Conley, J.t.c. (temporarily assigned).
[185 NJSuper Page 344] This litigation was instituted by an organization of taxpayers who challenge the right of their municipal governing body to withdraw, without the consent of the local tax assessor, certain complaints filed in the Tax Court by the municipality. The
municipal assessor is a named defendant but has filed a cross-claim against the taxing district in which he also challenges the announced intention of the governing body to withdraw its appeals against his advice. The Association of Municipal Assessors of New Jersey was permitted to intervene as a plaintiff because the primary issue raised by the parties affects the role of assessors in all 567 taxing districts in the State. The Attorney General was permitted to intervene for the limited purpose of defending the constitutionality and validity of the statutory scheme establishing the existing tax appeal procedure.
The facts essential to a resolution of this matter are not in dispute and plaintiffs have filed a motion for summary judgment. The motion was heard on short notice with the consent of all parties. At the close of oral argument on the motion the court granted plaintiffs' application for a preliminary injunction restraining defendant township from withdrawing any pending complaints in the Tax Court without the consent of the assessor until the further order of this court.
The present matter has its origin in a revaluation of all real property in the township that was effective for the tax year 1980. Many taxpayers appealed their new assessments to the Hunterdon County Board of Taxation, which granted a considerable number of reductions. Plaintiffs allege that many other taxpayers with similar dissatisfaction over their new assessments did not appeal to the county board and thus received no reductions in their assessments. On February 5, 1981 the Clinton Township Council adopted Resolution 22-81 authorizing the township attorney to file complaints with the Tax Court seeking a restoration of the original assessments established by the revaluation. The township attorney filed approximately 190 complaints with the Tax Court pursuant to Resolution 22-81. In due course, the township's complaints were scheduled for trial in the Tax Court. As the first 30 or 40 matters were reached, one was tried to judgment and the remainder settled. In each instance the assessment resulting from the Tax Court proceeding
was higher than the assessment that had been determined by the county tax board.
The revaluation and ensuing litigation caused a considerable amount of turmoil within the municipality. Some taxpayers, particularly those whose assessments had been reduced by the county tax board, were upset that the governing body had authorized appeals to the Tax Court seeking to have the original assessments reinstated. These homeowners and presumably other dissatisfied citizens expressed their concern in the political arena. At the township election in November 1981 two individuals were elected to the township council who had run as a team on a platform stating that the municipality's tax appeals should not be pursued. One of these new members was elected mayor. The other new member represented to the court that she is convinced the new members were given a mandate by the voters to terminate the pending tax litigation.
On January 21, 1982, at or about the time that the first 30 or 40 cases had been or were being reduced to judgment by the Tax Court, the township council adopted a motion made by the new mayor directing the tax assessor to inform defendants in the remainder of the tax cases that the township would settle the cases at the assessments determined by the county board. Obviously, the effect of this motion would have been to withdraw the complaints filed by the township, leaving the reduced assessments intact. The mayor and one other council member who voted for the motion were defendants in pending tax appeals. The tax assessor asked to be heard on the motion and was advised by the mayor that he could not be heard. It is undisputed that the assessor has taken a consistent position that the township should prosecute its tax appeals in an effort to have the original assessments restored. The assessor then asked whether he should see the former municipal attorney or the newly-appointed municipal attorney for an interpretation of council's motion regarding tax appeals. The new mayor replied that the assessor should see the mayor directly on this subject.
On January 25, 1982 the mayor wrote the following letter to the assessor reminding him of the council's resolution:
As Mayor, I am advising you to take immediate action in this matter, contacting those taxpayers whose cases are being heard first on February 23rd, followed by those being heard on dates thereafter until all are contacted.
I am also advising you to attend the Council agenda meeting on February 3rd prepared with a complete list of results.
On February 4, 1982, subsequent to the filing of the present complaint and the issuance of a temporary restraining order preventing the township from taking action pursuant to its motion, the township council rescinded the motion and adopted Resolution 15-82. This resolution appointed new counsel for the township's tax litigation and directed him to attempt to "dispose of such appeals" at the reduced assessment made by the county board. This resolution differed from the council's prior motion in two respects: it directed the township's special tax attorney (rather than the tax assessor) to take action, and it excepted from its coverage the appeals involving the mayor and the other council member who had voted for the January 21, 1982 motion. However, the new resolution also directed the new tax attorney to advise the township council "whether it would be proper" for him to represent the township in attempting to dispose of the appeals of the mayor and the other council member. The new resolution was executed by the mayor on behalf of the council.
Plaintiff taxpayers in the present action contend that the municipal governing body has no authority "to interfere with the process of assessment" and that the resolution directing the township's new attorney to settle the tax appeals was therefore ultra vires. They also contend that withdrawal of the pending tax appeals would result in a lack of uniformity among the assessments in the township because some assessments would be as determined by the revaluation and some would be as reduced by the county tax board. Their complaint contains two counts. One count seeks relief in lieu of prerogative writs in the form of a permanent injunction to restrain the township's mayor and council from interfering with the tax assessor in the performance of his legal duties. The second count seeks a declaratory
judgment providing that only the tax assessor and not the municipal governing body has the authority to control the tax appeal process on behalf of the municipality, particularly with regard to the settlement and withdrawal of tax cases.*fn1 Defendant tax assessor's cross-claim seeks a declaratory judgment defining the statutory role of the assessor in connection with tax litigation and declaring that the municipal governing body has no statutory power and authority to direct an assessor to dispose of such litigation upon terms and conditions which the assessor considers in his judgment to be contrary to law or unjust.
The preliminary injunction issued by this court on the return date of its order to show cause has maintained the status quo of the township's tax appeals while the court has prepared this opinion. The relationship between the roles of municipal governing bodies and tax assessors in the context of local property tax matters has been a matter of some uncertainty in recent years and it is a subject that warrants a rather extensive discussion in this case because it has such general application.
The first issue that needs to be resolved is whether the local governing body or the local tax assessor has the authority to initiate, prosecute, settle and withdraw from tax litigation on behalf of a municipality. The basic statute which permits a municipality in the first instance to appeal an assessed valuation of ...