Maria Padilla and 32 4th Street, LLC v. City of Elizabeth

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE TAX COURT

COMMITTEE ON OPINIONS

September 16, 2015

Joseph H. Orlando, Clerk

Superior Court of New Jersey

Appellate Division

25 Market Street

Trenton, NJ 08625-0006

Richard J. Vapnar, Esq.

525 Palmer Avenue

Maywood, NJ 07607

Robert D. Blau, Esq.

Blau & Blau

223 Mountain Avenue

Springfield, NJ 07081

RE: Maria Padilla and 32 4th Street, LLC v. City of Elizabeth

Docket No. 018378-2011

Gentlemen

This letter opinion is issued pursuant to Rule 2:5-1(b) to amplify the court s oral opinion issued July 24, 2015 granting defendant s motion for summary judgment, denying plaintiffs cross motion and dismissing plaintiffs complaint.

Findings of Fact and Procedural History

VFD Capital Ventures, LLC ( VFD ) acquired the real property designated Block 5, Lot 683.B and known as 30 4th Street, Elizabeth, NJ and 32 4th Street, Elizabeth, NJ sometime prior to April 23, 2009. Thereafter, VFD completed construction of two new two-family homes on the properties. The property located at 32 4th Street ( subject property ) is the subject of this opinion.1

Chapter 3.12 of the Elizabeth City Code (the Code ) provides for tax abatements for certain residential properties in Elizabeth City (the City ). Section 3.12.010 of the Code provides that [t]he city, pursuant to N.J.S.A. 54:4-3.139, et seq., makes known its intention to utilize the tax abatement provision authorized by the state legislature to provide for a five-year tax abatement for certain residential properties (the Ordinance ). Section 3.12.030 of the Code sets forth the eligibility requirements, including the requirement that the qualifying residential unit be owner-occupied (Section 3.12.030(B)) and, in the case of multi-unit dwellings, that the owner must occupy at least one unit (Section 3.12.030(C)).

Section 3.12.040(A) of the Code requires that the application for abatement be made within thirty days following completion of the qualifying construction or improvement. There are additional provisions for the continuance of the abatement upon a sale of the property to a new owner provided that the property had been granted an abatement in accordance with the Ordinance. (Section 3.12.120).

A certificate of occupancy for the subject property was issued April 3, 2009. On or about April 23, 2009, VFD, which was the owner of the subject property on that date, completed an application for a tax abatement in accordance with Chapter 3.12 of the Code (the Initial Application ). An affidavit dated November 27, 2012 signed by an individual by the name of Brian Curley provides as follows

1. On or about April 23, 2009 I went to the office of Tax Assessor Enrico Emma, at the Elizabeth City Hall, 50 Windfield Scott Plaza, 3rd Floor in Elizabeth New Jersey for the purpose of filing tax abatement applications for VFD Capital Ventures, LLC.

2. I was advised at that time that the applications could not be accepted because the properties were in the names of Limited Liability Companies. The Tax Assessor s employee refused to accept the application.

3. I requested to speak with a supervisor and the agent in question stated that she would speak to him herself. She returned with a copy of the first page of the application paperwork with a copy of a yellow post-it note attached indicating that the application was rejected due to the properties being owned by Limited Liability Companies.

4. I explained to the employee that the properties were owner-occupied but she advised that it did not matter if the ownership was recorded in the name of a Limited Liability company. She advised that the ownership should be changed to reflect individual ownership as opposed to company ownership.

5. I returned to (sic) documents to Mr. DePasquale and Ms. Padilla and relayed the information that I was provided.

Correspondence addressed to Robert Blau, Esq., the attorney for the defendant, from Angela Vidal, Esq., prior counsel to the plaintiffs, dated December 18, 2012, refers to and produces certain specified items of discovery, including a copy of the post-it note affixed to the tax abatement application that was returned to Ms. Padilla with the application, indicating that an LLC could not apply for a tax abatement, dated May 5, 2009. The referenced post-it note is indeed dated 5-5-09 and in handwriting states: Informed Mr. Curley houses must be owner occupied & in individual name. LLC Inc. need not apply . This document is clearly the post-it note referenced by Mr. Curley in his affidavit, although the date on the note, May 5, 2009, does not comport with his recollection that he received it on April 23, 2009 when he attempted to file the Initial Application.2

As noted, on April 23, 2009, both the subject property and the other newly completed two-family home at 30 4th Street were owned by VFD. Vincent DePasquale, one of the members of VFD, certified that prior to making the decision to purchase the properties, he contacted the City, and when he spoke with the City he was never told that he could not own the property through a limited liability company. According to plaintiffs, in February 2010, the City told them that they needed to bifurcate their interest in the properties.3 Based on this advice, plaintiff, Maria Padilla, and Mr. DePasquale formed two new limited liability companies. Thereafter, title to the subject property was transferred to plaintiff, 32 4th Street, LLC.4

Sometime after the subject property was transferred to 32 4th Street, LLC it was again transferred to plaintiff, Maria Padilla. On or about August 10, 2010, Ms. Padilla filed an application for abatement, which was denied by the defendant s tax assessor as untimely because it was not filed within thirty days of the completion of the improvements as required by the Ordinance. Plaintiffs appealed the defendant s denial of the August 2010 Application to the Union County Board of Taxation, which affirmed the denial.5 The complaint in this court followed. 6

The defendant thereafter filed a motion for summary judgment. Plaintiffs opposed the motion and cross-moved for summary judgment, which defendant opposed. Following oral argument, the court issued an oral opinion granting defendant s motion for summary judgment, denying plaintiffs cross motion and dismissing plaintiffs complaint.

II. Summary Judgment Analysis

Summary judgment should be granted where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact challenged and the moving party is entitled to a judgment or order as a matter of law. R. 4:46-2(c). In Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995), our Supreme Court established the standard for summary judgment as follows

[W]hen deciding a motion for summary judgment under Rule 4:46-2, the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

The express import of the Brill, supra, decision was to encourage trial courts not to refrain from granting summary judgment when the proper circumstances present themselves. Howell Twp. v. Monmouth Cnty. Bd. of Taxation, 18 N.J. Tax 149, 153 (Tax 1999) (quoting Brill, supra, 142 N.J. at 541).

[T]he determination [of] whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. Brill, supra, 142 N.J. at 523.

The court finds that the matter is ripe for summary judgment because there are no issues of material fact in dispute.

III. Discussion

It should initially be noted that the defendant does dispute that the Initial Application was timely filed.7 However, for the purposes of the summary judgment motion before the court, defendant agrees that it should be accepted as true that VFD filed the application for abatement within the thirty-day period following the completion of the improvements, and thus the application was timely filed. The defendant argues that even if the original application for abatement was timely filed, it could not have been granted because the property was owned by a limited liability company in April 2009, when the Initial Application was made. As a result, the subject property was not and could not have been owner-occupied and therefore one of the requirements for qualification could not be satisfied. Thus, even if timely filed, the Initial Application would have been properly denied.

Plaintiffs counter that under the enabling statute, N.J.S.A. 54:4-3.139(i), they are investors who qualify as a matter of law for the abatement and that the requirement in the Ordinance for owner-occupancy is void and defendant s action in rejecting the Initial Application was invalid. Plaintiffs also maintain that they relied, to their detriment, on the City s failure to inform them that an LLC could not qualify for the abatement and as a result they are entitled to relief.

The fundamental approach of our statutes is that ordinarily all property shall bear its just and equal share of the public burden of taxation . . . Statutes granting exemption from taxation represent a departure and consequently they are most strongly construed against those claiming exemption. Princeton Univ. Press v. Princeton, 35 N.J. 209, 214 (1961) (citing Township of Teaneck v. Lutheran Bible Institute, 20 N.J. 86, 90 (1955); Julius Roehrs Co. v. Division of Tax Appeals, 16 N.J. 493, 497 98 (1954); Trenton v. State Bd. of Tax Appeals, 127 N.J.L. 105, 106 (Sup. Ct. 1941), affirmed sub nom. Trenton v. Rider College, 128 N.J.L. 320 (E. & A. 1942)).

An abatement is a partial exemption. City of Newark v. Essex Cnty. Bd. of Taxation, 309 N.J. Super 476, 488 (1998). [T]he burden of proving entitlement to an exemption is on the party seeking it. Abunda Life Church of Body, Mind & Spirit v. City of Asbury Park, 18 N.J. Tax 483, 485 (App. Div. 1999) (citing N.J. Carpenters Apprentice Training and Educ. Fund v. Borough of Kenilworth, 147 N.J. 171, 177 78 (1996); Princeton Univ. Press, supra 35 N.J. at 214).

The statutory authority for the abatement in question are the provisions at N.J.S.A. 54:4-3.139, et seq. Indeed, Section 3.12.010 of the Code, entitled Statement of Intention, provides: the city, pursuant to N.J.S.A. 54:4-3.139, et seq., makes known its intention to utilize the tax abatement provision authorized by the state legislature to provide for a five-year tax abatement.

N.J.S.A. 54:4-139(i) provides: Property tax abatements for the construction of certain residential structures, and property tax abatements for the conversion of other structures to residential use, will constitute a substantial incentive for owners and investors to improve vacant land and underutilized structures. (emphasis supplied). Plaintiffs maintain that the reference to investors in the statute supports their position that the City s requirement that the property be owner-occupied does not comport with the intentions of the legislature and is therefore void. Specifically, the plaintiffs maintain that the legislature intended that investors be incentivized to apply for abatements and that investors need not be occupiers.

Plaintiffs position is literally short-sighted. While N.J.S.A. 54:4-3.139 sets forth the Legislature s findings and determinations with respect to the compelling public purpose to provide qualified municipalities with the means of providing the appropriate abatements (N.J.S.A. 54:4-3.139(m)), the process for obtaining an abatement is set forth in the subsequent sections of the legislation. See N.J.S.A. 54:4-3.141. First, a municipality may, by ordinance, determine that one or more areas within the municipality are in need of rehabilitation, and that one or more buildings or structures in any such area could be advantageously converted to qualified residential property or that vacant land in any such area could be advantageously used for the construction of qualified residential property. Ibid. Once the determination of qualification is made, a municipality may enact an ordinance for property owners to seek a five-year tax abatement for qualifying rehabilitated properties. N.J.S.A. 54:4-3.142.

More specifically, N.J.S.A. 54:4-3.142 provides

The governing body of a qualified municipality which has complied with the provisions of [N.J.S.A. 54:4-3.141] may, by ordinance, provide for abatements of real property taxes for qualified residential property. The governing body shall include the following items in its enabling ordinance and shall select among the following options where appropriate

a. A property tax abatement term of five years;

b. The application procedure for an abatement authorized under this act;

c. The method of computing payments in lieu of real property taxes pursuant to subsection b. or subsection c. of [N.J.S.A. 54:4-3.145];

d. An approval method for abatement applications by the assessor or by ordinance on a per applicant basis; and

e. A requirement that: (1) to be eligible for an abatement, a dwelling house, condominium unit or unit in a horizontal property regime shall be occupied by the owner thereof, and that a cooperative shall be occupied by residential shareholders therein; or (2) in a case in which paragraph (1) of this subsection is not satisfied, the annual payment in lieu of taxes on the unit or dwelling house shall be increased by 1% above the amount otherwise chargeable under [N.J.S.A. 54:4-3.145]; and that, in the case of a cooperative, the annual payment in lieu of taxes shall be the amount chargeable under [N.J.S.A. 54:4-3.145] plus an amount determined by multiplying 1% of the amount chargeable under [N.J.S.A. 54:4-3.145] times the percentage of units not occupied by residential shareholders.

In the case of an abatement for the conversion of a building or structure to qualified residential property, the building or structure so converted may include, but need not be limited to, commercial or industrial buildings or structures, or underutilized school buildings.

[N.J.S.A. 54:4-3.142]

While at first reading it may appear that paragraph (2) of subsection (e) supports plaintiffs position that the Ordinance may permit an abatement for a non-owner occupied residential property,8 this subsection must be read together with the language of the introductory paragraph. As noted, the language of the latter provides that [t]he governing body shall include the following items in its enabling ordinance and shall select among the following options where appropriate. (emphasis supplied).

Thereafter subsections (a) through (e) are described in the conjunctive, thus requiring that they must all be included in the Ordinance. It is only within subsections (c) and (e) where the word or appears, indicating a choice of options, as permitted in the introductory paragraph. As a result, the municipality may choose among the options set forth in subsection (e), i.e. either requiring owner occupancy or allowing non-owner occupancy coupled with an increase in the annual payment in lieu of taxes.

It is well established that [i]f the statute is clear and unambiguous on its face and admits of only one interpretation, [courts should] delve no deeper than the act s literal terms to divine the Legislature s intent. Koch v. Dir., Div. of Taxation, 157 N.J 1, 7 (1999) (alteration in the original)(internal quotation marks and citations omitted). The language of the statute permits a municipality to require owner occupancy. The court finds that the reference in paragraph (2) of subsection (e) to a case where owner occupancy is not satisfied, is intended to provide a municipality with the option of allowing non owner-occupied properties to qualify provided that the increased payment-in-lieu penality is imposed, but does not require a municipality to so provide. This reading is buttressed when one reads subsection (c) of the statute which grants the municipality the option of providing for two different payment-in-lieu computations,9 only one of which is referenced in paragraph (2) of subsection (e). In adopting the Ordinance, the City did not attempt to impose a condition on the operation of a statute not contemplated by the legislature. See, Magnolia Dev. Co., Inc. v Coles, 10 N.J. 223 (1952). The requirement of owner occupancy set forth in the Code is valid.

The court also notes that plaintiffs refer to N.J.S.A. 54:4-3.143 as support for their position that the City s requirement for owner occupancy conflicts with the authorizing statute and is therefore void. That position is unavailing for several reasons.

The referenced statute, N.J.S.A. 54:4-3.143 provides as follows

When an urban redevelopment project, approved pursuant to section 19 of P.L. 1961, c. 40 (C.40:55C-58) includes the construction of qualified residential property, and the project is located in a qualified municipality which has adopted the provisions of this act, the urban renewal corporation or association carrying out the project may, upon completion of that qualified residential property, make application for tax abatements under this act on behalf of prospective purchasers of dwelling units whether the units be owner occupied or investor owned.

[N.J.S.A. 54:4-3.143]

The section referenced in N.J.S.A. 54:4-3.143, as well as the section upon which plaintiffs rely, N.J.S.A. 40:55C-58, are a part of the Urban Renewal Corporation and Association Law of 1961. There was no indication whatsoever that the subject property was a part of a redevelopment project as contemplated by that Act. That provision, which applies solely to properties within such a redevelopment project, is not operative in this matter.

More telling is the fact that N.J.S.A. 40:55C-58 was repealed effective April 17, 1992, long before plaintiffs or their predecessors acquired the subject property, and nearly seventeen years before the construction on the subject property was completed. There is nothing before this court to suggest that this long-repealed statute would have had any effect on the subject property.

Having found that the owner-occupancy requirement is a valid condition of the Ordinance, the question still remains whether the City s position that a limited liability company could not occupy a residential property justified its rejection of the Initial Application. If it were not, at the very least the Initial Application for abatement submitted by VFD within the time provided by the Ordinance should have been reviewed by the City. On the other hand, if the City s position is correct, the rejection of the Initial Application was proper.10

In 3519-3513 Realty LLC v. Law, 406 N.J. Super 423 (App. Div. 2009), the appellate court found that a limited liability company could not personally occupy a residential property. In that case, the plaintiff landlord, a limited liability company, served its tenant with a notice to quit based on N.J.S.A. 2A:18-61.1(l)(3), which permits a landlord to remove a tenant if the owner of the property seeks to personally occupy a unit. Id. At 425. The plaintiff argued that it was entitled to avail itself of that provision because its sole member intended to reside in the unit. Ibid. In deciding for the tenant defendant, the court relied in large part on the purpose of the anti-eviction statute (N.J.S.A. 2A:18-6.11(l)(3)), which was to protect blameless residential tenants by limiting the permissible bases for their removal. Id. at 425-426. The court further commented that the landlord has the right to decide to arrange his affairs in any manner he chooses, but by doing so, he must accept the concomitant burdens that follow from the choice he made. Id. at 426. See also, General Trading Co. v. Dir., Div. of Taxation, 83 N.J. 122, 136 (1980).

Tax-exemption statutes are strictly construed against those claiming exemption because of the compelling public policy that all property bear its fair share of the burden of taxation. N.J. Carpenters Apprentice Training, supra, 147 N.J. at 177 (citing Princeton Univ. Press, supra, 35 N.J. at 214). It is in accord with the appellate court s reasoning in 3519-3513 Realty LLC, supra, that the court finds that an LLC is not eligible as an owner-occupant of residential property. Construing the Ordinance as allowing a corporate entity to be considered an owner-occupant of residential property for abatement purposes would expand the universe of parties entitled to abatement, a result at odds with the constitutional requirement that all property bear its fair share of taxes. See Boardwalk Properties v. Atl. City, 5 N.J. Tax 192, 196 (Tax Ct. 1983). Since the subject property was owned by an entity which could not have satisfied the owner-occupancy requirement of the Ordinance, the City s rejection of VFD s Initial Application was justified.

This result is further buttressed by the fact that at the time the application was made, VFD owned two multi-family residences for which it simultaneously submitted applications for abatement. Plaintiffs argument that VFD qualified as an owner-occupant of the subject property would require that the LLC occupy both residences, a conclusion that would distort the intent of the Ordinance.

Plaintiffs also argue that they were somehow mislead by the City because the City did not inform them that holding title to the properties in an LLC would disqualify them from obtaining the benefits of the Ordinance. They further argue that they reasonably relied on this advice to their detriment. The court notes that while Mr. DePasquale indicates that he spoke to the City, he does not indicate to whom he spoke he does not indicate if he spoke to someone at the assessor s office, the construction official s office, the Mayor s office or elsewhere. Furthermore, he does not identify the subject about which he spoke to the unknown City individual.

More importantly, the plaintiffs do not maintain that the City affirmatively advised Mr. DePasquale that ownership in an LLC form would qualify for the abatement. Instead, Mr. DePasquale certifies that he was never told that [he] could not own the property through a limited liability company.

This matter is not at all similar to the facts in Lowe s Home Ctr., Inc. v. City of Millville, 25 N.J. Tax 591 (Tax 2010), upon which plaintiffs rely. In Lowe s, the tax assessor expressly advised the taxpayer that the time within which the taxpayer had to file for the abatement would expire thirty days from the date of its letter to taxpayer. Id. at 596. The actual date was some four days earlier, as calculated from the date that the improvements were completed. Id. At 597. The taxpayer made its application within the time provided by the assessor, the abatement was granted and was thereafter approved by the governing body. Ibid. Some two and one-half years after the abatement application was approved by the assessor, the governing body rescinded the approval based on the miscalculation of the completion date and the late filing of the application. Ibid.

The tax court rejected the municipality s attempted rescission, finding the municipality s actions precluded an award of relief under the square corners doctrine of F.M.C. Stores Co. v. Borough of Morris Plains. See id. at 603 (citing F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418 (1985)). The court in Lowe s found that the municipality had a duty to provide clear and correct notices of statutory timeframes in the area of taxation, and that the letter from the tax assessor to the taxpayer in that matter contained a misleading and inaccurate statement, which directly lead to the late filing of the application. Id. at 603.

The court finds that plaintiffs did not reasonably rely to their detriment on any information provided by the city when they placed the ownership of the property in VFD Capital Ventures, LLC. The City did not mislead them into owning the property in that manner, intentionally or otherwise. In fact, it appears that the City did inform the plaintiffs that ownership in an LLC format would not qualify for the abatement when the Initial Application was submitted and rejected. Assuming that this was April 23, 2009, the plaintiffs had time within which to transfer title to individual ownership and timely reapply. Regardless, plaintiffs do not assert that the City affirmatively advised the plaintiffs that an LLC could own property and qualify for the abatement; thus, there was nothing upon which they relied to their detriment or otherwise.

It was for the foregoing reasons that the court granted defendant s motion for summary judgment and denied plaintiffs cross-motion for summary judgment. However, the court believes the following also bears mentioning.

It is clear that plaintiffs application, filed some sixteen months after the completion of construction, was untimely. The City rejected the 2010 application for this reason and the Union County Board of Taxation affirmed that decision. However, neither party argued the timeliness of the August 10, 2010 appplication for abatement as a basis for dismissal of the plaintiffs complaint in this matter.

Furthermore, plaintiffs do not contend that they took any action to contest the City s rejection of the Initial Application. Nor did plaintiffs appeal the tax assessment imposed against the subject property after the Initial Application was rejected. It is therefore questionable whether the plaintiffs actions in filing the complaint in this matter were timely.

The Tax Court is vested with limited jurisdiction as defined by statute. McMahon v. City of Newark, 195 N.J. 526, 546 (2008). The statutory scheme establishing this court s jurisdiction is one with which continuing strict and unerring compliance must be observed. Id. at 543. Adherence to statutory filing deadlines is of particular concern in tax matters, given the exigencies of taxation and the administration of [ ] government. F.M.C. Stores, supra, 100 N.J. at 424 (citing Princeton Univ. Press, supra 35 N.J. at 214; see also Bonnano v. Dir., Div. of Taxation, 12 N.J. Tax 552, 556 (Tax 1992).

The failure to file a timely Complaint divests this court of jurisdiction even in the absence of harm to the taxing authority. Lawrenceville Garden Apartments v. Lawrence Tp., 14 N.J. Tax 285 (App. Div. 1994). Failure to file a timely appeal is a fatal jurisdictional defect. F.M.C. Stores, supra, 100 N.J. at 425. A Complaint that is even one day late must be dismissed for lack of jurisdiction. Mayfair Holding Corp. v. Township of N. Bergen, 4 N.J. Tax 38 (Tax 1982); Prospect Hill Apartments v. Borough of Flemington, 172 N.J. Super. 245 (Tax 1979).

Statutory filing deadlines pertaining to tax matters are jurisdictional and if not complied with, an otherwise eligible taxpayer waives his entitlement to any refund. Pantasote, Inc. v. Dir., Div. of Taxation, 8 N.J. Tax 160, 164 (Tax 1985) (citing Riteway Rentals v. Dir., Div. of Motor Vehicles, 2 N.J. Tax 117, 119 (Tax 1981) and Commercial Refrigeration & Fixture Co., Inc. v. Dir., Div. of Taxation, 2 N.J. Tax 415, 419 (Tax 1981)).

It appears that the failure of plaintiffs to contest the rejection of the Initial Application at any time is fatal to the appeal in this matter. Since these issues were not argued before the court as part of the motion for summary judgment made by the City, however, they were not made part of the court s decision.

IV. Conclusion

For the foregoing reasons, defendant s motion for summary judgment is granted, plaintiffs complaint is dismissed. Plaintiffs cross motion is denied.

Very truly yours,

Kathi F. Fiamingo, J.T.C.

1 It is unclear whether Block 5, Lot 683.B was subdivided so that each of the newly constructed improvements were located on separate tax lots. A second complaint, docketed as No. 018389-2011, was filed to appeal the identical issues relating to the improvement identified as 30 4th Street, Elizabeth, NJ, but is not the subject of this opinion.

2 The court notes that if Mr. Curley s recollection that the post-it note was returned to him on the same day that he attempted to file the applications is accurate, it may be that the applications were not timely filed, May 5 being more than thirty days after the completion of the construction on April 3, 2009. However, for the purposes of this summary judgment motion only, the parties agree that the application was timely submitted. As the application is dated April 23, 2009 which is also the date set forth in Mr. Curley s affidavit as when it was submitted, the court will use this date as the date of submission.

3 Plaintiffs did not provide any indication of what transpired in the nine-month interval between the time the Initial Application was rejected and February 2010 when they were told to bifurcate their interests.

4 The second property was also transferred into a new limited liability company but is not of issue in this matter.

5 The parties entered into a Settlement at the Union County Board of Taxation reducing the original assessment by $5,000, while preserving the plaintiffs right to appeal the denial of the abatement.

6 Tax Court complaint docketed as 018389-2011 was filed by 30 4th St LLC as plaintiff alleging the identical facts as set forth in the subject matter with respect to the second two-family house constructed by VFD. Both matters were the subject of summary judgment motions and were argued at the same time. In the companion matter, the motion for summary judgment brought by plaintiff in that matter was denied. The defendant municipality did not make a cross-motion in that matter. As a result the companion matter remains on the court s calendar for further proceedings.

7 The assessor maintains that he has no record that the original application of April 2009 was filed. It appears that the attempt to file the original application was rejected prior to filing and it was returned to VFD because of the assessor s position that houses must be in individual name and those owned by limited liability companies could not qualify for the abatement. The assessor s assertion that the initial application was not filed appears accurate, but only because his office rejected the application when VFD attempted to file it.

8 The court notes for the record that plaintiffs did not advance this argument in support of their position.

9 N.J.S.A. 54:4-3.145 allows two options for the payment in lieu the first being equal to 2% of the cost of the improvements for the first five years, and the second being a graduated phase-in of the taxes which would otherwise be due, beginning at 0% for year 1, with 10% increases per year thereafter.

10 Although defendant argued it was entitled to judgment because a limited liability company could not be an owner-occupant of residential property, plaintiffs did not address that issue, relying instead on its position that the owner-occupancy requirement was void.

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