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New Jersey Apartment Ass'n, Inc. v. Director

September 29, 1997

NEW JERSEY APARTMENT ASSOCIATION, INC. AND LISMARC REALTY MANAGEMENT CORP., RECEIVER FOR DAKOTA REAL ESTATE CO., PLAINTIFFS-APPELLANTS/CROSS-RESPONDENTS, AND SOCIETY HILL APARTMENT ASSOCIATION, L.P., PLAINTIFF/INTERVENOR,
v.
DIRECTOR, DIVISION OF LOCAL GOVERNMENT SERVICES, DEPARTMENT OF COMMUNITY AFFAIRS, STATE OF NEW JERSEY, DEFENDANT-RESPONDENT/CROSS-APPELLANT, AND TAX COLLECTOR, TOWNSHIP OF WASHINGTON, COUNTY OF GLOUCESTER, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Gloucester County.

Approved for Publication September 29, 1997.

Before Judges Shebell, D'Annunzio and Coburn. The opinion of the court was delivered by Coburn, J.A.D.

The opinion of the court was delivered by: Coburn

The opinion of the court was delivered by

COBURN, J.A.D.

This appeal involves interpretation of the Tenants' Property Tax Rebate Act, N.J.S.A. 54:4-6.2 to -6.13 (the "Rebate Act"), consideration of its constitutionality, and evaluation of the validity of a rule, N.J.A.C. 33-3.8 (a) and (b), promulgated by the Director of the Division of Local Government Services, which interpreted the Rebate Act in a manner which is argued to be inconsistent with the Supreme Court's construction of this legislation in Cold Indian Springs Corp. v. Township of Ocean, 81 N.J. 502, 410 A.2d 652 (1980).

The action was filed in the Law Division pursuant to the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62, by New Jersey Apartment Association, Inc., an organization which represents the interests of landlords, and by Lismarc Realty Management Corp. ("Lismarc"), the receiver for Dakota Real Estate Co., the owner of an apartment complex in the Township of Washington which was sold to plaintiff/intervenor, Socity Hill Apartment Association, L.P., on April 13, 1993. The matter was determined below on motions for summary judgment. The Law Division invalidated the rule but rejected plaintiffs' interpretation of the Rebate Act and upheld its constitutionality. Plaintiffs filed a notice of appeal *fn1 and the Director filed a cross-appeal seeking to sustain the rule. We affirm.

I.

The undisputed facts show that the aggregate local property tax assessment in 1990 for the Lismarc property (consisting of four individually taxed lots) was $24,718,700. The Washington Township assessor revised the aggregate assessment for 1990 and 1991 to $21,000,000. Tax appeals were filed for the 1991 and 1992 tax years. The cases were settled and judgments were entered reducing the aggregate assessments for those years to $19,000,000. For the 1991 tax year, the judgment was entered by the Tax Court (where the appeal had been filed) on March 31, 1993. For the 1992 tax year, the judgments were entered by the Gloucester County Board of Taxation on May 21, 1992. In accordance with the Freeze Act, N.J.S.A. 54:3-26 and N.J.S.A. 54:51A-8, the tax assessor reflected the aggregate assessment for 1993 at the $19,000,000 value based on the 1992 tax year judgments. Thereafter, the Washington Township tax collector mailed tenant rebate notices to the property owner for the year 1993. These notices reflected the base year as 1990 (when the aggregate assessment was $24,718,700) and employed the 1993 current assessment of $19,000,000 as the basis for calculating the tenant rebate.

II.

Plaintiffs contend that the Rebate Act requires exclusion of all tax appeal judgments from tenant rebate calculations. Therefore, they claim that in this case the tax collector should have based the rebate notice on the $21,000,000 assessment established voluntarily by the tax assessor for the 1991 and 1992 tax years instead of on the $19,000,000 assessment resulting from the consent judgments on the property owner's tax appeals for those years. That position was clearly rejected by the Supreme Court in Cold Indian Springs Corp., (supra) , 81 N.J. at 511-12, and does not require further legal analysis. *fn2

Plaintiffs also contend that the 1991 amendment of the Rebate Act which increased the tenants' rebate from sixty-five percent to one hundred percent of any refund resulting from a tax appeal constitutes a taking of property without due process of law.

Plaintiffs further argue that the 1991 amendment of the Rebate Act which introduced the concept of a "floating" base year, N.J.S.A. 54:4-6.3(c), deprives them of equal protection under the law.

Finally, plaintiffs contend the Rebate Act violates Article VIII, § 1, par. 1(a) of the New Jersey Constitution which requires uniform rules for real property assessment and taxation.

The Director contends that the Law Division erred in finding N.J.A.C. 33-3.8 (a) and (b) inconsistent with the Rebate Act as interpreted by ...


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