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Echelon Glen Cooperative, Inc. v. Voorhees Township

August 4, 1994

ECHELON GLEN COOPERATIVE, INC. AND BALA PROPERTIES GROUP, INC., PLAINTIFFS-RESPONDENTS,
v.
VOORHEES TOWNSHIP, DEFENDANT-APPELLANT.



Judges Brody, Stern and Keefe.

The opinion of the court was delivered by: Stern, J.A.D.

Argued April 26, 1994

On appeal from the Tax Court of New Jersey.

Pursuant to leave granted, defendant Voorhees Township appeals the Tax Court's order denying its motion to dismiss plaintiff's appeal from the 1991 tax assessment for three of its properties in the Township. *fn1 We also granted Richard Simon, purchaser of the tax sale certificates for two of plaintiff's properties, leave to appeal the denial of his motion to intervene in order to pursue dismissal of plaintiff's tax appeal. The Township and Simon contend that the Tax Court may not consider the tax appeal because plaintiff failed to pay the taxes due on the property, as required by N.J.S.A. 54:3-27, and that the statutory prerequisite to such an appeal is not satisfied by the sale of certificates which provide revenues in lieu of the taxes. The Township also contends that the Tax Court erred in holding that plaintiff was excused from complying with N.J.S.A. 54:3-27 in filing the appeal without payment of the taxes because it was in receivership and therefore was indigent.

On August 13, 1991, plaintiff filed a complaint with the Tax Court *fn2 appealing the 1991 assessments on Block 150.03, Lot 1, and Block 150.14, Lots 2 and 8, alleging that they were "arbitrary, unreasonable, unequal and discriminatory in comparison with other assessments in [the] taxing district." However, plaintiff made no payments on the assessments. *fn3

On April 29, 1992, Simon purchased from defendant Township tax sale certificates for Block 150.03, Lot 1, and Block 150.14, Lot 2, for $336,818 and $357,236, respectively. Each certificate bore an interest rate of 18% and was purchased for the amount of the 1991 taxes on the lots plus sewer and utility charges. *fn4 The sales were conducted pursuant to N.J.S.A. 54:5-19 requiring such a sale after April 1 following the fiscal year in which they became in arrears. Neither defendant Township nor plaintiff disputes Simon's contention that the tax sale certificates did not indicate that the 1991 assessment had been appealed by the property owner. No information about the appeal was conveyed incident to the tax sale.

Before the Tax Court, plaintiff estimated that the true value of the properties was approximately $9,000,000, whereas, defendant estimated it to be approximately $16,000,000. It was therefore apparent that the property had been over assessed at $20,400,000. The tax appeal was, in any event, adjourned to permit plaintiff and the Township to reach a settlement after they received "their respective finalized appraisals."

However, on September 14, 1993, defendant Township filed a motion to dismiss the complaint on the ground that N.J.S.A. 54:51A-1(b) required that taxes be paid before the appeal could be filed. The motion was denied.

The Tax Court also denied Simon's motion to intervene. He asserted that if the assessment was reduced and the taxes paid, his interest would be jeopardized and that he was, therefore, entitled to intervene in support of dismissal of the appeal. We granted him leave to appeal after learning that the Township initially decided not to pursue the dismissal.

In a letter opinion filed pursuant to R. 2:5-1(b), the Tax Court held that under Woodlake Heights Homeowners Ass'n, Inc. v. Middletown Tp., 7 N.J. Tax 364, 367 (App. Div. 1984), an indigent taxpayer unable to pay its real estate taxes must be allowed to maintain a tax appeal. It ruled that because plaintiff was in receivership, the taxes did not have to be paid for plaintiff to "continue to pursue its appeal." The Tax Court also noted that the 1991 appeal could not be dismissed because "plaintiff's 1991 real estate taxes had been paid by the purchaser of a tax sale certificate." The judge relied on Freehold Office Park v. Freehold Township, 12 N.J. Tax 433 (Tax 1992), in so holding.

I.

We recently rejected the notion that there is a constitutional right to pursue a tax appeal before payment of the taxes:

Plaintiff appeals contending its inability to pay should constitute an exception to the requirements of N.J.S.A. 54:3-27 so plaintiff's due process rights can be protected. Alternatively, it argues the tax court erred in denying it a hearing on the issue of ability to pay. We find the contentions clearly without merit and affirm. See R. 2:11-3(e)(1)(D), (E).

We are bound by the New York, Susquehanna and W.R.R. Co., [44 N.J. 491 (1965)] holding. If an exception is to be carved out, as plaintiff argues it must ...


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