* NOT FOR PUBLICATION WITHOUT APPROVAL OF THE TAX COURT COMMITTEE ON OPINIONS
TAX COURT OF NEW JERSEY

Mala Sundar R.J. Hug h es Justice Complex JUDGE P.O. Box 975 25 Market Street Trent on, New Jersey 08625 Telephone (609) 815

- 2922 TeleFax: (609) 376

- 3018 taxcourttre nton2@judiciary.state.nj.us April 13, 2018 David and Katherine O’Malley Self

- Represented Thomas J. Sateary, Esq. Lindabury McCormick Estabook & Cooper, P.C. 423 Warren Avenue Spring Lake, New Jersey 07762

Re: O’Malley et al. v. Borough of Spring Lake Block 6, Lot 2 Docket No. 008098-2017
Dear Plaintiffs and Counsel: This is the court’s decisi on following trial of the above

- captioned matter. Plaintiff s own the above captioned property (“Subject”), in defendant taxing district (“ Borough ”). For tax year 2017, a revaluation year, they petitioned the Monmouth County Board of Taxation (“County Board”) to reduce the Subject’s local property tax assessment of $2, 028,600 (allocated $ 1,263,800 to land, and $ 764,800 to improvements)

. The County Board reduced the assessment to $1,991,000
under code 1A (“ assessed value exceeds 100%”), allocating the reduction to the improvements

. Plaintiff s timely appealed the County Board’s judgm ent to this court. The Subject is a lot measuring 0.3 acres improved by a two

- story single

- family residence , built in 1991, with gross living area (“GLA”) of 4,055 square feet (“SF”). It is locat ed across from a watershed, Wreck Pond, and is in a FEMA designated flood

- risk hazard zone. Due to flood2

issues, the Subject was raised so that there are no improvements on the first floor, and stairs from the ground level on both sides of the front of the house provide access to its raised first f loor level (making the building’s height as effectively 21⁄2 stor ies ). The half

- basement is unfinished. Other improvements include a built-in garage, open porch, and a deck. Plaintiffs selected four comparable sales as evidence of value of the Subject, all located in the Borough, and in close proximity to the Subject as follows:
Address Built Lot Size GLA Sale Date Sale Price Style Other 1 419 Salem Ave 1990 0.19 ac 2699 SF 08/29/16 $1,155,000 2- story Colonial Porch, deck, patio,

Wreck Pond behind house 2 301 Shore Rd 1974 0.22 ac 2820 SF 06/02/16 $1,385,000 2-story Colonial Porch, deck, patio,

across from Wreck Pond 3 408 Sussex Ave 1915 0.25 ac 2315 SF 04/08/16 $1,550,000 21⁄2 story Colonial Porch, partial b asement 4 420 Salem Ave 1952 0.17 ac 1632 SF 07/15/16 $850,000 11⁄2 story Cape Cod Porch, deck, basement
They noted that none of the comparables had flooding issues as did the Subject, and furt her that, their 2017 assessments were all much lower than the Subject. The Borough provided exterior pictures of the Subject and the four comparables (powe red by Google) . They clearly showed the Subject’s superiority in terms of size, style, and qual ity of materials/construction. It is also readily apparent that all of the comparables’ GLA is significan tly smaller than the Subject , comparables 3 and 4 are much older, and comparable 4 , which is of a different style, has a lot size that is almost 50% smaller than the Subject. None of t he comparables

are ra ised , nor are they set back as far fr om the street as is the Subject. Moreover, c omparable 1 was marked with non-usable code 10, which applies to “[s]ales by guardians, testamentary t rustees, executors and administrators. ” S ee N.J.A.C. 18:12

- 1.1(a)(10). Although this does not per se indica te that the sale could not be used as a credible indicator of the Subject’s value, plainti ffs proffered no proof in this regard. Thus, the court is simply not persuaded that the sales are3

comparable, let alone their unadjusted sale prices as being credibl e indication of the Subject’s value. Plaintiffs m aintain that they are not challenging the allocated assessmen t to the Subject’s improvement, r ather, desire a reduction of the value allocated to land

. They claim th at th e revaluation company grossly exagge rated the value allocated to land , an d failed to consider the severely negative factor of the Subject , viz., its location in a FEMA categorized flood zone, and proximity to Wreck Pond, which collects excess drainage from other surrounding over- developed towns, and causes flooding/ soil pollution on the Subject. Plaintiffs provided a letter from the revaluation company, which was a response to their inquiry on how “land calculations” w ere made, and why no “depreciation” was recognized. The revaluation company explained that it had used the extraction method whereby the contributory value of the dwelling was extrac ted from the total sale price, the balance being “an i ndication of the underlying land value.” Thus, i f property sold for $600,000 and the dwelling is estimated to be currently worth $200,000 (using the “State manual, ” a requirement), the underlying land value would be $400,000. Plaintiffs claimed that the revaluation company made no investigation of land values in flood zones, and was not cognizant of problems with such types of land. Plaintiffs also argued that because of the FEMA restrictions, the Subject cannot be further improved with additions such as an in

- ground pool, expansion of the driveway or of the residence , and that future buyers must be notified of these strictures. Additionally, the Subjec t is not close to the ocean. All these factors, per plaintiffs, diminish the Subject’s value, which were properly recognized by peri odic reduction in prior years’ assessments , and justifies restoration of the Subject’s 2016 assessment of $1,321,000 (allocated $775,500 to land ; $545,500 to improvements ), for tax year 2017.4

The arguments, while sympathetic, are unpersuasive. The allocat ion of an assessment between land and improvement is a purely administrative function because the assessment is for the property as a whole, i.e. , land and building, which is why when an appeal is filed, the challenge can only be to the entire assessment, not to the allocated portions of the same. See Brown v. Borough of Glen Rock, 19 N.J. Tax 366, 375

- 377 (App. Div. 2001) (rejecting the taxpayers’ argument that the trial court erred “ in concluding that they could not prove the ‘ true value ’ of their
proper ty by challenging only the land portion of the assessment ”). Consequently, plaintiffs ’ characteriz ation of their challenge as isolated to land value is unsustainable. Additionally, from the property record cards of the Subject and the comparables (provided by the Borough), it appears that the revaluation company assigned the same lot value, and front foot value to the Subject and Comparable 2, which are both on the same street, at $700,000 and $6,000, respectively. It therefore does not appear th at differing lot values were applied, rather, the difference was due to lot size and the depth factors. Plaintiffs did not prov ide any evidence to establish that these values were wrong. Further, the record cards also show that the Subject and certain comparables’ proximity to Wreck Pond was noted and acknowledged by the revaluation company. They do not show any adjustments for this factor. N o doubt features such as flooding hazards , or location in a designated high flood risk zone with restrict ions on b uilding or expanding improvements, can negatively impact a property’s value. Buyers could view flood hazard locations more expensive to maintain due to mandatory flood insurance, with higher ri sk of property damage, thus, likely higher costs to owners, wh ich in turn could impact value. On the other hand, depending on the area or neighborhood, such as river or ocean front/proximate properties, potential flooding considerat ions may be offset by the appeal of scenic views, exclusiv ity o f neighborhoods, afflu ent population,5

which in turn, could influence the increase in values of such properties. 1 Either way, any negative adjustm ent to sale prices (in a comparable sales analysis ), for flooding hazards must be supported with credible market

- based data

. Here, plaintiffs did not provide any evidence that could support a quantified negative adjustment for the flooding factor, which they allege are significantly deleterious to the Subject’s value. This was their burden to begin with, and continues to the en d of the case. See MSGW Real Estate Fund, L.L.C. v. Borough of Mountain Lakes, 18 N.J. Tax 364, 373 (Tax 1998) ; Ford Motor Co. v. Township of Edison, 127 N.J. 290, 314 -15 (1992) . Without any evidence, the court cannot speculate what a reasonable adjustme nt should be, and what the consequent value should be. The court can determine value “ from the evidence,” and cannot “arb itrarily assign a value to the
pro per ty not supported in the record.” U.S. Life Realty Corp. v. Township of Jackson , 9 N.J. Tax 66, 79 (Tax 1987). CONCLUSION
T he court finds that none of the four comparable sales are persuasive indicators of the Subject’s value. Further, the court cannot provide an arbitrary reduction for the Subject’s flood hazard zone location without any m arket

- based evidence in the record. Therefore, pl aintiff s ha ve failed to produce sufficient evidence to overcome the presumptive validity of the j udgment of the County Board , which is affirmed

. Very truly yours,

Mala Sundar, J.T.C.

1 Despite the plaintiffs’ testimony, the Borough’s assessor stated that pe ople still pay a premium for land in a flood zone due to ocean proximity. He also claimed that there were no restrictions on the property’s further improvement or development other than normal zoning requirements, such as seeking a variance. Lastly, he claimed that land values are typically $12

- $14 million an acre in the Borough including the Subject’s neighborhood.