August 6, 2007
WILLINGBORO EQUITIES, LLC, PLAINTIFF-APPELLANT,
TOWNSHIP OF WILLINGBORO, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. BUR-L-02279-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 17, 2007
Before Judges Fuentes and Graves.
Plaintiff Willingboro Equities, LLC filed suit*fn1 against defendant Township of Willingboro seeking a judicial declaration that its application for a tax abatement had been timely and otherwise correctly filed, thereby compelling the Township to review it on the merits. After conducting limited discovery, defendant moved for summary judgment, arguing that plaintiff's cause of action was barred as a matter of law, because it had filed its tax abatement application outside the relevant statutory deadline. The trial court agreed and dismissed the case.
Plaintiff now appeals arguing that the trial court erred because it failed to conclude that the Township was equitably estopped from rejecting plaintiff's application. After reviewing the record, and in light of prevailing legal standards, we disagree with plaintiff's argument and affirm. In 1998, the Township established a redevelopment area pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -49. The property at issue in this appeal is located within the redevelopment area. In 2000, the Township adopted an ordinance establishing the mechanism for taX abatements within this area, pursuant to the Five-Year Exemption and Abatement Law, N.J.S.A. 40A:21-1 to -21.
Against this backdrop, Judge Menyuk made the following findings of facts, which are well-supported by the evidence presented by the parties.
On or about December 11th, 2002 plaintiff's attorney obtained an application for abatement from the town. They returned the completed application form to the municipality the next day, on December 12th. The application was not accompanied by the requisite fee. There's no evidence that anyone in the municipality informed plaintiff that its application was incomplete because it lacked the requisite fee.
By order dated December 23, 2002 the municipal assessor advised plaintiff's attorneys that the township did not have an abatement program covering commercial properties. According to [plaintiff's attorney] he inquired about the rejection of plaintiff's application three months later, on March 31st, 2003. He was told that the application was not acceptable because it was not submitted prior to the start of construction.
It is undisputed that plaintiff submitted an application for abatement more than thirty days after the two commercial entities began operating on plaintiff's property. As noted by Judge Menyuk:
I find as a matter of fact that the Commerce Bank Branch was complete when the temporary CO was issued on May 17th, 2002. The Burger King has been complete since the issuance of the temporary CO on October 4, 2002.
Thus, applying the time restrictions in N.J.S.A. 40A:21-16, Judge Menyuk concluded that:
The Application for Commerce Bank Branch was almost six months late. The Burger King application was about one month late. And the town was not obliged to accept them.
We agree. N.J.S.A. 40A:21-16 provides, in pertinent part:
No exemption or abatement shall be granted pursuant to this act except upon written application therefore filed with and approved by the assessor of the taxing district wherein the improvement conversion alteration or construction is made. Every application shall be on a form prescribed by the Director of the Division of Taxation in the Department of the Treasury, and provided for the use of claimants by the governing body of the municipality constituting the taxing district, and shall be filed with the assessor within 30 days, including Saturdays and Sundays, following the completion of the improvement, conversion alteration or construction.
N.J.S.A. 40A:21-3e defines "completion" as "substantially ready for the intended use for which a building or structure is constructed, improved or converted." The municipal taX assessor's authority to consider applications for abatement flows directly from the provision of the Five-Year Exemption and Abatement Law. The assessor was thus statutorily obligated to reject the applications as untimely.
We reject plaintiff's equitable estoppel argument substantially for the reasons expressed by Judge Menyuk in her well-reasoned oral opinion delivered from the bench on November 3, 2006.