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Schwam v. Township of Cedar Grove

Decided: November 7, 1988.


On appeal from Final Judgment of the Tax Court whose decision is reported at 9 N.J. Tax 406 (Tax Ct. 1987).

Petrella and Gruccio.

Per Curiam

[228 NJSuper Page 524] The Township of Cedar Grove has appealed from the determination of the Tax Court that the occupancy of 16 condominium units in a 56 unit complex (recently converted from garden apartment status) by qualified tenants under the Senior Citizens and Disabled Protected Tenancy Act, N.J.S.A. 2A:18-61.22 et seq., affected not only the price paid for the units, but also their market value. The Tax Court determined that the true value of the units for property tax purposes on the 1985 assessment was the selling price. Bernard Schwam, the purchaser of the 16 condominium units which were subject to the

protected tenancies,*fn1 cross-appeals on the ground that he was improperly denied spot assessment relief. The facts are set out at length in the well written opinion of Judge Crabtree in the Tax Court which appears at 9 N.J. Tax. 406 (Tax Ct.1987).

On this appeal Cedar Grove argues that the Tax Court judge erroneously excluded the protected tenant's leasehold interest in determining true value; that the uncontroverted expert testimony substantiated the assessor's 1985 assessment; and that the Tax Court erroneously found that one of the 16 units was occupied by a senior citizen entitled to protection. The cross-appeal essentially argues that the assessor's action in increasing the 1985 valuations violated the uniformity provisions of the New Jersey Constitution (1947), Art. VIII § 1, par.1 and the dictates of Baldwin Construction Co. v. Essex County Board of Taxation, 16 N.J. 329, 343 (1954).

With respect to the municipality's direct appeal, we affirm substantially for the reasons expressed by Judge Crabtree in his published opinion. We also note in passing that the Supreme Court in Inmar Associates Inc. v. Borough of Carlstadt, 112 N.J. 593, 604 (1988), recognized that governmental restrictions may impact on the valuation of real property for tax purposes.

We add the following brief comment about the argument that one of the 16 units occupied by a senior citizen was not entitled to protected status. The parties agree that 15 of the 16 units were occupied by senior citizens entitled to protective status, but the status of the 16th unit was not clearly determined below. At the trial in the Tax Court plaintiff proceeded as if all 16 were subject to protected tenancies. His request for leave to submit additional documentation was denied by the tax

judge. Defendant's expert assumed all 16 units were subject to the statute.

We recognize that plaintiff had the burden to establish that the county board of taxation's determination in upholding the assessment was erroneous. Pantasote Co. v. City of Passaic, 100 N.J. 408, 413 (1985). Nevertheless, there is sufficient credible evidence in the record to support the judge's finding that all 16 units were protected tenancies, and accordingly, we accept his findings. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

On the cross-appeal plaintiff argues that his property was singled out for a selective or spot assessment in violation of constitutional provisions. He argues that the tax assessor improperly increased the assessment merely because the property was converted to condominium status. Despite the relief afforded by N.J.S.A. 54:51A-6, plaintiff argues that the property should be pro-rata assessed based on the complex's pre-conversion assessment rate. This would result in restoring the pre-conversion assessment divided among the 56 units to comply with N.J.S.A. 46:8B-19 which requires separate assessments for each condominium unit.

Judge Crabtree rejected plaintiff's argument in favor of the "Chapter 123" (L. 1973, c. 123) (N.J.S.A. 54:51A-6) approach in accordance with Murnick v. Asbury Park, 95 N.J. 452 (1984). 9 N.J. Tax. at 418.

We find it significant with respect to condominiums that the Legislature amended N.J.S.A. 46:8B-19 by L. 1975, c. 2, § 1, to delete a provision which had directed that the aggregate assessment of all condominium units was not to exceed the assessment for tax purposes without regard to the condominium act. The deletion of that sentence by the Legislature removed the pre-conversion assessment as a post-conversion total aggregate assessment ceiling. Troy Village Realty Co. v. Springfield Tp., 1 ...

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