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Township of North Bergen v. Thomas S. Lee Enterprises Inc.

Decided: May 25, 1962.


Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.


The Township of North Bergen, County of Hudson, appeals from a judgment of the Division of Tax Appeals, Department of the Treasury, reducing the 1959 tax assessment of $80,000 to the sum of $500 on a "TV Transmitter Building" owned by respondent Thomas S. Lee Enterprises, Inc. (hereafter Enterprises).

The subject property was originally constructed in 1949 as a part of the WOR-TV broadcasting facilities. In 1953 the operations of this unit were transferred to New York City. A 775 foot broadcasting tower, formerly on taxpayer's property, was demolished shortly after the disaster on November 8, 1956 which resulted from an airplane collision with the tower. The special purpose (transmitter) building, which was adjacent to said tower, remains and is unoccupied; it is of brick construction, with a concrete plank roof, cement flooring, and "extra heavy walls with an extra heavy foundation to avoid vibration." The structure contains 3290 square feet previously devoted to service and equipment space, and 1666 square feet of garage area. The interior of the edifice is presently dismantled to the extent that the broadcasting and soundproofing equipment, wiring, ducts, and floor covering have been removed.

The municipal tax assessment for the year 1959 was land $40,800, improvements $80,000, aggregating $120,800. The Hudson County Board of Taxation sustained the assessment as to the land, but reduced the improvement assessment to $32,000. The township filed a petition of appeal with the Division of Tax Appeals, and the taxpayer cross-appealed. Both reviews were limited to the assessment on the building.

Joseph Rubenstein, an expert for the township whose qualifications as a realtor were admitted, testified that he evaluated the property in question at $80,000 (replacement costs, depreciation and obsolescence were taken into consideration) and that, in his opinion, it was "very desirable office space, and, of course, the garage on account of the type of construction could be converted for additional office space

or so used for garage purpose. It is a very excellent building." He voiced the opinion that the property could be used for such purposes under the existing zoning laws of the township and without an application for a variance. Under cross-examination he explained, "That is my understanding of the zoning law now."

Kenneth Fisk, a realtor, after stating his qualifications as a specialist in appraising real estate, gave evidence on behalf of Enterprises. His testimony did not conflict with that of Rubenstein concerning the nature of the improvement and its substantial construction. However, he expressed his conviction that the building "no longer had a purpose in life" since it was "vacated by the broadcasting people and the tower torn down"; because of the zoning restrictions it could only be used for residential purposes; and it would be too expensive and impractical to convert the property into such a use. Fisk maintained that the building "is almost 100 per cent obsolete because of the zoning," and that it did not have any commercial value and "could not be sold, in my opinion, to be used for anything." He testified that "the building would have to be moved before you could use the land under the existing zoning law," and that he considered the building to be of "no value -- nominal value perhaps $500 or so."

It was stipulated that the taxpayer had received an offer from the New Jersey Bell Telephone Company to purchase the property (land and building); informal discussions were had with responsible township officers relating to the "possibility of a change in the zoning of the area"; and that no formal application for a variance had been made "because the indications were that, if made, it would be denied." The evidence, however, does not disclose that a variance under the circumstances was or was not in fact necessary.

The Division of Tax Appeals in its "Findings of Fact and Order for Judgment" concluded:

"We find as facts that the building in question was specially constructed as a broadcasting studio and this use has been abandoned.

The property is in a residential zone and the building cannot be used for residential purposes. While originally a non-conforming use, the property is now governed by the applicable zoning ordinance. We find that the building is not saleable and therefore has no market value except as salvage. We find as a ...

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