Farmingdale Realty Co. v. Borough of Farmingdale

Decision Date16 December 1969
PartiesFARMINGDALE REALTY CO., Plaintiff-Appellant, v. BOROUGH OF FARMINGDALE, Defendant-Respondent.
CourtNew Jersey Supreme Court

John Warren, Jr., Red Bank, for plaintiff-appellant (Parsons, Canzona, Blair & Warren, Red Bank, attorneys, John Warren, Jr., Red Bank, of counsel, William G. Bassler, Red Bank, on the brief).

John W. O'Mara, Eatontown, for defendant-respondent (Saling, Boglioli & Moore, Eatontown, attorneys, John W. O'Mara, Eatontown, on the brief).

The opinion of the court was delivered by

HALL, J.

The plaintiff, a real property owner in the defendant municipality, sued in the Law Division to secure a refund of excess taxes paid for the years 1962, 1963 and 1964 by reason of partial duplicate assessments. The action was based on the following provision of N.J.S.A. 54:4--54:

'Where by mistake property real or personal has been twice entered and assessed on the tax duplicate, the governing body of the taxing district or county board of taxation may order and cause the tax record to be corrected and if the tax has been twice paid the governing body of the taxing district shall refund the excessive payment without interest.'

The case was tried to the court on a stipulation of certain facts and the pretrial depositions of the assessor and a member of the borough's governing body. Judgment for the defendant resulted. The Appellate Division affirmed. 104 N.J.Super. 314, 250 A.2d 29 (1969). We granted certification. 53 N.J. 580, 252 A.2d 156 (1969).

The trial judge did not make the findings of fact in his oral opinion at the close of the case required by R. 1:7--4 (formerly R.R. 4:53--1) or subsequent to the filing of the notice of appeal as permitted by R. 2:5--1(b) (formerly R.R. 1:2--8(h)). Nor did the Appellate Division find them fully in its opinion. Therefore we proceed to do so pursuant to the constitutional grant of necessary original jurisdiction to appellate courts. Const. 1947, Art. VI, § V, par. 3; R. 2:10--5 (formerly R.R. 1:5--4(a)). The basic facts are undisputed.

In 1961 and since, plaintiff owned a parcel of real estate designated on the tax map as block 21, lot 4, upon which five factory buildings are situated. Plaintiff's president and his wife also owned individually block 21, lot 3, where his private residence is located. The statute prescribes that the assessor shall annually make a list, called the 'tax list' or 'assessment list', of each parcel of real estate in the municipality and set down in tabular form in the list, and in the copy thereof designated the 'tax duplicate', the names of the owners and the taxable value, I.e. the assessed valuation of the land and of the buildings and improvements thereon together with the total of the two figures. N.J.S.A. 54:4--24, 26. The figure for the taxable value of buildings and improvements is one lump sum and where, as here, there is more than one building on a lot, no breakdown is set forth in the list or duplicate to indicate the taxable value of each building separately.

Shortly prior to 1961, all property in Farmingdale was revalued by an outside firm for tax assessment purposes at 100% Of true value. That firm prepared a card for each parcel upon which the land and buildings thereon were described and the assigned valuation figures set forth. Where more than one building was situated on a lot, each structure was described and valued separately. These cards were turned over to the assessor and were adopted by him. They comprised his office records. (The annual tax list and duplicate are filed with the County Board of Taxation; after correction and revision the duplicate is delivered to the tax collector of the municipality and the list remains with the board as a public record. N.J.S.A. 54:4--35, 55.)

In 1962 Farmingdale went on a 100% Value assessment basis for the first time and the assessor used the revaluation figures on the cards as the assessment figures in preparing the tax list and duplicate. These figures necessarily differed substantially from those used in the preceding year. The card for plaintiff's property set forth a valuation of $18,450 for the land and separate figures for each of the five buildings totalling $144,021. The card for the individually owned residence of plaintiff's president set forth a value of $24,587 for it.

However, the part-time assessor (his other occupation was school bus operator), in computing the assessment for the corporate buildings added in the $24,587 valuation of the president's residence (as well as assessing it to him individually) and also included the valuation of three of the corporate buildings twice. 1 The assessed value of the corporate buildings was by reason of these clerical mistakes set down in the tax list and duplicate as $187,000, when it should have been $144,021. The total duplicate assessment to plaintiff thus amounted to $42,979.

In 1963 and 1964 a further mistake was made. In each of those years not only was the president's home included as well in the corporate assessment and the three corporate buildings added in twice as in the previous year, but a fourth building was also duplicated, resulting in a corporate buildings assessment for those years of $215,000 and a total duplicate assessment to plaintiff of $70,979. 2

The record indicates, without giving details, that during this period plaintiff sought information from the assessor as to the assessment, but was met with hostility rather than information. No appeals or other action were taken, however, and the taxes were paid both on the corporate property and the president's residence based on the assessments as entered.

In 1965 the same mistaken assessments were made as in the two previous years. This time plaintiff appealed its buildings assessment to the County Board of Taxation, as 'a taxpayer feeling aggrieved by the assessed valuation of his property * * *.' N.J.S.A. 54:3--21. The duplication mistakes were discovered for the first time and conceded by the municipality, which agreed to a settlement, incorporated in a judgment of the board entered November 15, 1965, reducing the assessment to $140,000. While the judgment recites that the property 'is assessed higher than the true value thereof,' there is no doubt that the clerical mistakes were the actual reason for the reduction.

Thereafter plaintiff promptly applied successively to the municipal governing body and the County Board of Taxation, pursuant to the earlier quoted provisions of N.J.S.A. 54:4--54, for a refund of the excess taxes paid for 1962, 1963 and 1964 by reason of the duplicate assessments. Both bodies refused the former on January 12, 1966, the latter on April 19, 1966. No appeal was taken to the state Division of Tax Appeals, but this suit (really an action in lieu of prerogative writ) was instituted against the borough on May 24, 1966, seeking a determination that duplicate assessments had been levied and of the amount of excess tax payments made by reason thereof, together with a direction to refund the same without interest.

The Appellate Division, in deciding for the municipality, held that the phrase in N.J.S.A. 54:4--54, property 'twice entered and assessed on the tax duplicate' 'by mistake,' required that the double assessment be 'readily ascertainable by a simple inspection of the tax duplicate', 104 N.J.Super. at 318, 250 A.2d at 31, and without reference to any other record. The conclusion would follow that a duplication mistake which does not so appear can only be corrected through appeal to the County Board of Taxation pursuant to N.J.S.A. 54:3--21, as to which plaintiff is long since out of time for the years involved. The question is a novel one, the statutory provision having had no significant judicial attention.

We are convinced that the view of the Appellate Division is much too narrow a construction and does not accord with the fair legislative intent. In the first place, there is nothing in the literal language of the sentence authorizing its application only when there has been a precise and obvious line-for-line duplication. Property may actually be 'twice entered and assessed' in whole or in part, as here, without verbatim duplication of owner's name, lot and block number, and lump sum assessed valuation of land and buildings.

Secondly, we think it clear, contrary to the Appellate Division's expression (104 N.J.Super. at 318, 250 A.2d 29), that the other factual situations, relief as to which is authorized in subsequent sentences of the section, require proofs outside the tax duplicate to establish the basis. The second sentence deals with an assessment intended for one parcel mistakenly placed upon another. Certainly establishment of such a situation would require evidence beyond the tax duplicate itself. Likewise the situation covered by the third sentence, where one person has by mistake paid the tax on the property of another supposing to be his own, proofs outside of the tax records would...

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