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Southgate Realty Associates v. Bordentown Township

Decided: February 20, 1991.

SOUTHGATE REALTY ASSOCIATES, PLAINTIFF-RESPONDENT,
v.
BORDENTOWN TOWNSHIP, DEFENDANT-APPELLANT



On appeal from the Tax Court of New Jersey.

Gaulkin, Shebell and Havey. The opinion of the court was delivered by Havey, J.A.D.

Havey

[246 NJSuper Page 150] Defendant Bordentown Township appeals from a "judgment of affirmance" entered by the Tax Court in response to Bordentown's motion to dismiss plaintiff Southgate Realty Associates' tax appeal. The motion had been made pursuant to N.J.S.A. 54:4-34, commonly referred to as "Chapter 91" (L. 1979, c. 91, ยง 1), which provides that "[n]o appeal shall be heard" from the

tax assessor's valuation with respect to income-producing property where the owner fails to respond to a request by the assessor for income and expense data within 45 days of such request. The issue raised by this appeal is whether, when the taxpayer concedes that it did not comply with the assessor's request and there is no question as to the reasonableness of the assessor's valuation, a judgment should be entered affirming the assessment or whether the judgment should dismiss the appeal. The distinction is significant since a judgment affirming the assessment may trigger application of the Freeze Act, N.J.S.A. 54:51A-8, which provides that when a "final judgment" has been entered by the Tax Court, it is conclusive for the assessment year and for the two successive years, except as to changes in value of the property occurring after the assessment date. We agree with Bordentown that a dismissal of Southgate's appeal should have been entered. We therefore reverse and remand for the entry of a judgment of dismissal.

Southgate owns an income-producing multi-family complex in Bordentown. In August 1987, Bordentown's tax assessor requested Southgate to provide "income and expense data" for the tax year ending December 31, 1986 relating to the property for the purpose of making an assessment for the 1988 tax year. Southgate did not respond to the request. Based on the data available to the assessor, the property was valued at $4,378,000 for the tax year 1988.

Southgate filed a direct appeal in the Tax Court, see N.J.S.A. 54:3-21, challenging the 1988 assessment, claiming that it exceeded the property's true value, that it was in excess of the common level of assessments in the district and of the "Chapter 123" common level range and that it was discriminatory. Bordentown moved to dismiss the complaint pursuant to N.J.S.A. 54:4-34. Accompanying Bordentown's motion was a form of order granting Bordentown dismissal of Southgate's appeal with prejudice and its assessor's affidavit stating that Southgate

had failed to respond to his request for the income and expense data.

In response to Bordentown's motion, Southgate claimed that it had not received the assessor's notice and further that it was entitled to a hearing regarding the reasonableness of the assessor's valuation, relying on Ocean Pines, Ltd. v. Borough of Point Pleasant, 112 N.J. 1, 547 A.2d 691 (1988). In Ocean Pines, the Supreme Court afforded the taxpayer a narrowly circumscribed remedy, notwithstanding its noncompliance with N.J.S.A. 54:4-34. Adopting the reasoning of the Appellate Division,*fn1 the Supreme Court held that the noncomplying taxpayer "must have an available remedy in those cases in which the assessor has unreasonably valued the property[,]" but that the remedy would be limited in its scope to the reasonableness of the value based on the assessor's available data. 112 N.J. at 11, 547 A.2d 691 (emphasis in original). The court also directed that "[i]n most cases such an appeal may be disposed of . . . in summary fashion[.]" Id. at 11-12, 547 A.2d 691.

While Bordentown's motion was pending, Southgate received notice that the assessment on its property had been increased for the tax year 1989. In hope of avoiding an increase in its 1989 assessment, counsel for Southgate advised the Tax Court that Southgate "has decided not to oppose [Bordentown's] Chapter 91 motion." He later amplified Southgate's position by noting that Southgate did not oppose the motion because it "believes that the assessment is not unreasonable within the contemplation of [ N.J.S.A. 54:4-34] and the Supreme Court's Opinion in Ocean Pines, Ltd. v. Point Pleasant." Notwithstanding the fact that Bordentown's motion was to dismiss, Southgate asked the Tax Court to enter a judgment affirming the 1988 assessment. The Tax Court, over Bordentown's objection, acquiesced to Southgate's request in view of Southgate's

stipulation as to the reasonableness of the ...


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