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Grandal Enterprises, Inc. v. Borough of Keansburg

July 25, 1996

GRANDAL ENTERPRISES, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
BOROUGH OF KEANSBURG, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.



On appeal from the Tax Court of New Jersey.

Before Judges Baime, Villanueva and Kimmelman. The opinion of the court was delivered by VILLANUEVA, J.A.D. (retired and temporarily assigned on recall).

The opinion of the court was delivered by: VILLANUEVA

The opinion of the court was delivered by

VILLANUEVA, J.A.D. (retired and temporarily assigned on recall).

Plaintiff appeals from the order of the Tax Court dismissing its motion for relief under the provisions of N.J.S.A. 54:51A-8, referred to as the Freeze Act, upon the grounds of lack of jurisdiction because plaintiff failed to appeal the omitted/added assessments to the county board of taxation by December 1, 1994, allegedly required by N.J.S.A. 54:4-63.11 and -63.39. For the reasons that follow, we reverse the judgment of the Tax Court and remand the matter for further proceedings.

I.

On June 19, 1956, plaintiff Grandal Enterprises, Inc.'s predecessor in title, New Point Comfort Beach Company, leased to the Borough of Keansburg (Borough) for thirty years a portion (conceded by both parties to be 9.5 acres) of its 16.22-acre ocean-front property shown on the tax map as block 184, lot 4. The Borough used the property primarily as a parking lot and to allow public access to the beach and boardwalk.

Annual consideration for the lease was one dollar, payment of riparian lease fees, and enactment of an ordinance intended to secure state funding for beach improvements. Among the provisions in the lease was one shifting the lessor's tax liability for the leased portion of the property:

[Para.] 8. All taxes which may hereafter be levied against said property by the Borough of Keansburg or any other governmental agency shall be assumed and paid by the Borough-lessee as part of the consideration of this lease.

In 1973, plaintiff purchased New Point Comfort Beach's property, including block 184, lot 4, and assumed the lease. After the lease expired in 1986, the Borough continued to operate the leased premises as a holdover tenant.

During the period of the Borough's occupancy, the Borough assessed the property for tax purposes. In 1990, when plaintiff appealed its assessments to the Tax Court, lot 4 in block 184 as shown on the tax map was assessed for a combined amount of $3,418,000 ($2,016,000 for land; $1,402,000 for improvements). Complaints were also filed for the tax years 1991 and 1992. In June 1992 the parties settled (hereinafter the 1992 judgment), and the aggregate assessment of lot 4 was reduced to $2,993,000 ($1,848,000 for land; $1,145,000 for improvements).

On December 4, 1992, plaintiff requested that the Borough execute a lease for the parking lot area. The Borough declined the request. On April 8, 1993, the Borough's attorney notified plaintiff that as of May 1, 1993, the Borough intended to discontinue its use of the parking lot. The letter also informed plaintiff that the 9.5 acres would be "returned to the tax rolls" and that it would be "receiving a pro-rated tax bill for the remainder of 1993 based upon the current assessment of the property."

II.

On April 23, 1993, plaintiff filed a complaint in the Law Division (lease action) seeking enforcement of the clause in the lease requiring the Borough to pay all taxes levied on the 9.5-acre portion of lot 4. In defense of plaintiff's claim, the Borough asserted that it had made the leased portion of lot 4 exempt from taxation during the period of its occupancy. In support of this assertion, the Borough pointed to a notation on its tax duplicate denominating the property as tax exempt and claimed that the quarterly tax bills sent to plaintiff for lot 4 indicated the taxable parcel was ...


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