that

from May 1, 1970 to November 8, 1972 it was almost

impossible to secure a permit for anything in certain

parts of the meadowland. He also admitted to a policy

of not considering any use of certain property that might

fall within the area of the Sports Complex then under

proposal by the State.

Regardless of this testimony I am inclined to ignore the

importance of this problem. If I found that anyone really

suffered harm because of the Meadowland Commission

activities | would consider redress. But noting the infla-

tion of values in the area during the last ten years cer-

tainly no owner has suffered harm.

At the beginning of these hearings that concerned the

tax years of 1969, 1970, 1971 and 1972 I announced I

was going to use as a guide to value, testimony I received

in a case involving Block 105A, Lot 28, 29 and 30 con-

tained in the transcript of a hearing on similar properties

taken in October 18, 1972.

In that case H. Jerome Sisselman, perhaps the most

knowledgeable person in the area in developing meadow-

land, gave testimony. The case concerned two sales by

Mr. Sisselman. One for $60,000.00 an acre and the other

for $55,000.00 an acre. Both purchases were made by

adjacent businessmen for expansion purposes. I gave some

credit for that added consideration. Mr. Sisselman gave

a detailed list of improving meadowland property, what

the cost of excavating meadow mat, cost of piling, cost

of roads from excavation mat to soil foundation, stone

coverage, then macadamizing, costs of curbs, sewers, water

lines, cubie cost of material, etc. It was a complete exposi-

tion.

42a,

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

I finally decided that raw meadowland, during 1968 and

1969, was worth $60,000.00 an acre at market value. From

that amount would be deducted the cost of the improve-

ment such as roads, utilities and adjust especially bad

water conditions. He estimated the cost of fill road from

excavation to paved top at $200.00 a linear foot, the cost

of excavating meadow mat at $1,000.00 a foot per acrea

and to fill at $3,000 per foot per acre.

In the aforementioned October 18, 1972 case the sale

was for raw meadowland and I gave the taxpayer the full

deductions for the improvement he had to make on each

property that was part of the condition of sale. The

buyers of those properties made their own building ex-

cavation and preparation for construction.

Testimony given in the case of Block 105A—Lot 28,

29, and 30 (transcript of November 6, 1972—page 4 to

17), Ben Fried, president of Bendix Mills, who purchased

six acres of meadowland adjacent to his factory, testified

that the price was $55,000.00 per acre. He stated that

the contract provided that Mr. Sisselman, the seller, was

obligated to put in the street, the utilities and everything

to improve the land. The original Contract of Sale was

signed in 1968. It contained an option to buy within a

year with a cost of $5,000.00 for the option and $55,000.00

an acre. The contract was executed.

Another sale by Mr. Sisselman was made in 1969 in

Premier Industries Corp. to Marathan Enterprises Inc.

of 4.8 acres at $60,000.00 per acre. This was Block 106A—

Lot C and 3B. (Transcript of November 2, 1972, page

6). Both of the above sales were meadowlands in the im-

mediate area of the subject properties.

43a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

To determine the cost of necessary improvements to

make the properties saleable at a market value of $60,-

000.00 per acre the Court accepted the taxpayers figures

in all cases because the municipality offered no evidence

to contradict the claims.

Following is a list of the type of improvements and

the cost:

For a 60 foot road, fill was placed over the mea-

dowland 100 feet wide. It was allowed to settle for

six months, then improvements such as utilities,

water, sewer lines, storm sewer lines, several layers

of crushed stone and a macadam top with cement

curbs at $200.00 per foot. Each side of the road

was $100.00 a foot for paving property.

To install a 108 inch concrete pipe to carry drain-

age streams and water condition at $100.00 a run-

ning foot.

To build dykes on land adjacent to Berry’s Creek

at $50.00 a foot.

Where the roadway was filled but not macadam-

ized or curbed, $10.00 a running foot.

When a property would require a sewer pump

because of low elevation the cost would be $25,-

000.00.

Storm sewers required a certain municipal ease-

ment running through properties at $12.50 a run-

ning foot.

Where certain lots had severe water conditions,

the cost of diverting the water, mucking out the

44a

Opinions and Judgments of Division of Tax Appeals

Filid May 13, 1974 and October 16, 1974

bottom and filling in ran from $50,000.00 to $75,-

000.00 per plot.

The Court placed a value of $60,000.00 per acre on all

of the plot. From this was deducted the cost of the above

improvements. Where the estimated value exceeded the

assessed value after all deductions were made the tax-

payers appeals were dismissed. Where the improved value

with deductions made were less than assessed value the

reductions were granted.

Six full days of hearings were devoted to these appeals.

A personal inspection of the meadowland properties was

made by the Court and the attornies one August day.

The temperature was over 90 degrees.

At the conclusion of the hearings of these appeals, it

was stipulated that the figures for 1972 would apply to

the , ear 1973 as well.

Case 31 L 87 69

Case 32 L 237 70

Case 33 L 88 71

Case 34 L 89 71

Case 35 L 104 72

Case 36 L 105 72

L 98 73

Block 105A—Lot 31—4.08 acres

Assessment 1969 $102,000.00

Assessment 1970 $102,000.00

45a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

Assessment 1971 $ 84,000.00

Assessment 1972-73 $ 84,000.00

Estimated Improved Value $244,860.00

Owner—Bergen County Associates

Manor Road ends in this plot with a cul-de-sac, a paved

road with 109 feet on the circle. The north line runs 350

feet to the railroad then 301 feet along the railroad on

the curve in an are following the railroad 250 feet. The

taxpayer claimec a great deal of meadow mat was dumped

on the property. He also said placing a building might

be difficult because of the are forming the rear of the

property. The taxpayer had no other deductions. No

cross-appeals were made for 1969 and 1970. Those ap-

peals are dismissed. Cross-appeals were made by the bor-

ough for 1971 and 1972. The municipal assessments for

those two years will be reinstated. Judgment for 1971

will be $122,400.00 and for 1972 judgment will be $122,-

400.00.

Case 41 L 91 69

Case 42 L 240 70

Case 43 L 91 71

Case 44 L 92 71

Case 45 L 107 72

Case 46 L 108 72

L 101 73

Block 105B—Lot 24A 3.634 acres

46a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

Assessment 1969 $218,000.00

Assessment 1970 $218,000.00

Assessment 1971 $118,000.00

Assessment 1972--73 $118,000.00 :

Estimated Improved Value $218,040.00

Owner—East Rutherford Industrial Corp.

Cross-appeals were filed by the borough for 1971 and

1972. This a corner property with frontage of 470 feet

on Murray Hill Parkway and 360 feet on East Union

Avenue. It has been filled with garbage many years ago.

The taxpayer explained that a great deal of the garbage

fill had to be removed and trucked away. I made a per-

sonal observation of the site and found a spanking brand

new modern bank building on the plot beautiful landscap-

ing and a great deal of parking space. The land is leased

to the bank, no rental was given. I should rate this plot

the heart of the complex and very valuable ground. The

appeals for 1969 1970 are dismissed. It is the judgment

of this Court that the municipal assessments for 1971 and

1972 be restored. Judgment for 1971 will be $218,000.00

and 1972 judgment will be $218,000.00.

Case 51 L 92 69

Case 52 L 242 70

Case 53 L 110 72

L 103 73

Block 105B—Lot 27, 28, 29, 30, 31—9.50 acres

Assessment 1969 $419,200.00

47a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

$321,000.00

$292,800.00

Assessment 1970

Assessment 1972-73

Estimated Market Value $570,000.00

There are four lots assessed together. Lot 27 has

448.12 foot frontage on Murray Hill Parkway. It also

has 431.05 feet on Manor Road. Lot 28 has 95.4 feet on

Manor Road, Lot 29 has 95.49 feet on Manor Road, and

Lot 30 is without frontage on Manor Road except for a

cul-de-sac that ends there where it has 205 feet of front-

age. Lot 30 runs alongside Berry’s Creek for 515 feet.

The property is raw swamp.

Ackerman’s Creek runs through the property and the

taxpayer estimates it would cost $90,000.00 to relocate

it. He had previous evperience in this type of work.

Manor road was not built in 1969 and 1970 for a de-

duction of $43,100.00 for each year, 900 feet of dyking

for $4,500.00. Adding all deductions, the value remains

higher than the assessment. All appeals are dismissed.

Case 74 L 109 69

Case 75 L 248 70

Case 76 L 100 71

Case 77 L 117 72

L 110 73

Block 106A—Lot 40-6H 3.50 acres

Assessment 1969 $ 87,500.00

Assessment 1970 $ 87,500.00

Assessment 1971 $105,000.00

48a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

Assessment 1972-73 $105,000.00

Estimated Improved Value $210,000.00

Owner—Bergen County Associates

This property of 3.50 acres is located at the end of

Whelan Road where it ends with a cul-de-sac at the north-

east corner. The land faces 146 feet around the circle

and an additional 50 feet along Whelan Road. The north

side runs 268 feet along the N. J. & N. Y. Railroad and

must be prepared at a cost of $61,800.00. There will

also be a sewer pump needed because of lack of gravity

elevation at a cost of $25,000.00. Whelan Road is com-

plete with all utilities. My estimated value, fully im-

proved, would be $210,000.00, deducting $86,800.00 for

improvement would leave a value of $123,200.00. The

present assessment is $87,500.00 for 1969 and $105,000.-

00 for 1971. I dismiss the appeals for all years.

Case 80 L 102 71

Case 81 L 119 72

L 112 73

Block 106A—Lot 6F 3.8 acres

Assessment 1971 $84,000.00

Assessment 1972-73 $84,000.00

Estimated Improved Value $228,000.00

Owner—Brancasons, Inc.

This is 3.8 acres of land with a 40 foot frontage on

Bronea Road that is fully improved on the northeast.

It runs 502 feet along the N. J. and N. Y. Railroad, the

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

sides are 274 feet and 184 feet. Petitioner claims pro-

perty would require a sewer pump at $25,000.00 and $50,-

000.00 worth of piping along railroad. It is presently

raw meadowland. My estimated value, improved, would

be $228,000.00. Deducting the $75,200.00 for improvements

would be far more than the present value. There is no

Cross-appeal. I dismiss appeals for all years.

Case 89 L 104 69

Case 91 L 126 72

Case 90 L 109 71

L 118 73

Block 106A—Lot 17-18 5.4 acres

Assessment 1969 $145,600.00

Assessment 1971 $142,400.00

Assessment 1972-73 $142,400.00

Owner—Brancasons, Inc.

These two adjacent lots are assessed together. Lot 18

faces Branca Road with a 250 foot frontage and 233

feet on Murray Hill Parkway. Both roads fully im-

proved. Lot 17 fronts on Branca Road for 168 feet plus

170 feet around the cul-de-sac that ends Branca Road.

The eastern side runs along the N. J. and N. Y. Rail-

road for 564 feet. Lot 17 will need a sewer pump at

$25,000.00. In middle of Lot 17 is a permanent lake that

would have to be dredged, mucked out and filled before

any use could be made of it. The petitioner estimates

the cost at $75,000.00. The lake is 250 feet in length

by 230 feet. They arrived at $25,000.00 to prepare a

o0a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

ditch along side the railroad. On my estimate of vaiue

at $344,000.00 the deducted $25,000.00 would leave my fig-

ures above the assessment. The appeals are dismissed.

Case 92 L 105 69

Case 93. L 251 70

Case 94 L 110 71

Case 94 L 127 72

L 119 73

Block 106A—Lot 19 2.868 acres

Assessment—$86,000.00

Assessment—$86,000.00 (1973—same)

Market Value Improved $172,080.00

Lot 19 faces Murray Hill Parkway with a frontage of

250 feet. The North line is 440 foot, the south line is

335 feet and the west line runs along the railroad for

429 feet. A ditch runs along the railroad that must

be piped. Beside the ditch is a lake. The taxpayer

claims the lake must be drained and 6 to 8 feet of muck

removed before filling. He estimates $50,000.00 for the

lake and 108 foot of concrete pipe for the ditch of 429

feet at $25,000.00. Murray Hill Parkway is completed

up to this lot and a top would have to be placed on it

at $10.00 a foot for another $25,000.00. Deducted from

my estimated value I will assess this property at $72,-

000.00 for the tax years concerned.

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

Case 97

Case 98

Case 99

Case 100

Case 101

Case 102

.L 107 69

L 252 70

L 111 71

L 112 71

L 128 72

L 129 72

L 120 73

Block 106A—Lot 21 3.445 acres

Assessment 1969 $62,100.00

Assessment 1970 $62,100.00

Assessment 1971 $83,500.00

Assessment 1972-73 $83,500.00

Improved Value $206,700.00

Owner—Bergen County Associates

This is a little less than 3% acres of meadowland located

on Murray Hill Parkway with a frontage of 464 feet. The

north line runs 350 feet, the south line 232 feet and the

west line 474 feet along the Erie Railroad.

The taxpayer testified that although this property ran

along the Erie Railroad no railroad siding was possible

for this property and for that reason its value was dimin-

ished.

Allowing $100.00 a foot for filling and paving Murray

Hill Parkway for $46,400.00 and running a 108 foot

cement pipe to contain the ditch along the railroad of 474

52a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

feet at $100.00 a foot for $47,400.00, it would leave the

market value well above the assessed value.

Because cross-appeals were not filed for 1969 and 1970

these appeals will be dismissed. Cross-appeals were made

by the borough for 1971-72. The assessment for 1971

will be $103,300.00 and for 1972 the assessment will be

$103,300.00.

Case 125 L 114 69

Case 126 L 257 70

Case 120 L 135 72

L 124 73

Block 106B—Lot 6-7 10.850 acres

Assessment 1969-70 $224,600.00

Assessment 1972-73 $270,000.00

Market Value Improved $651,000.00

Block 106B, Lot 6-7, is a large plot with a frontage

of 646 feet on Madison Circle Drive. A 20 foot storm

water easement runs along the easterly side for 448 feet.

The easterly side runs 200 feet to the beginning of a

eurve of 486 feet and then 311 feet along the railroad

and then another curve of 294 feet and 448 feet on the

southerly side adjacent to the storm water easement. The

taxpayer claimed the following as improvements necessary

to prepare the property: 646’ of road topping at $10.00

a foot for $6,460.00, 867’ of 108’ piping along railroad for

ditch at $100.00 a foot for $86,700.00, 526’ of dyking of

Berry’s Creek for $26,000.00 and a sewer line for $7,500.-

00. All of this totals $126,660.00. Deducting that amount

53a

Opinions and Judgments of Division of Tax Appeu's

Filed May 13, 1974 and October 16, 1974

from my market value indicates a greater value than the

assessment. The appeals are dismissed.

Case 131 L 115 69

Case 132 L 258 70

Case 133 L 136 72

L 125 73

Block 106B—Lot 8 4 acres

Assessment 1969 $ 60,000.00

Assessment 1970 $ 60,000.00

Assessment 1972-73 $100,000.00

Market Value Improved $240,000.00

Owner—Bergen County Associates

This plot has a front on Madison Cirele Drive of 321

feet and a rear line along Berry’s Creek of 471 feet.

‘The north side line runs 448 feet adjacent to a storm sewer

easement that must be piped. The road was paved at

time of assessment. The taxpayer claims $42,900.00 for

a 108’ cement pipe for a ditch. He claims a water

condition on the property would require $75,000.00 to

rectify. Total improvement of $117,900.00 deducted from

my market value leaves a balance more than the assess-

ment. All appeals are dismissed.

Case 136 L 116 69

Case 137 L 137 72

Case 138 L 138 72

L 126 73

54a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

Block 106B—Lot 9 5.544 acres

Assessment 1969 $ 83,200.00

Assessment 1972-73 $138,600.00

Market Value Improved $832,640.00

Owner—Brancasons, Inc.

There is a cross-appeal on this case for the year 1972.

This large plot fronts on Madison Circle with 291 feet.

Two side lines were 385 feet on the south side and 409

feet on the north. The east line ran 896 feet along Berry’s

Creek.

The owner of this property filled in 20% of the land

with hard solid fill from a school excavation in Hacken-

sack. Quoting from H. Jerome Sisselman in testimony

offered on October 18, 1972 on page 23 of the transcript:

“the value of fill is $30,000.00 per foot per acre.’ This

fill is five feet deep so I will credit the value of the 1%

acres filled in at $16,500.00.

The taxpayer estimated it would cost $44,800.00 for

dyking Berry’s Creek, burying of land would be $7,000.00,

soil control at $5,000.00. An estimate of $75,000.00 to

excavate and fill in the rear section of the property under

water, adding these items comes to $131,800.00 less the

$16,500.00 credit for fill gives a total deduction of $115,-

300.00. This amount deducted from my estimated market

value of $332,640.00 leaves a total of $217,340.00. Since

no cross-appeal was filed for 1969 the appeal on that year

will be dismissed. On the cross-appeal of Case 137 the

original municipal assessment of $200,600.00 will be re-

stored. Judgment for the year 1972 is $200,600.00.

5da

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

Case 139 L 117 69

Case 140 L 259 70

Case 141 L 139 72

L 127 73

Block 106B—Lot 10 4.07 acres

Assessment 1969 $ 60,000.00

Assessment 1970 $ 60,000.00

Assessment 1972-73 $101,800.00

Estimated Value Improved $244,200.00

Owner—Bergen County Associates

This 4 acre plot has a frontage of 376 feet on Madison

Circle that was not installed until 1971. It cost $100.00

a foot for roadway so the taxpayer will get a credit of

$37,600.00 for 1969 and 1970.

A 468 foot dyke along Berry’s Creek was necessary

at $50.00 a foot for $23,400.00.

Giving the taxpayer full credit for his deductions the

value remains above the assessment. Appeals are dis-

missed.

Case 142 L 118 69

Case 143 L 260 70

Case 144 L 140 72

L 128 73

Block 106B—Lot 11 3.19 acres

Assessment 1969 $47,600.00

56a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

Assessment 1970 $47,600.00

Assessment 1972-73 $78,250.00

Value Improved $191,400.00

This property fronts on Madison Circle with 402 feet.

The north line is 396 feet, the south line 338 feet and the

east line runs 377 feet along Berry’s Creek.

Madison Cirele was not built in 1971 so that 402 feet

of frontage at $100.00 per foot gives a deduction of $40,-

200.00 for 1969, 1970, 1971. To dyke Berry’s Creek at

$50.00 a foot would be $18,850.00 for the years 1969, 1970

and 1971. A drainage pipe along 338 feet easement would

cost $12.50 a foot or $4,225.00. The deduction amounts

to $63,275.00 leaving a market value above the assess-

ments.

Appeals are dismissed.

Case 145 L 119 69

Case 146 L 261 70

Case 147 L 141 72

L 129 73

Block 106B—Lot 12 3.654 acres

Assessment 1969 $109,600.00

Assessment 1970 $109,600.00

Assessment 1972-73 $ 91,000.00

Market Value Improved $219,240.00

Owner—Bergen County Associates

57a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

This plot is in the corner of Murray Hill Parkway with

535 feet and 259 feet on Madison Circle Drive. Murray

Hill Parkway is not improved in front of this property.

The rear of the lot runs 551 feet above Berry’s Creek

needing dyking at $27,550.00, 338 feet of sewer piping

at $12.50 a foot for $4,225.00. He estimated $75,000.00 to

correct a bad water condition. Ile also figures $10,000.00

to cart away muck. The deductions add up to $116,775.00

leaving market value above assessments. Appeals are

dismissed.

Case 153 L 122 69

Case 154 L 264 70

Case 155 L 143 72

Case 156 L 144 72

L 131 73

Block 106C—Lot 13 2.89 acres

Assessment 1969 $69,400.00

Assessment 1970 $69,400.00

Assessment 1972-73 $43,400.00

Kstimated Improved Value $173,400.00

Owner—Deanna Industries

This is a corner plot with 360 feet on Murray Hill Park-

way and 330 feet on Madison Circle. Murray Hill Park-

way was paved and so was Madison Circle. The property

was garbage filled. There were two ditches on the prop-

erty. Both ditches will have to be relocated and prepared.

They are approximately 15 feet wide. The taxpayer also.

58a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

claims that a corner property had a disadvantage be-

cause local ordinance called for facing with brick on the

two street sides.

There is no need to add the deductions. The esti-

mated value far exceeds the assessments. Ne cross-ap-

peals were filed for 1969 and 1970. The appeals for those

years are dismissed. A cross-appeal was filed for 1972

and it is the judgment of this Court that the municipal

assessment of $86,800.00 be reinstated. Judgment for

1972—$86,800.00.

Case 158 L 267 70

Case 159 L 134 71

Case 160 L 135 71

Case 161 L 145 72

Case 162 L 146 72

L 182 73

Block LO7—Lot 92-93 22.83 acres

Assessment 1970 $ 91,300.00

Assessment 1971 $159,600.00

Assessment 1972-73 $159,600.00

Owner—Industrial Construction Company

These two lots assessed together comprise 22.83 acres.

They were assessed at $142,980.00 in 1969. Lot 92 is 337

feet wide by 1,400 in depth. Lot 93 is 330 feet wide by

1,600 feet in depth. The property faces Berry’s Creek and

is pure marsh land. It is surrounded by other privately

59a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

owned marsh land and there are no roads. The closest

road is Paterson Plank Road, more than 2,000 feet to

the west. The land is land locked and is presently use-

less. It was mentioned by Mr. Cascino, the meadowland

engineer, that it came within the sport complex area.

Until then I will give it a municipal assessment of

$1,000.00 an acre or $22,830.00 for all four assessment

years.

Case 164 L 127 69

Case 165 L 268 70

Case 166 L 142 71

Case 167 L 148 71

Case 168 L 150 72

L 135 13

Block 108—Lot 26 NC 3.63 Acres

Assessment 1969 $198,700.00

Assessment 1970 $ 25,000.00

Assessment 1971 $109,000.00

Assessment 1972-73 $109,000.00

Estimated Improved Value $217,800.00

Owner—FEast Rutherford Investment Corporation

This is a 3.63 acre plot with a 521 foot frontage on a

service road adjacent to Route 3. It has a depth of 348

feet on one side and 90 feet on the other. It is garbage

filled. Mr. Sisselman contends the garbage fill is a detri-

ment and must be excavated. However, in testimony in

60a

Opinions and Judgments of Division of Tax Appeals

Filed May 13, 1974 and October 16, 1974

other cases he admitted garbage fill was suitable for park-

ing lots, ete.

This property has an extremely good location. A serv-

ice station once occupied the property but has been de-

molished. | consider the assessments on this property

more than fair. [ will dismiss the appeals for 1969-1970.

On the cross-appeals for 1971 and 1972 the municipal

assessments will be restored. Judgment for 1971 shall be

$174,200.00 and 1972 at $174,200.00.

Case 169 L 135 69

Case 170 L 269 70

Case 171 L 148 71

Case 172 L 149 7]

Case 173 L 159 72

Case 174 L 160 72

L 136 73

Block 10SB—Lot 26BD 34.90 acres

Assessment 1969 $349,300.00

Assessment 1970 $259,000.00

Assessment 1971 $262,550.00

Assessment 1972-73 $385,000.00

Value after improvements $2,094,000.00

This is a large tract situated in a service road adjacent

to Route 3. It has a 1,700 foot frontage on this road, runs

over 200 feet deep and is zoned for industry. It is the

6la

Opinions and Judgments of Division of Tax Appeals

Filed May 12, 1974 and October 16, i974

most desirable plot in the complex beimg next to Route

3 and the New Jersey Turnpike. The taxpayer claims

a defect because it is three feet below road level. 2,000

feet runs along Berry’s Creek. No utilities are available

at this time. The appraiser for the taxpayer evaluated

the property at $47,500.00 for the vears 1968 to 1972. He

claimed that because the land was 3 feet below road level

it was landlocked.

If I were to accept Mr. Sisselman’s testimony in a prior

case when he stated it cost $3,000.00 per foot per acre to

fill in the ground, the cost of such fill for this property,

to bring the whole acreage up to road level would be

$315,000.00. The land is far more valuable than the pres-

ent assessments.

No cross-appeals were filed for 1969 and 1970 and the

appeals for those years are dismissed. Cross-appeals

were filed for 1971 and 1972 and it is the judgment of

this Court that the municipal assessments be restored.

For the year 1971 judgment will be $525,100.00 and for

the year 1972 judgment will be $525.100.00.

62a

Opinion

STATE oF New JERSEY

DEPARTMENT OF THE TREASURY

Division or Tax APPEALS

Docket Nos. L 86-69

L 236-70

L 86-71

Case No. 3, 3A, 3B

— <>

Bercen County Associates, INc.,

Petitioner,

Vs.

Borovucn or East RutHeRForD,

Respondent.

———>

Date of Hearing: October 18, 1972

Savino, J.

Appearances:

James Demetrakis, Esq.

For Petitioner as to 1971

William Shedd, Esq.

For Petitioner as to 1969-1970

espcnninatd. attiies

63a

Opinion

William D. Gorgone, Esq.

For Respondent

Block 105A—Lots 28, 29, 30

Tax Year—1969, 1970, 1971

County

Land $244,900.00

Imp. none

Total $244,900.00 Dismissed

The property under appeal consists of 10.2 acres of raw

meadowland. The land was divided into three lots on

the tax map known as Lot 28, 29, 30, in Block 105A. In

1969 there was no access by way of roadway to the prop-

erty. During 1970 the taxpayer continued a road called

Manor Road from a point 1,000 feet from Murray Hill

Parkway into the subject property ending a cul-de-sac at

the beginning of the lot known as Number 30. The tax-

payer by agreement with the town, pays the full cost of

building roads, sewers.

The Court devoted four days to hearing testimony in

order to determine the value of this property. A major

problem being the great difference of opinion between the

parties as to value. The municipality assessed the land

at $24,000.00 an acre. The taxpayer presented one ex-

pert who stated it was worth only $1,450.00 per acre.

The background of this case is interesting. Many years

ago H. Jerome Sisselman purchased hundreds of acres

of meadowland east of State Highway 17 at a price that

sounds ridiculous when compared with todays costs. How-

ever, that was the price anyone could have purchased the

property at that time.

64a

Opinion

The land lay fallow for many years until Mr. Sisselman

conceived the idea of building an industrial complex on

his property. He started out by building a very wide

road from Route 17 to Berry’s Creek called East Union

Avenue. It was almost 3,000 feet in length right in the

center of his property. He then solicited industiral.com-

panies with high financial ratings by offering to build

a warehouse or industrial building on the property under

a 20-year lease plan. The buildings, for economic reasons,

had to be at least 80,000 square feet in size.

After securing such a lease Mr. Sisselman would then

assign it a lending company for a mortgage that gave him

enough money to develop the land and build the building.

He constructed the buildings with sub-contractors acting

under the supervision of a reliable engineering firm that

received a percentage of the cost for its contribution and

also lent Mr. Sisselmen its credit in buying material, ete.

Mr. Sisselman’s gamble paid off. He found many good

reliable companies ready to place their building and op-

erations in this location that was only 15 minutes driving

time to New York City in off-commuting hours.

After completing the development of East Union Ave-

nue that ran east and west Mr. Sisselman then laid out

streets from the main road running north and south

and from these other roads again from east to west thus

creating the typical gridiron effect of development com-

monly used in residential areas.

The subject property is situated on the end of one of

these roads and its development awaits sales to the

proper buyer. An added problem in the case is the

activity of the newly created Meadowland Commission

that now has control of development of this property and

65a

Opinion

will not issue any building permits until final zoning plans

are complete.

Mr. Sisselman improves each piece of property as it

is sold or leased, until that time it lays in its original

state, marshland. It is usually covered with soft wet

muck or under water completely. The question for this

Court is to establish its taxable value while unimproved.

At the time of this case Mr. Sisselman had created an

industrial complex worth over $20,000,000.00 in ratables

without a penny cost to the municipality. He paid for his

own roads, sewers, pumping stations, ete. His attitude

during the trial was that the municipal officials instead

of appreciating his efforts did everything in their power

to frustrate him, primarily by taxing his property at a

higher rate than others.

The municipal case was based on the testimony of two

witnesses. The local assessor who did not take office

until 1970 and only testified as to his opinion of the value

due to his observation as a life-long resident of the town.

The second witness, Albert Galik, an expert appraiser,

made his estimation of value on the market data approach.

He submitted a long eries of sales ranging in price of

up to $60,000.00 an acre for land in the area during the

subject tax years.

After a great deal of direct and cross-exmination on

his list of sales it was determined that two of the sales

were the best comparables. They were made by Mr. Sissel-

man himself to the buyers. One was Block 106 Lot 2C

and 3B from Premier. Industrial Corp. to Marathon En-

terprises, Ine. 4.8 acres in November 1969 at $60,000,00

an acre. The other sale, Block 106C, Lot 11 and 16 from

Bergen County Associates to Bentex Mills, Inc. approxi-

66a

Opinion

mately 6 acres at $55,000.00 an acre. Both of these sales

concern property which is within a few hundred feet of

the subject property. They are situated on improved

roadway with all utilities installed, but the property itself

is all meadowland, as is the subject property.

Mr. Sisselman refuted the importance of these sales.

He pointed out that he himself sold the property to the

Bentex Mills, Inc., a company that needed the property for

expansion of the industrial project located on adjacent

land. The seller introduced into evidence a breakdown

of the items that he had to pay prior and since the sale

so that the preperty would conform with the sub-division

requirements as granted by the Borough.

He claimed that the itemized list he presented is sup-

ported by ledger accounts comprising such items as fill

for road bed, curbing, sewers, real estate commissions,

an item of $7,000.00 paid to the State of New Jersey

for riparian grants that made a total of $233,204.00 sub-

tracted the sale of $334,235.00 for a net in return of

$101,031.00, actually resulting in a per acreage value of

$16,625.00.

Mr. Sisselman also placed into evidence budget sheets

in cross-breakdown in the development of several other

parcels in his industrial complex, all of them indicating

the cost of improvement to the property.

Peter C. Robinson, an expert appraiser, appeared for

the taxpayer stated that in his opinion the 10.2 acres

was worth $12,000.00.

After describing the difficulty in preparing the land for

development Mr. Robinson submitted a list of sales to

support his argument. Most of them were not usable

67a

Opinion

in the opinion of this Court as being remote and yastl)

different in topography.

One of Mr. Robinson’s sales was meaningful. It was

from the Borough itself to Top Notch Metal Realty Com-

pany comprising 5 acres for $12,000.00 an acre in 1969.

The property was land-locked but situated behind the

owners property that was situated on State Highway

Mr. Sisselman testified for the taxpayer and identified

himself as a managing partner of Bergen County Asso-

ciates and personally was in charge of development of

the industrial complex of which the subject property is

part of. Mr. Sisselman gave a detail accounting of the

exact cost of preparing raw meadowland for use invol-

ving the laying of roadway, utilities mucking out the

meadowland bog, filling with proper fill. He gave a de-

tail accounting of the cost for the improvements, for ex-

ample $1.50 a cubic yard to remove the meadowland muck

and $3.50 a cubic yard for the fill, ete. All figures as of

October 1, 1969. It was his conclusion that it would cost

$60,000.00 per acre for the improvement of each acre of

land to make it ready to build on.

The taxpayer also charged discrimination in his com-

plaint. Three exhibits were submitted as proof. Com-

piled in great detail and obviously the result of hard

work were exhibits R-8, R-9 and R-10 covering the years

1969, 1970, and 1971.

R-8 was a complete list of all residential sales in East

Rutherford during 1969 indicating sales to be approxi-

mately 75% of assessed value.

R-9 was a list of all assessments of industrial proper-

dies west of Hackensack Street known as uplands.

68a

Opinion

R-10 was a list of all assessment east of Hackensack

Street known as the meadcewlands.

R-9 exhibit revealed that the average assessments of

industrial properties in the upland ranged between $30,-

000.00 and $50,000.00 per acre.

Property east of Hackensack Street, in the meadow-

lands, ran from $35,000.00 to $64,000.00 an acre except

for one that was at $9,500.00 per acre. Most of these

properties were improved.

The Court noted that in the K-9 exhibit there were two

exchanges of title indicating sales. An investigation was

ordered on these sales and they revealed that the sales

price during this period averaged about $30,000.00 per

acre. This information would sustain the assessors opin-

ion that uplands were not as valuable as meadowland for

industrial use.

The R-10 exhibit was then examined in detail. The

Court asked for explanation of the assessment on 30 acres

of meadowland situated on State Highway 20 at $9,500.00

per acre.

The property owned by Maibros known as Block 108-3,

Lot 19A was actually 38 acres. A trucking terminal oc-

eupied 8 acres and was assessed at a higher rate than the

remaining 30 acres. The property has a 500 foot frontage

on Route 20, was less than a quarter mile from the inter-

section Route 20 and Route 3 that placed the location

with 10 minutes driving time to New York City. The land

was filled with industrial debris but otherwise unim-

proved. A dirt roadway existed from Route 20 into the

property so trucks could drive into it with fill.

69a

Opinion

Les Plosia, Municipal Assessor, explained that the Mai-

bros property assessed at $9,500.00 per acre because the

owner was not going to subdivide it and improve it, where-

as the subject property was part of a plan indicating im-

provements were to be made. He stated it was the policy

of local governing body to regard the Bergen County

Associates Industrial complex as separate from the rest

of the meadowland because of the planning and improve-

ments that had gone into the property.

The main thrust of the discrimination charge was di-

luted by an analysis of exhibits R-9 and R-10. It is ob-

vious that the local assessor was correct in assessing the

meadowlands at a higher rate because it seemed to be

more attractive to industrial property buyers.

A review of the testimony leads this Court to the basic

correctness of the true market value as indicated in the

two sales submitted by the municipality. The sale of

Block 106A, Lot 2C and 3B for $60,000.00 an acre and

Block 106A, Lot 11 and 16 for $55,000.00 an acre. The

rebuttal testimony of Mr. Sisselman corroborated by Ben

Fried, president of Bentex Mills as to the obligation of

the seller to improve property before the sale was con-

sumated leaving a net to the seller of $16,625.00 was effec-

tive. The Court will also note that in both of these sales

the buyers owned the adjacent property and evidently

were prepared to pay an extra consideration for the con-

venience to them to expand their activities.

It is the judgment of this Court that Block 105A, Lots

28, 29 and 30, comprising 10.2 acres be assessed at the

rate of $15,000.00 an acre or a total of $153,000.00.

Carmine Savino, Jr.

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