Weyerhaeuser Co. v. Borough of Closter

• Decision Date: 22 July 1983
• Citation: 464 A.2d 1156,190 N.J.Super. 528
• Parties: WEYERHAEUSER COMPANY, Plaintiff-Appellant, v. BOROUGH OF CLOSTER, Defendant-Respondent. WITCO CHEMICAL CORP., Plaintiff-Appellant, v. CITY OF PERTH AMBOY, Defendant-Respondent. ALSTORES REALTY CORP., Plaintiff-Appellant, v. BOROUGH OF PARAMUS, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 528

190 N.J.Super. 528

464 A.2d 1156

WEYERHAEUSER COMPANY, Plaintiff-Appellant, v. BOROUGH OF CLOSTER, Defendant-Respondent.

WITCO CHEMICAL CORP., Plaintiff-Appellant, v. CITY OF PERTH AMBOY, Defendant-Respondent.

ALSTORES REALTY CORP., Plaintiff-Appellant, v. BOROUGH OF PARAMUS, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued April 12, 1983.

Decided July 22, 1983.

Frank A. Carlet, Clifton, for plaintiffs-appellants (Goldman, Carlet, Garrison & Bertoni, Clifton, attorneys; Frank A. Carlet and Marjorie Neifeld, Clifton, on the briefs).

Jonathan N. Harris, Elmwood Park, for defendant-respondent Borough of Closter (Andora, Palmisano, De Cotiis & Harris, Elmwood Park, attorneys, M. Robert De Cotiis, Elmwood Park, of counsel).

Leo Rosenblum, Secaucus, for defendant-respondent City of Perth Amboy (Rosenblum & Rosenblum, Secaucus, attorneys).

Saul A. Wolfe, Newark, for defendant-respondent Borough of Paramus (Skoloff & Wolfe, Newark, attorneys; Robert F. Giancaterino, Newark, on the brief).

Before Judges MATTHEWS, ANTELL and FRANCIS.

The opinion of the court was delivered by

MATTHEWS, P.J.A.D.

Each of these three cases originated as a direct appeal filed in the Tax Court seeking a reduction in the assessed valuation of the subject property to true value. Substantially after the permitted time for filing a direct appeal but before any hearing had occurred, petitioner in each case sought to amend the complaint to include an allegation that the assessment was discriminatory. The request was denied in each case based on case law which required a claim of discrimination to be pleaded separately and timely.

On appeal petitioners urge that Chapter 123 of Laws of 1973 does or should modify that prior case law.

Although prior case law clearly required an amendment, such as those herein requested, to be denied, Chapter 123, as recently interpreted by this court, so profoundly simplified the proofs of the elements of a claim of discrimination that the rigid procedural requirements became obsolete and in fact obstructionary of the Tax Court's duty to determine the proper assessment valuation.

Weyerhaeuser Company v. Closter

Plaintiff Weyerhaeuser owns industrial property known as Block 46, Lot 14 in the Borough of Closter, County of Bergen. On or about August 10, 1981, Weyerhaeuser filed a complaint in the Tax Court seeking review of the assessment of $1,994,700 for that property. The complaint alleges that the assessment was in excess of true value and asked that the assessment be reduced to true value.

On or about August 28, 1981, defendant Borough filed an answer denying that the assessment was in excess of true value and a counterclaim alleging that Closter "is discriminated against by the assessed valuation of said property in that it is less than the true value of said property." Closter asked that the assessment be increased by application of "L.1973, Chap. 123." Weyerhaeuser answered the counterclaim by denying the allegations and asking that the counterclaim be dismissed.

The pretrial order entered March 29, 1982, listed "valuation and discrimination" as the factual and legal issues.

On August 3, 1982 Closter filed a "withdrawal of claim" of discrimination. On August 5, 1982, the Tax Court judge heard oral argument on that motion as well as on a motion by Weyerhaeuser for leave to amend its complaint to include an allegation of discrimination.

During arguments the court found that Closter had the absolute right to withdraw its claim of discrimination. Weyerhaeuser's motion to add a claim of discrimination was denied.

We granted leave to appeal.

Witco Chemical Corp. v. Perth Amboy

Witco owns industrial property known as Block 471, Lot 1 in Perth Amboy, County of Middlesex. Witco filed a complaint on or about August 12, 1981, in the Tax Court seeking a review of the assessment for 1981. The complaint alleged the assessment of $2,005,900 was in excess of the true value and asked that it be reduced to true value. No answer was filed.

The pretrial order entered following the pretrial conference held on June 3, 1982, preserved Witco's right to move to amend the order to include a claim for discrimination, if brought before September 17, 1982. On July 30, 1982, Witco filed a notice of motion requesting an order amending the pretrial order or alternatively the complaint, to include an allegation of discrimination. On September 7, 1982, the Tax Court judge denied the motion for the reasons set out in his letter opinion dated August 13, 1982.

Witco moved for leave to appeal which was granted October 18, 1982. We consolidated this appeal with Weyerhaeuser.

Alstores Realty Corp. v. Paramus

Plaintiff Alstores is the owner of commercial property at Block 701, Lot 7 in the Borough of Paramus, County of Bergen. Alstores filed a tax appeal on August 12, 1981 seeking review of the 1981 assessment of $25,500,000 which was allegedly in excess of true value. Plaintiff asked that the assessment be reduced to true value. Paramus filed a counterclaim on September 24, 1981 asserting that it was "discriminated against by the assessed valuation of the property." An answer to the counterclaim denying the allegation of discrimination was filed on October 2 1981. On October 12, 1982, Alstores filed a notice of motion for an order requiring the court to apply Chapter 123 of Laws of 1973 or alternatively allowing plaintiff to amend its complaint to include an allegation of discrimination against plaintiff. For reasons expressed in his letter opinion of November 5, 1982, the Tax Court judge denied plaintiff's motion.

We granted Alstores' motion for leave to appeal. This case was consolidated with the two cases above.

A

Both taxpayers and the taxing district have a right to challenge property assessments. Since 1950 New Jersey courts have consistently held that an assessment can be challenged on one or both of two separate grounds. See Cleff Realty Co. v. Jersey City, 41 N.J.Super. 465, 472, 125 A.2d 423 (App.Div.1956), certif. den. 23 N.J. 58, 127 A.2d 227 (1957). The first ground seeks to fix the assessment at "full and fair" value as required by statute. N.J.S.A. 54:4-23. In recognition of the fact that the goal of the first ground is rarely met uniformly throughout a taxing district, the second cause of action seeks to fix an assessment at substantially the same proportion to true, or full and fair, value as the assessments of the "common level" of properties in the taxing district. The second cause of action effectuates the constitutional requirement that there should be no discrimination among the levels of assessment of similarly-situated properties in a taxing district.

Chapter 123 of the Laws of 1973 (hereinafter Chapter 123) greatly simplified the proofs necessary to sustain the second ground for appeal, a "discrimination" claim. Two of the three necessary elements of proof are now determined by the action of the statute.

These appeals seek to have this court find that Chapter 123 has eliminated the necessity of adhering to the rigid procedural requirements of specifically pleading discrimination in a tax appeal.

The petitioner-appellant in Hackensack Water Co. v. Tp. of North Bergen, 8 N.J.Super. 139, 73 A.2d 597 (App.Div.1950), originally applied to the county board of taxation for relief from an assessment allegedly in excess of true value. Id. at 142-143, 73 A.2d 597. The subsequent appeal to the Division of Tax Appeals properly filed within 30 days of the county board's judgment again alleged that assessment was in excess of true value. Id. at 141, 73 A.2d 597. A year and a half later petitioner moved to amend the appeal to include a claim of discrimination. Id. at 142, 73 A.2d 597.

This court held that petitioner should not have been allowed to amend its petition of appeal because, first, the amendment stated a new cause of action which should have been pleaded within the proper time. The original appeal alleged "that appellant's property was assessed at too high a figure" while the amendment alleged "that other people's property were assessed too little." Id. at 142, 73 A.2d 597. The court noted secondly that although the hearing at the Division of Tax Appeals would be de novo and not necessarily limited to the matters heard below, the Division could "properly decline to allow an amendment, the purpose of which is to make a case entirely different from that adjudged by the county board." Id. at 143, 73 A.2d 597.

Cases since Hackensack Water have uniformly interpreted that holding as establishing (1) a rigid "rule that an amendment setting up a new cause of action should not be permitted after the time has expired for bringing the suit or other proceeding ..." and (2) that a claim of discrimination is a separate cause of action from a claim of assessment above true value. Cleff Realty Co. v. Jersey City, 41 N.J.Super. at 470-471, 125 A.2d 423. See also Diament v. Fort Lee, 3 N.J. Tax 70, 77 (Tax Ct.1981); The Anaconda Co. v. City of Perth Amboy, 157 N.J.Super. 42, 384 A.2d 531 (App.Div.1978), vacated and remanded on other grounds, 81 N.J. 55, 404 A.2d 1155 (1979); Continental Paper Co. v. Vil. Ridgefield Park, 122 N.J.Super. 446, 300 A.2d 850 (App.Div.1973), certif. den. 63 N.J. 328, 307 A.2d 101 (1973); Boro of Matawan v. Tree Haven Apartments, Inc., 108 N.J.Super. 111, 260 A.2d 235 (App.Div.1969).

Cleff Realty clarified some of the foundations of Hackensack Water. The case originated in five annual appeals to the county board of taxation for each of the tax years from 1950 to 1954 which only alleged assessment in excess of true value. 41 N.J.Super. at 467, 125 A.2d 423. Each of those judgments was appealed to the Division of Tax Appeals by December 15, 1954. All of the appeals were dismissed for lack of prosecution in June 1955, after the taxpayer had requested between 9 and 15 adjournments on the day prior to or of the scheduled hearings. The dismissals were...