As a preliminary matter, property owners must understand how property is assessed in New Jersey. Tax assessors are required to mail to each property owner an annual tax assessment notice, which is generally done in late January or early February of each year.  The tax assessment is on a small green card and provides an assessed value for both land and improvements. The assessed value is determined as of October 1 of the pre-tax year.  For example, the tax assessment date for 2008 is October 1, 2007.
   

The assessment for any particular property must be converted to its imputed true value by dividing the assessment by the average ratio for the municipality where the property is located. For example, the average ratio for Princeton Township in 2008 is 47.45%.  If a home in Princeton Township has an assessment of $600,000, the property owner must divide the assessment by the ratio of 47.45% to determine the “true value” of his or her property (ie., what the town believes your property is worth).  In our example, the imputed true value is $1,264,488.
   

The municipal assessor is also required to maintain a property record card.  The property record card contains information about the property, including size of the lot, square footage of the improvements, number of rooms, etc.  Most tax assessors will give a property owner a copy of his or her property record card upon request.  It is not uncommon for property record cards to contain errors, and once spotted, need be brought to the tax assessor’s attention immediately for correction.
   

Tax appeals must be filed by April 1 of the tax year in question. If an error is discovered in a 2008 tax assessment, the property owner’s first step is to file a tax appeal and seek to have the error corrected for that year. Any error can be challenged in the year in question if a complaint is filed by the appeal deadline. However, if the error has been in place for several years, the property owner must look to the Correction of Errors statute for relief - a law that is very restrictive.
   

The Correction of Errors law allows a property owner to seek to correct “typographical errors, errors in transposing, and mistakes in tax assessments,” providing that the mistake does not relate to “matters of valuation involving an assessor’s opinion or judgment.”  If an error falls with this definition, a property owner can go back four years to correct an error.
   

Initially, the New Jersey Tax Court limited the types of errors that could be corrected and denied most requests.  However, in 1994 the New Jersey Supreme Court loosened the standard and held that any error that (1) is indisputable and cannot plausibly be explained on the exercise of judgment or discretion by the assessor, and (2) its correction is also self-evident and non-discretionary, can be remedied by the court.  For example, if a parcel of vacant property is assessed with a building on it, both the error and correction are self-evident and, therefore, the error can be corrected.
    

However, in a recent case, the court denied a request to correct an error where the tax assessor lost an application for farmland assessment  and assessed the property as if it was not a farm.  Although the error was self-evident because losing a farmland application cannot possibly involve an exercise of the assessor’s judgment, the court found that the “correction” was not self-evident based upon the mistake made by the assessor.  This decision is difficult to understand since the correction (ie. reduce the value to the standard farmland assessment) also seems self-evident.
   

Although the case law interpreting the Correction of Errors statute is ambiguous, it is clear that most types of errors will involve some level of judgment or discretion by the tax assessor and cannot be corrected by the Tax Court.  Once value is determined by the assessor, the exercise of judgment is generally involved taking the issue outside the Correction of Errors statute.  As a result, it is very important for property owners to review their assessments each year and file an appeal by the April 1 deadline.  If there is no plausible explanation for the error, a property owner can look to the Correction of Errors statute for relief providing the relief sought is also self-evident based upon the information placed before the court.

       
“If the court renders final judgment that the condemnor cannot acquire the real property by condemnation or, if the condemnation action is abandoned by the condemnor, then the court shall award the owner of any right, or title to, or interest in such real property, such sum as will reimbursed such owner for his reasonable costs, disbursements and expenses actually incurred, including reasonable attorney, appraisal and engineering fees.”

   
Despite the clear language in the statute, not all courts have allowed property owners to recover legal fees when a condemning authority decides to abandoned a condemnation case.  For example, a case decided in 1999 denied a request for allowance of legal fees and expenses in a condemnation action where Essex County filed a condemnation complaint, but abandoned the lawsuit before the commissioners held their hearing.  Essex County v. RAR Development, 323 N.J.Super. 505 (Law Div. 1999).  The Essex County court relied upon a case from 1941 which held that a property owner’s right to receive attorneys was “conditioned” upon the public entity abandoning the condemnation action within 20 days after the filing of the commissioners’ report or jury’s verdict.  Since the case in question did not reach the commissioners’ hearing stage, the court denied the request for legal fees and expenses.

   
On December 24, 2007, the Appellate Division of the Superior Court of New Jersey decided a case which rejected the Essex County decision.  West Orange Township v. 769 Associates, LLC, ___ N.J.Super. ___, 2007 WL 4472101 (N.J.Super.A.D. 2007).   In 769 Associates, the Appellate Division found that the entitlement to reimbursement of legal fees and expenses is triggered upon the filing of the condemnation action.  Once the complaint is filed, any abandoned entitles the property owner to reimbursement of legal fees and expenses.  In rejecting the Essex County decision, the Appellate Division found that the trial court in Essex County erred when it relied upon a decision interpreting a statute which had been repealed.  The Appellate Division continued by declaring:

      
 “Here, by contrast, there is simply not textual support in N.J.S.A. 20:3-26(b) for such a limitation.  Under our current law, the only condition that must be satisfied to trigger the right of reimbursement is the abandonment of a condemnation action by the public entity.  The point in time in which this occurs is not a relevant consideration in determining whether reimbursement is warranted.”

   
The Appellate Division also held that legal fees and expenses incurred prior to the filing of the condemnation complaint cannot be recovered by the property owner.  This is somewhat problematic because often times a property owner retains counsel to negotiate with the condemning authority before the condemnation complaint is filed.
  
   
769 Associates is an important case for two reasons.  First, is it seems to over-rule Essex County, although there is an argument that the Appellate Division’s discussion of the Essex County case is dicta and not binding on lower courts.  Second, as set forth in the blog posting discussing the Township of Pemberton v. Berardi decision,  a condemnor does not have to commit to the taking until many months into the case.  Now, as a result of the 769 Associates case, property owners have some recourse if a condemnation case is abandoned by the condemning authority late in the case.

    What is at stake is the right to own property on one hand, and the need to encourage and complete redevelopment plans in truly blighted areas.  When used properly, redevelopment can turn a blighted and unsafe area into a thriving and safe neighborhood.  However, when abused, properties which have some deferred maintenance issues (i.e. chipped paint) are being taken to make room for higher end homes and businesses, changes need to be made.  The proper balance can be achieved by focusing on the following issues.

    First, the issue of what constitutes “blight” must be addressed.  The New Jersey Constitution limits the taking of private property for private redevelopment to blighted properties only. Some believe that the vague definitions in the Local Redevelopment and Housing Law have greatly expanded this limitation and would allow virtually all of New Jersey to be placed in an “area in need of redevelopment” since a land planner could most likely find a problem in every home and conclude that, based upon today’s design and land use standards, the property in not fully productive or fully utilized.  The proper balance can be achieved by changing the definition of an “area in need of redevelopment” to one that is closer to the constitutional requirement of blight.

    Second, all public notices should be use plain language and delivered to homeowners, not just published in the local newspaper.  The public must be told that their local government is considering action that may involve the condemnation of their homes or business.  For a person to understand the type of notice used by most towns seeking to designate an area in need of redevelopment, he or she would have to enroll in law school and take several classes in land use law.  The law needs to be changed so that property owners receive notice in a manner designed to allow them to seek professional advice on how to proceed.

    Third, make it clear that the condemning authority must prove, at every stage, that the property is blighted.  All hearings need to be open to the public with a detailed explanation of what exactly will happen if a redevelopment plan is approved.  Each step must be explained, with an opportunity to ask questions and present proofs.  A detailed record needs to be made in order to allow for proper judicial review when the time comes.

    Finally, compensation needs to be fair. Under the present law, compensation is often inadequate and the relocation benefits minimal, at best.  Property owners should not be given a windfall, but need to be made whole in order to meet the requirement of just compensation.  It is the “making whole” that needs to be addressed. Much of the resistence to the legitimate exercise of eminent domain would be eliminated if property owners felt adequately compensated and relocation costs covered.

    In regards to residential property owners, they must be paid enough money to find  replacement housing in a safe and comparable neighborhood.  In some circumstances, replacement housing may cost more than the property being taken.  Under existing law, the measure of damages is generally the fair market value of the property being taken.  In many cases, the fair market value standard works.  However, when replacement housing cannot be purchased with the fair market value taking proceeds, a property owner must have some other recourse in order to be justly compensated.

    As for businesses, New Jersey law only requires a condemning authority to compensate a property owner for the real estate, not the business itself.  The only requirement is to relocate the business.  Often times, a business is dependent upon a certain location (i.e. down town location) and cannot afford a rent increase.  If there are no affordable business locations available, the business may be forced to close. The law needs to be reformed to take into consideration rent differentials and allow business owners an opportunity to prove that additional compensation is needed to allow them to survive.

    Redevelopment is a necessary planning tool for many parts of New Jersey.  We have neighborhoods and cities that need to be revived for the long-term health of our State and its residents.  However, eminent domain cannot be used simply because a town decides it prefers a more upscale neighborhood or needs additional tax ratables.  The proper balance will allow blighted areas to be redeveloped, but stop the abusive practice detrimental to the rights of property owners.   

The New Jersey Supreme Court started its review by taking us back to the Blighted Areas Clause of the New Jersey Constitution which confines the taking of private property for private redevelopment to those areas considered “blighted.”  When the New Jersey Constitution was amended in 1947 to add the Blighted Areas Clause, the New Jersey Legislature was concerned that certain sections of older cities had fallen in value and become “blighted” or “depressed.”  To facilitate investment in blighted areas, governing bodies needed the ability to assemble blighted properties in order to attract private investment in the hopes of reviving a depressed area.  This is a sound policy.  Years later, the legislature adopted the Local Redevelopment and Housing Law which adopted the concept of an “area in need of redevelopment” which, for all intents and purposes, was an expanded definition of blight.

In this case, the fact that the property was not fully productive, standing alone, clearly cannot be the basis for a taking under the limitations imposed by the Blighted Areas Clause of the New Jersey Constitution.  The New Jersey Supreme Court confirmed that to meet the requirements of the New Jersey Constitution, more must be shown.  Evidence must be presented as to why the property is not fully productive and that evidenced must be viewed in light of the other criteria set for in the Local Redevelopment and Housing Law.

Equally important is the New Jersey Supreme Court’s statement the a municipality must present “substantial evidence” to support its case.   A record must be created with facts and expert opinions that are more than a cursory review of the property and recitation of the statutory criteria. Trial courts are reminded that in order for a municipality to get the decision making deference it seeks, it must first come forward with substantial evidence to support its designation of an area in need of redevelopment.

This decision does not change the law - it merely enforces the law.  The Blighted Areas Clause of the New Jersey Constitution has been around for over 50 years and the New Jersey Supreme Court confirmed its limitation on redevelopment projects.  The Supreme Court’s decision re-enforces the growing trend of striking designations that resulted from net opinion reports and cursory review of properties.  More important, the decision will have no impact on legitimate (constitutional)  redevelopment projects.  Towns that do their homework and hire qualified planners will still be able to redevelop blighted and depressed parts of town as envisioned by the drafters of the Blighted Areas Clause of the New Jersey Constitution.

The New Jersey Turnpike will be widened between Interchanges 6 and 9, including widening the existing roadway from three to six lanes in each direction between 8A in Monroe Twp. and 6 in Mansfield Twp. The Authority also intends to widen the Garden State Parkway between mileposts 30 and 80. Other road projects are occurring on local, county and state roads. Many road-widening projects require that some private property be purchased or condemned under the power of eminent domain.

As a general rule, a property owner is entitled to just compensation for the value of property taken through eminent domain. If the entire property is acquired, the general measure of compensation is fair market value. However, the matter becomes complicated when only a portion is taken in what is referred to as a “partial taking.”

In a partial-taking, the owner is entitled to be paid for the value of the property taken and any damage to the property they retain, referred to as the “remainder.” Partial takings are generally more complicated than full taking since they require more thorough analysis of the impact on the remainder which may have lost parking, access, highway views and certain future land use rights.

However, what happens when the road widening causes the highway to be so close to the buildings that the owner is forced to close its business and move, or is being so disrupted that operating the business is problematic? Can the property owner force the state to acquire the balance of the property to have a complete taking? The answer depends on whether the value of the remaining property is essentially zero.

The legislature passed a law in 1971 stating, “if as a result of a partial taking of property, the property remaining consists of a parcel or parcels of land having little or no economic value, the condemnor, in its own discretion or at the request of the condemnee, shall acquire the entire partial.” N.J.S.A. 20:3-37. The property left with little or no economic value is commonly referred to as a “uneconomic remnant.” Although at first read the statute seems straightforward, the words “little or no economic value” have caused litigation and heartaches.

Case law interpreting the statute in New Jersey and other states focuses on the economic value of the remainder, not the present use of the property. If the owner can no longer use the property for its present use, they must still prove that the property cannot be put to some other use that has value to force the State to take the entire property.

For example, a New Jersey Court failed to require the State to condemn an entire parcel being utilized as a church when a highway was expanded. After the widening, the highway was 41 feet from the front door of the church and the right of way extended to the lower steps of the entrance. At trial, the pastor testified that the church was unable to conduct services as a result. Although the court did not dispute that the church was deprived of the use of its building, the church failed to show that the property was “unfit for all uses.” As a result, the church was only entitled to the value of any damage it could prove to the property it retained.

In another case, the court did require the State to acquire an entire parcel when it sought to expand a road. In that case, part of the building was taken and what was left could not be put to any economic use. In addition, the remainder lands saddled the property owner with a building that had to be demolished and potentially could cause safety hazards.

It is very difficult to prove that a remainder has little or no economic value. When an owner’s existing use is no longer viable, the property may still have some economic value, thereby precluding a complete taking. This is particularly disturbing when an owner is required to move his business as a result of the taking, but is saddled with a property that no longer meets his needs. Although the condemning authority may be required to pay relocation expenses, the condemning authority is not required to pay for loss of business.

Uneconomic remnants cases are very difficult to win. As a result, it is important for property owners to perform a thorough investigation of every possible way the remainder may have been damaged by the taking in order to be made whole. If an owner does argue the remainder has little or no value, the property must have strong testimony from a qualified appraiser.

When appealing a tax assessment, it is very important to understand how the presumption of correctness works. Once a tax assessor imposes an assessment, the County Tax Board and Tax Court are required to presume that the tax assessment is valid and the taxpayer is required to rebut the presumption by cogent evidence. The New Jersey Tax Court has held that in order to overcome the presumption, the taxpayer must produce evidence that is “definite, positive and certain in quality and quantity.” This is a difficult standard to comprehend, but clearly requires a good showing by the property owner.

The presumption of correctness permits a tax assessor to win a tax appeal without producing any evidence at all, a tactic used by many revaluation companies in defending tax appeals. For example, if a taxpayer presents sales that are not very comparable because they are too old, not in the same town, or otherwise not very similar to the property under appeal, the tax assessor or revaluation company can merely argue that the presumption of correctness has not been overcome and the assessment cannot be changed. If the taxpayer produces “pretty good” comparable sales, the tax assessor or revaluation company can but merely challenge the comparability of the sales offered by the property owner and argue that once again the taxpayer has not produced sufficient evidence to overcome the presumption. This is very frustrating to property owners because they end up losing a tax appeal without the tax assessor or revaluation company submitting any evidence of value.

It is very important to understand that the tax assessor and revaluation company have no obligation to come forward with comparable sales and can merely rely upon the presumption of correctness in defending a tax appeal. Since the presumption is a hurdle that is somewhat difficult to overcome, it is a good idea to appear before the Tax Board or Tax Court with a competent appraiser. However, depending upon the size of the tax assessment, it may not be cost effective to pay for an appraisal. If a property owner chooses to proceed without an appraiser, it must come armed with very good evidence in order to over come the presumption of validity. 

A  recent Appellate Division case, which was decided on January 22, 2007, provides a good discussion of the presumption of validity. You can view the case here.

Technorati Tags: New Jersey : Tax Appeals

Myth No. 1: Townships perform revaluations in order to increase revenues for the town, county and school board.

As a general rule, a revaluation only impacts the assessed value of properties in a municipality, not the municipal budget. The amount of tax revenue required by a municipality, school board and county are determined through the budgeting process. The overall budget is the numerator in determining the tax rate for a municipality. The denominator is the aggregate assessment of all properties in town which, in a revaluation year, is the total of all assessments in town as determined by the revaluation company. The revaluation may impact the overall tax rate, but it does not impact the budget as adopted by the town.

Myth No. 2: Property taxes always increase when a municipality performs a revaluation.

In a revaluation year, most tax assessments increase. However, the tax rate generally decreases. Some property owners will see an increase in their overall tax burden, while others will see a decrease. For example, if a property was under-assessed before the revaluation, its taxes will most likely increase. However, if a property owner was over-assessed before the revaluation, the property owner may see a decrease in its tax burden.

Myth No. 3: In order to win a tax appeal in a revaluation year, a taxpayer may argue that he or she is entitled to a reduction because other similar properties are assessed at lower values.

As a general rule, assessments of other properties are not relevant to the assessment of the property being appealed. The issue before the Tax Board on an appeal is the value of the property in question, not other assessments in town. As is often said by the Tax Board or Tax Court, a property owner is not entitled to a lower (or bad) assessment merely because a neighbor has a low (or bad) assessment. Rather, the issue is what is the value of the property being appealed as evidenced by comparable sales or other evidence.

Myth No. 4: When a property owner files a tax appeal, her or she is appealing the amount of taxes being paid to the tax collector.

A tax appeal involves a challenge to the assessment (ie. the assessed value of the property), not the amount of taxes that are being paid. The only issue on appeal is the value of the subject property. This is true in revaluation and non-revaluation years. The amount of taxes a property owner pays is not relevant to a real estate tax appeal.

Myth No. 5: If a property owner files an appeal, the tax assessor will haggle and reduce the assessment.

The tax assessor or revaluation company will generally provide property owners with an opportunity to discuss a revaluation assessment before the appeal deadline. However, the property owner should not go to the revaluation company or assessor without proof in hand. Further, the “appeal and haggle” philosophy generally fails. In order to succeed on a tax appeal, property owners must be prepared with competent proof. For commercial properties, this generally involves retaining a competent appraiser.

Tips for Appealing and Revaluation Years:

Before filing a tax appeal, a property owner should obtain his or her property record card from the tax assessor in order to verify that the tax assessor and revaluation company have the correct information on the property. The property record card shows the number of bedrooms, bathrooms, square footage of living space and other important information. In addition, a prudent property owner should assemble comparable sales which often times can be obtained from the township. When selecting comparable sales, the sales must be comparable in terms of size, location and condition, and the closer to the assessment date the better. Avoid the inclination to simply select the three lowest sales in town. An appeal supported by strong evidence generally results in the reduction of an assessment.

Technorati Tags: New Jersey : Tax Appeals

In New Jersey, a business operator (owner or tenant) is entitled to relocation assistance if the business is required to be moved as a result of an eminent domain case. However, under New Jersey law, the mandated relocation benefits are skimpy at best and are presently under review as part of the pending legislation seeking eminent domain reform. As evidenced by a recent Appellate Division decision, business owners must be very diligent in order to maximize their potential recovery of relocation benefits. Jersey City School District v. Marathon Enterprises, docket no. A-6188-03T5, Jan. 4, 2007).

Marathon Enterprises owned a building which was acquired by the Jersey City School District to build a school. After a trial, the jury awarded Marathon $5.2 million as just compensation for the building. Marathon also sought relocation benefits arising from the relocation of machinery and equipment to its new facility. After a three day trial before an administrative law judge, the court awarded Marathon $2,039,265 in relocation benefits. The New Jersey Department of Community Affairs adopted the decision and the Appellate Division affirmed. Why did Marathon receive so much money for relocation benefits? The answer is:

1.  The business involved a meat processing operation (Sabrett hot dogs) which was subject to strict regulation by the United States Department of Agriculture (USDA). The USDA regulations require raw and cook meat to be kept separate, the plant must be cleaned and sanitized daily, and the floors must have drains and be slanted to allow for proper water flow . The administrative law judge’s opinion will tell you everything you always wanted to know (or not know) about hot dogs! As a result of the unique operation, it was not a simple move. 

2.  Neither the school district nor property owner could find a suitable place to relocate the business in the surrounding towns. Marathon decided to buy a building adjacent to its operation in the Bronx, New York, and renovate the building to make it USDA-compliant and accommodate the equipment being relocated from Jersey City. The total cost of the land acquisition and renovations to the building was $11 million. 

3.  Among some of the big ticket items in the renovations of the building were (a) lowering the floor several feet, (b) new electrical service necessary for the equipment being moved, and (c) modifying the building to keep the raw meat process separate from the cooked meat process. The attached decision goes into detail on what was done to the building. Since the USDA has onerous requirements for meat processing operations, the cost of the new facility was exorbitant.

 4.  Most important, Marathon had outstanding documentation to prove its case. During the trial, Marathon was able to separately identify which expenses were directly related to machinery and equipment being moved to the new location. For example, invoices for electrical work were broken down by area of the plant which enable Marathon’s witnesses to relate the invoice to specific equipment (ie. machine being relocated or a new piece of machinery).

This case is important to both condemning authorities and property owners. Condemning authorities must understand the nature of a business to be relocated and investigate any unique needs of the business. The time to do this is before the Workable Relocation Assistance Plan (WRAP) is completed. Properties owners must prepare their case while renovations are being made and ask their contractors to provide detailed invoices for work which may be recoverable under New Jersey law.

Read the decision here.

Technorati Tags: New Jersey : Redevelopment : Condemnation

Recently, Public Advocate Ronald K. Chen filed an amicus brief (“friend of the court” brief) with the Appellate Division of the Superior Court of New Jersey in support of the lower court’s ruling. Mr. Chen is asking the Appellate Division to carefully consider the following legal issues: (1) the appropriate standard of review for a municipality’s determination declaring an area as “blighted” or in need of redevelopment; (2) the allocation of the burden of proof when such a determination is challenged; (3) the quantity and quality of proof that constitutes “substantial credible” evidence of blight; (4) the appropriate standard for assessing the relationship between a finding of blight and the size of the redevelopment area; and (5) heightened scrutiny that must be applied when a municipality’s blight designation will eliminate affordable housings. A copy of the Public Advocate’s brief can be found here.

This is an important case to follow. The Appellate Division is being asked to review another case where the property owner was successful in challenging a redevelopment designation because the condemning authority failed to prove the property was in need of redevelopment. In the event the Appellate Division reviews and decides the issues raised by the Public Advocate, the burden of proof may change once again. This decision, along with the pending legislation seeking to change the eminent domain laws in New Jersey, may alter the redevelopment landscape in New Jersey.

Technorati Tags: New Jersey : Condemnation

After reviewing the legal briefs and hearing oral argument, the trial judge stayed the condemnation case to allow Solberg Aviation to conduct discovery in order to prove its case. The discovery will focus on the Township’s “true motivation” in seeking to acquire the property. Under New Jersey law, acquisition of property for open space is generally deemed a valid public use which permits the government to use its power of eminent domain. However, New Jersey law also prohibits the use of eminent domain where there has been a “showing of improper motives, bad faith, or some other consideration amounting to a manifest abuse of the power of eminent domain.” These types of cases are generally referred to as “pretextual takings.”

It is important to note that the trial court did not find that there was an improper motive or bad faith on the part of the Township. Rather, based upon the limited evidence before the court, the trial judge found that Solberg Aviation made a prima facie case for a pretextual taking entitling Solberg Aviation to take discovery in the form of depositions, document review and the like. Among the evidence presented at the hearing was “admissions made by township officials as well as the auspice under which the $22 million bond was secured, both of which state that the reason for this action was to prevent expansion of the airport, and not the preservation of open space.” Solberg Aviation now has an opportunity to question township officials under oath, which ultimately may help Solberg Aviation prove its case. This case is another important case in New Jersey following on the heals of the Mipro case which is being considered by the New Jersey Supreme Court.

Technorati Tags: New Jersey : Condemnation: Mipro

Courts look at the proposed public purpose at the time of the taking to determine whether the taking is constitutional. However, most governmental takings are political in nature and subject to changing administrations and funding availability. In addition to governmental uncertainties, the economic climate may also impact construction projects, especially redevelopment projects. There are numerous redevelopment projects on the drawing board throughout New Jersey which are at various stages of planning and implementation. If housing demand drops, it is questionable whether redevelopers will seek to complete projects immediately, or look to delay the construction until the housing market improves. The recent bankruptcy filing by Kara Homes may be a telling sign.

Technorati Tags: New Jersey : Eminent Domain : Condemnation : School Construction

On behalf of our clients, Mr. and Mrs. Shelton, we were successful in having an amendment to an area in need of redevelopment to include the Shelton's property stricken by the court. (Decision - PDF) The City (and its redeveloper) went back to the planning board and are seeking a "do over" to once again go after the Sheltons' property. Although this is permitted, a certain City councilman who is concerned over Eminent Domain abuses has voiced his opposition to any amendment that would allow the condemnation of property. Mr. and Mrs. Shelton have done a terrific job of staying on top of this project and making certain that City council is aware of what is going on.

Technorati Tags: New Jersey : Eminent Domain : Condemnation

The seminar discussed the redevelopment process under New Jersey law and what property owners need to know.

You can listen to the seminar here.

Technorati Tags: New Jersey : Podcast :  Eminent Domain : Redevelopment : Condemnation

Technorati Tags: New Jersey : Eminent Domain : Condemnation : Redevelopment

You can download the New Jersey Legal Update Podcast # 32 here.(13MB)

Technorati Tags: New Jersey : Podcast : Bankruptcy : Creditor : Preference Claim : Preference Demand : Unsecured Trade Creditor : Trustee : Insolvency

On January 19, 2006, the United States Court of Appeals for the Third Circuit ruled that a mortgagee who obtained final judgment in a mortgage foreclosure action was not entitled to recover post-judgment attorney fees in a Chapter 7 bankruptcy case. A & P Diversified Technology Realty, Inc. vs. Fleet Bank, N.A., Civil Action No. 04-3622 (3rd Cir. Jan.19, 2006).

Merger Doctrine: The Third Circuit affirmed the District Court which held that upon the entry of a final judgment in mortgage foreclosure, the mortgage agreement and all of its terms, including the covenant requiring the borrower to pay legal fees, merges into the final judgment under the merger doctrine. The court concluded that:

Under the merger doctrine, the mortgage and its concomitant attorneys' fees provision ceased to exist when the judgment was entered. Therefore, when Fleet moved for attorneys' fees pursuant to section 506(b) before the bankruptcy court, it was no longer the beneficiary of an agreement under which a claim for attorneys' fees arose, which supplies the foundation for a section 506(b) award.

A & P Diversified, at p. 8-9.

Exception to Rule: As with most rules, there is an exception. If a mortgage clearly evidences an intent to preserve the effectiveness of particular provisions post-judgment, those particular provisions will survive the entry of judgment. In the case before the Third Circuit, the court found that the mortgage did not contain an express provision providing that the debtor's obligation to pay the mortgagee's attorneys fees and expenses would survive post-judgment. As a result, the exception did not apply.

Conclusion: This situation arises often since many borrowers file for bankruptcy protection on the eve of a sheriff sale (which is post-judgment). It is advisable for secured creditors to immediately review their loan documents to determine whether they contain a provision that expressly provides that the right to recover attorney fees, expenses, advances, or other essential covenants survive the entry of a judgment in order to avoid the harsh result that was confronted by the mortgagee in A & P Diversified. If the necessary language is missing, amending your loan documents may be in order. Also, secured creditors should consider adding provisions to modification and forbearance agreements to amend the underlying loan documents and specifically provide that the parties intend to have the essential contractual provisions survive post-judgment.

Technorati Tags: New Jersey : Bankruptcy

Hat tip to UrbanRepublic for the pointer.

Technorati Tags: New Jersey : Eminent Domain : Condemnation : Redevelopment

The Superior Court of New Jersey appears to be taking a closer look at redevelopment designations and striking approvals that are based upon the unsubstantiated net opinions of land planners. Courts are willing to review the record before the planning board and governing body to determine whether the designation of an area in need of redevelopment is supported by "substantial credible evidence" as required under the Local Redevelopment and Housing Law ("LRHL"). For example, on December 16, 2005, the Superior Court of New Jersey found that the City of Trenton's approval of an expansion of the Champale Redevelopment Area and amendments to the redevelopment plan was not supported by the record and sent the Trenton Planning Board and City of Trenton back to the drawing board. Shelton v. Planning Board of the City of Trenton, et. al., docket no. MER-L-0068-05 (N.J. LawDiv. Dec. 16, 2005).

In Shelton, the City of Trenton sought to amend a redevelopment area to include additional parcels. Among the parcels to be included in the redevelopment area were lots owned by two individuals who were in the process of developing plans to build residential units on the property (which was the same use as the redeveloper). Although the property owners objected at the public hearings, the Planning Board and City Council approved the area designation and amendment to the redevelopment plan. The property owners filed a complaint in lieu of prerogative writ to challenge the approvals on both procedural and substantive grounds.

In regards to the procedural challenges, the court held that the defects were de minimis and did not rise to the level necessary to overturn the approvals. The decision provides a good overview of the procedure for designating an area in need of redevelopment and is good reading for those interested in learning the process.

However, the main challenge was to the evidence, or lack thereof, before the Planning Board and City Council. The property owners argued that the Planning Board's expert offered a "net opinion" which was not supported by a sufficient study of the properties to be included in the redevelopment area. As a result, the Planning Board and City's reliance on the study was arbitrary, capricious and unreasonable and should be vacated.

In reviewing the challenge, the Shelton court reviewed the record in light of the procedures and techniques developed in ERETC v. City of Perth Amboy, 2005 N.J.Super. Lexis 337 (App. Div. November 15, 2005). In ERETC, the Appellate Division found that the planning board's expert:

he did not inspect the interiors of the buildings, did not review applications for building permits, did not review occupancy rates or the number of people employed in the area. He did no investigation into whether the properties were "properly utilized" or whether they were "fully productive" or "potentially useful and valuable for contributing to and serving the public health, safety and welfare."

In Shelton, the planner did a "windshield survey", which the court found troubling, and the record did not indicate that the planner took the steps outlined in the ERETC decision. In the end, the Shelton court held that the planner's report was an unsubstantiated "net opinion" and failed to prove that the expanded area met the requirements of the LRHL.

Township of Bloomfield v. 1101 Washington Street, Docket No. ESX-L-2318-05 (August 3, 2005), ERETC v. Perth Amboy, LBK Associates, L.L.C. v. Save Our Homes, et. al., docket no. BER-L-8766-03 (October 6, 2005), and Shelton v. City of Trenton, are cases decided over the past six months in Essex County, Middlesex County, Bergen County and Mercer County, respectively. In each case, the planning board's expert failed to perform an adequate study of the properties in question resulting in a successful challenge to the approval of an area in need of redevelopment.

Technorati Tags: New Jersey : Eminent Domain : Redevelopment : Condemnation

This week's New Jersey Legal Update is presented by Timothy Duggan, Chair of the Firm's Property Valuation group.

You can download the New Jersey Legal Update Podcast # 22 here.(5MB)

Technorati Tags: New Jersey : Podcast : Tax