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Rosen v. Plainsboro Township

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 3, 2008

JOEL D. ROSEN AND JANET A. FILIOS, PLAINTIFFS-APPELLANTS
v.
PLAINSBORO TOWNSHIP, DEFENDANT-RESPONDENT.

On appeal from the Tax Court of New Jersey, Mercer County, Docket No. 8183-2006.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 7, 2008

Before Judges Stern, Collester and C.L. Miniman.

Plaintiffs Joel Rosen and Janet Filios appeal from the final judgment of the Tax Court denying their appeal of the 1996 assessment of condominium apartments in the Township of Plainsboro (the Township). We affirm.

Plaintiffs are the owners of six condominium units in The Commons at Princeton Landing, a 120-unit condominium development. As the result of significant water damage to the exterior walls of the units, major remediation work began in July 2003. The project involved removing the exterior walls, sanitizing and resealing the interior walls, constructing new exterior walls complete with new insulation and vapor and moisture barriers, and installing new stucco on the exterior. Residents were required to vacate the premises during the remediation until its completion in April 2005. The total project cost was $4,126,450.

On October 1, 2004, when the Township conducted a municipal-wide property revaluation for the upcoming tax year, the repairs were still ongoing. Plaintiff's units were assessed in their state of partial repair at $130,000 each, with a land value of $65,000 and an improvement value of $65,000. The Township tax rolls and the tax bills for the units indicated that the units were partially exempt to reflect that their assessed value was lower due to the ongoing construction. After the repairs were completed, the condominiums were reassessed in 2005 and the partial exemption was removed. Plaintiff's units were revalued at $155,000 each, reflecting a $25,000 increase in the improvement value of each unit. After they received a letter informing them of the 2006 assessment for their properties, plaintiffs petitioned the Middlesex County Board of Taxation (the Board) to challenge the 2006 reassessment. They claimed the assessor was without authority to increase the assessment from the 2005 values without seeking a "compliance plan" from the Director of Taxation and the Board pursuant to N.J.S.A. 54:4-25. The Board denied the petition and affirmed the validity of the 2006 reassessment. Plaintiffs then appealed to the Tax Court, and at the hearing on January 9, 2007 before Judge Gail L. Menyuk, again argued the Township violated statutes requiring a compliance plan prior to an increased assessment. Judge Menyuk decided that a compliance plan was not required because the change of assessment was due to the remediation of the properties which was excepted from the compliance plan requirement under N.J.A.C. 18:12A-1.14(i)(3)(vii). This appeal followed.

Plaintiffs argue once again that the Township's 2006 reassessment of their condominium units should be nullified because no compliance plan was submitted or approved, and they challenge the application of the remediation exception under the applicable regulation. N.J.A.C. 18:12A-1.14 provides in pertinent part the following:

(i) Assessment maintenance: An assessor proposing to revise and update assessments because he or she has reason to believe that property comprising a part of a taxing district has been assessed at a value lower or higher than is consistent with the purpose of securing uniform taxable valuation of property according to law for the purpose of taxation, or is not in substantial compliance with the law, and that the interests of the public will be promoted by reassessment of such property, shall make a reassessment of the property in the taxing district not in substantial compliance. . . .

3. The following are the criteria to be considered by the county board and Division of Taxation in determining whether to approve a compliance plan.

(viii) Assessed value changes due to clerical, typographical, transpositional, physical descriptive or mathematical errors, added assessments, omitted assessments, omitted added assessments, exemptions, demolitions, governmentally imposed restrictions, planning board, and/or zoning board of adjustment approvals, approved revaluations, site contamination, removal of contaminated soil and property remediation; and storm, cyclone, tornado, earthquake, fire, flood, hurricane, vandalism, or other casualty, qualified farmland, subdivisions, mergers and changes resulting from appeals or settlement agreements, do not require the filing of a compliance plan.

Plaintiffs argue that "property remediation" in section (i)(3)(viii) should be read in conjunction with the preceding language "soil contamination" to except from the compliance plan requirement only property remediation undertaken in connection with contaminated soil, and should not include remediation that they contend amounts to "a concentrated catching-up on deferred maintenance."

Our scope of review requires that we defer to the expertise of the Tax Court and limit our review to a determination of whether the Tax Court's decision was arbitrary and whether its findings of fact are supported by substantial credible evidence. Little Egg Harbor Township v. Bonsangue, 316 N.J. Super. 271, 285 (App. Div. 1998); Glenpointe Associates v. Township of Teaneck, 241 N.J. Super. 37, 46 (App. Div. 1990); Southbridge Park, Inc. v. Borough of Fort Lee, 201 N.J. Super. 91, 94 (App. Div. 1985). In this instance, Judge Menyuk found that the remedial work was not simply deferred maintenance but effected physical changes at the conclusion of the remedial work that increased the value of the condominium units from the prior assessment, which reflected only partial improvements to the properties while they were in a state of ongoing remediation.

We also agree with the Tax Court's interpretation of N.J.A.C. 18:12A-1.14(i)(3)(viii), that the regulation does not require a compliance plan when the increase in assessed value is due to physical changes resulting from remediation. We decline to adopt plaintiffs' restrictive reading of the regulation to exempt only remediation of soil contamination as opposed to any other remediating work. We hold in this case that the substantial remediation of the subject properties constituted an exception to the requirement of a compliance plan stated in N.J.S.A. 54:4-23.

Plaintiffs' alternative argument is that if the regulation exempts the compliance plan requirement in the instant case, it should be stricken as inconsistent with N.J.S.A. 54:4-23, the statute the regulation purports to interpret. We will not address the issue since plaintiffs did not serve a copy of their notice of appeal on the Attorney General as required by Rule 2:5-1(h) when the validity of a regulatory act is challenged.

Affirmed.

20080903

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