BASF CORPORATION COATING AND INK DIVISION v. TOWN OF BELVIDERE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3483-07T13483-07T1

A-3484-07T1

A-3485-07T1

BASF CORPORATION COATING AND

INK DIVISION,

Plaintiff-Appellant,

v.

TOWN OF BELVIDERE,

Defendant-Respondent.

___________________________________________________

 

Submitted March 24, 2009 - Decided

Before Judges Skillman, Grall and Espinosa.

On appeal from the Tax Court of New Jersey, Docket Nos. 1514-2004, 1198-2005 and 1128-2006, whose opinion is reported at 22 N.J. Tax 550 (Tax 2005).

McCarter & English, attorneys for appellant (Frank E. Ferruggia, of counsel and on the brief; Daniel P. Zazzali, on the brief).

Conley & Sozansky, attorneys for respondent (Richard M. Conley, of counsel and on the brief; David Lukens, on the brief).

PER CURIAM

Plaintiff BASF filed separate appeals from three final judgments of the Tax Court, which affirmed defendant Belvidere's revised assessment of its property applicable to the 2004 and 2005 tax years and reduced the municipality's assessment for the 2006 tax year to $7,761,300. Plaintiff's only arguments in each of the three appeals are that the Tax Court erred in concluding that Belvidere could reassess its property without complying with the requirements of N.J.S.A. 54:4-23, as amended by Chapter 101 of the Laws of 2001, and that Belvidere's reassessments were made in bad faith. Because plaintiff presents the same arguments in all three appeals, we consolidate them.

N.J.S.A. 54:4-23 provides in relevant part:

[W]hen the [tax] assessor has reason to believe that property comprising all or 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 that the assessment of property comprising all

or part of a taxing district is not in substantial compliance with the law and that the interests of the public will be promoted by a reassessment of such property, the assessor shall, after due investigation, make a reassessment of the property in the taxing district that is not in substantial compliance, provided that (1) the assessor has first notified, in writing, the mayor, the municipal governing body, the Division of Taxation in the Department of the Treasury, the county board of taxation, and the county tax administrator of the basis of the assessor's determination that a re-assessment of that property in the taxing district is warranted and (2) the assessor has submitted a copy of a compliance plan to the county board of taxation and to the Division of Taxation for approval. . . .

Following a reassessment of a portion of the taxing district pursuant to an approved compliance plan, the assessor shall certify to the county board of taxation, through such sampling as the county board of taxation deems adequate, that the re-assessment is in substantial compliance with the portions of the taxing district that were not reassessed.

Judge Kuskin concluded in a reported opinion that N.J.S.A. 54:4-23 does not require a tax assessor who undertakes to re-assess a single property to provide the notification specified therein and obtain the approval of the Division of Taxation and county board of taxation of a "compliance plan" for such reassessment. BASF Corp. Coating & Ink Div. v. Town of Belvidere, 22 N.J. Tax 550 (Tax 2005). In reaching this conclusion, Judge Kuskin relied upon (1) a regulation adopted by the Director of the Division of Taxation to implement N.J.S.A. 54:4-23 as amended by Chapter 101; (2) the document that the regulation specifies for use in submitting a compliance plan for approval, and (3) the Director's responses to comments made to the regulation when it was first proposed. Id. at 559.

The judge also observed that:

The statutory scheme relating to the assessment process . . . supports my conclusion that Chapter 101's requirement for a compliance plan does not apply to a change in a single assessment. The applicable statutory scheme includes the first part of N.J.S.A. 54:4-23 which obligates the assessor to make an annual determination of value. Based on this provision, our courts have recognized that annual assessment maintenance, without the necessity for a municipal-wide revaluation or reassessment, is an essential element of the assessment process.

Assessment maintenance is "the practice by which an assessor changes some assess-ments in a year when a district-wide revaluation or reassessment is not performed. The assessor's authority is derived from N.J.S.A. 54:4-23. . . ." Regent Care Center, Inc. v. City of Hackensack, 362 N.J. Super. 403, 411-12 (App. Div. 2003), [certif. denied, 178 N.J. 373 (2003)]. The Appellate Division, in Regent Care, described the need for, and importance of, assessment maintenance.

Assessors cannot be expected to do

nothing in years between district-

wide revaluations or reassessments.

Their role is not that of a care-

taker. In Tri-Terminal Corp. v.

Bor. of Edgewater, 68 N.J. 405,

[413-14] (1975), [cert. denied, 425

U.S. 958, 96 S. Ct. 1739, 48 L.

Ed.2d 203 (1976)], the Court made

this plain and acknowledged the

proper role of assessment mainte-

nance:

The law calls for the

separate assessment of

each parcel annually at its

true value on the assessing

date. While practicalities

obviously preclude most

assessors reviewing every

assessment line item every

year, there should neverthe-

less be alertness to changed

valuation factors peculiarly

affecting individual properties

in years between revaluations

and requiring prompt revision

of such assessments in fairness

to the particular taxpayer or

to the taxing district. It

should be obvious that, absent

such attention, the carrying

over of assessments each year

from one general revaluation

to the next is not the proper

discharge of the assessor's

function.

. . . .

Thus, adjusting an assessment for

legitimate reasons is an appropriate

exercise of the assessor's statutory

obligation and is not arbitrary or

discriminatory. This is the appro-

priate mechanism by which the

assessor keeps the tax [rolls] current

when individual properties, based

upon particularized, legitimate

reasons, require adjustment.

[Regent Care, supra, 362 N.J. Super.

at 416-17.]

. . . .

I conclude that Chapter 101 supplemented, but did not modify, the provisions of N.J.S.A. 54:4-23 identified in Regent Care, supra, 362 N.J. Super. at 412, as providing the statutory basis for assessment maintenance. Chapter 101 requires a compliance plan in connection with assessment maintenance consisting of changes in assessments in a neighborhood or area of a municipality but not in connection with assessment maintenance consisting of a

change in the assessment on a single property.

[Id. at 564-66.]

Based on his interpretation of Chapter 101, Judge Kuskin denied BASF's motions for summary judgments in its actions challenging the $9,260,600 assessment of its property applicable to the 2004 and 2005 tax years and seeking a reduction of that assessment to the $6,728,150 applicable to the 2006 tax year. Id. at 553.

Judge Kuskin subsequently concluded in another published opinion that the $9,500,000 assessment of BASF's property was valid as applied to the 2004 and 2005 tax years, but he reduced the assessment to $7,761,300 as applied to the 2006 tax year. BASF Corp. Coating & Ink Div. v. Town of Belvidere, 23 N.J. Tax 551 (Tax 2007). BASF's appeal does not challenge any of the conclusions reached in this second opinion, and Belvidere has not cross-appealed from the reduction in the assessment applicable to the 2006 tax year.

We agree with Judge Kuskin's interpretation of Chapter 101 and therefore affirm the denial of BASF's motions for summary judgment substantially for the reasons set forth in his published opinion. In the absence of a clear indication of a legislative intent to require a municipality to submit a compliance plan to the Division of Taxation and county board of taxation any time it undertakes to reassess an individual property in order to discharge its responsibility for assessment maintenance, we are unwilling to read Chapter 101 to impose a burden upon municipalities to submit such plans or upon the Division of Taxation and county boards of taxation to review them.

The "bad faith" argument presented by plaintiff under Point II of its brief is clearly without merit and does not warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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A-3483-07T1

April 16, 2009