SteveK April 12th, 2010
In Davanne v. Edison, (see previous blog entry of Feb. 19,2010) Martin Allen successfully argued before the New Jersey Supreme Court that the 8th Amendment prohibition against unreasonable and excessive fines does not apply to a dismissal of a tax appeal because of an income producing property owner’s failure to respond to a request from a tax assessor for income and expense information.
More recently, in Stellakis v South Plainfield, an unreported decision of the Tax Court, we argued, and the Court determined that taxpayer’s counsel failed to present any evidence at the County Tax Board despite calling the Assessor as his witness and referring him to comparable sales referred to in a settlement letter. The Tax Court, after reviewing an audio recording of the County Board hearing, held that the hearing was a sham and dismissed the Tax Court appeal pursuant to N.J.S.A. 54:51A-1(c), which precludes review by the Tax Court if the County Board matter was dismissed for lack of prosecution.
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq
Tags: Local Government Law, Tax Appeals
SteveK February 19th, 2010
Martin Allen recently argued before the NJ Appellate Division in the case of Hunterdon Medical Center v. Readington. In that case, the N J Supreme Court reversed in part and remanded the matter to the Tax Court to determine if the physical therapy services provided at the off site heath and wellness center owed by the hospital are exempt from taxing under N.J.S.A. 54:4-3.6. On remand the Tax Court agreed with the argument that in the particular facts of the case, the portion of the property where the physical therapy was conducted is taxable. The hospital has appealed that decision which was recently presented to the Appellate Division.
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq
Tags: Local Government Law, Tax Appeals
SteveK February 19th, 2010
Mr. Allen appeared on February 4 as a speaker at the Monmouth County Assessor’s 4th Annual Conference. The topic of his talk was the “Legal Pathway through the Appeal Process” in which he discussed the procedural defenses and technical issues that may be employed by a municipality in a tax appeal. Mr. Allen will be speaking at the New Jersey Assessor’s Association Conference at Forsgate Country Club in Monroe Township on March 18th.
Tags: Local Government Law, Tax Appeals
SteveK February 19th, 2010
Martin Allen of the firm recent obtained a decision from the Tax Court in Kolvites v Manville (unreported), which has become a case frequently cited for its holdings. The Court held that a case cannot be dismissed at the County Board for lack of prosecution if the taxpayer’s attorney on the day of the hearing faxes a proposed stipulation of settlement to the Tax Board because that action is not “deliberate and contumacious.” Also important was the Court’s finding that the taxpayer’s attorney’s actions may have implicated the “long standing rule that an attorney may not communicate directly with parties represented by counsel without the permission of that counsel. R.P.C. 4.2.” The Presiding Judge of the Tax Court, in his decision, stated:
“While it may be common, . . . , for taxpayers’ counsel to discuss settlement with tax assessor, the court doubts that such negotiations are conducted without the prior approval of municipal counsel. If the court is mistaken in this regard, taxpayers’ counsel would be wise to modify this practice. Direct communication with a party who is represented by counsel with out first obtaining the consent of that counsel runs contrary to the rules of professional conduct applicable to all attorneys.”
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq
Tags: Local Government Law, Tax Appeals
SteveK February 19th, 2010
Martin Allen recently argued before the New Jersey Supreme Court in Davanne v. Edison. The issue of the case is whether the dismissal of a tax appeal pursuant to Chapter 91 (N.J.S.A.54:4-34) is unconstitutional pursuant to the 8th Amendment of the U S Constitution and its N.J. equivalent as an “excessive fine.” N.J.S.A.54:4-34 provides that a tax assessor may request income and expense information from income producing property owners. If the owner fails to respond, it is precluded, by the Chapter 91 amendment to that law, from filing a tax appeal for the next tax year, subject to its testing the resulting assessment’s reasonableness in a hearing. The taxpayer in this case argued that any difference between the assessments put on the property by the assessor and its opinion of the correct assessment would result in overpayment of taxes that are unconstitutional excessive fines. Mr. Allen argued that taxes are not fines, that the law in question was a procedural mechanism for calculating a tax, that the law provided a due process mechanism for testing the reasonableness of the resulting assessment and therefore the law was constitutional. He also argued that the taxpayer failed to take advantage of a reasonableness hearing, and therefore waived any constitutional argument.
The argument can be seen at http://www.judiciary.state.nj.us/webcast/archive.htm
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq
Tags: Local Government Law, Tax Appeals
SteveK November 18th, 2009
In Beverly Square Association, Inc. vs. Zoning Board of Adjust of the City of Trenton et al., the New Jersey Appellate Division held that a property owner, applicant for permit to renovate a prior non-conforming use, has the ultimate burden of proof that the prior use had not been abandoned. In the case, the defendant was issued a permit to renovate 20 residential apartments deemed by the Trenton zoning officer to be a preexisting non-conforming use. Beverly Square Association appealed the decision to the Trenton Zoning Board of Adjustment, arguing that the defendant’s nonconforming use had been abandoned (i) after a tax foreclosure on the property, and (ii) as a result of the 18-month vacancy and state of disrepair. The Board affirmed the decision of the zoning officer, which was appealed to the Superior Court. The Court reversed finding that the property owner failed to prove that the use had not been abandoned.
The Appellate Court determined that the objector must initially come forward with sufficient evidence of temporal or physical abandonment; however the property owner had the ultimate burden of proof as to the intent to resume the prior non-conforming use of the property within the 18-month period provided in the municipal ordinance. The Court remanded the case to trial court for the matter to be considered in with the clarification on the burden of proof.
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in zoning, land use and local government matters. For additional information about the matters in this bulletin or in the firm’s land use, zoning and municipal please contact Jeffrey B. Lehrer, Esq.
Tags: Land Use Law, Local Government Law
SteveK October 29th, 2009
In Bear’s Nest Condominium Association v. Bergen County Board of Taxation, the Tax Court ruled that an appeal to contest the partial reassessment of properties in a municipality must comply with the statute of limitations for filing any tax appeal. That is, the appeal must be filed within 45 days of the taxpayer receiving notice of a change in assessment or by April 1st, whichever date is later. In this instance, the appeal was filed beyond the deadline and was dismissed. The Plaintiff in this case was the condominium association and not the taxpayers. The Court therefore also addressed the issue of standing in dicta, stating, “…there is no authority for associational standing or for class actions to contest tax assessments in bulk.” The plaintiff, a condominium association, therefore did not have standing to contest the assessments.
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq.
Tags: Local Government Law, Tax Appeals
SteveK October 29th, 2009
In John Trebour Trustees v. Randolph Township, the Tax Court denied a municipality’s motion to dismiss a tax appeal because the taxpayer owed taxes on a property that was no longer the subject matter of the tax appeal. This was a case of first impression by the Court. The taxpayer filed a complaint contesting its assessments on two lots. The taxpayer failed to pay the requisite taxes through the first quarter of the year under appeal on one of the lots. The taxpayer withdrew its appeal on the lot with delinquent taxes, but proceeded with its appeal on the remaining lot on which taxes had been paid. The Tax Court ruled that the taxpayer is only required to pay the taxes on the lot under appeal. Real estate taxes are not personal to the owner – - they relate to the property and therefore a taxpayer can proceed with a tax appeal on a property with taxes paid through the first quarter of the year under appeal, even if the same person owns other properties with delinquent taxes.
We have successfully argued for dismissal of cases where other fees and charges (e.g., developers’ fees, building permit charges, land development escrow deficiencies) are due from a taxpayer, through the first quarter of the year, on the property which is the subject of the appeal. The decision of the court does not appear to reach a contrary result, so long as the delinquent fees or charges relate to the property under appeal.
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq.
Tags: Local Government Law
SteveK October 21st, 2009
In the recent article published in New Jersey Municipalities magazine entitled ‘The Right to Privacy Versus the Right to Access Public Records,” Todd Ruback, Esq. discusses the recent decision of the New Jersey Supreme Court that provides guidance to local governments on how to balance a citizen’s right to privacy with requests for documents under the Open Public Records Act (OPRA). Mr. Ruback concludes that the Court may have created an implied right to privacy under the New Jersey State Constitution.
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in technology and privacy matters. For additional information about the matters in this bulletin or in the technology and privacy practive group, please contact Todd Ruback Esq.
Tags: Technology Law
SteveK October 21st, 2009
In the recent article published in New Jersey Municipalities magazine entitled “Tax Appeal Strategies in a Real Estate Down-turn,” Martin Allen, Esq. discusses the issues faced by municipalities in tax appeals now that the real estate bubble has burst. Local governments in New Jersey generate most of their revenue from real estate taxation. In a distressed market, towns must address new concerns in the areas of budgeting, bonding and the defense of assessments. In this article, Mr. Allen sets out to introduce some of the solutions. These issues will be further examined by him as a member of the panel at the Joint Session of The New Jersey State League of Municipalities, the Association of Municipal Assessors and the New Jersey Institute of Local Government Attorneys, entitled, “Tax Appeals in a Real Estate Recession – Strategies for Defending the Tax Base without Wiping Out your Budget” scheduled for Thursday, November 19, 2009 at 10:45 in the morning at the Atlantic City Convention Center.
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq.
