Vena v. Borough of North Haledon.

CourtNew Jersey Tax Court
DecidedJune 5, 2017
Docket014550-2012
StatusUnpublished

This text of Vena v. Borough of North Haledon. (Vena v. Borough of North Haledon.) 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
Vena v. Borough of North Haledon., (N.J. Super. Ct. 2017).

Opinion

NOT FOR PUBLICATION WITHOUT APPROVAL OF THE TAX COURT COMMITTEE ON OPINIONS

TAX COURT OF NEW JERSEY

Kathi F. Fiamingo 153 Halsey Street Judge Gibralter Building –8th Floor Newark, New Jersey 07101 (609) 815 2922 EXT 54600 Fax: (973) 648-2149

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE TAX COURT COMMITTEE ON OPINIONS

June 2, 2017

Joyce W. Murray, Esq. 33 Stockton Court Newtown, PA 018940

Michael P. De Marco, Esq. De Marco & De Marco 912 Belmont Avenue North Haledon, NJ 07508

RE: Vena v. Borough of North Haledon Docket No. 014550-2012

Counsel:

This is the court’s opinion in the above-referenced matter. This matter was submitted to

the court pursuant to R. 8:8-1(b) for resolution without a trial.

Because plaintiff has failed to overcome the presumption of correctness of the tax

assessment, the judgment of the Passaic County Board of Taxation is affirmed.

* I. Facts and Procedural History

The following facts are obtained from the Joint Stipulation, including attached exhibits, submitted

by the parties.1

Plaintiff purchased a condominium unit known as 6 Peachtree Lane, North Haledon, New

Jersey (Block 58.03, Lot 29.04 on the official tax map) (the “subject property”). The condominium

association had been formed by Master Deed recorded in the Passaic County Register’s Office on

March 14, 2003. The deed by which plaintiff took title reflects that plaintiff purchased the subject

property from the developer on September 28, 2004, for a purchase price of $38,196. The deed

further reflects that plaintiff’s title is

subject to the terms, conditions, restrictions, limitations and provision (sic) as set forth in the Affordable Housing Agreement dated, September 28, 2004, to be recorded simultaneously herein (sic) in the office of the Clerk of Passaic County and is also on file with the Clerk of the Borough of Haledon. This is a Low income unit (sic)

The “Affordable Housing Agreement” (“AHA”) reflects that it is entered into by plaintiff

and the “Borough of North Haledon, or its designated assignee.”2 The AHA further provides that

the subject property is designated “low and moderate income housing” as defined by the Fair

Housing Act, N.J.S.A. 52:27D-301, et seq. (“FHA”) and that certain “covenants, conditions and

restrictions” are imposed upon the subject property for a period of “at least thirty (30) years.” In

particular, the AHA provides that:

[t]he Owner . . . shall not sell the unit at a Resale Price greater than an established Base Price plus the allowable percentage of an increase as determined by the Index applicable to the municipality in which the unit is located. However in no event

1 The Stipulation was initially submitted by plaintiff without the signature of defendant. Defendant’s counsel orally represented to the Hon. Joshua D. Novin that defendant concurred with the Stipulation. Counsel subsequently confirmed in writing that he joined in the stipulation of facts submitted by plaintiff. At the request of the court the stipulation of facts was supplemented to include the date of COAH certification for the municipality’s affordable housing plan which included the subject property. 2 Uncertified copies of the deed and Affordable Housing Agreement submitted by the parties suggest that the deed and AHA were recorded in the Passaic County Register’s office on October 6, 2004.

2 shall the approved resale price be established at a lower level than the last recorded purchase price.

“Index” is defined under the AHA as the “measured percentage of change in the median

income for a Household of four by geographic region using the Income guideline approved for use

by [the Council on Affordable Housing (“COAH”)]” and “Base Price” is defined as the initial sales

price.

North Haledon submitted a petition for COAH certification of its “fair share housing plan”

and received substantive certification on May 2, 2001. The municipality received credit for the

subject property as part of the plan included in the petition for which certification was granted.

Prior to 2012, the subject property was assessed as follows:

Land: $10,000 Improvements: 3,400 Total $13,400

As a result of a municipal-wide revaluation conducted in North Haledon (the

“municipality”) for tax year 2012, the assessment on the subject property was set as follows:

Land: $20,000 Improvements: 27,700 Total $47,700

Plaintiff appealed the assessment to the Passaic County Board of Taxation (“PCBT”) which

affirmed the assessment. The code noted on the Memorandum of Judgment was “2A.” At the

hearing before the PCBT, the Assessor testified that the subject property’s tax assessment had been

determined in accordance with an “online calculator” published by the New Jersey Department of

Community Affairs (DCA) on its website. Use of the referenced calculator indicated that the

3 “maximum allowable sale price” for 2011 was $47,723.3 Plaintiff thereafter filed a timely appeal

of the PCBT judgment with the Tax Court

II. Legal Standards

The court reviews this matter pursuant to R. 8:8-1(b), which provides that:

A party may at any time upon notice to all other parties move the submission of a case for decision without trial, on the ground that sufficient facts have been admitted, stipulated, established by depositions or otherwise included in the record. The court may require the filing of any additional materials and briefs and oral argument, or it may direct that the matter be placed upon the trial calendar.

“Subparagraph (b) of the rule is akin to a summary judgment practice and is particularly

appropriate in those cases, such as exemption cases, where the operative facts are not in dispute

but only the manner in which the law applies thereto.” Pressler and Verniero, Rules Governing

The Courts of the State of New Jersey, comment 1.1 on R. 8:8-1 (2017).

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.

3 The exhibit submitted by the parties was captioned “2014 COAH Re-Sale Price Indicator” and appears to be dated 9/30/16. Although the parties submit to the court that the exhibit was “produced” by the municipal tax assessor at the PCBT hearing, the court questions whether this exhibit could have been produced at a hearing held in 2012.

4 “The express import of the Brill decision was to ‘encourage trial courts not to refrain from

granting summary judgment when the proper circumstances present themselves.’” Township of

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

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