Newark Property Owner Loses Date of Value Argument

by: Joseph Grather
10 Aug 2017

On August 2, 2017, the Appellate Division affirmed several Law Division orders arising out of a long-running dispute between the County of Essex and the owners of property located in the City of Newark.  The appellate court affirmed trial court orders; 1) setting the date of value, 2) denying reconsideration thereof, and 3) memorializing a jury verdict in favor of the County, and also denied various cross-appeal points challenging evidentiary rulings at trial. County of Essex v. Rubin, Docket A-1651-14T4

We will leave the tortured history of the case to only those who decide to read all the judicial opinions authored  in this case.  The most recent opinion is here: COUNTY OF ESSEX VS. GERALD RUBIN.

The trial court ruled, pretrial, that the date of value would be April 2010, the date the County filed its Declaration of Taking.  After establishing that the County’s interest in the property dated to as early as 1996, the property owner  argued that the “valuation date should be July 1, 2005, the date they claimed the use and enjoyment of the condemned tract was substantially affected by the County’s actions.” Slip op. at 12.  The property owner submitted two appraisals it claimed supported its date of value argument.  One opined that the value was $9M or $11M as of July 2005, and the second opined values of $11M or $13M as of November 2005.  Both opined a highest and best use of residential development.

The first appraiser then opined that the current value for non-residential development was $4M or $5M, and alleged that the approximate $5M loss in value was caused by the County’s actions to acquire the property between 2003 and 2005.

The trial court found the County’s evidence more persuasive, noting, “the owners’ argument that their expert had selected a July 2005 valuation date based on the “totality of circumstances,” the court characterized the appraisal by the owners’ consultant report as “set[ting] forth little more than bare conclusions.” (Slip op. at 15).

“In short, there was no evidence on the summary judgment motion record that created a genuinely disputed issue of material fact as to when the County’s action “directly, unequivocally, and immediately stimulated an upward or downward fluctuation in value . . . directly attributable to a future condemnation,” id. at 129-30; and what the value of the condemned tract was at such time. The owners’ selection of the July 2005 date was demonstratively arbitrary. The owners’ argument that the County’s action substantially affected the value of the condemned tract sometime between December 2003 and July 2005 does not satisfy the requirement that a condemnor’s action immediately stimulate an upward or downward fluctuation in value.” (slip op. 23).

Whether the owners will petition the Supreme Court for certification remains to be seen.

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