On appeal from the Superior Court, Law Division, Bergen County, whose opinion is reported at 197 N.J. Super. 89.
Antell, Shebell and Matthews. The opinion of the court was delivered by Shebell, J.A.D.
[204 NJSuper Page 325] This is an appeal from the July 12, 1984 judgment of the Law Division declaring that L. 1982, c. 220 as amended by L. 1983, c. 155 (N.J.S.A. 54:4-23a) violates Article VIII of the New Jersey Constitution of 1947. The statute under question generally requires that certain forms of unoccupied, newly constructed, residential structures not be subject to taxation for a specified period of time or until a certificate of occupancy has been issued. Our review of the statute and the applicable case law satisfies us that the decision of the Law Division is in error on that issue and that the enactment is a valid and constitutional exercise of legislative authority.
In addition to alleging that the law is "special legislation" in violation of the N.J. Const. (1947), Art. VIII, § 1, para. 2, plaintiffs urge that the enactment is not an "exemption" statute and is subject to the requirements of N.J. Const. (1947), Art. VIII, § 1, para. 1(a) which requires that "all property be taxed according to the same standard of value." In the alternative they allege that even if it is an "exemption" statute it would still offend the same constitutional provision because the exemption is based on the personal status of the owner rather than the use to which the property is put. The Law Division properly rejected these arguments, finding (1) that the statute is an exemption statute and (2) that plaintiffs failed to demonstrate that the legislation was enacted solely for the benefit of private interests, since such interests could coincide with the public interest as determined by the Legislature. N.J. State League of Municipalities v. Kimmelman, 197 N.J. Super. 89, 96, 98-99 (Law Div.1984). We concur with its determination on these two issues for the reasons expressed in its written opinion. Ibid.
Our disagreement with the decision of the Law Division lies with its conclusion that the exemption "excludes from the favored class other forms of new residential construction which should have been included," thereby creating an inequality or preference. Id. at 104.
A statute is presumed to be constitutional and will not be declared void unless it is clearly repugnant to the Constitution. Paul Kimball Hospital v. Brick Township, 86 N.J. 429, 446-47 (1981). The burden is on the party challenging the constitutionality of a statute to demonstrate clearly that it violates a constitutional provision. Piscataway Twp. Bd. of Educ. v. Caffiero, 86 N.J. 308, 318 (1981).
Two provisions of the New Jersey Constitution of 1947 bear on the question before us. Article IV, § VII, para. 9 provides:
The Legislature shall not pass any private, special or local laws:
(6) relating to taxation or exemption therefrom.
Article VIII, § 1, para. 2 provides that:
Exemption from taxation may be granted only by general laws. Until otherwise provided by law all exemptions from taxation validly granted and now in existence shall be continued. Exemptions from taxation may be altered or repealed, except those exempting real and personal property used exclusively for religious, educational, charitable or cemetery purposes, as defined by law, and owned by any corporation or association organized and conducted exclusively for one or more of such purposes and not operating for profit.
In deciding whether an enactment is unconstitutional "special" legislation or constitutional "general" legislation, the determining factor is what is excluded and not what is included. Newark Superior Officers Ass'n v. City of Newark, 98 N.J. 212, 223 (1985). If no one is excluded who should be included, the law is general. Budd v. ...