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New Concepts for Living, Inc. v. City of Hackensack

April 13, 2005

NEW CONCEPTS FOR LIVING, INC., PLAINTIFF-APPELLANT,
v.
CITY OF HACKENSACK, DEFENDANT-RESPONDENT.



On appeal from a final judgment of the TaX Court of New Jersey, Docket No. 00-4896-01.

Before Judges Kestin, Lefelt and Alley.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically February 16, 2005

Plaintiff, New Concepts, Inc., appeals the loss of its local property tax exemption for tax years 2000 and 2001 on a building that it owns in Hackensack. New Concepts, a private non-profit entity, was originally formed by parents of young disabled adults. Its purpose was to establish group homes for disabled adults. The entity currently runs seven group homes. During the mid-1990's, plaintiffs bought the building in question, located at 795 Main Street in Hackensack, and maintained an office there. On February 19, 1998, plaintiff ceased using that building as an office, relocated to 386 Hudson Street in Hackensack for eighteen months, and then permanently moved to Rochelle Park. Plaintiff continued to own the building at 795 Main Street, however, and rents the space there to another non-profit entity. During its occupancy of the building, plaintiff, as a non-profit organization, was exempt from paying property taxes on the building.

On October 12, 1999, the Hackensack Tax Assessor, Arthur Carlson, attempted to send a letter to plaintiff at the 795 Main Street address. The letter requested that plaintiff complete some paperwork so that information on the property could be updated. Enclosed was an"Initial Statement" form"to be filed, to continue tax exempt status." This letter was returned by the Postal Service to Carlson on October 15, 1999, with the reason for the return stamped thereon as"forwarding expired."

In a certification dated March 26, 2002, Carlson described the circumstances surrounding the mailing and subsequent return of this letter. He further certified that while on a later periodic inspection tour of the City, he saw a sign reading"New Concepts for Living" at 386 Hudson Street, Hackensack, New Jersey. He then mailed an October 15, 1999 letter, similar to that mailed on October 12, to the Hudson Street address via certified mail and someone at that address accepted this letter. Unlike the October 12 letter, the October 15 letter did not refer to or enclose an"Initial Statement" form that needed to be completed by plaintiff"to continue tax exempt status."

The City later mailed to plaintiff, on January 30, 2001, Tax Assessment Notices for years 2000 and 2001 for 795 Main Street. Carlson stated that he"placed the subject property back on the tax rolls beginning in 2000" based on his"initial inspection of the subject premises and lack of input from the property owner[.]" The assessment notices were mailed to the 795 Main Street address though the City was aware of plaintiff's change in address and, as a result, plaintiff never received the assessment notices and they were returned to the City. In addition, the tax bills for 2000 and 2001 were sent to the wrong address, even though plaintiff's operations were no longer located there, something that the City's tax collector, Peggy Moncrief, confirmed in her certification.

Plaintiff did receive, however, a notice of municipal taX sale of the 795 Main Street property in July 2001 to satisfy unpaid 2000 taxes; the notice was provided by phone and letter. The letter stated that the tax sale was scheduled for October 10, 2001. Plaintiff's attorney, James Plosia, testified that upon receiving this notice, he contacted the City, speaking with, among others, Carlson and Moncreit. Plosia remembered explaining to the City that the bill was a mistake since the property had been tax-exempt, and even upon plaintiff's relocation, that plaintiff leased the premises to another non profit organization, thereby retaining its tax-exempt status. He further stated that as a result of these conversations, he submitted to the City documentation that the premises were rented to a non-profit organization, as well as"corporate reports and financial statements from New Concepts for Living to establish that New Concepts was not making any money off this lease, thereby not jeopardizing the tax-exempt status of the property[.]"

According to Plosia, one of the City officials, either its attorney or the Tax Assessor, as Plosia recalled, said that the City would reassess the situation after plaintiff submitted documentation to support its position that the property should still be tax-exempt. He sent a letter to the City on September 25, 2001, stating that plaintiff had sent the requisite documentation to the City. With the tax sale approaching, the City agreed to adjourn the tax sale scheduled for October 10, 2001, and postponed the sale to December 7, 2001.

During this period, Plosia was also in contact with Donald Lenner, the City's Special Tax Counsel. Lenner stated that he received a letter on October 22, 2001, from Plosia explaining the situation and requesting that the City come to a decision regarding the tax bills for 2000, 2001 and the future. Lenner responded in a letter dated November 2, 2001, stating with respect to the assessment for the previous years of 2000 and 2001, the failure of New Concepts to file an appeal is dispositive of the matter and the underlying issue need not be addressed. With respect to the claim for 2002, this is under consideration by the Tax Assessor and I offer no opinion as to whether or not New Concepts is entitled to an exemption.

The letter further provided that plaintiff had the"right to petition the governing body to grant a retroactive application of exemption, but the burden remains on New Concept to prove its right to the exemption."

Plosia became concerned, especially because the tax sale was approaching. He contacted the Bergen County Tax Appeal Board in an attempt to appeal the City's decision. The TaX Appeal Board informed him that plaintiff was"out of time" to file an appeal.

On November 20, 2001, Carlson wrote plaintiff stating that it was not eligible for tax-exempt status for 2002. On November 28, 2001, Plosia, by letter to Lenner, directly petitioned the tax officials on behalf of plaintiff"to obtain a retroactive application of New Concepts' tax exemption for the property located at 795-99 Main Street in Hackensack." He attached the Certificate of Incorporation and By-Laws of the Center for Family Support, New Jersey, Inc. (CFS), the lessee of ...


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