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H.J. Bailey Co. v. Neptune Township

April 9, 2008

H.J. BAILEY COMPANY, PLAINTIFF-RESPONDENT,
v.
NEPTUNE TOWNSHIP, DEFENDANT-APPELLANT.



On appeal from the Tax Court of New Jersey, Docket No. 3542-2007.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted January 8, 2008

Before Judges Coburn, Fuentes and Chambers.

In this appeal, we are required to determine whether the failure of an owner of non-income-producing property to respond to a written request for information made by a municipal tax assessor pursuant to N.J.S.A. 54:4-34 (Chapter 91)*fn1 triggers the sanction limiting the right of appeal, as modified by the Supreme Court in Ocean Pines, Ltd. v. Borough of Point Pleasant, 112 N.J. 1 (1988). The answer to this question directly implicates a fundamental aspect of the right to Due Process.

The Tax Court concluded that N.J.S.A. 54:4-34 does not apply to non-income-producing properties. Thus, in this case, the Tax Court ruled that plaintiff is not subject to the statutory sanction despite its failure to respond to the tax assessor's written request for information. By leave granted, Neptune Township appeals from the Tax Court's order memorializing this ruling.

After a careful review of the record before us, we affirm the ruling of the Tax Court. We now hold that an owner of non-income-producing property who fails to respond to a written request for information made by a municipal tax assessor, pursuant to N.J.S.A. 54:4-34, is not subject to the sanction of an Ocean Pines reasonableness hearing. Based on the clear language of the statute, we hold that Chapter 91's appeal-preclusion provision and the limited appeal process fashioned by our Supreme Court in Ocean Pines apply solely to income-producing properties.

In reaching this conclusion, we are mindful that, under the clear language of N.J.S.A. 54:4-34, all property owners, regardless of the status of the property, are required to respond to a Chapter 91 request. Equally clear in our view, however, is that the sanction for failing to respond applies only to income-producing properties. Despite this anomaly, we discern no legal authority to create, by judicial fiat, a sanction which the Legislature failed to provide. Thus, we recommend that the Legislature address the situation presented by this case, and provide a clear consequence for the owners of non-income-producing properties who fail to answer a Chapter 91 request.

Our discussion of these issues will take place in the following factual context.

I.

On October 6, 2006, the tax assessor for Neptune Township sent H.J. Bailey Company by certified mail, return receipt requested, a request for information pursuant to N.J.S.A. 54:4-34. The assessor intended to use the information requested to assess the taxable value of plaintiff's property at 1105 Green Grove Road for the 2007 tax year. The request quoted the actual statutory language, and emphasized in bold the appeal-preclusion section: Every owner of real property of the taxing district shall, on written request of the assessor, made by certified mail, render a full and true account of his name and real property and the income therefrom, in the case of income-producing property, and produce his title papers, and he may be examined on oath by the assessor, and if he shall fail or refuse to respond to the written request of the assessor within 45 days of such request, or to testify on oath when required, or shall render a false or fraudulent account, the assessor shall value his property at such amount as he may, from any information in his possession or available to him, reasonably determine to be the full and fair value thereof. No appeal shall be heard from the assessor's valuation and assessment with respect to income-producing property where the owner has failed or refused to respond to such written request for information within 45 days of such request or to testify on oath when required, or shall have rendered a false or fraudulent account. The county board of taxation may impose such terms and conditions for furnishing the requested information where it appears that the owner, for good cause shown, could not furnish the information within the required period of time. In making such written request for information pursuant to this section the assessor shall enclose therewith a copy of this section.

The assessor's letter also included the following capitalized, bold instruction: "IF THE PROPERTY IS OWNER OCCUPIED, PLEASE INDICATE SUCH IN THE COMMENTS LINE ON PAGE ONE, SIGN PAGE TWO AND RETURN FORM TO THIS OFFICE." The record shows that plaintiff received the notice, but did not respond. Defendant subsequently assessed the property as follows: land assessed at $724,000; improvements assessed at $808,400; for a total assessed value of $1,532,400.

On March 26, 2007, plaintiff filed a complaint with the Tax Court appealing the assessment.*fn2 After filing a responsive pleading, the Township moved to dismiss the complaint based on plaintiff's failure to respond to the Chapter 91 request. In a certification submitted in opposition to the Township's ...


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