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Peter F. Apanovitch v. Montclair Township


August 18, 2011


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-18138-10.

Per curiam.


Submitted August 10, 2011

Before Judges J. N. Harris and Fasciale.

Pro se plaintiff Peter Apanovitch appeals from a Special Civil Part order granting summary judgment to defendant Montclair Township. Apanovitch challenged a re-evaluation assessment of his condominium unit, alleged that the tax assessor committed clerical mistakes, and requested a property tax refund pursuant to N.J.S.A. 54:4-54. We affirm.

Apanovitch owns one unit of a duplex condominium in Montclair, Block 3203 Lot 3 Qualifier C0002 (the property). The property is attached to Block 3203 Lot 3 Qualifier C0001 (the neighbor's property). In 2007, Montclair undertook a district-wide re-evaluation of its taxable properties in the Township. Montclair retained Appraisal Systems Incorporated (ASI) to perform a re-evaluation of all the properties. ASI created property records for each taxable line item and prepared a land value manual. The manual acted as a summary reference for the tax assessor.

As a result of the re-evaluation, Apanovitch's property taxes were increased. Apanovitch alleged that the land value for his property was too high because the tax assessor mistakenly failed to (1) divide the total land assessment between the two owners of the duplexes, and (2) use the correct acreage factor. Montclair explained that the tax assessor used his judgment and discretion and determined the proper land value.

Apanovitch filed a motion for summary judgment, and Montclair cross-moved for the same relief. Apanovitch argued that the tax assessor arrived at the wrong land value by making a clerical error. Pursuant to the correction of errors statute, N.J.S.A. 54:4-54, Apanovitch sought a refund of the taxes he paid. Montclair contended that the statute was inapplicable because there were no clerical mistakes. The motion judge agreed and dismissed the complaint.

On appeal Apanovitch argues primarily that the judge erred by dismissing the complaint because the tax assessor arrived at the wrong land assessment and used the wrong acreage factor. The crux of his contention is that he is entitled to a refund under N.J.S.A. 54:4-54 because the tax assessor made clerical mistakes.

When reviewing a grant of summary judgment, we employ the same legal standards used by the motion judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). We do not decide the disputed fact but ask only whether the allegedly disputed fact is material, warranting resolution by the factfinder. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). It is not simply any disputed fact that is sufficient to defeat a summary judgment motion. Rather, the disputed fact must be material and warrant resolution by the trier of fact. Id. at 530.

In so doing, we view the evidence in the light most favorable to the non-moving party and analyze whether the moving party was entitled to judgment as a matter of law. Id. at 523, 529. We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P., v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Spring Creek, supra, 399 N.J. Super. at 180; Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).

Under certain circumstances, a taxpayer may be entitled to a property tax refund pursuant to N.J.S.A. 54:4-54, which states in pertinent part that:

Where by mistake property real or personal has been twice entered and assessed on the tax duplicate, the governing body of the taxing district or county board of taxation may order and cause the tax record to be corrected and if the tax has been twice paid the governing body of the taxing district shall refund the excessive payment without interest. Where by mistake an assessment intended for one parcel has been placed upon another, the governing body may cancel the erroneous assessment, return without interest any money paid by one not the owner of the parcel intended to be assessed, and enter upon the record the assessment and tax against the proper parcel, after a hearing upon five days' notice to the owner. Where one person has by mistake paid the tax on the property of another supposing it to be his own, the governing body after a hearing, on five days' notice to the owner, may return the money paid in error without interest and restore the record of the assessment and tax against the property in the name of the true owner, provided the lien of the tax has not expired and no transfer or encumbrance has been put on record against the property since the date of the payment in error.

We have stated that "[t]his law provides relief in three situations: (1) duplicate assessments on one parcel; (2) assessment intended for one parcel mistakenly placed upon another; and (3) mistaken payment of the tax on another's property supposing it to be one's own." Cerame v. Twp. of Middletown, 349 N.J. Super. 486, 491 (App. Div. 2002). The purpose of the statute is to allow for the correction of administrative and clerical errors, and it is not intended to be used for disputing an assessor's opinion as to the value of a parcel of real property. Id. at 490-92. N.J.S.A. 54:4-54 is not applicable where the mistake is related to an error in the size or nature of the property because such issues go to valuation and involve judgment or discretion by the assessor. Id. at 490; see also Farmingdale Realty Co. v. Borough of Farmingdale, 55 N.J. 109-110 (1969); Hovbilt, Inc. v. Twp. of Howell, 138 N.J. 598, 618 (1994).

Summary judgment in favor of Montclair dismissing Apanovitch's complaint was entirely proper. The tax assessor reviewed the ASI records and land manual for the property and the neighbor's property. Apanovitch's amount of property tax did not result from a duplicate assessment, an assessment intended for another parcel, or a mistaken payment. Each property was assessed separately. The undisputed record reflects that Apanovitch was assessed for and paid taxes on his property, not his neighbor's property. Each property was a separate taxable line item on Montclair's tax map. At best, Apanovitch challenged the assessor's judgment in arriving at his land value, rather than any clerical mistake. Consequently, N.J.S.A. 54:4-54 is unavailable to sustain any refund claim.



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