On appeal from the Tax Court of New Jersey.
Matthews, Pressler and Petrella. The opinion of the court was delivered by Matthews, P.J.A.D.
These consolidated interlocutory appeals question the continued viability of this court's decision in Matawan v. Tree Haven Apartments, Inc., 108 N.J. Super. 111 (App.Div.1969).
The facts are not in dispute. Plaintiff Rabstein is the owner of residential property located at 243 Mercer Road in the Township of Princeton; for the tax year 1981, that property was assessed by the township at $156,000.
Plaintiff Bongiovanni is the owner of residential property located at 124 Edgerstoune Road in the Township of Princeton; that property was assessed by the township for the tax year 1981 at $344,000.
Both plaintiffs appealed their respective assessments to the Mercer County Board of Taxation. The township did not cross-appeal in either case. Both assessments were subsequently affirmed by the county board.
On December 4, 1981 each plaintiff filed complaints with the Tax Court, each alleging that the respective assessments were in excess of the true value of the property and hence should be reduced. In each case the township filed a counterclaim asserting that the assessments were in fact below true value and thus should be increased.
On March 19, 1982 both plaintiffs moved to dismiss the township's counterclaims. Finding himself bound by this court's opinion in Matawan, Judge Conley held that the failure of the township to have appealed the original assessment to the county board precluded the Tax Court from setting the true value of the property at a figure higher than that set in the original assessment. Consequently, orders dismissing each counterclaim were entered on April 6, 1982.
We granted leave to appeal in both cases and directed that they be consolidated and accelerated.
In reviewing property tax assessments rendered by a county board of taxation, the Tax Court is authorized by N.J.S.A. 54:2-35 to "give such judgment therein as it may think proper . . . ." Despite this seemingly broad directive, in Matawan v. Tree Haven Apartments, Inc., this court held that the Division of Tax Appeals*fn1 was not thereby authorized to increase an assessment above the original assessment where the taxing district had failed to raise the issue before the county board.
In Matawan the taxpayer had appealed its property tax assessment to the county board. No cross-appeal was taken by the taxing district and the county board subsequently reduced the assessment. The taxing district then appealed to the Division of Tax Appeals, which increased the assessment above the original assessment. On appeal this court held that in the absence of a cross-appeal below, the Division was limited to the restoration of the original assessment. 108 N.J. Super. at 117.
The rationale in Matawan was two-fold: First, in the absence of a cross-appeal below, the taxpayer was without notice that his assessment was being challenged as too low. Thus, "a taxpayer would never know when he would be required to retain counsel and submit ...