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Essex County Board of Taxation v. City of Newark

Decided: February 4, 1976.

ESSEX COUNTY BOARD OF TAXATION, PLAINTIFF-RESPONDENT,
v.
CITY OF NEWARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; KENNETH A. GIBSON, MAYOR OF NEWARK; EARL HARRIS, MICHAEL BOTTONE, ANTHONY GIULIANO, MARIE VILLANI, JAMES ALLEN, ANTHONY CARRINO, SHARPE JAMES, HENRY MARTINEZ, DONALD TUCKER, INDIVIDUALLY AND AS MEMBERS OF THE MUNICIPAL COUNCIL OF NEWARK; JOHN GREXA, FINANCE DIRECTOR OF NEWARK; FRANK D'ASCENSIO, CITY CLERK OF NEWARK; AND JOSEPH FRISINA, TAX ASSESSOR OF NEWARK, DEFENDANTS-APPELLANTS



Kolovsky, Bischoff and Botter. The opinion of the court was delivered by Kolovsky, P.J.A.D.

Kolovsky

Plaintiff Essex County Board of Taxation (county board) has tried since March 1972, albeit unsuccessfully, to compel the City of Newark to undertake a revaluation of all its real property -- this to secure, as mandated by N.J.S.A. 54:3-13, the taxation of all property in the city at its taxable value. Cf. Bergen Cty. Bd. of Tax. v. Bogota , 114 N.J. Super. 140 (App. Div. 1971).

Defendants' appeal is from an order (whose contents will be described later) entered by the trial judge on March 10, 1975 in an effort to effectuate the revaluation program after defendants had failed to comply with prior orders in the nature of mandamus entered by the trial judge on May 8, 1974 and October 25, 1974.

The revaluation had originally been ordered by the county board, with the approval of the State Director of Taxation, by an order dated March 1, 1972. The order was not complied with. On March 12, 1974 the county board instituted this action in lieu of the prerogative writ of mandamus against the city and its tax assessor. The complaint was subsequently amended to add as parties defendant the city's mayor, clerk and finance director, as well as the nine members of the municipal council.

After hearing argument on the return of an order to show cause, the trial judge entered an order dated May 8, 1974 ordering defendants: (1) to comply "immediately" with the board's order of March 1, 1972; (2) to submit monthly reports to the county board and the Attorney General as to the progress of the revaluation program; and (3) to effectuate "the completed revaluation by October 1, 1975, to be effective for the tax year 1976." The court retained jurisdiction for the purpose of obtaining compliance with the order.

No appeal was taken from that order. Indeed, none would have been warranted. "The kind of comprehensive revaluation [so ordered] has become a commonplace of municipal fiscal practice" and one which defendants were duty bound to provide, Bergen Cty. Bd. of Tax. v. Bogota, supra , 114 N.J. Super. at 145, if necessary, by making a special emergency appropriation under the power expressly granted by N.J.S.A. 40A:4-53(b).

It appeared initially that the court's order would be complied with. By letter of May 3, 1974 -- even before the formal order of May 8 was entered -- the tax assessor wrote the Attorney General that in compliance with the court's order the city was "moving to secure a revaluation firm to undertake" a city-wide revaluation program to be completed by October 1, 1975; that an advertisement soliciting bids was being published on May 4, 1974, with the bids to be received on May 14, 1974.

Only one bid, that to perform the revaluation work for $1,480,000, was received on May 14, 1974. At the June 5,

1974 meeting of the municipal council an ordinance authorizing a special emergency appropriation of $1,480,000 for the revaluation program was moved to first reading for the June 19 meeting. Action thereon was then postponed to the July 17 meeting. By letter of July 26, 1974 the assessor advised the Attorney General that the ordinance had been passed on first reading by a 5 to 4 vote and would come up for second reading and final passage at the council's meeting of August 7, 1974, the letter noting that a 6-vote majority was required for final adoption of the ordinance. Action on companion resolutions authorizing the contract and authorizing issuance of notes was deferred.

After having failed of passage at the August 7 council meeting the ordinance was taken up again at the meeting of September 4, 1974. Then too it failed of adoption. On a roll call only the following members, Bottone, Giuliano, Villani and Harris, voted for adoption, and Councilmen Allen, Carrino, James, Martinez and Tucker voted "nay." A motion to table the ordinance and the two resolutions was then adopted by a vote of 7 to 2.

On the county board's application for supplemental relief and on notice to defendants the trial judge entered the order of October 25, 1974 providing that (1) defendants comply immediately with the court's order of May 8, 1974; (2) by November 4, 1974 (a) the municipal council and its nine named members provide, by the enactment of an appropriate ordinance, sufficient appropriations pursuant to the pending bid to fund the revaluation program of the City of Newark ordered by the court, (b) the city and its officials enter into a contract with the revaluation company which had submitted the bid, and (c) defendants provide the Attorney General with a report as to the status and progress of the revaluation program; and (3) that in the event the court's order has not been complied with by November 4, 1974, the Attorney General's office be "authorized to seek [on five days' notice] whatever relief or sanctions, including but not limited to, contempt

proceedings or for such other and further relief as may to the court ...


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