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City of Newark v. New Jersey Turnpike Authority

December 12, 2007

CITY OF NEWARK, PLAINTIFF-RESPONDENT,
v.
NEW JERSEY TURNPIKE AUTHORITY, DEFENDANT-APPELLANT.



On appeal from the Tax Court of New Jersey, Docket No. 6360-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 26, 2007

Before Judges Weissbard, S.L. Reisner and Baxter.

The New Jersey Turnpike Authority appeals from an August 4, 2006 decision of the Tax Court, granting summary judgment in favor of the City of Newark on the grounds that the Authority was not entitled to a tax exemption on a small parcel of land located in the City. We reverse and remand for further proceedings.

I.

We draw the facts from the Authority's Statement of Material Facts and supporting certifications, because the City did not support its summary judgment motion with any legally competent evidence.

The Authority owns a parcel of land known as Block 5001, Lot 70 on the Newark tax maps. According to a certification from Richard McBurnie, the Authority's Right of Way Manager, the Authority acquired the property from PSE&G in the 1950's "as part of the original acquisition of land for the construction of the New Jersey Turnpike." When construction was completed, a landlocked 2.1 acre remainder parcel was left over and was held "for the Authority's future use." In 1971, the Authority used a portion of this remainder parcel to widen the Turnpike and to create an adjacent right of way. After this project, an even smaller parcel was left (Parcel 599X), comprising 1.69 acres, which is the subject of the dispute in this case.

According to McBurnie's certification, Parcel 599X is "landlocked by the widened Turnpike right of way on the West, Amtrak's right of way on the [e]ast and the Passaic River on the north." The parcel "continues to be reserved in the event of future widening of the roadway and possible use as a staging area for construction and maintenance vehicles." Attached maps and an aerial photograph document that the property is inaccessible. McBurnie's certification did not elaborate on the possible time frame within which the parcel might be used, or any potential plans to widen the road in the future, nor did he indicate what might constitute a reasonable or realistic length of time for an entity, such as the Authority, to hold such a piece of property for that purpose.

The Authority also submitted a certification from Mark W. Sussman, a certified real estate appraiser and tax assessor. Sussman attested that the property was 1.69 acres and completely landlocked with "no public access." According to Sussman, portions of the Property are wet and the Property is unsuitable for development or subdivision. Its only viable use is for turnpike purposes, as, for example, a roadway or right of way widening or for construction and maintenance purposes.

There is no private or commercial use that can be made of the Property, and no potential buyer for it.

Nonetheless, in tax year 2005, the City assessed this property for $639,000. The Authority appealed to the Essex County Board of Taxation, which determined that the property was tax exempt. The City appealed that determination to the Tax Court.

In a written opinion, the Tax Court judge first rejected the Authority's argument that 2003 legislation effectuating the merger of the Highway Authority and the Turnpike Authority had expanded the permissible bases on which the Turnpike Authority could claim a tax exemption for its property. Relying on New Jersey Turnpike Authority v. Washington Township, 16 N.J. 38 (1954), the judge then concluded that the Authority had not presented "clear evidence" of a present plan to devote the parcel to a public use "within a reasonable time."

The subject parcel has been owned by the Turnpike for nearly fifty years. It was part of a larger tract that was last developed for actual use thirty five years ago. . . . After all this time a single, vague paragraph in the certification of an appraiser, to the effect that the parcel, essential wetlands, is "reserved in the event of future widening of the roadway and possible use as a staging area for construction and maintenance vehicles" . . . does not permit this long vacant land acquisition to meet the clearly established ...


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