CAPP-FSGN, et al v. Woodland Park

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125 State Street


JUDGE Hackensack, NJ 07601

(201) 996-8029 Fax: (201) 996-8052

September 20, 2013

Re: CAPP-FSGN, et al v. Woodland Park

Docket No. 004242-2013

Dear Counsel,

This letter serves as the court s opinion with respect to defendant, Certified Valuation Inc. s, motion to dismiss the complaint against it. Defendant, CVI, contends that there is no cause of action against it. Plaintiff contends that there is a valid cause of action as stated in the pleadings and opposes the motion. Defendants, Borough of Woodland Park and Passaic County Board of Taxation take no position. For the reasons set forth below, the court dismisses plaintiff s complaint against defendant, CVI.









Findings of Fact and Procedural History

On or about October 28, 2011, CAPP-FSGN, Inc.1, Clair Centralla, Robert Dicker, Andrew Kemeny, and Richard Ullman2 (hereinafter plaintiff ) filed a complaint in the Superior Court, Law Division of Passaic County against the Borough of Woodland Park, Pat Lepore, Dominick Didomenico, Tina Gatti, Gary Holloway, Rita Pascrell, Joseph Spinelli, Robert Vargas3, Timothy J. Henderson4, Passaic County Board of Taxation, Certified Valuations, Inc.5 and Appraisal Systems, Inc.6 (hereinafter defendants ). All of the relevant facts alleged by plaintiff are contained in the complaint and do not bare repeating.

Plaintiff s complaint seeks: 1) that the court void the 2010 and 2011 revaluations, 2) that the court order a new revaluation, 3) that Certified Valuations and/or Appraisal Systems refund all payments received for the 2010 and 2011 revaluations and review, and 4) that the previous assessed values of plaintiffs properties be used until the new revaluation is complete.

Plaintiff dismissed the complaint against defendant Appraisal Systems, Inc. voluntarily. The remaining portions of the complaint were transferred to the Tax Court by an order of the Superior Court, issued by Hon. Donald J. Volkert, Jr. on March 11, 2013. By Order dates August 26, 2013, Chief Justice Rabner, transferred the matter to the Superior Court, Law Division, Passaic County for adjudication and temporarily assigned the undersigned, effective August 1, 2013, to the Superior Court, Law Division, Passaic County for the purposes of adjudicating the claims raised in plaintiffs complaint pursuant to N.J.S.A. 2B:13-2b.

Defendant, Certified Valuations, Inc. (hereinafter CVI ), filed a motion to dismiss the complaint against them on or about June 27, 2013. CVI urges dismissal because: 1) the appropriate administrative remedy adopted by the Legislature is N.J.S.A. 54:3-21, 2) the statute of limitations for appeal of assessments has passed, and 3) the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 13-10 confers a broad immunity upon public entities and employees of the public forum for actions related to the assessment and collection of taxes, and N.J.S.A. 59:1-3 precludes a taxpayer from maintaining a negligence action against an outside consultant retained by a taxing authority to assist in a property appraisal.

Plaintiff opposes the motion on the grounds that: 1) the Tax Court is without jurisdiction to enter a disposition of a prerogative writs action, 2) the issue of individual tax appeals is not relevant to this matter, 3) the complaint is not out of time, and 4) defendant CVI is not immune under a prerogative writ challenge. Plaintiff argues that the complaint is not a tort claims action, nor a section 1983 action, and no damages are sought from any party. Specifically, plaintiff argues that no damages are sought from CVI, but plaintiff seeks only the return of all money paid for the revaluation services provided to the defendant, Borough of Woodland Park, and to bar CVI from being involved in any further revaluation or reassessments in Woodland Park.

The court s findings of fact are based on the certifications and briefs submitted by the parties, as well as oral argument on the motion. R. 1:7-4.



















Conclusions of Law

Pursuant to the Supreme Court s holding in Alid, Inc. v. Town of North Bergen, 89 N.J. 388, 389 (1981):

[W]hen relief in lieu of prerogative writ is sought with respect to any matter then ending in the Tax Court involving a state or local tax . . . the action shall be transferred to the Superior Court, Law Division, and, for the purpose of having such claim adjudicated, unless good cause to the contrary is shown, the matter shall be heard by a judge of the Tax Court, who has been temporarily assigned to the Superior Court, Law Division, by the Chief Justice.


Plaintiff s claim that the undersigned, sitting as a Tax Court Judge, is without jurisdiction to hear this matter is rendered moot by virtue of the August 26, 2013 Order and need not be further addressed by this court.

The standard that applies to consideration of a motion to dismiss pursuant to New Jersey R. 4:6-2(e) is well-known.

Such motions are judged by determining whether a cause of action is suggested by the facts. Although the inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint, a reviewing court searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.


[Nostrame v. Santiago, 213 N.J. Super. 109, 127 (App. Div. 2013).]


Additionally, our Supreme Court has stated:


At this preliminary stage of the litigation the Court is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint. For purposes of this analysis plaintiffs are entitled to every reasonable inference of fact. The examination of a complaint s allegations of fact required by the aforesaid principals should be one that is at once painstaking and undertaken with a generous and hospitable approach.


[Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (citations omitted).]

Plaintiff s obligation on a motion to dismiss is not to prove the case but only to make allegations, which, if proven, would constitute a valid cause of action. Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001). Dismissal of a complaint, however, is mandated where the factual allegations are palpably insufficient to support a claim upon which relief can be granted. Reider v. N.J. Dep t of Transp, 221 N.J. Super. 547, 552 (App. Div. 1987).

Giving every reasonable inference of fact as alleged in the complaint, briefs in opposition and at oral argument to plaintiff, I find that plaintiffs have failed to state a claim upon which relief can be granted. Accordingly, the complaint filed against defendant CVI is dismissed.

It is important to note that a reading of the allegations in the complaint, even construed in the most liberal fashion with all favorable inferences for plaintiff, does not constitute a cause of action. Plaintiff seeks no damages against CVI. Plaintiff, instead, seeks relief in the form of refunding all payments made by the Borough of Woodland Park to CVI back to the Borough, and to bar CVI from being involved in any further revaluation or reassessments in Woodland Park.

Plaintiff s complaint does not allege or seek any negligence or damages from CVI. Even if upon a liberal reading of the complaint, and a finding that it alleges a negligence claim against CVI, the complaint would still be dismissed. Such dismissal is based in the appellate division decision in General Motors Corp. v. City of Linden, 279 N.J. Super. 449, 578 (App. Div. 1995). In General Motors Corp., plaintiff, a property owner in the City of Linden, claimed that an independent real estate appraiser retained by Linden to assist the assessor in valuing plaintiff s property negligently valued its property and was therefore liable under common law tort principles. The trial court, citing J.H. Becker, Inc., v. Marlboro Township, 82 N.J. 519 (App. Div. 1964), dismissed plaintiff s common law negligence claim against the real estate appraiser on the grounds that his valuation of plaintiff s property was not binding upon the tax assessor. General Motors Corp., supra, 279 N.J. 454.

The appellate court, in upholding the trial court s dismissal of the complaint against the appraiser, explained that the Tort Claims Act confers broad immunity upon public entities and public employees from liability for their actions relating to the assessment and collection of taxes[.] Id. at 468; see also N.J.S.A. 59:7-2. The Tort Claims Act, however, did not directly apply to the independent real estate appraiser, because he was not a public employee. Nevertheless, the same policy considerations which underlie the immunity provided by N.J.S.A.59:7-2 also preclude a taxpayer from maintaining a negligence action against an outside consultant retained by a taxing authority to assist in a property appraisal. 469. Moreover, as the court discussed:

A taxpayer has a readily available and adequate means of correcting an erroneous tax assessment by appealing to the county board of taxation and the Tax Court. Indeed, that is a taxpayer's only remedy when an assessor makes an assessment without the assistance of an outside appraiser. Consequently, a taxpayer has no substantial need to maintain a tort action against a private appraiser.

[, 469-470 (citations omitted).]


Further analysis must be undertaken to determine if a cause of action in contract can be gleaned from the complaint. Plaintiff s complaint only seeks a refund of monies paid from the Borough to CVI and to bar CVI from participating in any future revaluations or assessments in Woodland Park. However, CVI owes no duty to plaintiff and is not in privity of contract with plaintiff. It is the municipal assessor s duty, not CVI s, to annually assess all property in the taxing district as of October 1 each year. See N.J.S.A. 54:4-23. He or she is directed to determine the full and fair value of each parcel of real property situated in the taxing district at such price as, in his judgment, it would sell for at a fair and bona fide sale by private contract as of October 1 of the pre-tax year. See N.J.S.A. 54:4-23. Each assessor must complete his or her annual assessment list of taxable valuations and file it with the county board of taxation by January 10 of the tax year. N.J.S.A. 54:4-35. The county board of taxation is charged with the statutory duty of securing the taxation of all property in the county at its taxable value. N.J.S.A. 54:3-13. A taxing district may hire a revaluation firm to assist the assessor. The revaluation firm is required to comply with all standards of a revaluation. The revaluation firm acts as the agent of the municipal tax assessor and all determinations made by the firm shall be submitted to, and approved by, the municipal tax assessor. N.J.A.C. 18:12-4.8 (emphasis added).

The Borough of Woodland Park contracted with CVI to assist the assessor in valuing all real property in the borough, in accordance with N.J.S.A. 54:4-1 et. seq. The valuations performed by CVI were not binding upon the township assessor, whom it served in only an advisory capacity. CVI, therefore, violated no duty to plaintiff.

Plaintiff s allegations in the instant matter are analogous to ones previously addressed by our Appellate Division, which also found there to be no cause of action. In J.H. Becker, Inc., supra, 82 N.J. Super. 519, the Appellate panel reviewed two actions in lieu of prerogative writs which were instituted in the Superior Court, Law Division. In both cases, the trial court entered judgment dismissing the complaints. In that case, J.H. Becker, Inc., a township taxpayer, alleged that the tax assessments on real property located within the defendant township, as determined by the tax assessor and levied by the township, were not made at a uniform standard of 100% of true value, which had been established by the county board of taxation as the level of taxable value to be applied uniformly throughout the county. Plaintiff alleged that defendant, United Appraisal Co., which had revalued all taxable real property in the municipality under a contract with the town, failed and neglected to revalue such property in accordance with said standard. J.H. Becker Inc. sought for the revaluation to be revised and assessments in the town be corrected. J.H. Becker Inc. also sought to recover compensatory and punitive damages from defendant United Appraisal Co. alleging it sustained injury caused by the defendant s negligent and incompetent revaluation of township property.

Defendant, United Appraisal Co., denied the allegations and affirmatively asserted that plaintiff failed to state a claim upon which relief could be granted. J.H. Becker, Inc., supra, 82 N.J. Super. at 522-23. The Appellate panel affirmed the trial court which dismissed the complaint. In supporting their decision, the Appellate panel stated:

Mere difference of opinion as to whether the assessed values in the respective townships do, or do not, represent 100% of true value does not justify judicial intervention when the Legislature has provided an aggrieved taxpayer with an adequate administrative review.


[Id. at 529-30].

The Appellate panel found no merit in the cause of action brought by plaintiff against United Appraisal Co. because the appraisal company served only in an advisory capacity and its valuations were not binding upon the township assessor. Id. at 530.

Lastly, the court considers plaintiff s claim that the matter being a prerogative writ permits the action to go forward. Plaintiff provides no support either by way of statute or case law, but instead references the more traditional prerogative writ matter of land use issues, and states that a challenge to the grant of approvals must name both the municipal land use agency and the applicant, as both are indispensable parties. The court is not persuaded by this argument. First and foremost, an applicant who has been granted approvals by a municipal land use board has attained certain rights, duties, and approvals to develop a parcel of property in divergence from development as provided under municipal land use ordinances. An approval, once granted[,] runs with the land. William M. Cox, New Jersey Zoning and Land Use Administration, 33-2.1 at 350 (2010).Clearly any challenge to the grant of approvals by necessity requires the recipient (applicant) to be part of the litigation.

In the instant matter, CVI has acquired no right, title, or interest in any property real or personal. Rather, it has rendered a service to the assessor in exchange for compensation (i.e. contract between CVI and the Borough). The services rendered are the assistance to the assessor who either accepts or rejects the values provided. Accordingly, I find that the mere captioning of the complaint as a prerogative writ does not in and of itself, in this factual circumstance, make for a cause of action upon which relief can be granted.

Given all reasonable inferences to plaintiff and its complaint, and reviewing all binding precedent before me, I find that there is no cause of action against CVI.




The court finds that there is no cause of action against defendant, CVI. For the aforementioned reasons, the court grants defendant s motion and dismisses plaintiff s complaint against defendant, CVI.


Very truly yours,


Hon. Joseph M. Andresini, J.T.C.


1As alleged in the complaint, CAPP-FSGN, Inc. (Committee to Advocate for Public Policy Four Seasons Great Notch) is a membership organization incorporated pursuant to the laws of New Jersey. It s membership consists of residents who have purchased and own homes in the development known as Four Seasons at Great Notch (FSGN) in the Borough of Woodland Park in Passaic County, New Jersey.

2 As alleged in the complaint, the other plaintiffs in this matter are adult residents of the Borough of Woodland Park in the Four Seasons at Great Notch development and are personally aggrieved by the actions of the defendants.

3 Defendants Lepore, DiDomenico, Gatti, Holloway, Pascrell, Spinelli and Vargas are the mayor and council of the Borough of Woodland Park.

4 Defendant Henderson is the tax assessor of the Borough of Woodland Park.

5 Defendant Certified Valuations, Inc. is a private, for-profit firm hired and paid by the Borough of Woodland Park on June 16, 2010 pursuant to Resolution R10-180 to conduct a revaluation of the properties in the Borough of Woodland Park.

6 Defendant Appraisal Systems, Inc. is a private, for-profit firm hired and paid April 20, 2011 pursuant to Resolution R11-105 to conduct a review of the revaluation of the properties in the Borough of Woodland Park.