Fabricatore v. Township of Toms River Block 192.56, Lot 41.04

NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
TAX COURT OF NEW JERSEY
Mala Sundar R.J. Hughes Justice Complex
JUDGE P.O. Box 975
25 Market Street
Trenton, New Jersey 08625
Telephone (609) 815-2922
TeleFax: (609) 376-3018
taxcourttrenton2@judiciary.state.nj.us
February 21, 2018
UPLOADED AND BY FIRST-CLASS MAIL
Paul Fabricatore, Self-Represented
Toms River, New Jersey
UPLOADED
Kenneth Fitzsimmons, Esq.
33 Washington Street
Toms River, New Jersey 08753
Re: Fabricatore v. Township of Toms River
Block 192.56, Lot 41.04
Docket No. 009633- 2017
Dear Mr. Fabricatore and Counsel:
This letter constitutes the court’s decision following trial of the above captioned matter.
Plaintiff owns a residence, the above-captioned property (“Subject”), in defendant (“Township”).
For tax year 2017, plaintiff petitioned the Ocean County Board of Taxation (“County Board”) to
reduce the Subject’s local property tax assessment from $400,000 (allocated $123,800 to land, and
$276,200 to improvements) to $329,582.1 By judgment dated May 26, 2017, the County Board
affirmed the original assessment of $400,000 using judgment code 2A (“assessed within range”).
Plaintiff timely appealed the County Board’s judgment to this court.
1
The assessment for tax year 2014 was $467,100 (allocated $123,800 to land and $343,300 to improvements). The
assessment for tax years 2015-2016 was $400,000 (allocated $123,800 to land and $276,200 to improvements), which
is the same assessment for 2017.
*
The Subject is a single family residence consisting of a two-story building with three
bedrooms, two full baths, and two half baths with a total gross living area (“GLA”) of about 2,308
square feet (“SF”) located on about one acre of land. There is a full finished basement and a den
located within the Subject. The Subject has a two car garage and an in-ground pool. Furthermore,
plaintiff stated that the Subject is not located in a development with cookie-cutter homes. Plaintiff
was unsure of the exact age of the Subject, but estimated that the Subject was approximately
twenty-six years old.
Plaintiff relied upon six comparables, all of which were in the Township, and their sales
occurred as of, or proximate to, the assessment date of October 1, 2016, as follows:
Address Built Lot GLA Sale Sale Room Count Other
Size Date Price
1 1939 Whitesville 1989 1.02 ac 2,443 SF 2/23/16 $325,000 4 beds; 2 1/2 baths Basement; In-ground
Road pool; Attached garage
2 1440 Silverton Road 1.09 ac 2,695 SF 7/18/16 $345,000 4 beds; 2 baths Basement; In-ground
pool; Detached garage
3 112 Peacock Place 1986 0.75 ac 2,444 SF 9/30/16 $329,000 3 beds; 2 ½ baths Basement; In-ground
pool; Attached garage
4 1021 Gregory 1993 2,047 SF 01/25/16 $347,000 4 beds; 2 ½ baths Basement; In-ground
Terrace pool; Attached garage
5 1784 Rolling Ridge 1986 0.57 ac 2,512 SF 04/06/16 $355,000 4 beds; 2 ½ baths Basement; In-ground
Lane pool; Attached garage
6 183 Lamdan Lane 1988 2,496 SF 09/14/16 $375,100 4 beds; 2 ½ baths Basement; Attached
garage
All the information that plaintiff presented to the court, in regards to the comparables was obtained
off the comparables’ Multiple Listing Services (“MLS’). In presenting his case to the court,
plaintiff relied upon a spreadsheet, which took the comparables’ MLS sale price for each
comparable and divided by the square footage of said comparable. The spreadsheet also took the
assessed value of the Subject and divided it by the square footage of the Subject. Plaintiff then
determined the total average per square foot of the comparables by adding the average cost per
2
square foot of all six comparables together and dividing that number by six (i.e. the number of
comparables). This calculation led plaintiff to the conclusion that the Subject’s average cost per
square foot is $30.51 more per square foot than the total average per square foot of all six
comparables.
FINDINGS
“Original assessments and judgments of county boards of taxation are entitled to a
presumption of validity.” MSGW Real Estate Fund, L.L.C. v. Borough of Mountain Lakes, 18
N.J. Tax 364, 373 (Tax 1998). “Based on this presumption, the appealing taxpayer has the burden
of proving that the assessment is erroneous.” Pantasote Co. v. City of Passaic, 100 N.J. 408, 413
(1985). “The presumption of correctness . . . stands, until sufficient competent evidence to the
contrary is adduced.” Township of Little Egg Harbor v. Bonsangue, 316 N.J.Super. 271, 285-86
(App. Div. 1998).
A taxpayer can rebut the presumption by introducing “cogent evidence,” which is evidence
that is “‘definite, positive, and certain in quality and quantity.”’ Pantasote, 100 N.J. at 413 (citing
Aetna Life Ins. Co. v. Newark, 10 N.J. 99, 105 (1952)). Plaintiff must present the court with
“evidence sufficient to demonstrate the value of the subject property, thereby raising a debatable
question as to the validity of the assessment.” MSGW, 18 N.J. Tax at 376. Disagreement with an
assessment must be based on “‘sound theory and objective data rather than on mere wishful
thinking.”’ Ibid.
If the court decides that the presumptive correctness is overcome, it can find value based
“on the evidence before it and the data that [is] properly at its disposal.” F.M.C. Stores Co. v.
Borough of Morris Plains, 100 N.J. 418, 430 (1985). The complainant bears the burden of
3
persuading the court that the “judgment under review” is erroneous. Ford Motor Co. v. Township
of Edison, 127 N.J. 290, 314-15 (1992).
If, at the close of plaintiff’s proofs, the court is presented with a motion to dismiss under
R. 4:37-2(b), in evaluating whether plaintiff’s evidence meets the “cogent evidence” standard, the
court “must accept such evidence as true and accord the plaintiff all legitimate inferences which
can be deduced from the evidence.” MSGW, 18 N.J. Tax at 376. If the court decides that the
plaintiff did not overcome the presumptive correctness, then the assessment should be affirmed.
Ibid. Thus, if a party has not met this burden, the trial court need not engage in a further evaluation
of the evidence to make an independent determination of value.
The market approach (or using comparable sales) is the generally accepted appraisal
methodology to determine value of residential homes. See Appraisal Institute, The Appraisal of
Real Estate 377 (14th ed. 2013) (the comparable sales method is generally appropriate for valuation
of a residential property where value is derived “by comparing similar properties that have recently
sold with the property being appraised, identifying appropriate units of comparison, and making
adjustments to the sales prices . . . of the comparable properties based on relevant, market-derived
elements of comparison”). Market evidence must support any element of comparison that causes
“value differences.” Id. at 378.
Plaintiff chose sales of residences located in the Township, with similar bedroom count
and amenities, whose sales date was proximate to the assessment date. Plaintiff did not personally
inspect the interior or exterior of the comparables, and was unsure as to the exterior or interior
conditions of the comparables, whether or not the comparables were located in a development, and
whether or not the comparables had a basement. Moreover, plaintiff did not verify whether the
sales price of the comparables were usable sale prices.
4
While plaintiff’s selection of comparables is facially not at all unreasonable, the problem
lies in deeming them comparable to the Subject, based simply upon GLA (or room count) and
certain commonly shared amenities, such as a pool. Although the comparables are chronologically
older than the Subject by about five-to-seven years (except for comparable 4, which appears to be
the same as the Subject, and comparable 2 as to which plaintiff had no information), and given the
less than 10-year age difference may not require any adjustment, there are other issues with the
comparables that can be significant in terms of either requiring adjustments or deeming those sales
as not comparable. For instance, comparable 5’s lot size is half of the Subject’s lot size.
Comparable 3 is situated on a plot of land that is about .25 acres smaller than the Subject’s. There
was no information as to the lot sizes of comparables 4 and 6. Comparable 4’s GLA is about 400
SF smaller than the Subject. The calculations that plaintiff provided the court failed to account for
any adjustments due to these features.
Comparable 6 was marked with a NU-10 code, which applies to “[s]ales by guardians,
testamentary trustees, executors, and administrators.” 2 This raises a question whether the sale was
an arms-length transaction, between a willing buyer and a willing seller, neither under a
compulsion to buy or sell. If “non-market conditions of sale are detected in a transaction, the sale
can be used as a comparable sale but only with care,” thus, the “circumstances of the sale must be
thoroughly researched . . . [, and any] adjustment should be well supported with data,” otherwise
the sale should be “discarded” as a comparable. See id. at 410. Perhaps this is why comparable 6
2
In developing a credible sales-to-assessment ratio to be used in developing the table of equalized valuations for each
taxing district, the Division of Taxation reviews “the sales prices and assessed values of all real property sold during
the sampling period” and “discards those sales which fall into one or more of 27 categories of transactions [set forth
in N.J.A.C. 18:12-1.1] deemed to yield unreliable results[.] . . . These are called nonusable sales.” Borough of
Englewood Cliffs v. Director, Div. of Taxation, 18 N.J. Tax 662, 665 (App. Div. 2000) (citation and internal quotation
marks omitted). The sales-to-assessment ratio is used to determine the “state school aid distribution,” the “assessment
discrimination claims by property owners,” and also is “adopted in county equalization tables . . . which are used to
allocate the cost of county government among a county's municipalities.” Id. at 666.
5
was on the market for 505 days. Comparable 3 on the other hand, was on the market for all of
nine days. Without any explanation as to the typical amount of time for market exposure in the
Township (and the Subject’s neighborhood), these facts can raise issues of comparability. Of
course, these issues could be satisfactorily explained, but that was not done here. Sole reliance on
the MLS data is thus, not always useful. There must always be independent verification of the
same. Thus, the statute itself provides:
In any action or proceeding . . . on review of the assessment for taxes of any real
property, or in any action or proceeding in the Tax Court, any person offered as a
witness in any such action or proceeding shall be competent to testify as to sales of
comparable land, including any improvements thereon, contiguous or adjacent to
the land in question, or in the vicinity or locality thereof, or otherwise comparable,
from information or knowledge of such sales, obtained from the owner, seller,
purchaser, lessee or occupant of such comparable land, or from information
obtained from the broker or brokers or attorney or attorneys who negotiated or who
are familiar with or cognizant of such sales, which testimony when so offered, shall
be competent and admissible evidence in any such action or proceeding.
[N.J.S.A. 2A:83-1 (emphasis added)].
Yet another problem was the lack of information with respect to whether the comparables were all
in the same zone as the Subject, which then, due to minimum lot size requirements or other
limitations, may require adjustments, or may not even be comparable. Plaintiff testified that the
Subject was not located in a development, but was unable to speak to whether the comparables
were located in a development or whether the comparables were in an ordinary neighborhood.
Even if the lack of information on zoning or neighborhood is ignored, the above analysis
shows that comparables 3 to 6 cannot be used due to their differences in lot size and GLA, and the
NU code. Adjustments to a comparable could be warranted, or may not be warranted if it was an
updated comparable. Here, there is no information as to the age of comparable 2, which may
require an adjustment if it is considerably older than the Subject. However, there is no information
6
in this regard. This would then leave just one comparable to decide the Subject’s vale, which is
comparable 1 (sold in February of 2016 for $325,000). However, unless there is such a paucity of
sales, explained satisfactorily to the court, one sale is not reasonable or credible indication of value.
As stated:
a single sale is not a sufficient sampling to arrive at a firm conclusion. The inquiry
relates to what purchasers of property of this kind will pay and what willing sellers
will demand in sales of this type . . . . Until a sufficient number of samplings have
been examined to establish a definite trend from which a reasonable conclusion can
be drawn, this answer cannot be given.
[Lorenc v. Township of Bernards, 5 N.J. Tax 39, 49 (Tax 1982)].
Plaintiff’s calculation of the Subject’s true value (sale price of comparable divided by its
GLA), standing alone, oversimplifies the valuation technique and process, and dilutes the need for
qualitative cogent evidence. Presuming that the comparables are all in the same or similar
condition as the Subject, (thus, requiring no adjustments to the comparables’ sale prices) does not
equate to competent or credible evidence. Amenities present or absent in a comparable may or
may not add value to that property. See U.S. Life Realty Corp. v. Township of Jackson, 9 N.J.
Tax 66, 72 (Tax 1987) (“[D]ifferences between a comparable . . . and the subject property are
anticipated. They are dealt with by adjustments recognizing and explaining these differences, and
then relating the two properties to each other in a meaningful way so that an estimate of the value
of one can be determined from the value of the other.”). See also The Appraisal of Real Estate at
388 (“If all comparable properties are identical to the subject property, no adjustments to sale
prices will be required. However, this is rarely the case.”). Adjustments should be made to the
“sale prices of comparable properties for differences in location.” Id. at 379. The reason for this
adjustment is because two properties with “identical physical characteristics may have quite
different market values if one of the properties has less attractive surroundings.” Ibid.7
In sum, plaintiff’s reliance upon the unadjusted sale prices of the comparables, because
they are the same or similar to the Subject in terms of bedroom count and proximity to the Subject
is not cogent or persuasive evidence of their comparability with the Subject, which would be
sufficient to render them credible indicators of the Subject’s value. Providing a list of comparable
sales with unadjusted sale prices, and asking the court to reduce the assessed value of the Subject
somewhere between such sale prices, does not meet a taxpayer’s burden of providing ‘“sufficient
competent evidence of true value of the (subject) property.”’ See Siegfried O. v. Township of
Holmdel, 20 N.J. Tax 8, 20 (Tax 2002).
The court is mindful that it must strive to find value. However, as stated in Township of
Warren v. Suffness, 225 N.J. Super. 399, 414 (App. Div. 1988), “the Tax Court’s right to make an
independent assessment is not boundless,” but must be “based on the evidence before it and the
data that are properly at its disposal.” (citation and quotation marks omitted). Thus, the court
cannot “arbitrarily assign a value to the property not supported in the record.” Ibid. (citation and
quotation marks omitted). Here, there was no such credible evidence for the court to independently
conclude the Subject’s value.
CONCLUSION
For the aforementioned reasons, the court finds that plaintiff has failed to produce sufficient
evidence to overcome the presumptive validity of the judgment of the County Board. An Order
affirming the County Board’s judgment will accompany this opinion.
Very truly yours,
Mala Sundar, J.T.C.
8