Opinion
Nos. 007080-2005 007081-2005
Decided: March 22, 2007
Lee S. Holtzman, Esq. Schneck Holtzman, LLC, 33 Clinton Road, Suite 108 West Caldwell, NJ 07006.
Robert D. Blau, Esq. Blau Blau, 55 Morris Ave., Springfield, NJ 07081.
Dear Counsel: This letter constitutes my opinion in the two above-captioned cases.
I. The owners of two apartment houses in Elizabeth, New Jersey challenged their tax assessments for the tax years 2004 and 2005. The original assessments were as follows:
Block 6, Lot 1610 112-118 West Jersey Street241,300
Land $ 92,400 Improvements Total $333,700Block 4, Lot 1310
418-430 South Broad Street
Land $ 84,000 Improvements 194,000 Total $278,000 For the year 2005, the Chapter 123 ratio for Elizabeth was 15.57 with an upper limit of 17.91 and a lower limit of 13.23. N.J.S.A. 54:1-35a, b, and c,N.J.S.A. 54:1-35.1, N.J.S.A. 54:51A-6, L. 1973, c. 123.Appeals were taken to the Union County Board of Taxation which affirmed the assessments.
Timely appeals were filed with this court. The 2004 appeals were withdrawn.
The ultimate issue in these cases is the value of each apartment house as of October 1, 2004. The conclusions of the experts are radically different. 112-118 West Jersey Street 418 South Broad Street
Value Per Unit Value Per Unit
Plaintiff's Expert's Opinion $1,575,000 $37,500 $1,350,000 $38,571
Defendant's Expert's Opinion $2,550,000 $60,714 $2,050,000 $58,571
They differ principally because, in applying the income capitalization method of valuation, their conclusions as to the appropriate capitalization rates differ substantially.
II.
The Facts and the Experts' Conclusions
These matters are submitted to me without benefit of a trial.R. 8:8-1(b). By agreement of the parties, I am to determine the proper assessments of two apartment houses in Elizabeth, New Jersey on a record which consists of appraisals of each of the properties prepared by one expert for the property owners ("plaintiff's expert") and another expert for Elizabeth ("defendant's expert"). These reports are supplemented by the transcript of a deposition of plaintiff's expert in a related matter, a detailed listing of all of the 63 apartment house sales in Elizabeth during the years 2003 and 2004, and briefs submitted by the attorneys.
The reports were prepared before the 2004 appeals were withdrawn and include conclusions about the values of these properties for the 2004 tax year. However, only the 2005 assessments are before me.
Each party's expert has relied primarily on the income approach to value. The defendant's expert has performed a comparable sales analysis as well, and as a further check has analyzed sales prices as a multiple of gross income. The plaintiff's expert has used only the income approach to value.
The most significant difference between the two experts' income analyses is their selection of a capitalization rate. There is a very small difference between the two experts' conclusions of net operating income. If I were to determine that the capitalization rate used by plaintiff's expert was correct, my conclusions of value, no matter which expert's opinion of net income I selected, would lead to a reduction of the assessments. If on the other hand, I determined that the capitalization rate used by defendant's expert is correct, no mater which expert's net operating income conclusion I determined to be more accurate, the ultimate conclusions of value would lead to an increase or affirmance of the assessments.
Accordingly, after illustrating the taxpayer's and the municipality's determination of net operating income, I will describe in detail the methods by which plaintiff's expert derived a 10.03% capitalization rate and defendant's expert derived a 7% capitalization rate. Both rates are the rates concluded before the addition of a tax factor. There is no dispute as to the tax factor.
My analysis is best followed by reference to the three tables which follow. Each table has three columns: (1) the conclusions of plaintiff's expert; (2) the conclusions of defendant's expert; and (3) my findings. Note that I have made no findings as to income and expenses because making such a determination within the range of the conclusions of the two experts would have no effect on the ultimate result. See page 9,infra, this opinion at citation to Weiss v. Cedar Park Cemetery, 240 N.J. Super. 86 (App.Div. 1990). Review of the tables will leave no doubt as to my conclusions. The text which follows the tables explains my determination. TABLE 1 2004 Income and Expenses of 112-118 West Jersey Street Used for 2005 Tax Assessment Operating Expenses
See pages 4 and 9 this opinion. Weiss v. Cedar Park Cemetery, 240 N.J. Super . 86, 95 (App.Div. 1990).
Plaintiff's expert added the figures in this column and concluded $149,868, a difference of $4,238. I have subtracted the larger figure from effective gross income to conclude a net income $4,238 less than the conclusion in plaintiff's expert's report.
Defendant's expert added the figures in this column and concluded $128,037, a difference of $5,000. I have subtracted the larger figure from effective gross income to conclude a net income $5,000 less than the conclusion of defendant's expert's report.
TABLE 2 2004 Income and Expenses of 418-430 South Broad Street Used for 2005 Tax Assessment Operating Expenses
See fn. 2, Table 1.
For the property at 418-430 South Broad Street, the experts are in complete agreement as to the effective gross income (Table 2). For the property at 112-118 West Jersey Street, they differ as to effective gross income by $9,689 per year or less than 3% (Table 1). For the property at 418-430 South Broad Street their ultimate disagreement as to net income is $18,053 or approximately 10%. With respect to the property at 112-118 West Jersey Street, their ultimate disagreement as to net income is $30,758, around 15%. Their ultimate conclusions as to the proper capitalization rates to use are 12.46% for the plaintiff and 9.42% by the defendant, an absolute difference of 3.04% which is approximately 24% to 32% of each experts' concluded capitalization rate.
In fact, as the analysis will reveal, after my conclusion of the appropriate capitalization rate to be used, whether I divide that into plaintiff's expert's or defendant's expert's ultimate conclusion of net income, the values of the properties when compared to the 2005 assessments all fall within the Chapter 123 common level range, and thus, the assessments will be affirmed. Because the parties have denied me the opportunity to have their witnesses cross-examined on the issue of income and expenses; because the two experts' opinions with regard to income and expenses are not substantially different; because my conclusion of the appropriate capitalization rate to be used legally compels an affirmance of the 2005 assessments; and thus, because my conclusion with respect to each of the items of income and expense can have no effect on the ultimate outcome of these cases, I decline to make factual findings with regard to income and expenses. A court need not decide matters of disputed fact if its findings will not, as a matter of law, affect the outcome of the case. Weiss v. Cedar Park Cemetery, 240N.J. Super. 86, 95 (App.Div. 1990).
III.
Determination of a Capitalization Rate
The three principal differences between the experts' conclusions of the proper capitalization rate to use in order of importance are: (1) the mortgage interest rate (plaintiff's expert's 8% vs. defendant's expert's 6%); (2) the equity rate of return (plaintiff's expert's 10% vs. defendant's expert's 6.5% less a 1% leverage discount, or 5.5%); and to a lesser extent (3) the number of years for the mortgage payout (plaintiff's expert's twenty years vs. defendant's expert's twenty-five years ). See Table 3. I will examine each of these differences after a brief discussion of the criticism leveled at each expert by the opposing attorney.
Each expert has explained the method by which he derived his capitalization rate. Plaintiff's expert has relied on national market data, recognized published reports, and his extensive knowledge and experience in the market. Defendant's expert has derived an interest rate from sales and income data in the Elizabeth apartment house market. Plaintiff has criticized defendant's expert's market derived interest rate because defendant's expert's knowledge of each of the properties he has used is not detailed enough, and therefore, plaintiff concludes there is no support for the expert's conclusion that the data on which he bases his opinion is data from properties comparable to plaintiff's properties. Defendant has criticized plaintiff's expert's interest rates because they are based on inadequate knowledge of the data on which they are based, because they are based on the national market as opposed to Elizabeth specific data and because, when applied to the specific income and expenses of the subject property, they result in per unit values substantially below all of the 63 apartment sales in Elizabeth during the years 2003 and 2004. Although defendant's expert listed 63 sales, he only had information on the number of units in each building for 58 of those 63 sales. Thus, his analysis is really based on 58 sales.
In effect, the criticism of each expert's analysis is based on his adversary's argument that the expert's opinion is based on data from incomparable properties: on the one hand, data from unknown properties in the national market and other unspecified properties (defendant's criticism of plaintiff's expert), on the other hand, data from specific sales of properties in Elizabeth about which the defendant's expert has limited knowledge (plaintiff's criticism of defendant's expert).
Although defendant's expert's knowledge of the Elizabeth market is less than perfect in the analysis presented to the court, it is more detailed than the knowledge of the market contained in plaintiff's expert's report. Defendant's expert has done the better job of analyzing the data specific to the Elizabeth apartment house market. Plaintiff's expert's interest rate conclusions are based on consultation with national reports and his "knowledge and experience in the market." The data on which they are based are less well known to plaintiff's expert than are the Elizabeth specific apartment data on which defendant's expert's opinions are based. Both experts' knowledge is deficient, butGlen Wall Associates v. Wall Tp., 99 N.J. 265, 280 (1985) cautions us not to make unreasonable demands on experts for perfection. Having to choose between competent experts, there is no question that the foundation on which defendant's expert based his conclusions is far more substantial than is that of plaintiff's expert. A simple table reveals that superiority. Basis for Selection of Capitalization Rates Defendant's Expert
Derived from analysis of 6 sales of apartment buildings in Elizabeth
Correlation of eventual per unit results with the per unit values of 58 apartment house sales in Elizabeth during the years 2003 and 2004
Plaintiff's Expert
National surveys of 10 apartment building sales in unknown locations
Personal knowledge and experience in the market without citation to specific local data
The theories of plaintiff's expert may be correct, and plaintiff's counsel's criticism of the flaws in defendant's expert's analysis are correct, but the flaws of defendant's expert's analysis are insignificant when compared to plaintiff's expert's ultimate conclusions which are so divorced from the reality of the 58 actual sales of similar properties in the same municipality during the two years immediately preceding the valuation date used by defendant's expert as to make them at best unrealistic. Plaintiff's expert's analysis leads to conclusions based on mathematical calculations which in theory have a logic but in practice come to a conclusion so at variance with the reality of actual sales in the market as to require rejection by this court.
Plaintiff makes much of defendant's expert's lack of knowledge about the 63 apartment house sales which defendant's expert used to illustrate the range of per unit values in Elizabeth, and the 14 apartment house sales that he used in his comparable sales analysis and the six sales he used to derive a capitalization rate. Each property is listed by street address, block and lot, and date of sale. Plaintiff has not challenged or analyzed a single one of these Elizabeth sales to even attempt to show that it is not comparable to either of the subject properties. Meanwhile, plaintiff's data on which it bases its interest rate calculations is based on 10 unknown buildings in 10 unknown locations. Having been given the opportunity to dispute the comparability of defendant's expert's 63, 14, and 6 sales, plaintiff has failed to show that even one of these over 63 sales examined by defendant's expert is not comparable in even one specific characteristic to the subjects of this appeal.
Kearney Leasing Corp. v. Kearney, 6 N.J. Tax 363, 376 (Tax 1984) states that interest rates derived from the market must be based on comparable properties. Plaintiff's expert's capitalization rate is based on data from 10 unknown properties in 10 or fewer unknown locations somewhere in the United States. Defendant's data is based on data from six identified apartment house sales in Elizabeth. Plaintiff's argument that defendant's expert does not know enough about these six sales, and implicitly that plaintiff's expert knows as much or more about his ten unidentified sales borders on the ridiculous. It turns logic on its head. If plaintiff's argument that defendant's Elizabeth data regarding capitalization rate is not reliable as data from properties which are comparable to the subjects of this appeal then by the same logic plaintiff's data derived from the sale and financing of ten unknown properties is even less reliable.
I find that within the standards of Glen Wall, supra, the fault that plaintiff's counsel has found with defendant's expert's report is little more than nit picking when compared to defendant's criticism of plaintiff's expert's analysis and the data on which plaintiff's expert has relied. Both experts used a band of investment approach to calculating a capitalization rate. Plaintiff's expert concludes that the proper mortgage interest rate is 8%. Defendant's expert concludes that the mortgage interest rate is 6.5% less, a 1% leverage discount or 5.5%.
Plaintiff's expert's conclusion of a mortgage interest rate of 8% is based on numerous tables which comprise the appendices to his reports in the two cases and is explained in his deposition testimony. Meadow Builders v. Elizabeth, Tax Court Docket No. 7209-2004 dated November 8, 2005. It is said to be the typical apartment building mortgage rate in rent controlled communities, plus ½ to 1% for new financing and his interpretation of the tables in his report. When asked in the deposition to specifically show how the tables in the report tied in to his precise 8% number, he was unable to do so and he was unable to confirm that the data used to prepare the reports in his appendices were derived from rent controlled apartments similar in age, configuration, and location to the subject properties.
Similarly, plaintiff's expert's 10% rate of return to equity was supported by his experience in the market, and his sense of what the rate should be and was. The link between the supporting data in the appendices to his reports and his conclusions was not adequately explained so that I could understand the link (i.e., the analysis of the data by the expert) between the data and the expert's ultimate conclusion.
Defendant's expert's conclusion as to the components of his total capitalization rate of 7.00% is not presented with significantly greater precision than is plaintiff's expert's conclusion as to those components. However, defendant's expert's conclusion of the total capitalization rate is confirmed in two ways: first, by a market analysis of the income and expenses of six apartment houses in Elizabeth that were sold in arms length transactions during the period immediately preceding the 2005 valuation date and second by a mathematical analysis which shows that if his concluded total capitalization rates are divided into either his or the plaintiff's determination of net income to the subject properties they yield per unit values that fall within the range of actual per unit sales of the 58 apartment houses which were sold in Elizabeth during 2003 and 2004. The plaintiff's ultimate conclusions of value based on his capitalization rates yield per unit values that are well below the range of per unit sale prices of all apartments sold in Elizabeth during the 2003-2004 period. Something is wrong with a mathematical analysis that concludes per unit values for substantially similar properties that fall outside the range of all sales in the period immediately preceding the valuation date. The most substantial differences between plaintiff and defendant's expert are the capitalization rates. I find that plaintiff's capitalization rates are unrealistic, inadequately explained, and for purposes of this analysis, not credible.
It is not for the trier of facts to decide abstractly what return an investor should want; the inquiry relates to what investors in property of this kind in fact do demand and do obtain in deals with willing sellers. [emphasis in original.]
New Brunswick v. Division of Tax Appeals, 39 N.J. 537, 551 (1963).
Defendant derived its capitalization rate by examining data compiled by recognized market observers looking at sales of three garden and three pre-World War II apartment houses in Elizabeth with 16 to 52 units. He eliminated the high and low values (both from pre-war apartments, the subjects in these two cases before me are garden apartments). Defendant's expert observed a range of overall capitalization rates of 6.50% to 7.19%.
He looked at actual income and expenses of two other apartment houses in Elizabeth of 50 and 37 units, compared their income and expenses to the actual sales prices of the properties and determined overall capitalization rates of 6.65 and 7.2%.
Looking at the Korpacz and RERC tables, defendant's expert concluded a contract interest rate of 6.5% despite average rates of 9.69% or 10.1% with respective rates of 7.5% to 12.5% and 9.0% and 11.5%. However, these national rates were not accepted as they were inconsistent with the market derived overall capitalization rates from known sales and localized reports specifically associated with sales of apartment houses in Elizabeth. In short, defendant's expert rejected those national figures because they were inconsistent with specific figures from Elizabeth properties. Plaintiff's expert relied on the higher capitalization rates associated with national investment grade properties. Defendant's expert, in effect, backed into his components of the interest rates after confirming by Elizabeth specific pretax year data what the overall capitalization rate should be. Because defendant's figures were derived from the Elizabeth market, I adopt them. "Deriving capitalization rates from comparable sales is the preferred technique when sufficient data on sales of similar competitive properties is available." The Appraisal Institute, The Appraisal of Real Estate 531 (12th Edition 2001) and see Highview Estates v. Englewood Cliffs, 6 N.J. Tax 194, 214 (Tax 1983).
The only part of defendant's expert's conclusion of the appropriate capitalization rate that I reject and do not use is his 1% deduction for leverage from the equity rate of return. In doing so I rely on the analysis of Judge Menyuk in her letter opinion dated August 31, 2006 inRevlon Inc. (Mack Co.) v. Edison Twp., Docket Nos. 724-2004 and 775-04 andM. Edison Co., LLC v. Edison Twp., Docket Nos. 4774-05 and 4775-05 which is quoted at length below:
Defendant's expert, as did plaintiff's expert, used the band of investment technique, and also relied on the ACLI tables in selecting an appropriate mortgage interest rate. Excerpts from those tables were included in his appraisal report.
* * *
Defendant's expert testified that, in determining the equity component of the capitalization rate, he reviewed the Korpacz and RERC survey data, excerpts from which were included in his report. From that data, he selected equity rates of 9.5% for October 1, 2003 and 9% for October 1, 2004, close to the equity rate selected by plaintiff's expert for both years, 9.25%. However, defendant's expert adjusted the equity rate for leverage discount and capital expenditure items. The adjustments resulted in rates of 8.5% and 8.0% for the equity component in tax years 2004 and 2005, respectively. [Emphasis supplied.]
Defendant's expert testified that, over the years, the surveys have become more sophisticated and the information has become clearer in terms of how it is generated. According to defendant's appraisal expert, two issues have to be explored in utilizing the capitalization rate information supplied by those surveys. First, in using the band of investment technique, it is assumed that there is a mortgage. According to defendant's expert, investors reporting to Korpacz and RERC are reporting on the basis of all cash transactions, and that a leverage discount must be subtracted from the capitalization rate. It was defendant's expert's opinion that, if an investor borrows a portion of the sales price and puts less of his or her own money into an investment, there is less risk. Accordingly an appraiser needs to discount the capitalization rate for leveraged financing. Defendant's expert testified that Korpacz has given guidance in adjusting survey capitalization rates to account for mortgage financing, and that he deducted 50 basis points, or .50% for leverage discount.
* * *
I do not find defendant's expert's rationale for a leverage discount to be convincing. . . . [T]he leverage discount described by the Korpacz survey appears to be relevant to discounted cash flow analysis and not to direct capitalization, the method used by both appraisers here.
* * *
Plaintiff's expert conceded that defendant's expert's approach to these deductions had been the subject of a fair amount of discussion among appraisers. I infer from plaintiff's expert's testimony that the point made by defendant's expert is regarded by at least some appraisal experts as having some validity.
Judge Menyuk disallowed a leverage deduction where the expert had used .50%. In this case the expert has chosen a full 1.00% deduction. Based on the lack of an adequate explanation in the record for such a large leverage deduction, or, in fact, for any leverage deduction, I will allow none. Furthermore, since defendant's expert's real opinion of value was based on an overall capitalization rate of 7% derived from the Elizabeth market, fine tuning rates derived from national surveys is not helpful.
With respect to the length of the mortgage, I am persuaded from the above discussion that defendant's expert's analysis is generally more accurate and precise than plaintiff's expert's analysis. Defendant's expert's understanding and analysis of this specific market's realities is more thorough and precise than is plaintiff's expert's. Accordingly, I will adopt defendant's expert's conclusion that loans for apartment houses in Elizabeth will be more likely to have a term of 25 rather than 20 years.
IV. Defendant's comparable sales analysis.
Defendant's expert examined fourteen sales of apartment houses in Elizabeth for the years 2002 through 2005. Seven were garden apartments and seven were pre-war. These unadjusted sales prices ranged from $39, 130 per unit to $83,333 per unit. Eliminating the high and low values of garden apartments, they ranged between $50,000 and $81,250 with four of the seven properties selling for between $50,000 and $52,739 per unit. For the pre-war apartments, the values ranged between $39,772 and $57,142 per unit. Eliminating the high and low per unit values, the range was $45,208 to $52,777 per unit with four of the seven priced at between $48,438 to $52,777.
Defendant's expert's adjustment grid for the 2005 tax year had values ranging between $50,530 to $68,912 per unit. He concluded, based on the sales comparison method, a value of $65,000 per unit.
Defendant's expert also performed a gross income multiplier analysis using his sales data. He ultimately concluded (using both the sales comparison and income approaches to value) values between his conclusions based on the income and comparable sales approaches.
V. Defendant's Analysis of All Elizabeth Apartment Sales
Defendant's expert has assembled a list of 63 unchallenged apartment house sales in Elizabeth during the calendar years 2003 and 2004. Five of the buildings have an unknown number of units. He used this sales analysis to calculate a range of per unit values of sales in Elizabeth in the two pretax years. This analysis was different from his comparable sales analysis (discussed at IV, supra, of this opinion) and his derivation of an Elizabeth specific overall capitalization rate based on analyzing six sales for which income data was available (discussed at III, supra, pages 14 and 15). The 58 sales range from five to 118 units. The per unit prices range from $26,250 to $100,000 per unit. The average per unit price is $59,924. The median price is $55,769. Plaintiff's expert's per unit conclusions of value are $35,714 (112 West Jersey Street) and $38,571 (418 South Broad Street). Defendant argues that because they fall outside and below any reasonable range of per unit values of Elizabeth apartment house sales in 2003 and 2004 and well below the lowest sale in 2004 of $48,750 per unit they are incredible and simply wrong. The average and median prices per unit for 2004 sales are substantially higher than the average and median per unit prices for 2003 sales. The previous discussion above is illustrated by the following chart:
Actual Elizabeth Apartment House Sales Data (Per Unit) Average Sales Price Median Sales Price
2003-2004 $59,924 $55,769
2003 $52,919 $55,000
2004 $65,919 $57,143
Experts' and Court's Conclusions of Value (Per Unit) 112-118 W. Jersey St. 418-430 S. Broad St.
Plaintiff's 2004
Per Unit Conclusions $35,714 $38,571
Defendant's 2004
Per Unit Conclusions $60,714 $58,571
Court's Range of Values $46,493 to $53,944 $48,879 to $54,127
Based on the use of plaintiff's net income at the low end and defendant's net income at the high end. See § VI, infra.
Looking at all of the values directly related to actual Elizabeth sales gives me a much firmer basis for accepting defendant's expert's as opposed to plaintiff's expert's conclusions and gives me confidence that my conclusions of value are a far better estimate of the reality of the Elizabeth market then are plaintiff's expert's conclusions.
VI. Determination of Value
My analysis of values based on my concluded capitalization rate and both experts' conclusions of net income yields the following values both gross and per unit.
112-118 West Jersey Street
Plaintiff's expert's net income divided by court's capitalization rate $ 191,954 9.83%
See Table 1.
See Table 3.
Gross Value divided by 42 units = per unit value $1,952,736 $ 46,493
Defendant's expert's net incomefn8 Divided by court's capitalization ratefn9 $ 222,712 9.83%
Gross Value Divided by 42 units = per unit value $2,265,636 $ 53,944
418-430 South Broad Street
Plaintiff's expert's net income divided by court's capitalization ratefn9 $ 168,171 9.83%
See Table 2, supra.
Gross Value divided by 35 units = per unit value $1,710,793 $ 48,880
Defendant's expert's net incomefn10 Divided by court's capitalization ratefn9 $ 186,224 9.83%
Gross Value Divided by 35 units = per unit value $1,894,445 $ 54,127
My per unit conclusions of value range between $46,493 and $53,994 for 112-118 West Jersey Street and between $48,879 and $54,127 for 418-430 South Broad Street. These values are within the range of defendant's sales comparison analysis, and his survey of 58 sales of Elizabeth apartment houses in 2003 and 2004 and his analysis of 2004 sales only. Plaintiff's ultimate conclusions of value are below any of the fourteen actual sales used by defendant in its sales analysis and at the extreme end of per unit sales prices for 58 apartment houses sold in Elizabeth in 2003 and 2004 and below all per unit sales prices for the 27 sales in 2004.
The overwhelming data of Elizabeth apartment house sales in 2003 and 2004 cannot be overcome by plaintiff's income analysis. That analysis based on the selection of interest rates from a wealth of "data" which plaintiff's expert fails to link to the Elizabeth market and fails to directly link to his own conclusions, must, in the terminology of the appraisal trade, be considered a "net opinion." Although this court often accepts interest rate conclusions based on national data, the defendant's expert's conclusion based on actual Elizabeth market data, is so far superior to plaintiff's expert's conclusions as to persuade this court to accept defendant's expert's conclusions. Defendant's expert's ultimate interest rate conclusions appear low by national standards. The overwhelming data from the Elizabeth market, from defendant's expert's analysis of six sales to derive a market interest rate, from defendant's expert's analysis of 14 sales to conclude a per unit value, and from defendant's analysis of all 63 sales occurring in Elizabeth in the two pretax years is so convincing that it contradicts the intuitive judgment that his rates are too low.
Particularly when plaintiff's expert's ultimate conclusions of value, on a per unit basis, fall well outside a careful analysis of the sale of 27 similar properties, in Elizabeth in 2004, and
58 properties in the two pretax years (2003 and 2004) his ultimate conclusions of value must be rejected by the court.
Although capitalization of income is an acceptable approach, it is beset with so many debatable incidents that it should not lightly be accepted as the single solvent of a quarrel over assessment. Generally it is well to measure its results against other known data and the common sense of the situation. [Emphasis supplied.]
New Brunswick v. Division of Tax Appeals, supra. at 551.
Ultimately, the burden of overcoming the presumption of correctness of the county board judgments is on the plaintiff. Plaintiff's failure in both cases to introduce evidence which is definite, positive, and certain as to quality and quantity which is necessary to overcome that presumption makes the affirmance of the assessments an undebateable legal conclusion. Pantasote Co. v. Passaic, 100 N.J. 408, 412-413 (1985); Aetna Life Ins. Co. v. Newark, 10 N.J. 99, 105 (1952).
VII. Chapter 123 Analysis
The final step in the analysis is the application of Chapter 123. For 2005, the Chapter 123 ratio for Elizabeth was 15.57 with an upper limit of 17.91 and a lower limit of 13.23. If the ratio of assessments to true values falls within the upper and lower limits, they must as a matter of law be affirmed. N.J.S.A. 54:51A-6. 112-118 West Jersey Street
Assessment divided by value based in plaintiff's expert's net income $ 333,700 $ 1,952,736
equals 17.088
Assessment divided by value based in defendant's expert's net income $ 333,700 $ 2,265,635
equals 14.729
418-430 South Broad Street
Assessment divided by value based in plaintiff's expert's net income $ 278,000 $ 1,710,793
equals16.250
Assessment divided by value based in defendant's expert's net income $ 278,000 $ 1,894,445
equals14.674
Since all of the ratios fall within the Chapter 123 corridor (the common level range), the assessments and judgments of the Union County Board of Taxation must be affirmed.
VIII.
To summarize:
1) These matters were submitted pursuant to R. 8:8-1(b) on a record of two experts' appraisal reports, the deposition of plaintiff's expert in a related matter and a detailed listing of 63 apartment house sales in Elizabeth, New Jersey during the years 2003 and 20004. From that evidence, the two attorneys have submitted argument in the form of written briefs.
2) I find that plaintiff has failed to meet its burden of producing evidence which is definite, positive, and certain in quantity and quality in order to overcome the presumption that the assessments and Union County Board of Taxation judgments are correct. Aetna, supra, and Pantasote, supra.
3) I also find that any possible value of each property supported by the evidence leads to a conclusion under N.J.S.A. 54:51A-6 (Chapter 123) which compels, as a matter of law, an affirmance of the county board judgments.
The Court will enter judgments affirming the county board judgments.
Very truly yours,
Joseph C. Small, P.J.T.C.