The Fish Grill, Inc. v. Dir., Div. of Taxation
| Decision Date | 07 April 2022 |
| Docket Number | 000010-2020 |
| Court | Tax Court of New Jersey |
| Parties | THE FISH GRILL, INC., Plaintiff, v. DIRECTOR, DIVISION OF TAXATION, & HOWELL TOWNSHIP, Defendants. |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE TAX COURT COMMITTEE ON OPINIONS
Peter H. Klouser, for plaintiff The Fish Grill, Inc. (Heilbrunn Pape, LLC, attorneys).
Anthony D. Tancini, for defendant Director, Division of Taxation, (Attorney General of New Jersey).
Christopher J. Dasti, for defendant Howell Township (Dasti Associates, attorneys)
GILMORE, J.T.C.
This opinion concerns the parties' cross motions for summary judgement. At issue is whether Plaintiff, The Fish Grill Inc. ("Plaintiff") must pay the required fees under the Non-Residential Development Fee Act (the "Act"). N.J.S.A. 40:55D-8.4(a). Plaintiff asserts that it is exempt from the fees imposed under the Act, on the grounds that development that took place on the property it owns constitutes "reconstruction," and therefore is not subject to the fees under the Act. Defendants Howell Township (the "Township) and the Director, Division of Taxation (the "Director"), counter by arguing to the court that the development is not reconstruction but rather is "new construction," subjecting Plaintiff to Act's fees. For the foregoing reasons, the court denies Plaintiff's motion and grants the Defendants' motions.
The court makes the following findings pursuant to R. 1:7-4. Plaintiff is the owner of record of the real property known as Block 71, Lot 5 as shown on the Tax Map of the Township of Howell, Monmouth County, State of New Jersey (hereinafter the "subject property"). The subject property contains 39, 226 square feet and is located along New Jersey State Highway Route 9 near the intersection of Ford Road. It is located within the HD-1 Zoning District and was improved with two dwellings prior to Plaintiff's non-residential development at issue before the court.
In 2013, Plaintiff filed an application for a conditionally exempt site plan approval to reconstruct a commercial building containing a hair salon into a restaurant. The Township conditionally approved the application on May 1, 2014. Prior to the start of construction, a flooding issue arose with the hair salon that rendered the building incapable of being renovated and required Plaintiff to obtain minor site plan approval from the Township. The Township granted minor site plan approval on May 21, 2015, and issued a Resolution on June 18, 2015. The Resolution made clear that due to the flooding issues, the structure on the property was "unable to be renovated." The Resolution gave Plaintiff notice that the granted approval was "for construction of a restaurant to be known as 'the Fish Grill' with associated parking and improvements." On April 1, 2016, Plaintiff received a construction permit for "major reconstruction of existing building into restaurant." On April 18, 2016, Plaintiff's architect notified the Township that portions of the existing foundation at the subject property were inadequate and needed to be replaced. Plaintiff subsequently submitted a construction application to "replace existing foundation." Following completion of the improvements, Plaintiff applied for and received a Certificate of Occupancy on June 3, 2019.[1]
Around June 2019, the Township imposed the Statewide Non-Residential Development Fee ("NRDF") on Plaintiff's non-residential development pursuant to the Act, which Plaintiff contested with the Township. Through counsel, the Township advised Plaintiff that Plaintiff had received approval to construct a new building, and thus, Plaintiff's non-residential development was new construction subject to the NRDF as required by the Act.[2] Plaintiff protested the Township's position in a letter dated August 9, 2019, arguing that development at issue was not new construction but was reconstruction. Plaintiff stated that it was reconstruction because documents issued by the Township included the word "reconstruction."[3] The Township responded, reiterating that it was the Township's position that the development is new construction because Plaintiff received approval from the Township to construct a new building. After the Director's office requested additional information on the matter, the Township provided documentation regarding the Plaintiff's replacement of the foundation that had existed at the subject property prior.
The Director issued his determination on October 18, 2019, upholding the Township's imposition of the fee. The determination indicated that the facts showed the existing buildings were incapable of being renovated and that the building, including the existing foundation, was demolished a new building was constructed. The determination also stated that "According to the Office of Regulatory Affairs, Division of Codes and Standards, Department of Community Affairs, the project was improperly classified as reconstruction under the Rehabilitation Subcode, and the entire building should have been considered new construction and subject to current codes."
Plaintiff appealed the Director's determination to this court on January 3, 2020, naming only the Director as a Defendant. The Township moved to intervene on January 10, 2020, and this court granted the motion on August 5, 2020. Subsequently, Plaintiff moved for summary judgement, the Township and the Director filed cross motions for summary judgment. Plaintiff filed no response to the Defendants' motions.
It is well established that a motion for summary judgment should be granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). An issue of fact "is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Id. All evidence presented must be viewed in "the light most favorable to the non-moving party" but trial courts are encouraged "not to refrain from granting summary judgment when the proper circumstances present themselves." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 541 (1995). If the evidence presented by the non-moving party does not create a genuine issue of material fact, and solely provides immaterial or insubstantial facts, it will be insufficient to defeat the motion. Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986). "A non-moving party cannot defeat a motion for summary judgment merely by pointing to any fact in dispute." Brill, 142 N.J. at 529. Moreover, "when the evidence is so one-sided that one party must prevail as a matter of law the trial court should not hesitate to grant summary judgment." Id. at 540.
The Director argues in its motion that Plaintiff's motion for summary judgment is defective because it does not comply with the requirements of R. 4:46-2(a). R. 4:46-2(a) provides:
But see Hancock v. Borough of Oaklyn, 347 N.J.Super. 350, 362 (App. Div. 2002) (). Although the requirements of R. 4:46-2(a) are stated in mandatory terms, summary judgment may be granted even if these requirements are not met when there is a single critical and undisputed issue. See Kenney v. Meadowview Nursing Center, 308 N.J.Super. 565, 569-70 (App. Div. 1998); Housel v. Theodoridis, 314 N.J.Super. 597, 602 (App. Div. 1998).
In Kenney, the Plaintiff brought an action under the Family Leave Act and the Law Against Discrimination. 308 N.J.Super. at 566. When discovery was completed, the Defendant employer filed a motion for summary judgment, followed by Plaintiff's cross-motion for summary judgment. Id. at 568. The Appellate Division found that " Id. at 569. However, the court addressed the merits of the case because it still found the case ripe for summary judgment, because "the material facts were not disputed," and "the critical issue was whether plaintiff had sufficient hours to qualify for Family Leave benefits." Id. But see Lyons v. Twp. of Wayne, 185 N.J. 426, 435-37 (2005) ( the court was unable to conclude that there was no genuine issue as to any material fact because the movant failed to comply with the requirements of R. 4:46-2(a)).
Here Plaintiff's summary judgment motion suffers serious defects and is not in compliance with R. 4:46-2. As the Director points out, Plaintiff's "Statement of Facts," which is primarily listed as "Background" in paragraph form, is not a separate document from Plaintiff's brief, nor are the facts set forth...
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