Archive for the tag 'Local Government Law'

Tax Court Developments

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

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Firm Argues That Hospital’s Offsite Physical Therapy Services at “Wellness Center” Is Not Entitled to Exemption

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

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Martin Allen speaks to Monmouth County Tax Assessors

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.

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Tax Court Decision Holds that Taxpayer Counsel May Not Communicate with Assessor Without Consent of Municipal Attorney

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

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Martin Allen Argues Tax Appeal Issues Before the NJ Supreme Court

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

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Applicant has burden to prove that it did not abandon a prior non-conforming use

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.

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The Deadline for filing tax appeals applies to a Challenge to a Partial Reassessment. Condo Association cannot file a tax appeal on behalf of its member owners.

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. 

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Tax appeal may proceed even though Owner has delinquent taxes on another property.

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. 

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Challenge by Farmers to Highlands Act Rejected by Appellate Division

SteveK September 10th, 2009

         On September 3, 2009, in County of Warren v. State of New Jersey , the Appellate Division upheld the validity of the master plan adopted by the Highlands Water Protection and Planning Council against an argument by farmers that the council lost its authority to adopt the plan by failing to do so within the time set forth in Highlands Preservation Act. The Court also rejected constitutional challenges to the Highlands Act based on equal protection arguments, including a claimed constitutional right to farm and the claim of unequal treatment to property owners with larger tracts of land. 

         The plaintiffs were farmers owning tracts of land ranging in size from 18 to 150 acres in the preservation area created by the Highlands Act. (The County of Warren did not participate in the appeal.)   The Court affirmed the dismissal of the challenge on the pleadings, noting that the New Jersey Supreme Court in OFP, L.L.C. v. State, 395 N.J. Super 571 (App. Div. 2007), aff’d o.b., 197 N.J. 418 (2008), had upheld the general constitutionality of the Act. The Appellate Court held that the failure of the Council to adopt a regional master plan within the time frame provided by the Act, was not fatal since the date provided was a “directory, rather than …a mandatory deadline that would invalidate a subsequent adoption of the plan.”  The Court also rejected the equal protection arguments finding that there is no fundamental right to farming; therefore, the state only needs to demonstrate a rational basis to satisfy equal protection requirements. The Court also reviewed the Right to Farm Act, which was specifically referenced in the Highlands Act, concluding that it did not create a fundamental right to farm, but rather provided protection to farmers from land use control by local and county authorities and nuisance suits by neighbors. The “rational basis test” also precluded the claim of unequal treatment of owners of larger parcels of property. Finally, the Court rejected the claims that there was no scientific basis for the “preservation zone” due to hydrogeologic conditions. The Court deferred to the legislative findings that focused on “other exceptional natural resources such as clean air, contiguous forest lands, wetlands, pristine watersheds, and habitat for fauna and flora” in addition to “sites of historic significance.” The Court concluded that it would not second-guess the determination of Legislature in creating boundaries relating to the overall goals of the Act. Accordingly, the Court dismissed another challenge the Highlands Protection Act, allowing the Highlands Council to proceed to regulate and control development in the environmentally sensitive Highlands region of New Jersey.

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 environmental matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contact Steven A. Kunzman, Esq. who heads our Environmental Department. 

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