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Lincoln North Development Corporation v. Town of Kearny


January 28, 2011


On appeal from the Tax Court of New Jersey, Docket No. 9758-08.

Per curiam.


Argued: November 17, 2010

Before Judges Axelrad, R. B. Coleman and J. N. Harris.

Plaintiff Lincoln North, a trade association of businesses located in an industrial area known as South Kearny, appeals from the Tax Court's December 4, 2009 order granting summary judgment to defendants, Town of Kearny, Mayor Alberto Santos and Kearny Town Council (collectively referred to as "Kearny") and the Kearny Municipal Utilities Authority ("the KMUA") (all four are also jointly referred to as "defendants" when appropriate), dismissing plaintiff's amended complaint. We affirm.

Plaintiff represents five of its members who are industrial property owners in South Kearny. South Kearny receives sewer services from the KMUA and its property owners pay the KMUA directly for such services.*fn1 The South Kearny properties also pay sewer charges to Kearny as part of the local property taxes billed to all Kearny property owners.

On March 30, 2007, plaintiff filed a five-count complaint in lieu of prerogative writs against defendants in the Superior Court of New Jersey, Law Division, Hudson County. Defendants filed motions to dismiss the complaint based on improper venue and failure to exhaust administrative remedies, which were denied by orders of August 3, 2007.

On leave granted, plaintiff filed a seven-count amended complaint "in lieu of prerogative writs and for other relief" on December 31, 2007. The First Count alleged Kearny's tax structure was "arbitrary, excessive and incorrect" because it included fees for services plaintiff's members did not receive or enjoy. Plaintiff sought elimination of the service fees from Kearny's general tax structure and reimbursement for all fees paid. The Second Count challenged Kearny's tax structure as violative of state and federal equal protection, alleging it impermissibly distinguished between industrial properties located in South Kearny and the remaining properties in Kearny. Plaintiff further alleged:

As a result of the incorrect tax rate, the assessment of [plaintiff's members'] properties is also excessive, as it exceeds the true or assessable value of the property. The assessment, in effect, imposes charges against Plaintiff for services that are withheld from [its members]. Nor is there any correlation between the assessed value and the utilization of wastewater or sewer utility services.

In addition to the relief sought in the first count, plaintiff sought a reduction in the assessment of its members' properties and an elimination of the sewer fee assessment, as well as a declaration that Kearny's tax rate was unconstitutional.

The Third Count alleged overcharges to the subject properties by the KMUA in failing to provide either or both credits and rebates to them. Plaintiff sought to compel Kearny to turn over the purportedly withheld credits and rebates to the KMUA and direct the KMUA to issue refunds to plaintiff. The Fourth Count alleged defendants denied plaintiff's members equal protection by withholding rebates, which was "tantamount to, double taxation and conversion of [plaintiff's members'] rebate entitlement, for the benefit and unjust enrichment" of Kearny taxpayers. In addition to the relief sought in the third count, plaintiff sought to have the KMUA's overcharges invalidated as unconstitutional.

The Fifth Count alleged Kearny violated the tax uniformity clause of the New Jersey Constitution, article VIII, section 1, paragraph 1(a), because plaintiff's members were taxed for services they did not receive. Plaintiff sought the same relief as in the second count. The Sixth Count alleged Kearny's tax scheme established two sections of Kearny for tax purposes, favoring non-South Kearny taxpayers, in violation of the proscription against special legislation contained in the New Jersey Constitution, article IV, section 7, paragraph 9(13).

Plaintiff sought the same relief as in the second count. The Seventh Count alleged Kearny's conduct violated substantive due process of the Fifth and Fourteenth Amendments of the United States Constitution, as it treated plaintiff's members as "second class citizen[s] and municipal cash cow[s], [which] is so egregious as to shock the conscience . . . ." Plaintiff sought the same relief as in the second count. Defendants filed answers to the amended complaint.

On March 25, 2008, defendants moved to dismiss the amended complaint pursuant to Rule 4:6-2(e), arguing, in relevant part, that plaintiff's claims for monetary damages, sought in every count, were not cognizable in a prerogative writs action and plaintiff's constitutional challenges could not be maintained as a matter of law. By written opinion of August l, 2008, memorialized in an order dated August 5, 2008, Judge Mary Costello dismissed the First Count without prejudice and transferred the remaining counts to the Tax Court for disposition in conformity with the Assignment Judge's August l, 2008 order. See R. 4:3-4(a) and R. 8:2(a) The court found plaintiff, a non-profit trade association of South Kearny businesses, had standing to bring the claims, concluding the "grievances [plaintiff] assert[s] are strictly confined to matters of common interest and do not include any claims that would pertain to one but not all." Similar to Crescent Park Tenants Ass'n v. Realty Equity Corp. of New York, 58 N.J. 98 (1971), in which the Court granted a non-profit tenant association standing to sue the landlord regarding defects in various parts of the common elements, the judge found it was "difficult to conceive of any policy considerations that would justify barring Plaintiff from bringing this claim."

Judge Costello also found plaintiff's prerogative writ claims were untimely as not filed within forty-five days of the "accrual of the right to review, hearing or relief claimed" under Rule 4:69-6(a) and not within any of its recognized exceptions. The court reasoned:

It is unclear from the record submitted to the court exactly when the legislative act, from which the tax structure in dispute was originally enacted. The parties have stipulated to an official report of the New Jersey Department of the Treasury dated November l994[*fn2 ] [that] discussed the very same tax structure at issue in the present matter. Assuming that the tax structure in question came into existence shortly before the report was issued, then Plaintiff's Complaint in lieu of a prerogative writ[s] action is untimely as [] this action was not filed with the court until 30 March 2007.

There is nothing to suggest from the record, and the parties have not argued otherwise, that would lead this court to conclude that Plaintiff lacked the requisite knowledge at the time of or after the accrual date.

The issues presented by Plaintiff's Complaint in lieu of a prerogative writ certainly raise "important public interests requiring adjudication." These issues ought to be resolved in court, however, the procedural vehicle used by Plaintiff is improper and thus these issues must be brought forth in a different manner.

The court also found the parts of plaintiff's complaint seeking monetary damages to be barred as not cognizable in prerogative writs actions, O'Neill v. Twp. of Washington, 193 N.J. Super. 481, 486 (App. Div. l984), although the remaining demands for relief were not. Due to insufficient evidence, the court concluded it was premature to render a ruling on defendants' challenges to plaintiff's claims asserting violations of equal protection, due process, the tax uniformity clause, and the special legislation clause. Plaintiff did not appeal this order.

Defendants moved for summary judgment on October 15, 2009. Following oral argument before the Tax Court on December 4, 2009, Judge Bianco granted defendants' motions. By judgment of the same date, he dismissed plaintiff's complaint with prejudice. The judge found no material issue of fact and noted, in particular, plaintiff's failure to present expert testimony or evidence as to the amount of the lower sewer fee it claimed its members should pay. Plaintiff appealed the Tax Court judgment.

On February 11, 2010, Judge Bianco filed an amplification letter with our court pursuant to Rule 2:5-1(b). He elaborated upon Kearny's challenge that plaintiff's complaint and amended complaint were "really tax appeals in disguise" as follows:

The remaining allegations and prayers for relief contained in [plaintiff's] complaint and amended complaint (i.e. those not dismissed by Judge Costello) are similar to those found in property tax appeals. [Plaintiff] has, in part, alleged that its members' properties have been assessed above their respective true value, in part because the fees paid to Kearny for sewer . . . services were included in Kearny's tax base.

As a remedy, [plaintiff] seeks to have the assessments lowered, have the fees removed from Kearny's tax base, and have Kearny's tax structure deemed unconstitutional. This amounts to a challenge to the "quantum or methodology" of the assessment and Kearny's tax structure. Based on this pleading, the court finds that [plaintiff's] amended complaint, for all practical purposes, constitutes a property tax appeal for each of its members [pursuant to previously-cited McMahon v. City of Newark, 195 N.J. 526, 543-44 (2008)].

The judge discussed the filing deadline and procedural requirements for a property tax appeal contained in N.J.S.A. 54:3-2l,*fn3 and cited case law mandating dismissal of an untimely filed complaint and precluding a post-deadline amended complaint from saving a timely filed complaint that fails to state a claim upon which relief can be based. The judge found plaintiff's March 30, 2007 complaint to be timely for the 2007 tax year, but barred as untimely the counts raised for the first time in the amended complaint, i.e., the tax uniformity and special legislation clause claims. He also held that any of plaintiff's members whose assessments were less than the minimum $750,000 Tax Court statutory limit would lack jurisdiction to proceed and would be required to first file an appeal with the county board.*fn4

Judge Bianco further found plaintiff's pleadings did not raise timely claims for the 2008 tax year as they were filed before the tax assessment date and finalization of assessment, N.J.S.A. 54:4-23, -35, -38.l, -55, -64. He additionally found plaintiff lacked associational standing to bring property tax appeal claims against Kearny on behalf of its members because each property owner would have to prove its property's exact sewer usage.*fn5 As to the KMUA, the judge found plaintiff failed to present any evidence as to what its members should have paid as a fee for sewer service.

On appeal, plaintiff challenges the Tax Court's grant of summary judgment to defendants, arguing it had standing to seek relief in that court; Airwick Industries, Inc. v. Carlstadt Sewerage Authority, Inc., 57 N.J. 107 (1970), cert. denied, 402 U.S. 967, 91 S. Ct. 1966, 29 L. Ed. 2d 132 (1971) supports reversal; and its constitutional claims asserting violations of the tax uniformity and special legislation clauses, state and federal equal protection and substantive due process should not have been rejected at the summary judgment stage of litigation.

We review the trial court's grant of summary judgment de novo. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. l62, 167 (App. Div.), certif. denied, l54 N.J. 608 (l998). "Bare conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. l961). Summary judgment should be granted when the evidence "is so one-sided that one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (citation and quotation marks omitted). Employing the same standard used by the trial court, Prudential Prop., supra, 307 N.J. Super. at l67, we review the record to determine whether there are material factual issues and, if not, whether the undisputed facts, viewed in the light most favorable to the non-moving party, entitle the moving party to judgment as a matter of law. Brill, supra, 142 N.J. at 540. Based on our independent review of the record and applicable law, we are satisfied summary judgment was appropriate as to both groups of defendants and are not persuaded by any of plaintiff's challenges on appeal.

We recite the factual record that is relevant to this appeal, taken primarily from the discovery submissions of the KMUA's Executive Director Joseph Skelly and Kearny's Chief Financial Officer Shuaib Firozvi, and the parties' statements of undisputed material facts. Kearny is a municipal corporation. The KMUA is a political subdivision created by ordinance with the powers provided by the Municipal Authorities Law, N.J.S.A. 40:14B-l to -70, established to provide secondary sewage treatment to the South Kearny industrial district that includes the subject properties and the Meadowlands. The Passaic Valley Sewerage Commission (PVSC) provides sewer services to all Kearny properties, treating and disposing of solid and liquid waste as well as the waste that flows through the KMUA system. The contractual agreement between Kearny and PVSC is pursuant to N.J.S.A. 40:14A-23, which permits a municipality to contract with a sewerage authority for services.

PVSC bills Kearny quarterly for charges attributable to all Kearny properties and is reimbursed by Kearny.*fn6 As part of its annual budget process, Kearny considers these costs, reflected in a single line item, "PVSC user fees." Kearny bills all of its property owners, including those in South Kearny, for the PVSC sewer charges in an unallocated amount as part of their local property taxes, based on the assessed value of the property. Kearny also bills the KMUA for the share allocable to the South Kearny industrial properties. The KMUA bills its users both for the PVSC services and for the KMUA's local sewer system operational expenses, which fees are apportioned to each property based on water usage. The KMUA annually reimburses Kearny for its share of the PVSC bill based on a mutually acceptable payment schedule. The KMUA was assessed and has paid Kearny a total of $860,000 annually since 2006, purportedly based on a reasonable estimation of usage.*fn7

Plaintiff challenges what it classifies as "an ultra vires taxation and fee scheme." Distilled to its essence, plaintiff's allegation is that its members, industrial property owners in South Kearny, are being "double taxed" as they are required each year to pay both a sewer fee to the KMUA, which includes a portion of the PVSC sewer bill as determined by Kearny, and local property taxes to Kearny, which include the balance of the PVSC sewer charge. In contrast, all other property owners in Kearny, i.e., those outside of South Kearny, are only obligated to pay for sewer services pursuant to Kearny's general tax levy. Plaintiff also challenges as arbitrary the amount of money Kearny bills the KMUA, and the KMUA "complicitly" pays, for its users' sewer service.

We need not address any issues pertaining to the First Count of plaintiff's complaint, challenging Kearny's tax rate, which includes a PVSC sewer fee, as "arbitrary, excessive and incorrect," as plaintiff did not appeal Judge Costello's August 5, 2008 order.

In determining, in the first instance, whether plaintiff has associational standing to assert the rest of the counts, we must look at the allegations and relief sought in its amended complaint. Plaintiff does not per se challenge the property tax assessments of its members as it does not expressly contest the fair market value and corresponding assessment of the five industrial properties determined by the assessor for purposes of local property taxation. Nonetheless, every one of the counts of plaintiff's complaint is peppered with language questioning the quantum and methodology of Kearny officials in apportioning the PVSC sewer fee and in raising revenue to pay the balance not generally attributable to the industrial usage through its general budgetary process and tax levy, rather than maintaining a separate utility fund. The Second Count, which asserts an equal protection claim, contends that Kearny has an "unfair and uneven method of calculating the tax rate structure," based on the aforementioned l994 Local Government Budget Review and recommendation regarding Kearny's sewer collection and treatment, and "as a result of the incorrect tax rate," the "assessment[s]" of plaintiff's members' properties "exceed[] the true or assessable value of the propert[ies]." The Fifth and Sixth Count, which assert tax uniformity and special legislation clause claims, reference Kearny's "scheme of taxation and credits," and the Fifth Count also references "double taxation." Additionally, the Fifth, Sixth and Seventh Counts seek to "declare the tax rate unconstitutional."*fn8

To the extent plaintiff's challenges are construed as "disguised tax appeals," we are in accord with the Tax Court's analysis and conclusion that plaintiff lacks associational standing and its constitutional counts, other than the equal protection claim first asserted in the amended complaint, are procedurally barred as untimely. See, e.g., McMahon, supra, 195 N.J. at 543-44 (holding that a complaint challenging "the quantum or methodology" applied by the city's tax assessor to calculate added or omitted assessments for an urban renewal project after the city's cancellation of the tax abatement for the project would be subject to the procedure and time requirements under the established tax appeal process in the absence of a contractually agreed-upon clause calling for resolution of disputes in a forum other than the Tax Court).

Even if associational standing is permissible to the extent plaintiff is challenging Kearny's general taxing scheme on behalf of its members, we perceive a variety of procedural and substantive deficiencies in plaintiff's amended complaint that would substantiate summary judgment dismissal. As Judge Costello recognized, plaintiff's challenge appears to be precipitated by a State agency's local budget review issued over a decade before plaintiff filed this lawsuit. To the extent plaintiff is challenging the decision and procedure employed by Kearny in billing the KMUA for a portion of the PVSC's sewage treatment charge, as well as the amount of the charge, and the general tax levy assessed against all property owners in the municipality for the balance of the PVSC charge, both of which occur annually, plaintiff was obligated to timely file a prerogative writs or declaratory judgment action after Kearny's adoption of the 2007 budget. See, e.g., R. 4:69-6 (providing a general limitation of forty-five days for the filing of a prerogative writs action). Instead, plaintiff filed the initial complaint before that date (March 2007) and the amended complaint in late December of that year.

We turn now to the substance of plaintiff's claims. Employing the Brill standard with all inferences in plaintiff's favor, we conclude plaintiff has not presented sufficient evidence to raise a material issue of fact or to overcome the one-sided evidence presented by defendants to withstand summary judgment on the six remaining counts of its amended complaint. Supra, l42 N.J. at 540. We preliminarily note that the KMUA is not a taxing authority. Rather, it is a service provider that collects rates for services. See N.J.S.A. 40:14B-l to -70. The fact there is an intergovernmental agreement between Kearny and the KMUA in fiscal matters relating to the sewer service provided by the PVSC and by the KMUA is not unusual. The mere fact of such cooperation does not suggest clandestine behavior as generally alleged in the preamble of plaintiff's complaint, nor does it make the KMUA a de facto taxing authority or joint governmental tortfeasor.

The only counts actually asserting claims against the KMUA are the Third and Fourth Counts. These counts allege the PVSC issues credits and rebates to either or both Kearny and the KMUA for performing treatment services for the Hackensack Meadowlands Development Commission's ("HMDC")*fn9 wastewater that are not passed on to plaintiff's members, thereby overcharging the industrial properties for sewer usage (third count) and denying them equal protection under the federal and state constitutions (fourth count). After deposing Kearny and the KMUA representatives, as well as representatives of the PVSC and the New Jersey Meadowlands Commission, plaintiff was unable to present any evidence to support its predicate claim of credits and rebates against either defendant, which were merely "bare conclusions in the pleadings" insufficient to overcome summary judgment. See U.S. Pipe & Foundry Co., supra, 67 N.J. Super. at 399-40.

The Second Count alleges Kearny's tax structure is violative of state and federal equal protection because it requires the industrial properties to pay the PVSC sewer charges both directly to the KMUA and indirectly to Kearny by general taxation as distinguished from all other Kearny properties which just pay the municipality by general taxation.

Equal protection under the federal constitution has been explained as follows:

Equal protection does not require that all persons be dealt with identically. If there is some reasonable basis for the recognition of separate classes, and the disparate treatment of the classes has a rational relation to the object sought to be achieved by the lawmakers, the constitution is not offended. The transgression arises only when the classification rests upon grounds wholly irrelevant to achievement of the State's objective; the separate treatment must admit of but one conclusion beyond a rational doubt, i.e., that the basis therefor is arbitrary and unreasonable, and without relevance to the legislative goal. [N.J. Chapter, Am. Inst. of Planners v. N.J. State Bd. of Prof'l Planners, 48 N.J. 581, 601-02, cert. denied, 389 U.S. 8, 88 S. Ct. 70, l9 L. Ed. 2d 8 (l967).]

See also Walters v. St. Louis, 347 U.S. 231, 237, 74 S. Ct. 505, 509, 98 L. Ed. 660, 665 (l953) ("Equal protection . . . only requires that classification rest on real and not feigned differences, that the distinction have some relevance to the purpose for which the classification is made, and that the different treatments be not so disparate, relative to the difference in classification, as to be wholly arbitrary.").

"Ordinarily, an equal protection plaintiff must be singled out because of membership in a class and cannot be just the victim of a random act of governmental incompetence." Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 381, cert. denied, 519 U.S. 9ll, ll7 S. Ct. 275, l36 L. Ed. 2d l98 (l996). The Court elaborated:

Furthermore, the state's act of singling out an individual for differential treatment does not itself create the class [as that] would make . . . every arbitrary act of government[] a violation of the Constitution. [S]uccessful equal protection claimants usually demonstrate purposeful discrimination based on membership in a protected class . . . . [Ibid. (first two alterations in original) (internal citation and quotation marks omitted).]

Where a suspect classification is not involved, the "classification need only be rationally related to a legitimate interest." Greenberg v. Kimmelman, 99 N.J. 552, 564 (1985).

In analyzing equal protection claims under article I, paragraph l of the New Jersey Constitution, a balancing test is employed that considers "the nature of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction." Id. at 567. Similar to the federal analysis, the issue comes down to "whether the court can perceive any rational basis for the legislative classification . . . ." City of Jersey City v. Farmer, 329 N.J. Super. 27, 39 (App. Div.), certif. denied, 165 N.J. 135 (2000).

Property owners are not a suspect class, thus even assuming the industrial properties are singled out for different treatment, the standard of review is only "rational basis." Federal or state equal protection is not violated because plaintiff's members receive separate sewer services from the KMUA, whose direct billing includes a proportionate share of the PVSC fee, yet their property taxes include the balance of the PVSC fee. Plaintiff failed to provide any expert report or evidence demonstrating that the availability of the PVSC as the primary sewage treatment provider and the KMUA as the secondary provider provides no enhancement to the value of the industrial properties. Considering that the sewage flow and treatment is generally based on estimates and is an inexact science, plaintiff has also failed to provide any competent evidence that Kearny does not have a logical, reasonable basis for its overall annual budgetary scheme of allocating twenty percent of the PVSC charge to the KMUA as attributable to the industrial properties and funding the balance by general taxation.

The Fifth Count alleges a violation of the tax uniformity clause of the New Jersey Constitution resulting from plaintiff's members' sewer payments to the KMUA and to Kearny. Article VIII, section 1, paragraph 1(a) of the State Constitution provides:

Property shall be assessed for taxation under general laws and by uniform rules. All real property assessed and taxed locally or by the State for allotment and payment to taxing districts shall be assessed according to the same standard of value, except as otherwise permitted herein, and such real property shall be taxed at the general tax rate of the taxing district in which the property is situated, for the use of such taxing district.

Applied here, there is no evidence the industrial properties are not taxed by Kearny at the same general rate as all other taxpayers in the municipality. Furthermore, the payments to the KMUA are not taxes, they are bills for services rendered. Accordingly, plaintiff's dispute regarding the method by which Kearny allocates the PVSC charge is not cognizable under the tax uniformity clause.

In the Sixth Count plaintiff broadly attacks as "special legislation" the Kearny tax system and the KMUA's billing as they relate to the PVSC sewer charge. In its brief plaintiff articulates its theory as applicable because defendants' "conspiracy of extortionate taxation and exactions under false pretenses could not be accomplished without multiple decisions made and acted upon under the color of law -- such as the KMUA's enabling legislation . . . ." None of these challenges implicate "special legislation" as defined in article IV, section VII, paragraph 9(6) of the New Jersey Constitution. As the Court explained in Town of Secaucus v. Hudson County Board of Taxation, l33 N.J. 482, 494 (l993), From a constitutional standpoint, a law is regarded as special legislation when, by force of an inherent limitation, it arbitrarily separates some persons . . . from others upon which, but for such limitation, it would operate. The test of a special law is the appropriateness of its provisions to the objects that it excludes. [(Internal citations and quotation marks omitted).]

Plaintiff's due process challenge asserted in the Seventh Count similarly fails as a matter of law. Like equal protection, substantive due process challenges are very difficult to prove, and relief thereunder "is reserved for the most egregious governmental abuses against liberty or property rights, abuses that 'shock the conscience or otherwise offend . . . judicial notions of fairness . . . [and that are] offensive to human dignity.'" Rivkin, supra, l43 N.J. at 366 (quoting Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir. 1989)). Here, plaintiff's allegations of complicity between Kearny and the KMUA regarding the billing scheme for the payment of sewer charges by the industrial properties fall far short of the threshold of egregiousness contemplated by Rivkin. The KMUA's establishment of rates and fees and Kearny's budgetary process are not conducted in a back room as urged by plaintiff, but rather they are the product of studies, analyses and discussion in the public forum as required by law. Additionally, while plaintiff may doubt the veracity of the explanations provided by Kearny's and the KMUA's representatives regarding the utility authority's payments to the municipality, it has not pointed to any evidence demonstrating otherwise. Furthermore, plaintiff concedes the industrial property owners are obligated to pay sewer fees but baldly classifies Kearny's and the KMUA's charges as excessive without presenting a scintilla of evidence, by way of expert report or otherwise, as to what its members should have paid Kearny and the KMUA for this service during the years in question. As Judge Bianco noted, as of oral argument on the summary judgment motion, plaintiff still was not prepared to present any proofs that the KMUA's allocated portion of the PVSC charge should be something other than $860,000.


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