Feder v. City of Passaic

• Decision Date: 19 March 1969
• Docket Number: Nos. A--1061,A--1055--A--1060,s. A--1061
• Citation: 105 N.J.Super. 157,251 A.2d 457
• Parties: Joseph A. FEDER, et al., Petitioner-Appellant and Cross-Respondent, v. CITY OF PASSAIC, Respondent-Respondent and Cross-Appellant, and State of New Jersey, on behalf of the Division of Tax Appeals, Respondent. DAVIDOM REALTY CORP., Petitioner-Appellant and Cross-Respondent, v. CITY OF PASSAIC, Respondent-Respondent and Cross-Appellant, and State of New Jersey, on behalf of the Division of Tax Appeals, Respondent. SWANEE ESTATES, INC., Petitioner-Appellant and Cross-Respondent, v. CITY OF PASSAIC, Respondent-Respondent and Cross-Appellant, and State of New Jersey, on behalf of the Division of Tax Appeals, Respondent (4 cases). Bertha STEIN, Petitioner-Appellant and Cross-Respondent, v. CITY OF PASSAIC, Respondent-Respondent and Cross-Appellant, and State of New Jersey, on behalf of the Division of Tax Appeals, Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 157

105 N.J.Super. 157

251 A.2d 457

Joseph A. FEDER, et al., Petitioner-Appellant and Cross-Respondent, v. CITY OF PASSAIC, Respondent-Respondent and Cross-Appellant, and State of New Jersey, on behalf of the Division of Tax

Appeals, Respondent.

DAVIDOM REALTY CORP., Petitioner-Appellant and Cross-Respondent, v. CITY OF PASSAIC, Respondent-Respondent and Cross-Appellant, and State of New Jersey, on behalf of the Division of Tax

Appeals, Respondent.

SWANEE ESTATES, INC., Petitioner-Appellant and Cross-Respondent, v. CITY OF PASSAIC, Respondent-Respondent and Cross-Appellant, and State of New Jersey, on behalf of the Division of Tax

Appeals, Respondent (4 cases).

Bertha STEIN, Petitioner-Appellant and Cross-Respondent, v. CITY OF PASSAIC, Respondent-Respondent and Cross-Appellant, and State of New Jersey, on behalf of the Division of Tax

Appeals, Respondent.

Nos. A--1061, A--1055--A--1060.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 27, 1969.

Decided March 19, 1969.

Carl G. Weisenfeld, Newark, for appellants-cross-respondents (Hannoch, Weisman, Stern & Besser, attorneys, Joseph S. Seidel, Newark, of counsel).

Ladislas F. Feher, Passaic, for respondent-cross-appellant (Charles E. Miller, Passaic, attorney).

Arthur J. Sills, Atty. Gen., filed statement in lieu of brief on behalf of respondent Division of Tax Appeals (Charles H. Landesman, Deputy Atty. Gen., of counsel).

Before Judges CONFORD, KILKENNY and LEONARD.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

These consolidated appeals concern the tax assessments on seven parcels of commercial realty in the downtown business section of Passaic, for the tax years 1964, 1965 and 1966. Both the city and the four taxpayers appeal from judgments of the Division of Tax Appeals which reduced assessed valuations on all the properties for all the years in question. The city's brief, however, does not specify error in any judgment, but defends all the judgments against the taxpayers' assault. At oral argument the position of the city was the same. We therefore assume an abandonment of the city's appeals.

The taxpayers' appeals are along two lines: (1) the true values of the respective properties are below the judgments entered by the Division; (2) assessments at 100% Of true value would be discriminatory since the average Passaic ratio of assessments to true value as fixed by the State Director of the Division of Taxation (and adjusted by taxpayers' expert), averaged for the years in question, is approximately 82%, and therefore whatever true values are determined for the properties in these appeals should be revised to the stated percentage thereof. Reliance is had upon In re Appeals of Kents, 2124 Atlantic Ave. Inc., 34 N.J. 21, 166 A.2d 763 (1961) ('Kents,' hereinafter). The Division declined to award any relief on the discrimination phases of the appeals.

I

(The court here dealt with the valuation phases of the appeals, affirmed as to certain properties and remanded for further findings and conclusions with respect to others.)

The determinations of the Division as to true value are affirmed in all the appeals except for 692 Main Ave. and 75--79 Hoover Ave. As to those, ultimate determination will depend on the additional findings and conclusions on remand called for above.

II

We turn to consideration fo the 'discrimination' aspect of the appeals, summarized near the head of this opinion. Kents, supra, holds that where a taxpayer's real property is assessed at a ratio to true value substantially higher than the common level, or, if there is none which the assessor is endeavoring to achieve, substantially higher than the average ratio determined by the State Director of Taxation, then such taxpayer is ordinarily entitled to a reduction of his assessment down to the valuation resulting from application of the Director's figure for the average ratio. 34 N.J., at pp. 33, 34, 166 A.2d 763.

The city does not argue before us that its assessor consciously and reasonably effectively undertook to assess All real property in the city at any particular common level for any of the years in question; nor would any fair appraisal of the evidence, which we need not here discuss in detail, allow of any such conclusion. There was some pretense by the assessor at the hearing that he attempted to assess all real property at 100%, but the evidence as a whole, and particularly the Director's sales-ratio studies, belies that assertion. There may have been some effort to assess commercial and industrial property in the rough neighborhood of 100%, but the proofs compel the conclusion that residential properties were assessed (whether consciously or not) on the average at about 65% Of their market value. We thus disagree with the finding of the Division that 'every effort was made by the assessors to achieve a common level.' It is not supported by substantial credible evidence on the whole record. The city does not and may not argue that these commercial properties under appeal are to be limited to relief by the measure of the average ratios of assessment only of commercial properties in the city. Siegal v. City of Newark, 38 N.J. 57, 183 A.2d 21 (1962).

The official average ratios of the State Director of Taxation for the tax years here in question were:

1964--94.33

1965--84.27

1966--86.75

As will appear Infra, the 1964 figure requires adjustment downward. It is obvious that, even accepting the Division's judgments as representing 100% True value, the original city assessments, which were somewhat higher, were substantially above the official average ratios, and that therefore the present taxpayers qualify, generally speaking, for Kents-type relief.

The opinion of the Division assumed that appealing taxpayers have no grievance under Kents if the average ratios are not substantially below the 100% True value Fixed on appeal by the Division. We do not so read Kents. The referent intended in that exposition is the original...