New Jersey Court Allows Developer to Sue for Damages for Bad Faith Appeals by Competitor
In a landmark decision issued July 25, 2017, the New Jersey Superior Court, Appellate Division reversed the dismissal of an action by a shopping center developer seeking damages against a Shop-Rite supermarket owner (Ammons Supermarket, Inc.) and its attorneys (R.S. Gasiorowski, Esquire and Gasiorowski & Holobinko) based on Ammons and Gasiorowski’s filing of a pattern of sham litigation intended solely to prevent competition with Shop-Rite supermarkets within the State of New Jersey. The lower court had dismissed the shopping center developer’s claims for malicious abuse of process, tortious interference with prospective contracts and civil conspiracy, finding that Ammons and Gasiorowski’s conduct constituted protected first amendment speech under the Noerr-Pennington doctrine.
Kaplin Stewart, representing the shopping center developer, successfully convinced the New Jersey Appellate Court that the defendants’ conduct fell within the “sham” exception to the Noerr-Pennington doctrine because the developer alleged that the defendants filed a series of objectively baseless land use appeals from the developer’s project, as well as baseless appeals of other development projects involving supermarkets, intended solely to prevent competition with Shop Rite supermarkets.
By reversing the lower court, and allowing the developer’s case to proceed, the Appellate Court has opened the door for developers to sue third party objectors when they file baseless appeals for the improper purpose of preventing competition.
The New Jersey Appellate Court’s decision in Main Street at Woolwich, et al v. Ammons Supermarket, et al. has been approved for publication but has not yet been published. For a copy of this decision, please contact Marc. B. Kaplin, Esquire and Daniel R. Utain, Esquire at Kaplin Stewart Meloff Reiter & Stein, P.C. at (610) 260-6000 or firstname.lastname@example.org and email@example.com.
Authored by Wendi R. Kapustin (firstname.lastname@example.org). Ms. Kapustin is an American Institute Certified Planner. Ms. Kapustin works in the firm’s Land Use, Zoning and Development Department.
PENNSYLVANIA SUPREME COURT THROWS THE BOOK AT SCHOOL DISTRICT TAX APPEALS
Pursuant to a recent order of the Delaware County Court of Common Pleas, the County will now undertake the first reassessment of all property valuations since 2000. The reassessment is required to address the apparent lack of uniformity in property assessments, which constitutes a violation of the Pennsylvania Constitution. The tax burden for some taxpayers may rise substantially.In a July 5, 2017 decision, the Pennsylvania Supreme Court held that Upper Merion Township may have violated the Pennsylvania Constitution by selectively appealing only the assessments of commercial properties, such as apartment complexes, while choosing not to appeal the assessments of other types of property – most notably, single-family residential properties, many of which are under-assessed by a greater percentage. See, Valley Forge Towers, et al v. Upper Merion School District and Keystone Realty Advisors, No. 49 MAP 2016 (Pa. July 5, 2017).
Not surprisingly, the Court did not answer every question and did not provide a definitive road map for property owners to follow. The Court merely stated that the property owner had stated sufficient facts in its complaint to establish that the district had selectively targeted commercial properties for appeal, many of which are owned by non-resident taxpayers, and selectively appealed only certain commercial properties with the largest values, i.e., apartment complexes and shopping centers. The district did not appeal single-family residential properties with same zeal, even though such properties were under-assessed to a greater degree than many commercial properties. Therefore, the district’s practice was violative of the Uniformity Clause of the Pennsylvania Constitution (“… taxes shall be uniform, upon the same class of subjects”).
The Court’s decision comes on the heels of recent debate by the Pennsylvania Legislature on House Bill #1213, which would ban assessment appeals by school districts except in very limited circumstances. HB #1213 would also allow for the results of these appeals, including settlement agreements made pursuant to appeals, to be unwound under certain circumstances. Despite broad support from property owners and various advocacy groups, push back from school districts has temporarily halted its advance.
What does this all mean to someone who is currently fighting a school district appeal or has been victimized by such an appeal in the form of an adverse board or court decision, or a less than favorable settlement agreement? A plaintiff, just like Valley Forge, may get past preliminary objections, but must ultimately develop facts that demonstrate that the school district operated in an unconstitutional manner. Without factual confirmation, the property owner will likely lose at the summary judgment or trial phase. A property owner will be required to engage in an exhaustive and deliberate discovery process to root out facts that may be difficult to find.
Therefore, a property owner with a pending appeal, should consider either a dismissal motion or a separate complaint against a district. Those who have reached unfavorable settlements or simply lost a district appeal, may need to consider a more complex approach to escape from a harsh result. Please give me a call if this is an avenue you wish to pursue. Every case will be slightly different and merit careful analysis.
I represent property owners throughout Pennsylvania in tax assessment appeals and in defending appeals filed by school districts. Please call (610-941-2469) or email me at email@example.com if you have any questions.
P.S. If you want to file your own tax appeal, most counties have adopted an August 1 filing deadline. Don’t wait until the last minute.
DELAWARE COUNTY TO ENGAGE IN REASSESSMENT OF ALL COUNTY PROPERTY
Pursuant to a recent order of the Delaware County Court of Common Pleas, the County will now undertake the first reassessment of all property valuations since 2000. The reassessment is required to address the apparent lack of uniformity in property assessments, which constitutes a violation of the Pennsylvania Constitution. The tax burden for some taxpayers may rise substantially.
Historically, values have increased, though recently some types of property in certain areas have remained unchanged or even decreased in value. No matter what the market conditions are, different properties change in value differently from other properties in other locations. As a result, the fairness of a property tax system that has a single rate for all properties is reduced over time as values change. The inevitable result is some properties become over taxed while others are under
Property owners will likely first receive a “preliminary” assessment notice, explaining the possible change in valuation and assessment for a property. A “final” notice will then be issued triggering the appeal period.
The reassessment will become effective in January 2021.
I represent property owners throughout Pennsylvania in tax assessment appeals and in defending appeals filed by school districts.
For more information, please contact Neil A. Stein, Esquire at (610) 941-2469 or firstname.lastname@example.org.