201 Industrial Way, LLC v. Eatontown Bor.

OF THE TAX COURT COMMITTEE ON OPINIONS

October 1, 2012

A. Paul Genato, Esq.

Archer & Greiner, P.C.

700 Alexander Park, Suite 102

Princeton, NJ 08540

Gene J. Anthony, Esq.

48 South Street

Eatontown, NJ 07724

Re: 201 Industrial Way, LLC v. Eatontown Bor.

Docket No. 008051-2012

Dear Counsel:

This matter comes before the court on defendant s motion to dismiss the complaint on the ground that plaintiff failed to respond to a request for income and expense information made pursuant to N.J.S.A. 54:4-34 ( Chapter 91 ). The motion is opposed on the ground that the motion papers failed to include a copy of the form for the reporting of income and expense information. For the following reasons, the motion is granted subject to plaintiff s right to a reasonableness hearing as required by Ocean Pines Ltd. v. Point Pleasant Bor., 112 N.J. 1 (1988).

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Defendant s motion is supported by the certification of its assessor. Plaintiff has not submitted any certification or other evidence in opposition to the motion, but has filed a letter brief. I find the facts from the assessor s certification as follows.

By letter dated October 1, 2011, the assessor made a written request pursuant to Chapter 91 to the owner of the property that is the subject of this appeal, designated as Block 3601, Lot 1, on the defendant municipality s tax map. A copy of the notice, which was appended to the certification as an exhibit, identified the subject property by block and lot. The letter was addressed to the plaintiff which coincidentally or by design uses the street address of the subject property as its name. In other words, there was no question as to the identification of the property for which the assessor sought information. The letter stated: [I]n accordance with N.J.S.A. 54:4-34, enclosed please find the Annual Statement of Income & Expense for Income Producing Properties , which is to be filled in for the property whose Block and Lot appears on the mailing label and this letter. Please be sure to completely fill out the front andback of the Annual Statement and Schedule A , to avoid it being returned. (emphasis in original) Immediately following those instructions was a full copy of N.J.S.A. 54:4-34, as required by the statute.

The assessor further certified that the letter had been mailed by certified mail, return receipt requested. Attached to his certification was a copy of the certified receipt indicating the mailing, and a copy of the return receipt indicating it had been received at the address on record for the owner of the subject property.

Plaintiff contends that it is unclear what response is being sought, because a copy of the Annual Statement referred to in the assessor s letter to the plaintiff was not included in the motion papers. The court notes that plaintiff s opposition was received by fax late Wednesday afternoon, September 26, where the return date of the motion was Friday, September 28. The motion may thus be deemed to be uncontested. R. 1:6-2(a).

Chapter 91 provides a means by which assessors may obtain current income and expense information for income-producing properties. It was intended to assist the assessor in the first instance, to make the assessment and thereby . . . to avoid unnecessary expense, time and effort in litigation. Ocean Pines, supra, 112 N.J. at 7, quoting Terrace View Gardens v. Township of Dover, 5 N.J. Tax 469, 474-75 (Tax 1982), aff d, 5 N.J. Tax 475 (App. Div.), certif. denied, 94 N.J. 559 (1983). In furtherance of that purpose, the statute requires dismissal of a complaint contesting an assessment where the property owner failed to respond to the assessor s request for information. N.J.S.A. 54:4-34.

Because of this severe sanction, the courts of this State have held municipalities to strict standards with respect to their own compliance with the statute, and, for example, have denied Chapter 91 motions where the municipality failed to include a copy of the statute that included the language imposing the sanction, as required by the statute. SAIJ Realty, Inc. v. Town of Kearny, 8 N.J. Tax 191 (Tax 1986). This court has also denied Chapter 91 motions where the property owner was not given appropriate notice of the property for which the information was sought, see, e.g., Green v. East Orange, 21 N.J. Tax 324 (Tax 2004), and where it was not clear what information the assessor sought. Cassini v. City of Orange, 16 N.J. Tax 438 (Tax 1997).

As a consequence, Chapter 91 motions have increasingly become matters of litigation gamesmanship. It has become apparent that many municipalities do not use Chapter 91 requests as a tool for making assessments, but, rather, use the sanction imposed by Chapter 91 as a weapon in the litigation arsenal for the purpose of dismissing complaints at the earliest possible stage. In turn, plaintiffs comb through the copies of the Chapter 91 requests included in the motion papers for anything that could be construed as an ambiguity in either the identification of the property owner and/or the property and/or in the instructions for completion of the form.

In this case, the assessor has affirmatively represented in his certification that he sent a request for income and expense information in the form of the letter appended to the certification. The letter specifically referenced an enclosed form for reporting income and expenses. Plaintiff received a copy of the assessor s Chapter 91 request, as evidenced by the signed certified mail return receipt. Plaintiff does not contend otherwise. Plaintiff has nevertheless provided no factual material contradicting the assessor s certification, nor has the plaintiff presented any factual evidence that the Chapter 91 request failed to include the form for the reporting of income and expense information or any factual evidence that the form was confusing or that the request otherwise failed to advise the plaintiff of his obligations in clear and unequivocal language. All that the statute requires is that the request for income and expense information be sent by certified mail and that it include a copy of the statute. Defendant has established that the statutory requirements were met. Plaintiff is obliged to come forward with evidence that the assessor failed to comply with the statutory requirements or otherwise failed to give the taxpayer appropriate notice of the information that was sought.

From the evidence properly before the court, it concludes that the Chapter 91 request complied with the statute, that plaintiff failed to respond, and that pursuant to N.J.S.A. 54:4-34, no appeal shall be heard from the assessment, except to the extent that the plaintiff is entitled to a reasonableness hearing as set forth in Ocean Pines Ltd. v. Point Pleasant Bor., 112 N.J. 1 (1988). An order is enclosed.

Very truly yours,

Gail L. Menyuk, J.T.C.