On appeal from Superior Court of New Jersey, Law Division, Monmouth County, DC-9982-00.
Before Judges Havey, Coburn and Weissbard.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff,*fn1 who had recently sold real property in the Township of Middletown, sued in the Special Civil Part *fn2 to cancel an erroneous assessment on that property and to recover excess taxes paid for the years 1996 through 1999. By mistake, the higher assessment intended for an adjoining parcel owned by another had been placed on his parcel. The action was based on the following provision of N.J.S.A. 54:4-54:
Where by mistake an assessment intended for one parcel has been placed upon another, the governing body may cancel the erroneous assessment, return without interest any money paid by one not the owner of the parcel intended to be assessed, and enter upon the record the assessment and tax against the proper parcel, after a hearing upon five days' notice to the owner.
The case was submitted to the trial court on defendant's motion for summary judgment. Although its motion did not include the required statement of material facts or any supporting affidavit, R. 4:46-2(a), and was opposed only by a brief asking that the motion be denied, there were no disagreements of fact in the briefs. The trial court denied defendant's motion and, on its own motion, entered judgment for plaintiff in the amount of $1,139.27, representing his overpayments of real estate taxes for the years in question. We affirm in part, reverse in part, and remand for further proceedings.
In its presentation to the trial court, defendant unfortunately failed to mention a significant statute on which it now relies; namely, N.J.S.A. 54:51A-7, which reads as follows:
The tax court may, upon the filing of a complaint at any time during the tax year or within the next 3 tax years thereafter, by property owner, a municipality or a county board of taxation, enter judgment to correct typographical errors, errors in transposing, and mistakes in tax assessments, provided that such complaint shall set forth the facts causing and constituting the error or errors and mistake or mistakes, or either thereof sought to be corrected and that such facts be verified by affidavits submitted by the plaintiff. The tax court shall not consider under this section any complaint relating to matters of valuation involving an assessor's opinion or judgment. Any complaint so submitted shall contain a certification that a copy of the complaint and all exhibits thereto have been filed with the county board, and served upon the property owner or the municipality, or both, as may be appropriate in the case of each plaintiff. Any party required to receive a copy of the complaint pursuant to this section may file an answer to the complaint with the tax court pursuant to rules of court. The tax court may require further proof and grant or deny the complaint as it may deem necessary or proper.
Plaintiff has expressed no objection to our considering the impact of this statute on N.J.S.A. 54:4-54. Since a proper resolution of this issue is of special significance to the public and the record is sufficiently complete to permit its adjudication, we will consider it even though it was not raised below. See, e.g., Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218, 230 (1998); Pressler, Current N.J. Court Rules, comment on R. 2:6-2 (2002).
Plaintiff and his wife, some years before 1996, purchased a single-family house at 27 Downing Street in Middletown. In 1995, Middletown renumbered its blocks and lots. During that process, it committed a clerical mistake: the proper assessment for plaintiff's lot - $221,900 - was placed on an adjacent lot, while the adjacent's proper assessment - $232,800 - was placed on plaintiff's lot. The result was that beginning in 1996, the assessment on plaintiff's lot was $10,900 more than it had been in 1995. Consequently, plaintiff overpaid his real estate taxes by: $277.08 in 1996; $282.53 in 1997; $287.54 in 1998; and $292.12 in 1999. The total overpayment was $1,139.27. On March 3, 2000, plaintiff sold the lot for $285,000. While preparing for the closing, he learned of the 1995 clerical mistake. At some unspecified time thereafter, plaintiff filed a petition with Middletown's governing body asking for relief under N.J.S.A. 54:4- 54. The governing body took no action on the petition. On November 5, 2000, plaintiff filed the subject complaint.
Since 1903, the Legislature has enacted and revised statutes addressing the problem of correcting "mistakes" in local real estate assessments. Now, two applicable statutes exist: N.J.S.A. 54:4-54*fn3 and N.J.S.A. 54:51A-7 (quoted above). Under both statutes, "mistakes" do not include assessments resulting from the exercise of judgment or discretion by the assessor. Farmingdale Realty Co. v. Bor. of Farmingdale, 55 N.J. 103, 110 (1969); Hovbilt, Inc. v. Township of Howell, 138 N.J. 598, 618 (1994).
Respecting N.J.S.A. 54:4-54, the Court put it this way:
Of course, the provision would not be applicable where the mistake related . . . to an error in the description of the property, as for example its size or the nature of the building thereon, which resulted in an incorrect assessment. Such mistakes go essentially to valuation and are ...