Del Priore v. Edison Twp.
| Decision Date | 29 March 2012 |
| Citation | 425 N.J.Super. 440,41 A.3d 802 |
| Parties | Salvatore DEL PRIORE, Plaintiff, v. EDISON TOWNSHIP, Defendant. |
| Court | New Jersey Court of Chancery |
OPINION TEXT STARTS HERE
Salvatore Del Priore, plaintiff, pro se.
Bridget M. Reipl (Hoagland, Longo, Moran, Dunst & Doukas, New Brunswick, attorneys).
MENYUK, J.T.C., (t/a).
This matter comes before the court on the renewed motion of the defendant Township for summary judgment. The complaint was originally filed with the Tax Court and appeals a judgment of the Middlesex County Board of Taxation (“Board”) which dismissed plaintiff's petition with prejudice for lack of jurisdiction. The petition sought an exemption from local property taxes for plaintiff's residence for the period September 17, 1997 through December 31, 2004, pursuant to N.J.S.A. 54:4–3.30 to –3.34 (the “Act”). The Act grants an exemption from local property taxes for the dwelling house of a qualified totally disabled veteran.
The gravamen of plaintiff's complaint is that the Township granted all qualified veterans who applied for the exemption before him a refund of property taxes retroactive to the effective date of their disability as determined by the United States Department of Veterans Affairs (“VA”), and that he has been treated differently because he was not granted a fully retroactive refund. Plaintiff contends that the Township's denial of his request for a refund of taxes to the effective date of his disability is contrary to the Township's long-standing past practice and constitutes a violation of the Equal Protection Clause, U.S. Const. amend. XIV and N.J. Const. art. I, ¶ 1.
The court concludes that the Township is entitled to an order granting summary judgment dismissing the complaint.
The court finds the following facts. On April 20, 2006, the VA issued a letter setting forth its determination that plaintiff's wartime service-connected disability was totally disabling, and that the effective date of the disability was September 17, 1997. On April 24, 2006, pursuant to N.J.S.A. 54:4–3.30 to 54:4–3.34, plaintiff filed an application for full exemption from local property taxes for his residence. The municipal assessor granted the application for tax year 2006 on the same date that the application was filed. She wrote to plaintiff and advised him that his application had been granted and also stated that, “I am advising the Tax Collector to arrange a refund of taxes you have paid for the 2006 tax year.” By resolution adopted on May 10, 2006, the Edison Township Municipal Council (“Township Council”) directed the refund to plaintiff of the first quarter real property taxes for tax year 2006, in the amount of $1,966.78.
By letter dated June 6, 2006, plaintiff and his wife wrote to the Township Council and requested a refund of local property taxes paid retroactive to September 17, 1997, the date that plaintiff became 100% permanently and totally disabled according to the VA. Their letter noted that the Township Council had, in the past, granted retroactive refunds of taxes back to the effective date of 100% permanent and total disability, and enclosed documentation as to grants of retroactive tax refunds to two other veterans.
By resolution adopted on June 28, 2006, the Township Council authorized a refund of plaintiff's 2005 taxes in the amount of $7,615.12.
Anthony Cancro, Edison's former business administrator, wrote to plaintiff and his wife on October 31, 2006. According to the letter, Mr. Cancro was writing at the request of the council president to address plaintiff's request for a tax exemption retroactive to September 17, 1997. According to the letter, the Township had interpreted the veteran's exemption statute as not requiring the refund of taxes to a veteran retroactive to the date on which the VA deems the veteran to have become permanently and totally disabled, but rather to the date on which the VA issues its written decision, which in plaintiff's case was April 20, 2006. Mr. Cancro referred to an opinion issued by the New Jersey Division of Taxation, which was apparently not included with his letter and has not been made available to the court. Finally, the letter stated:
Although the Township Council, in keeping with past practices, approved an additional refund of one year, going beyond this point places an undue burden on the Township's non-exempt taxpayers and finds little support as a matter of law. Further, I believe the Township has acted in the spirit of the law and has compensated you accordingly.
The letter concluded by denying any further retroactive payment.
Plaintiff and his wife responded by writing to Mr. Cancro, disputing his assertion that the Township had interpreted the statute as requiring relief only to the date of the written determination by the VA. They again enclosed documentation relating to two additional Edison residents who had both received recognition of tax exemption and tax refunds retroactive to the effective date of total and permanent disability as determined by the VA.
The first such grant was to a veteran who had received a September 29, 2005 determination from the VA that he was 100% totally and permanently disabled as a consequence of a wartime service-connected disability effective November 13, 2003. The Township council passed a resolution authorizing a retroactive refund of taxes for the first three quarters of 2005, and a second resolution refunding taxes back to November 13, 2003, the effective date of his total and permanent disability. The total refund was $10,867.70.
The second case documented by plaintiff and his wife was that of a veteran who in a letter from the VA dated June 2, 2005 was determined to be totally and permanently disabled effective November 1, 2004. The Township Council subsequently passed two resolutions granting the veteran tax refunds retroactive to the effective date of his total and permanent disability in the total amount of $1,858.12.
There was apparently no further response from Mr. Cancro, and on December 11, 2006, plaintiff and his wife wrote to the Township Council, again requesting retroactive exemption and tax refunds to the effective date of his total and permanent disability. In that request, they documented twelve other veterans who had received tax refunds retroactive to the effective date of their total and permanent disability. Unlike plaintiff, however, in most of these cases the gap between the date of the VA determination and the effective date of the total and permanent disability was less than two years. In one case, it appears to have been two years, eight and one half months. The amounts of the refunds varied, with one veteran receiving a greater total refund ($13,570.98) than had been refunded to plaintiff ($9,581.90), and the rest receiving less.
Since the filing of this action, plaintiff has, through requests to the Township made pursuant to the Open Public Records Act, N.J.S.A. 47:1A–1 to –13 (“OPRA”), located documentary evidence of about twenty more retroactive refunds granted to qualified, totally disabled veterans back to the mid–1950's. In one instance, the Township Council granted a refund for a period longer than had been requested by plaintiff. By determination dated October 27, 1994, Clifford Miller received a determination of total disability effective May 27, 1982. In addition to a refund for the remainder of 1994, the Township Council granted Mr. Miller's widow a refund of taxes in the amount of $19,162.91 for the period May 27, 1982 through 1993 by resolution adopted on November 23, 1994.1 In two cases, the refund amount was greater than received by plaintiff. The Township granted a retroactive refund in 1984 to Theodore Baskerville for about four years of property tax payments, totaling about $11,000, with certain other amounts refunded to the veteran by the State. 2 In 1988, the Township Council granted a refund to John Teller of five years of property tax payments with a total amount, $15,217.47, exceeding that paid to the plaintiff.
Following plaintiff's letter of December 11, 2006, the assessor wrote to plaintiff on January 3, 2007, stating that the Township Council had decided to revisit his request for a retroactive refund. There was apparently no further communication from defendant as to the outcome of this reconsideration of plaintiff's further request for a refund of taxes retroactive to September 17, 1997. It is clear from a February 7, 2007 memo from Mr. Cancro to members of the Township Council and minutes from Township Council meetings that plaintiff's request for further retroactive relief precipitated discussions regarding the codification of a policy to address the issue, rather than a reconsideration of his request.
On September 26, 2007, the Township Council adopted an ordinance, No. 1584–2007, effective on October 23, 2007, limiting a retroactive property tax refund to the current year and the prior year, but in no event greater than a twenty-four month period in the aggregate, for persons entitled to the veteran's exemption under N.J.S.A. 54:4–3.30. The ordinance recited that the reason for the limitation was that retroactive refunds have a financial impact on the township that have to be compensated for by other taxpayers. Plaintiff does not contend, nor have there been any proofs offered, that defendant granted a retroactive refund for a period exceeding that provided by the ordinance to any totally disabled veteran who became eligible for exemption after plaintiff. From the information collected by plaintiff through OPRA, it appears that three qualified veterans were granted retroactive refunds subsequent to plaintiff. The refunds were for periods ranging from twelve to twenty-one months, and were for amounts ranging from $5,305.52 to $9,466.71.
At some point, plaintiff inquired as to whether or not the Township Council had reconsidered his request, as the assessor had indicated it would. He was supplied with a...
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