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Marina v. City of North Wildwood

May 18, 2009

BEACH CREEK MARINA, PLAINTIFF-APPELLANT,
v.
CITY OF NORTH WILDWOOD, DEFENDANT-RESPONDENT.



On appeal from the Tax Court of New Jersey, Docket No. 0081-2007.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 23, 2009

Before Judges Carchman and R. B. Coleman.

Plaintiff Beach Creek Marina, LLC, (Beach Creek) appeals from an order entered March 5, 2008, dismissing Beach Creek's complaint against the City of North Wildwood. The complaint was filed to contest North Wildwood's 2006 real estate assessment of certain property owned by Beach Creek. For substantially similar reasons set forth in the letter opinion by Joseph C. Small, Presiding Judge Tax Court, dated March 5, 2008, we affirm the order dismissing plaintiff's claim.

The property belonging to Beach Creek, which is the subject of this complaint, consists of approximately three acres and is part of the inter-coastal waterway located in North Wildwood. Paul Cocoziello is the sole officer and shareholder of plaintiff Beach Creek.

In addition to marina related structures, the property also contains a mixed-use building comprising approximately 4,500 square feet of commercial space and 142 rental apartments. The commercial portion of the tower is known as Marina Bay Towers and it, too, is owned by Beach Creek. The residential portion of the tower is owned by Marina Bay Towers Urban Renewal II, L.P., which in turn leases the residential units to Marina Bay Towers Condominium Association, Inc.

The residential owner, Marina Bay Towers Urban Renewal II, pays its taxes pursuant to a Payment in Lieu of Taxes (PILOT) agreement under the Long Term Tax Exception Law, N.J.S.A. 40A:20-1 to -22. The real estate tax associated with the commercial units includes improvements only; there is no "land" component to that tax assessment. Beach Creek pays local real estate tax on the marina and the entire three-acre parcel of land. Thus, each year Beach Creek receives two tax bills; one for the improvements associated with the commercial space and another for the marina, which includes the parcel of land. The latter tax bill forms the basis of this appeal.

According to North Wildwood's tax assessor, 2006 was a "reevaluation year" for North Wildwood. Therefore, North Wildwood employed the services of CLT/Tyler technologies to inspect and assess properties within the municipality. The tax assessor would then review and prepare his own assessments to be mailed to taxpayers.

For 2006, Beach Creek's property was assessed at $14,612,900,*fn1 which represented a substantial increase from the 2005 assessment of $1,526,200. The manifest increase in assessed value raised Beach Creek's property tax bill from approximately $39,000 in 2005 to approximately $103,000 in 2006. North Wildwood also reconfigured the tax map so that the three-acre parcel, formerly designated as Block 152, Lot 400, was reclassified as Block 152, Lot 1. In addition to the reclassification, the Tax Assessor's Office inexplicably changed the mailing address of record for Beach Creek from 608-610 New York Avenue, North Wildwood, to 391 Lakeside Avenue, Orange; an address that is not directly associated with the subject property or the owner.

In February 2006, North Wildwood sent out Notices of Assessment to property owners within the municipality. An assessment for the commercial space located in the tower, and owned by Beach Creek, was allegedly mailed to 622 Eagle Rock Avenue, West Orange, New Jersey. Although that mailing address was proper, the notice mistakenly combined the tax assessments for improvements on the commercial space with the three-acre parcel of land associated with the marina. Beach Creek did not contact North Wildwood regarding the error in the notice.

Under separate cover, an assessment for the marina which also included the three-acre parcel of land was sent to 391 Lakeside Avenue, Orange, the address for Marina Bay Towers Urban Renewal II, L.P., an entity in which Cocoziello maintains no ownership interest.

On July 24, 2006, North Wildwood sent out its Third Quarter Tax Bill for the marina and its associated property. Again, the bill was mistakenly sent to Marina Bay Towers Urban Renewal II, L.P., at the 391 Lakeside Avenue address.

On December 1, 2006, First Community Development Corporation, the general partner of Marina Bay Towers Urban Renewal II which owns the residential units on the property, forwarded to Cocoziello the assessments erroneously mailed to 391 Lakeside Avenue, along with a letter which communicated:

Please find enclosed a Delinquent Notice received from the City of North Wildwood claiming $105,924.00 to be due. Also enclosed are notices received from the City of North Wildwood indicating that any delinquencies not paid by December 11, 2006 will be advertised for two weeks in the Cape May County Herald starting on December 13, 2006, and the tax sale will be held on December 27, 2006. It is our understanding that you are taking the necessary steps to resolve the tax issues.

Thereafter, in December 2006, Cocoziello contacted North Wildwood's Tax Collector in an attempt to clarify the irregularities. It is undisputed that Cocoziello and the Tax Collector did not speak until at least the middle of December. After speaking with the Tax Collector, Cocoziello then contacted the Chief Financial Officer (CFO) of North Wildwood. Following that conversation, Cocoziello sent a letter to the CFO, which purported to clarify the ownership and tax liability of each entity and which contained copies of the tax bills that Cocoziello had actually received.

On January 18, 2007, Beach Creek filed a complaint, challenging the 2006 assessment of the marina and the three-acre parcel of property. Thereafter, North Wildwood filed an answer, followed by a motion to dismiss filed on May 30, 2007.

During the motion hearing, North Wildwood acknowledged that the mailings intended for Beach Creek were sent to an address that was neither the physical address of the property, nor the address of record for the property owner. North Wildwood further acknowledged that it was in contact with Cocoziello throughout the month of December 2006.

Cocoziello testified that he did not receive notice that the property was subject to a re-evaluation and that, in the past, he customarily received tax notices for Beach Creek at 622 Eagle Rock Avenue. As to the correspondence from First Community Development Corporation dated December 1, 2006, Cocoziello ...


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