Jon N. Santemma focuses on tax certiorari and condemnation cases and is active in New York State on issues concerning eminent domain law and real estate taxation. Experienced in complex valuation questions in eminent domain and real estate tax assessment proceedings, he lectures on the subject at educational and professional organizations. Jon has appeared on behalf of claimants or taxpayers in every judicial district in New York State. He has also appeared as special counsel to several municipalities and agencies throughout the state. He began his career serving, for six years, as Law Secretary to the Hon. Howard T. Hogan, administrative judge of Nassau County and the justice assigned to hear all condemnation and tax certiorari cases in Nassau. He assisted the judge in literally hundreds of valuation cases during that time.
How do tax certiorari and condemnation relate to one another?
While both tax certiorari, or real estate tax reduction, and condemnation, also generally known as eminent domain, relate to the valuation of property, they differ as to which law applies in each field. In tax certiorari, we focus on what the value of the property is in its current use and condition. In a condemnation proceeding, we’re interested in what the value of the property is in its highest and best use. For example, if we’re evaluating a country club for certiorari purposes, we’re valuing it as to what kind of rent would be paid by an operator to run a golf course. However, in a condemnation case, if a municipality decided to acquire that property, the country club property owner is entitled to be paid at the highest and best use, which on Long Island would most likely be as a residential subdivision. Therefore, the value of the property is worth significantly more than what it is worth as a golf course.
“Success is when you know that you’re taking good care of your clients. You have their best interests at heart, and you’re protecting them.”
You have extensive experience in the condemnation of property law.
Yes, I’ve written about the topic in Condemnation Law and Procedures in New York for which I was the editor and coauthor, and in Review and Reduction of Real Property Assessments in New York, which I coedited and coauthored. I was also part of the commission that wrote the current New York State’s Eminent Domain Law and Procedures, which increased the protection for the property owner’s rights. But there are still parts of that law that are archaic and should be liberalized. In 2006, we conducted a condemnation conference in Albany after the U.S. Supreme Court case Kelo v. City of New London, which decided that economic development is a valid public use for purposes of eminent domain. This conference brought together lawyers from all sides, plus the Empire State Development Corporation and the New York City Development Authority. The essential issue is what constitutes a “public use” for which a government may take private property.
What are the pressing issues your clients face?
In the tax certiorari realm, it’s the amount of taxes my clients are paying. Some municipalities and industrial buildings are being taxed at confiscatory rates that sometimes reach one third of the rental value that they could get in this market. That means every four years, the full cash flow from the building is being taken. My function is to get all of the clients’ assessed valuations in line with the economics of what’s truly going on. Government is taxing these buildings as though the rents were the same as they were at the height of the market, not as they are currently. The taxes, in the meantime, have increased significantly and the result is that the percentage of real estate taxes being paid in comparison with the rental that they can achieve in the buildings is much too high – which means Long Island can’t compete with Queens, Brooklyn or Westchester. Our job is to get those taxes down to a level that reflects the proper relationship between rental value, building value and cash flow. Once that is accomplished, we stay on top of the assessment issues so as to keep the taxes in line and the property competitive.
In eminent domain cases we represent claimants – people who are losing their homes or business properties through no fault of their own. People who have had their property taken from them by a governmental determination that their private property is needed for some public purpose. Our initial role is to explain to the clients their rights under the Constitution and the Eminent Domain Procedure Law, and to guide them through the process; to confirm that the government is observing all the requirements of constitutional, statutory and case law and where appropriate, to advance proposals to the municipality that might avoid or lessen the impact of the taking. Once the taking occurs, our focus shifts to obtaining just compensation for the client—an analysis which requires experience in the field and a deep understanding of eminent domain law as it affects legal rights to compensation, appraisal law and approaches to value, all as discussed in our book, Condemnation Law and Procedures in New York.
No property, no owner is immune from eminent domain. There are hundreds of takings annually, and I have represented claimants who lost all or part of their homes, farms, investment properties, shopping centers, gas stations, bus lines, recreational property, warehouses, parking lots, apartment buildings, offices, factories and others – just about every conceivable type of property. Each presented its own special valuation and compensability issues and each required an analysis unique to the property. It is our job to represent the involuntary litigant – the claimant – to obtain truly just compensation.
How do you contribute to your clients’ success?
I know what works and what doesn’t work. I know where I can push the envelope. I know how to function with the different municipalities, their varying requirements, methodologies and proceedings. I see when a disproportionate percentage of money is paid in taxes for commercial properties and when to try a case versus negotiating.