Hudson Terrace Apartments v. Borough of Fort Lee

• Decision Date: 29 September 1982
• Parties: HUDSON TERRACE APARTMENTS, Plaintiff-Respondent, v. BOROUGH OF FORT LEE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 489

191 N.J.Super. 489

467 A.2d 1092

HUDSON TERRACE APARTMENTS, Plaintiff-Respondent, v. BOROUGH OF FORT LEE, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Sept. 14, 1982.

Decided Sept. 29, 1982.

Anthony Andora, Elmwood, for defendant-appellant (Andora, Palmisano, DeCotiis & Harris, Elmwood, attorneys; Joel M. Ellis, Hackensack, of counsel and on the brief).

Edward G. Rosenblum, Secaucus, for plaintiff-respondent (Rosenblum & Rosenblum, attorneys; Edward G. Rosenblum, Secaucus, on the brief).

Before Judges BOTTER and POLOW.

PER CURIAM.

This appeal involves the application of the Freeze Act, N.J.S.A. 54:2-43, to the 1978 and 1979 assessments of plaintiff's property based upon a judgment entered on appeal of the assessment for the tax year 1977. The judgment reduced the total assessment of land and improvements to $3,282,840 by reducing the assessment on the improvements from $3,451,000 to $1,812,240. The taxpayer's motion in the Tax Court to apply the Freeze Act was supported by a certified statement of a real estate appraiser. The statement asserted that the appraiser had examined the property and the income and expenses pertaining thereto and concluded "that the premises in question did not undergo a change in value" between the October 1 assessment date of 1976 and the assessment dates of 1977 and 1978, and, in addition, a district-wide revaluation or reassessment program was not effected for the tax years 1978 or 1979.

This certification was opposed by certifications made by a real estate appraiser submitted on behalf of the borough. The borough's contention based thereon is that "commencing in 1976" rental apartment projects in the borough have been converted to cooperative and condominium apartment status, the result of which has substantially increased the value of rental apartment properties beyond that reflected merely by an income capitalization approach. Accordingly, the borough offered to present testimony "as to the increased value for the subject property for the tax years 1978 and 1979 reflected from both the market data and income capitalization approach."

The Tax Court judge held that the borough had the burden of negating the application of the Freeze Act by specifically setting forth the nature of the changes in value relied upon in opposing the taxpayer's motion to apply the Freeze Act. He concluded that "merely alleging such a change" in value was not sufficient. The Tax Court judge rejected one basis for the change in value relied upon by the borough, namely, the decision in Helmsley v. Fort Lee, 78 N.J. 200, 394 A.2d 65 (1978), which was rendered on October 17, 1978, after the assessment date for the year 1979. The borough's claim that the conversion value of the subject property into condominiums or cooperatives substantially increased the property's value after the October 1, 1976 assessment date was also rejected by the Tax Court judge on the ground that such conversion "was a phenomenon which began in Fort Lee as early as 1973 or some four to five years prior to the assessment dates." Thus, the Tax Court judge concluded that such "conversion value" should have been considered by the assessor on October 1, 1976 in making the 1977 assessment and by the Division of Tax Appeals in rendering its decision for the 1977 tax year. Thus, the Tax Court judge concluded that such evidence...