Giant Realty LLC v. Lavallette Bor.

TAX COURT OF NEW JERSEY

TAX COURT MANAGEMENT OFFICE P.O. Box 972
(609) 815-2922 TRENTON, NJ 08625-0972

Corrected Opinion Notice

Date: May 12, 2022

Michael I. Schneck, Esq
Schneck Law Group, LLC

Dominic P. DiYanni, Esq.
Eric M. Bernstein & Associates, LLC

From: Management Office

Re: Giant Realty LLC v. Lavallette Borough
Docket number: 0010063-2014

The attached corrected opinion replaces the version released on May 12, 2022
The Opinion has been corrected as noted below:

Page 2, corrected Tax Lot 5 to read - $810,833.00

njcourts.gov – select Courts/Tax Court
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS

Corrected 4/28/22 – page 6, corrected paragraph 2
Corrected 5/12/22 – page 2, figure for lot 5

_____________________________________
:
GIANT REALTY, LLC, : TAX COURT OF NEW JERSEY
: DOCKET NO. 001063-2014
Plaintiff :
:
v. :
: Approved for Publication
LAVALLETTE BOROUGH, : In the New Jersey
: Tax Court Reports
Defendant :
_____________________________________:

Decided: April 28, 2022

Michael I. Schneck for plaintiff (Schneck Law Group, LLC., attorneys).

Dominic P. DiYanni, for defendant (Eric M. Bernstein & Associates,
LLC, attorneys).

FIAMINGO, J.T.C.

This matter is before the Tax Court on plaintiff’s motion for application of the provisions

of N.J.S.A. 54:51A-8 (the “Freeze Act”) to tax years 2015 and 2016. Defendant municipality

opposes the application asserting that there was a change in value subsequent to the 2014 tax year.

The court finds that defendant failed to make a prima facie showing that a substantial and

meaningful change in value occurred between the base year 2014 and freeze years 2015 and 2016.

Accordingly, the court finds that the Freeze Act applies to both years 2015 and 2016.

FACTUAL AND PROCEDURAL BACKGROUND

Giant Realty, LLC (“plaintiff”) timely filed a direct appeal in the Tax Court challenging

the 2014 tax year local property tax assessments on the real property located in the Borough of
Lavallette (“defendant”) designated as lots 1, 2, 3, 4, 5, and 6 in block 21 on the official tax map

of defendant municipality (collectively the “subject property”). After a trial on the issue of

valuation, the court entered judgment on March 20, 2020, reducing the 2014 tax year assessment

for each of the subject lots (“2014 Judgment”). The original assessments and the judgments

entered by the court with respect to each of the subject lots 1 was as follows:

Tax Lot Original Assessment Judgment

1 $1,250,000.00 $810,833.00

2 $1,187,500.00 $810,833.00

3 $1,187,500.00 $810,833.00

4 $1,250,000.00 $810,833.00

5 $1,000,000.00 $810,833.00

6 $1,000,000.00 $810,834.00

On May 14, 2020, plaintiff filed a motion for relief under the Freeze Act to apply the

judgment to tax years 2015 and 2016. Defendant filed opposition and the motion was heard before

the Tax Court Judge who heard the trial testimony. On August 12, 2020, an order was entered

denying plaintiff’s motion without prejudice. 2 On October 6, 2021, plaintiff refiled a motion

seeking Freeze Act protection identical to the motion filed on May 14, 2020. Defendant filed

opposition stating, “[d]efendant shall be relying upon its previously filed opposition to the Freeze

Act motion filed by taxpayer’s counsel which is already uploaded on e-courts for this [d]ocket.”

No additional certifications or argument was filed by defendant.

1
Each lot at issue was unimproved vacant land during each of the years in question and thus the
assessment is land only.
2
As a result of the general reassignment of matters in the Tax Court on September 1, 2020, these
matters were transferred to this court for resolution.

2
LEGAL ANALYSIS

The Freeze Act provides in pertinent part,

Where a judgment not subject to further appeal has been rendered
by the Tax Court involving real property, the judgment shall be
conclusive and binding upon the municipal assessor and the taxing
district, parties to the proceeding, for the assessment year and for the
two assessment years succeeding the assessment year covered by the
final judgment, except as to changes in the value of the property
occurring after the assessment date. The conclusive and binding
effect of the judgment shall terminate with the tax year immediately
preceding the year in which a program for a complete revaluation or
complete reassessment of all real property within the district has
been put into effect. If as of October 1 of the pretax year, the
property in question has been the subject of an addition qualifying
as an added assessment, a condominium or cooperative conversion,
a subdivision or a zoning change, the conclusive and binding effect
of such judgment shall terminate with said pretax year.

[N.J.S.A. 54:51A-8(a)]

The Freeze Act is intended “to prevent ‘the repeated yearly increases in the assessed value

of property, not related to or justified by any changes increasing its market value and resulting in

harassment of the taxpayer, subjecting him to the trouble and expense of annual appeals to the

county tax board.’” AVR Realty Co. v. Cranford Twp., 316 N.J. Super. 401, 405-06 (App. Div.

1998), certif. denied, 160 N.J. 476 (1999) (quoting Newark v. Fischer, 8 N.J. 191, 200 (1951). The

Freeze Act is self-executing. AVR Realty Co. v. Cranford Twp., 294 N.J. Super 294, 299 App.

Div. 1996), certif. denied 148 N.J. 460 (1997).

The statute thus provides a clear and unequivocal mandate to taxing
districts. They must accord the taxpayer the benefit of the Tax Court
judgment for the two tax years following the last year encompassed
by the judgment--that is, the base year--unless there has been a
general revaluation or a change of value of the subject property prior
to the assessment date for a "freeze" year.

[Id. at 298].

3
Procedurally, where the judgment for the base year becomes final after the assessment is

fixed for the freeze years, a taxpayer must file a motion to obtain Freeze Act relief. 3 See Curtiss

Wright Corp. v. Wood-Ridge Boro., 4 N.J. Tax 68 (Tax 1982). Thus, plaintiff here has moved for

application of the Freeze Act in this matter for the two years following entry of judgment.

In opposition defendant asserts that there has been a change in value of the subject property

which occurred after the assessment dates such that the 2014 Judgment is not conclusive and

binding to the freeze years. In cases where a municipality opposes a motion for Freeze Act

application by asserting a change in value,

a municipality must make a prima facie showing that there was
a change in the property's value between the assessment dates for
the base year and freeze years and that: ‘"(1) the change in value
result[ed] from an internal or external change; (2) the change
materialized after the assessing date of the base year; and (3) the
change substantially and meaningfully increased the value of the
property."’ AVR Realty Co. v. Cranford Township, 316 N.J. Super.
401, 407, 720 A.2d 434 (App. Div. 1998), certif. denied, 160 N.J.
476, 734 A.2d 791 (1999) (AVR Realty II). If the municipality
makes this prima facie showing, it is entitled to a plenary hearing
regarding the applicability of the Freeze Act. Ibid.; see
also Entenmann's, Inc. v. Totowa Borough, 19 N.J. Tax 505, 515
(Tax 2001); Rockstone Group v. Lakewood Township, 18 N.J. Tax
117, 120-21 (Tax 1999).

[Coastal Eagle Point Oil Co. v. Twp. of W. Deptford, 353 N.J.
Super. 212, 218 (App. Div. 2002)].

Changes in value may occur as a result of an internal change or an external change.

“[I]nternal changes consist of capital improvements that substantially and meaningfully increase

the value of the subject property, while external changes consist of extreme economic changes or

3
The 2014 Judgment for the 2014 base year was not entered until March 20, 2020 well after the
assessment dates for the 2015 and 2016 tax years, October 1, 2014 and October 1, 2015
respectively.

4
zoning changes in close proximity to the property that increase its value.” 160 Chubb Props., LLC

v Twp. of Lyndhurst, 30 N.J. Tax 613 (Tax 2018). 4

Defendant asserts an external change occurred due to the issuance of a permit by the New

Jersey Department of Environmental Protection pursuant to the provisions of the Coastal Area

Facility Review Act, N.J.S.A. 13:19-1 to -51 (“CAFRA”), permitting development of the subject

property. CAFRA’s purpose is the protection of “the unique and fragile coastal zones of the State.”

In re Egg Harbor Associates (Bayshore Centre), 94 N.J. 358, 364 (1983). Accordingly, “CAFRA

grants broad authority to the DEP to protect the environment and to regulate land use within the

coastal area for the general welfare.” Matter of Cape May Cty. Mun. Utils. Auth., 242 N.J. Super.

509, 514 (App. Div. 1990).

As explained in Siegel v. N.J. Dep’t. of Envtl. Prot., 395 N.J. Super. 604, 615 (App. Div.

2007)

In enacting CAFRA, the Legislature found

that certain portions of the coastal area are now
suffering serious adverse environmental effects
resulting from existing facility activity impacts that
would preclude or tend to preclude those multiple
uses which support diversity and are in the best long-
term, social, economic, aesthetic and recreational
interests of all people of the State.

[N.J.S.A. 13:19-2.]

The Legislature balanced, however, its desire to address the adverse
environmental effects of coastal area development with recognized
economic considerations for those who inhabited the coastal areas,
noting CAFRA was intended to also

encourage the development of compatible land uses
in order to improve the overall economic position of

4
The Appellate Division affirmed the trial court in an unpublished decision which can be found
at 2020 N.J. Super. Unpub. LEXIS 1551 (App. Div. 2020).

5
the inhabitants of that area within the framework of
a comprehensive environmental design strategy
which preserves the most ecologically sensitive and
fragile area from inappropriate development and
provides adequate environmental safeguards for the
construction of any facilities in the coastal area.

[Ibid.]

A CAFRA permit is required to develop property subject to its provisions. Nonetheless,

“as a general matter, CAFRA ‘regulations do not preempt local zoning authority.’” Bubis v. Kasin,

184 N.J. 612, 630 (2005) (quoting Lusardi v. Curtis Point Prop. Owners Ass’n, 86 N.J. 217, 229

(1981)). To develop a property subject to CAFRA one must also obtain approval from local zoning

authorities before any development may commence. See Ferraro v. Zoning Bd. of Adjustment,

119 N.J. 61 (1990). Thus, while impactful and a necessary precursor to development, the issuance

of a CAFRA permit does not constitute final approval for development.

A CAFRA permit was issued on September 22, 2015, authorizing “the construction of four

new single family dwellings and associated development.” Counsel argues that issuance of the

CAFRA permit resulted in the subject property being developable subject to local zoning and

building laws. Because the subject property was previously undevelopable as a “dune,” counsel

argues that there was an external increase in value upon issuance of the CAFRA permit. Counsel

further argues that “the progression of the CAFRA permitting process and the ultimate approval”

resulted in a change in value, such that the anticipatory issuance of the permit positively affected

the value for the 2015 tax year, even though the permit was not issued until nearly one year after

the valuation date for that tax year. In support of this latter position counsel’s legal brief references

testimony of plaintiff’s expert at trial regarding the CAFRA application process. 5

5
Counsel has not provided this court with any expert report to support the argument, nor has
counsel provided the court with any transcript of the trial proceedings in which such testimony

6
Defendant provides no certification of any expert to demonstrate that an increase in value

actually occurred, nor what that increase in value might be. Counsel argues that logic dictates that

the value of property which was previously subject to restrictions prohibiting development

necessarily increased because of the issuance of the CAFRA permit. Counsel surmises, without

support, that although the permits were not actually issued until September 21, 2015, the subject

property also increased in value as of October 1, 2014, due to the probability that the permits would

issue.

In sum defendant’s counsel asserts that as the permit progressed through the application

process the likelihood of issuance increased such that a buyer would likely pay more for the lots

than would have been paid as of October 1, 2013. However, this assertion is unsupported by any

evidence whatsoever. Defendant has provided nothing to this court demonstrating that the

issuance of the CAFRA permit was reasonably probable as of the October 1, 2014 valuation date.

Moreover, defendant has failed to show that a willing buyer would have paid substantially and

meaningfully more for the subject property on October 1, 2014 than he or she would have paid on

October 1, 2013. Nothing changed between those two dates, except the passage of time. The

CAFRA permits had not issued, and defendant provides no support for its conclusion that the

issuance of a CAFRA permit was more reasonably probable on October 1, 2014 than it was on

October 1, 2013.

Counsel references the bench opinion delivered with respect to the 2014 Judgment wherein

the trial court concluded that there was a reasonable likelihood the CAFRA permit would be

was apparently given. No affidavit or other certification as to this testimony was submitted to the
court. The court has no basis upon which to evaluate the accuracy of counsel’s characterization
of the testimony provided by the expert at trial or the credibility of any statements which might
have been made by the expert.

7
obtained in reaching the determination that the subject property had “considerable value.” 6 This

court’s determination as to the proper application of the Freeze Act is not influenced by the factors

taken into consideration by the trial court in arriving at a conclusion of value for the base year. 7

This court’s determination is informed only with respect to whether defendant has made a prima

facie showing that there was a change in value from the base year to the freeze act years.

In further support of its position that there was a change in value for the 2015 tax year,

defendant refers to State v. Caoili, 135 N.J. 252 (1994) and other condemnation cases. In Caoili

the court held that,

in determining the fair market value of condemned property as a
basis for just compensation, the jury may consider a potential zoning
change affecting the use of the property provided the court is
satisfied that the evidence is sufficient to warrant a determination
that such a change is reasonably probable. If evidence meets that
level of proof, it may be considered in fixing just compensation in
light of the weight and effect that reasonable buyers and sellers
would give to such evidence in their determination of the fair market
value of the property.

[Id. at 265].

Defendant misapprehends its obligations hereunder. The question here is not whether the

likelihood of the issuance of the CAFRA permit would have been considered by a willing buyer

and willing seller. The question here is whether defendant has established a prima facie case that

an external change in the value of the subject property materialized after October 1, 2013, that

“substantially and meaningfully increased the value of the property.” Coastal Eagle Point Oil Co.,

353 N.J. Super. at 218.

6
The court was not provided with any transcript of the oral decision of the trial court and cannot
evaluate the accuracy of counsel’s characterization of the court’s oral decision.
7
Arguably, defendant’s position that a substantial and meaningful increase in value occurred on
October 1, 2014 is undermined by its position that the trial court already included the increased
probability of the issuance of the CAFRA permit in the value determination for October 1, 2013.

8
A prima facie case is one where a party produces enough evidence to allow the court to

infer the fact at issue and rule in the party’s favor. Blacks Law Dictionary, 1382 (10th ed. 2014).

Defendant produced no evidence to support its supposition that was an increased probability that

the CAFRA permit would issue on or before October 1, 2014, and that such increased possibility

substantially and meaningfully increased the value of the subject property over its value on

October 1, 2013. Certainly, defendant has provided nothing in support of its hollow assertion that

the mere passage of time made it more likely that the CAFRA permit would be issued so as to

meaningfully and substantially increase its fair market value on October 1, 2014. Accordingly,

the court finds that defendant failed to demonstrate a prima facie case entitling it to a plenary

hearing on the application of the Freeze Act for the 2015 tax year.

The CAFRA permit issued on September 21, 2015. Defendant asserts there was a change

in value for the 2016 tax year because the CAFRA permit issued prior to the October 1, 2015

valuation date for the 2016 tax year. Again, defendant provides no evidence in support of its

position. Instead, defendant argues it is unquestionable that the change in the status of the lots

from unbuildable dunes to buildable lots substantially and meaningfully increased their value. 8 In

opposition, plaintiff argues that the mere issuance of the CAFRA permit does not constitute a

prima facie showing that there was a meaningful and substantial change in value to the subject

property.

The court is mindful that,

[t]here may be instances in which a change in zoning or a physical
change alone is sufficient to conclude that there has been a change
in value, but whether that change is substantial and meaningful can

8
Here the court notes that the CAFRA permit, while applicable to all six lots under consideration,
permitted the construction of four single family homes, requiring that the six lots be reconfigured
into four building lots. Defendant did not provide any explanation of how the value of the
reconfigured four buildable lots related to the value of the six lots under consideration.

9
only be measured by a showing of the value of the property before
and after the change.

[2nd Roc-Jersey Assocs. v. Morristown, 11 N.J. Tax 45, 52 (Tax
1990) (Emphasis added)].

See
- also --------------------------------
- --- Ritchie & Page Distrib. Co., Inc. v. City of Trenton, 29 N.J. Tax 538, 545-47 (Tax

2016) (bare allegation of change in occupancy does not establish prima facie showing of

substantial change in value); Entenmann’s Inc. v. Borough of Totowa, 19 N.J. Tax 505, 514-15

(Tax 2001) (allegation in change of highest and best use is not necessarily a sufficient showing of

change in value), aff’d, 21 N.J. Tax 182 (App. Div. 2003).

Here defendant provided no evidence of a change in value of the lots as of either valuation

date at issue. The court has no evidence that the issuance of the CAFRA permit had a positive or

negative effect on the value of the subject property or that that effect was substantial and

meaningful. While the court may infer that a buildable lot is more valuable than a non-buildable

dune, the court has been presented with no evidence that the value of the lots here increased over

their October 1, 2013 value of $810,834, or that such an increase was substantial and meaningful.

Defendant produced no evidence of the value of a building lot as of October 1, 2015 from which

the court could infer that the value of the subject property increased, substantially and

meaningfully over its October 1, 2013 value.

A municipality must first show that the property's value changed
between "the assessment dates for the base year and freeze years"
due to "an internal or external change," which "substantially and
meaningfully increased the value of the property," after which it is
entitled to a "plenary hearing" on the applicability of the Freeze
Act. Coastal Eagle Point Oil Co. v. Township of West Deptford, 353
N.J. Super. 212, 218 (App. Div. 2002) (citations and quotations
omitted).

[Ritchie & Page Distrib. Co., Inc. v. City of Trenton, 29 N.J. Tax at
545].

10
The court finds defendant has failed to make the required prima facie showing of an

increase in value which would entitle it to a plenary hearing.

Judgment granting Freeze Act relief to the subject property for tax years 2015 and 2016

will be entered.

11