Conway v. Marlboro Township

OF THE TAX COURT COMMITTEE ON OPINIONS

March 5, 2012

William and Mary Conway, plaintiffs prose

403 Westminster Drive

Morganville, NJ 07751

Salvatore Alfieri, Esq.

6 Ravine Drive

Matawan, NJ 07747

Re: Conway v. Marlboro Township

3 Docket No. 017135-2011

Dear Mr. and Mrs. Conway and Mr. Alfieri:

I have received Mr. Alfieri s letter enclosing a proposed consent order reinstating the complaint and a stipulation of settlement. For the following reasons, I am unable to sign the consent order.

A brief procedural history of this matter is necessary for an understanding of this matter. Plaintiffs appealed the tax year 2011 assessment on their property. On July 29, 2011, the Monmouth County Board of Taxation ordered that judgment be entered affirming the assessment. The judgment was mailed to the parties on August 19, 2011. On October 7, 2011, plaintiffs filed a complaint with the Tax Court, appealing the judgment of the Board. On December 7, 2011, the defendant municipality filed a motion to dismiss the complaint on the ground that it had been untimely filed. The motion was returnable January 6, 2012. There was no opposition to the motion, and on January 9, 2012, the court entered a final order dismissing the complaint with prejudice because it had not been timely filed pursuant to N.J.S.A.54:51A-9.

3 On February 23, 2012, the court received a letter from Mr. Alfieri, defendant s attorney, enclosing a proposed consent order reinstating the case. The consent order recites that due to an administrative mistake, the Court was not advised that the Motion to Dismiss pending for January 6, 2012 should have been withdrawn. The letter also enclosed a stipulation of settlement, setting forth the parties agreement as to the assessment of the subject property for tax year 2011.

N.J.S.A. 54:51A-9a provides that a complaint seeking review of a judgment of the county board of taxation shall be filed within 45 days of the service of the judgment. R. 8:4-1(a)(2) similarly provides that a complaint seeking review of a county board judgment shall be filed within 45 days of service of the judgment. R. 8:4-1(a)(2) further provides that the calculation of time shall be subject to the provisions of R.1:3-3, which allows an additional 3 days where service is made by ordinary mail. Accordingly, the plaintiffs had 48 days from the date that the Board s judgment was mailed, or until October 6, 2011, to file a complaint with the Tax Court. It was filed one day late.

It is the well-settled law of this state that taxpayers must strictly comply with the statutory time limitations for filing an appeal, and that failure to do so is a fatal jurisdictional defect. See, e.g., F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 424-25 (1985); Mayfair Holding Corp. v. North Bergen Township, 4 N.J. Tax 38, 40 (Tax 1982); Prospect Hill Apartments v. Borough of Flemington, 1 N.J. Tax 224 (Tax 1979). The court may not waive or relax a statutory deadline. Id. at 227.

Prospect Hill Apartments had facts similar to those of this case. The taxpayer mailed its complaint one day before the statutory deadline and the complaint was received by the Tax Court one day after the statutory deadline. The court dismissed the complaint because it had no power to alter a limitations period that had been prescribed by the Legislature and, therefore, it had no jurisdiction over the tax appeal. Id. at 226-27.

Because the complaint was filed late, this court lacks jurisdiction over this case. Moreover, it is well settled that a court may not obtain jurisdiction over a case by agreement of the parties. Peper v. Princeton University Board of Trustees, 77 N.J. 55, 66 (1978). That the defendant failed to withdraw its motion to dismiss does not change the result. A court may properly raise the issue of subject matter jurisdiction on its own motion.
Prime Accounting Dep't v. Township of Carney's Point, 421 N.J. Super. 199, 212 (App.Div.), certif. granted 208 N.J. 382 (2011).

Consequently, I am unable to sign the consent order and have no jurisdiction to enter a judgment reflecting the settlement reached by the parties.

For the foregoing reasons, the court denies the request to enter a consent order reinstating the complaint.

Very truly yours,

Gail L. Menyuk, J.T.C.