Brookview Gardens, Inc. v. Bergenfield Borough

4 N.J. Tax 625
CourtNew Jersey Tax Court
DecidedSeptember 24, 1982
StatusPublished
Cited by4 cases

This text of 4 N.J. Tax 625 (Brookview Gardens, Inc. v. Bergenfield Borough) is published on Counsel Stack Legal Research, covering New Jersey Tax Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brookview Gardens, Inc. v. Bergenfield Borough, 4 N.J. Tax 625 (N.J. Super. Ct. 1982).

Opinion

CONLEY, J. T. C.

This is a procedural matter raised by the court on its own initiative because of rather urgent time constraints involving the disposition of local property tax appeals by county boards of taxation. Appeals must be filed with county boards by August 15 and county boards are required to hear and determine all such appeals within three months. N.J.S.A. 54:3-21 and 3-26. A county board judgment rendered more than three months after the final statutory date for taking appeals is beyond the jurisdiction of the board and is void. Danis v. Middlesex Cty. Bd. of Tax., 113 N.J.Super. 6, 9, 272 A.2d 542 (App.Div.1971).

[627]*627Plaintiff filed a complaint with the Tax Court on August 13, 1982 but did not file an appeal with the Bergen County Board of Taxation. Plaintiff’s property consists of 64 condominium units rented to tenants. Other units in the same complex were sold by plaintiff to new owners and are not involved in this proceeding. Plaintiff alleges that all its units are substantially similar except for the number of bedrooms in each unit. The 1982 assessments for plaintiff’s 64 units range from $28,300 to $40,-200, the land portion of the assessment in each case being $3,000. The complaint states that plaintiff “seeks review of more than one separately assessed condominium property and all separately assessed properties in this complaint are contiguous and in common ownership and have a total assessment which exceeds $750,000.”

N.J.S.A. 54:3-21 has provided for many years that a taxpayer feeling aggrieved by the assessed valuation of his property may on or before August 15 appeal to the county board of taxation. When the Tax Court was established in 1979 the Legislature added this language to the statute:

. .. provided, however, that any such taxpayer . . . may on or before August 15 file a petition of appeal directly with the tax court, if the assessed valuation of the property subject to the appeal exceeds $750,000.00, and any party to an appeal pending on July 1, 1979 before a county board of taxation in which the assessed valuation of the property involved exceeds $750,000.00 shall be entitled, upon application to the county board, to have the appeal transferred to the tax court by the county board.

See, also, R. 8:3-5(a)(3).

Because none of the assessments challenged by plaintiff exceeded $750,000, this court issued an order directing plaintiff to show cause “why the pending complaint should not be transferred to the Bergen County Board of Taxation and/or dismissed by the Tax Court of New Jersey for the reason that the Tax Court has no jurisdiction over the pending action pursuant to N.J.S.A. 54:3-21.” The court directed the parties and the county board to advise the court in writing of their positions with respect to the order to show cause.

Defendant taxing district and the Bergen County Board of Taxation both responded to the order to show cause that the [628]*628complaint should be dismissed outright and not transferred. Plaintiff initially responded in part as follows:

The appraised [sic ] valuation of the 64 units totals $2,357,800. While no one unit exceeds $750,000, the total assessed valuation does.

In his responding letter plaintiff’s attorney also stated that he had telephoned a Tax Court judge’s law clerk “to inquire if a combined appeal for all 64 units under single ownership could properly be taken directly to the tax court and was advised that it would be proper to appeal directly to the tax court.”

The latter point raised by plaintiff warrants no extended consideration. An attorney who represents a client in litigation must act on the basis of his professional training and experience and not on the basis of an answer obtained from a clerk over the telephone. This is so even if one assumes that the clerk was presented with all the pertinent facts and that the attorney fully understood the answer. The court and its personnel do not practice law. Attorneys seeking such shorthand advice must learn that there are inherent pitfalls in that path and that there is no valid substitute for competent professional performance. See Mayfair Holding Corp. v. North Bergen Tp., 4 N.J.Tax 39 (Tax Ct.1982).

Plaintiff's attorney submitted a second letter as a response to the position taken by the Attorney General. In this letter counsel makes his position somewhat clearer. He argues that R. 8:3-5(a)(4) “specifically refers to the situation in hand” and that plaintiff is proceeding in accordance with that provision. R. 8:3-5(a)(4) provides as follows:

Where property has been assessed separately pursuant to the provisions of N.J.S.A. 46:8A-26 (Horizontal Property Act) or N.J.S.A. 46:8B-19 (Condominium Act) a single complaint may be filed provided that each separate assessment is included in a separate count.

In making this argument plaintiff overlooks the issue of jurisdiction. A taxpayer may indeed file with the Tax Court a single complaint involving separately assessed condominium properties, as it states in R.8:3-5(a)(4). However, this, may be done only after the taxpayer has already proceeded before the county board of taxation and has obtained judgments from the county board. R.8:2(c) is to the point:

[629]*629Exhaustion of Remedies Before County Board of Taxation. Except as otherwise provided by N.J.S.A. 54:3-21 (direct review of certain assessments to the Tax Court) or N.J.S.A. 54:2-41 (complaint for correction of error) no action to review a local property tax assessment may be maintained unless an action has been instituted before the County Board of Taxation.

In the present case it is clear that the Tax Court cannot entertain complaints on direct appeal that challenge assessments ranging from $28,300 to $40,200. N.J.S.A. 54:3-21 permits direct appeals only when “the assessed valuation of the property subject to the appeal exceeds $750,000.00.” Plaintiff does not dispute that property taxes are “separately assessed against and collected on each [condominium] unit as a single parcel, and not on the condominium property as a whole.... ” N.J.S.A. 46:8B-19. Accordingly, the fact that plaintiff owns a number of contiguous units whose assessments together exceed $750,000 is irrelevant. It is thus readily apparent that plaintiff incorrectly challenged its 1982 assessments in the Tax Court rather than in the Bergen County Board of Taxation. The question, then, is whether the complaint should be dismissed by this court for lack of jurisdiction or whether the court should transfer plaintiff’s complaint to the county board.

R. 1:13 A(a) provides, in pertinent part, that

... if any court is without jurisdiction of the subject matter of an action or issue therein .., it shall, on motion or on its own initiative, order the action, with the record and all papers on file, transferred to the proper . . administrative agency ... in the State. The action shall then be proceeded upon as if it had been originally commenced in that ... agency.

Cf. Bergen Cty. v. Paramus, 79 N.J. 302, 399 A.2d 616 (1979); Kaczmarek v. N. J. Turnpike Auth., 77 N.J.

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Bluebook (online)
4 N.J. Tax 625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brookview-gardens-inc-v-bergenfield-borough-njtaxct-1982.