ILIRJAN BIDA v. TOWNSHIP OF WAYNE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0170-10T1

ILIRJAN BIDA,

Plaintiff-Appellant,

v.

TOWNSHIP OF WAYNE,

Defendant-Respondent.

__________________________________

June 27, 2011

Submitted May 4, 2011 - Decided

Before Judges Cuff, Sapp-Peterson and Simonelli.

On appeal from the Tax Court of New Jersey, Docket No. 015010-2009.

Ilirjan Bida, appellant pro se.

Dorsey & Semrau, L.L.C., attorneys for respondent (Fred Semrau, on the brief).

PER CURIAM

In this tax appeal, pro se plaintiff, Ilirjan Bida, appeals from the Tax Court's denial of his motion for summary judgment and the dismissal of his complaint. We affirm.

Plaintiff is the titled owner to vacant land located in defendant Township of Wayne (Township). In 2008, the Township's Zoning Board of Adjustment granted plaintiff's application for a "c" variance and building permit. See N.J.S.A. 40:55D-70c. Plaintiff, however, did not engage in any improvements to the property at that time. For the tax year 2009, plaintiff's tax assessment was $40,200, $36,800 more than the $3400 tax assessment for 2008. This assessment was based upon the municipal tax assessor's mistaken impression that the property had been improved.

Plaintiff failed to timely appeal the 2009 tax assessment in accordance with N.J.S.A. 54:3-21a, which provides that a taxpayer aggrieved by the assessed value of the taxpayer's property may appeal the assessment to the Board of Taxation by filing a petition "on or before April 1, or 45 days from the date the bulk mailing of notification of assessment is completed in the taxing district, whichever is later[.]" Instead, plaintiff filed a complaint directly before the Tax Court seeking relief pursuant to the Correction of Errors statute ("statute"), N.J.S.A. 54:51A-7. In addition, plaintiff advised the Township tax assessor that he had only received a variance for the property and not a building permit. As such, the tax assessor set the 2010 tax assessment at $10,100, a $6700 increase in the value of the land from 2008.

The court found it was undisputed "that the tax assessor mistakenly believed that plaintiff had received a building permit" in 2008 but that fact "does not necessarily warrant relief under the . . . statute." The court further found that

[w]hile plaintiff has established the existence of a mistake in the assessment, he has not demonstrated that the correct assessment on the subject property for tax year 2009 is "readily . . . inferable" or "subject to ready calculation." [Hovbilt, Inc. v. Twp. of Howell, 138 N.J. 598, 619 (1994).] The assessment on the property for tax year 2008, prior to the award of the variance was a total of $3[]400. For tax year 2010, after alerted to the fact that plaintiff had not received a building permit, the tax assessor raised the assessment to $10,100. While plaintiff argues that the tax year 2009 assessment should be returned to $3[]400, he does not explain why the 2010 assessment of $10,100, set after the tax assessor was aware that a variance, but not a building permit, had been issued for the property, is not the correct assessment for 2010.

The assessed value of real property is determined as of October 1st of each year. N.J.S.A. 54:4-23; Aperion Enter[s.], Inc. v. Borough of Fair Lawn, 25 N.J. Tax 70, 86 (Tax 2009). Calculating the true market value of a vacant land with a zoning variance to construct a residence would require the exercise of judgment by the court. The court cannot simply apply the $3[]400 assessment set by the assessor for tax year 2008, prior to issuance of the variance. That approach, which is suggested by plaintiff, would not take into account the [e]ffect that issuance of the variance had on the true market value of the property. Plaintiff's opportunity to challenge the $40,200 assessment was through the filing of a timely appeal for the 2009 tax year in accordance with N.J.S.A. 54:3-21a. While the court is cognizant of the fact that plaintiff claims to have been unaware of the increased assessment for tax year 2009 until after the filing deadline, this fact, even if accepted as true, does not warrant relief under the Correction of Errors statute. The statute does not allow for a reduction of an assessment outside of the regular tax appeal process merely because a taxpayer was unaware of an error in the assessment at the point when a timely appeal could have been filed. It is the nature of the error and its ability to be corrected without the exercise of judgment by the court that determines whether correction of errors relief is available. These factors do not justify relief here.

On appeal, plaintiff contends there was no basis for the $40,200 tax assessment for the year 2009, since no building permit had been issued and no improvements undertaken. Moreover, plaintiff contends there was no other property in the vicinity of his property that was assessed for tax purposes at $40,000. As such, plaintiff contends he is entitled to a reversal of the Tax Court decision and an assessment for the year 2009 in the amount of $3400.

The facts in this matter are undisputed. We therefore review the court's decision to determine whether its application of the law to the facts was correct. Atlantic Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We owe no deference to the court's conclusions on issues of law. Id. at 231 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). We are, however, in complete agreement with Judge DeAlmeida's application of the law and affirm substantially for the reasons expressed in his July 26, 2010, cogent and well-reasoned written opinion.

It is undisputed that plaintiff failed to file an appeal of the 2009 tax assessment with the County Board of Taxation. Having failed to do so, the court properly dismissed plaintiff's complaint. See F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 425 (1985) (noting taxpayers' obligation to "adhere strictly to the deadlines prescribed by statute . . . . [and f]ailure to file a timely appeal is a fatal jurisdictional defect"). Thus, plaintiff's failure to file an appeal before the County Board of Taxation divested the Tax Court of jurisdiction to consider plaintiff's appeal and therefore required dismissal of the complaint unless jurisdiction was conferred upon the court pursuant to the statute.

In its decision in Hovbilt, the Court engaged in a detailed discussion of the purposes and scope of relief under the statute. There, the aggrieved taxpayer's application for a farmland assessment of his property was never reviewed by the tax assessor because the application was either misplaced or mishandled by the tax assessor's office. 138 N.J. at 601. Consequently, the taxpayer's property was assessed at full market value. Ibid. The taxpayer did not file a timely appeal before the County Board of Taxation in accordance with N.J.S.A. 54:3-21a. Instead, the taxpayer filed a complaint with the Tax Court alleging correctible relief pursuant to the statute. Ibid. The Tax Court dismissed the complaint, finding that the relief sought was not available under the statute, and on appeal we affirmed. Id. at 602.

The Supreme Court affirmed, first noting that an appeal of a property tax assessment is a statutory form of relief and requires strict adherence to the statutory time limitations. Id. at 603. The Court next noted that the statute represented an exception to the otherwise mandatory procedural requirements for taxpayer property assessment appeals. Id. at 604. While noting that "[t]he statute provides an extended period of relief after the deadline for appeal to the county board or to the Tax Court has passed[,]" the Court also noted that not all alleged errors in tax assessments were subject to relief under the statute. Ibid. Specifically, the court acknowledged that errors involving the exercise of a tax assessor's opinion or judgment were not proper subjects for relief under the statute. Id. at 617-18.

The Court "perceive[d] that the statute's capacity to grant relief in cases involving unquestionable tax-assessment mistakes need not be so narrowly circumscribed." Id. at 617. It provided, as an example of an unquestionable tax assessment error, a situation in which the tax assessor assessed vacant land as if the property had been improved. Id. at 618. The Court reasoned that such an error ordinarily would not have occurred "because of an assessor's opinion, judgment, or exercise of discretion[,]" ibid., and used this example to set forth the scope of relief under the statute:

When such an error occurs without involvement of an assessor's exercise of discretion, and its correction is also self-evident and non-discretionary, remediation of that error pursuant to the Correction of Errors statute would effectuate the legislative goal of remedying incontestable assessment errors and avoiding manifest injustice. In our view, avoidance of obvious injustice in the assessment process was the Legislature's primary objective in enacting and amending the Correction of Errors statute.

Accordingly, we hold that mistakes in assessments that are indisputable, and cannot plausibly be explained on the basis of an exercise of judgment or discretion by the assessor or his or her staff, are within the category of mistakes that can be corrected under the statute. Based on our characterization of the category of mistaken but correctable assessments, we hold further that the correct assessment must readily be inferable or subject to ready calculation on the basis of the assessment mistake for which correction is authorized.

[Id. at 618-19.]

Although the error here mirrors the example given by the Court in Hovbilt, the record here, as the Court agreed in Hovbilt, does not present a readily correctible assessment for 2009. What impact, if any, the grant of the "c" variance would have had on the 2009 tax assessment is unknown. What is evident, however, is that once plaintiff informed the tax assessor that no building permit had been issued, the tax assessment for 2010 did not revert back to the $3400 assessment for 2008.

In short, plaintiff failed to establish that the facts underlying the 2008 assessment would have applied to the 2009 assessment. The tax assessor's mistake in the 2009 tax assessment should have been "addressed through the standard tax-appeal procedure," because its "correction [was] not necessarily readily inferable or subject to easy calculation based solely on the nature of the mistake." Id. at 622. Accordingly, Judge DeAlmeida properly concluded that plaintiff was not entitled to relief pursuant to the statute for the 2009 tax assessment.