NOT FOR PUBLICATION WITHOUT THE APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
WESTERHOLD, JOHN A. & LORI R.
BY JOHN A. AND LORI R. TAX COURT OF NEW JERSEY
WESTERHOLD, OWNER, DOCKET NOS. 008087-2022
007534-2023
Plaintiff,
-v.-Approved for Publication
TOMS RIVER TOWNSHIP, et al., In the New Jersey
Tax Court Reports
Defendant.
WESTERHOLD, JOHN A. & LORI R. TAX COURT OF NEW JERSEY
BY JOHN R. AND LORI R. DOCKET NOS. 009583-2022
WESTERHOLD, OWNER, 007535-2023
Plaintiff,
-v.-TOMS RIVER TOWNSHIP, et al.,
Defendant.
WESTERHOLD, JOHN A. & LORI R. TAX COURT OF NEW JERSEY
BY JOHN R. AND LORI R. DOCKET NOS. 010281-2020
WESTERHOLD, OWNER, 010282-2020
Plaintiff,
-v.-BRICK TOWNSHIP,
Defendant.
WESTERHOLD, JOHN A. & LORI R.
BY JOHN R. AND LORI R. TAX COURT OF NEW JERSEY
WESTERHOLD, OWNER, DOCKET NOS. 008086-2022
007536-2023
Plaintiff,
-v.-BRICK TOWNSHIP, NORMANDY
BEACH ASSOC, INC.,
Defendant.
WESTERHOLD, JOHN A. & LORI R.
BY JOHN R. AND LORI R. TAX COURT OF NEW JERSEY
WESTERHOLD, OWNER, DOCKET NOS. 008085-2022
007532-2023
Plaintiff,
-v.-BRICK TOWNSHIP, NORMANDY
BEACH ASSOCIATION, INC.,
Defendant.
Decided: February 20, 2024
Paul Tannenbaum, Peter Zipp, Michael Kurpiewski, for
plaintiffs (Zipp & Tannenbaum, attorneys).
Kelsey A. McGuckin-Anthony, for defendant Toms River
Township (Dasti, Murphy, Ulaky, Loutsouris & Connors,
attorneys).
Scott W. Kenneally, for defendant Brick Township
(Starkey, Kelly, Kenneally, Cunningham, et al. attorneys)
2
FIAMINGO, J.T.C.
Pending before the court are the motions of defendants, Township of Toms
River (“Toms River”) and Township of Brick (“Brick”) (and “defendants”
collectively), to dismiss the tax appeals filed by John A. Westerhold and Lori R.
Westerhold (“plaintiffs”) challenging the local property tax assessments imposed
upon property owned by unrelated third parties (“third party appeals”) in the Tax
Court of New Jersey. 1
The court finds that the third party appeals filed by plaintiffs in the Tax Court
for tax year 2020 are cognizable in the Tax Court under N.J.S.A. 54:3-21 as in effect
at the time the 2020 appeals were filed. As a result, the court denies Brick’s motion
to dismiss the tax appeals brought in the Tax Court under docket numbers 010281-2020 and 010282-2020.
The court further finds that as a result of the amendment to N.J.S.A. 54:3-21
the third-party appeals filed by plaintiffs for tax years 2022 and 2023 are not
1
Defendants also filed motions to dismiss certain actions in lieu of prerogative writ filed by plaintiffs in Superior Court, Law Division, Ocean County under Docket Nos. OCN-L 000492-22 and OCN-L-849-23. The undersigned judge was temporarily assigned to the Law Division for the purpose of resolving those matters. The court’s decision to deny the motions filed by defendants to dismiss such actions is the subject of an unpublished decision rendered by the court.
3
cognizable in the Tax Court. Therefore, those matters are transferred to the Superior
Court of New Jersey, Law Division, pursuant to R. 1:13-4(a). 2 3
I. Facts and Procedural History
A. The Brick appeals
In or about March 2020, plaintiffs filed a petition of appeal with the Ocean
County Board of Taxation (“County Board”) of the tax year 2020 local property tax
assessment with respect to the real property identified as “Beach”, Tax Lot 1 in
Block 1 on the Tax Map of Brick Township. In or about June 2020 plaintiffs filed a
petition of appeal with the County Board of the tax year 2020 tax assessment with
respect to the real property identified as 541 Broad Avenue, Tax Lot 7 in Block 19
on the Tax Map of Brick Township (the “Brick properties”). In both appeals
plaintiffs contended the assessments were “less than fair assessable value.”
On July 9, 2020, the County Board issued Memoranda of Judgment affirming
the assessments.4 On August 21, 2020, plaintiffs appealed those judgments to the
2
A single opinion is being offered as to all matters referenced herein for administrative convenience. The actions, while not consolidated formally, involve the same cause of actions, parties, and property.
3
Under R. 1:13-4(a), a court which lacks subject matter jurisdiction “of an action or issue therein . . . shall . . . on its own initiative, order the action, with the record and all papers on file, transferred to the proper court . . . in the State. The action shall then be proceeded upon as if it had been originally commenced in that court or agency.”
4
The Memorandum of Judgment issued with respect to Lot 1, Block 1 contained judgment code 6B – “Hearing Waived” and the Memorandum of Judgment issued with respect to Lot 7, Block 19 was 6A – “Tax Court pending for years 2016-2019.”
4
Tax Court and the appeals were docketed as 010281-2020 and 010282-2020 (the
2020 appeals). 5
In or about February 2022, plaintiffs filed similar petitions before the County
Board for tax year 2022. The County Board issued judgments affirming the
assessments, referencing Code 6A in each case on May 2, 2022. Plaintiffs filed
appeals of the County Board judgments with the Tax Court on June 13, 2022,
docketed as 008085-2022 and 008086-2022 (the “2022 appeals”).
In or about March 2023, plaintiffs filed similar petitions to the County Board
of the assessments of the Brick properties for the 2023 tax year. The County Board
issued judgments on May 1, 2023, affirming the assessments, referencing Code 6A
in each case. Plaintiffs appealed the judgments to the Tax Court on June 13, 2023,
as docket numbers 007532-2023 and 007536-2023 (the “2023 appeals”).
During all years in question the Brick properties were owned by Normandy
Beach Association, Inc.
B. The Toms River appeals
In or about February 2022 plaintiffs filed appeals to the County Board of the
2022 tax assessments for the real property owned by Normandy Beach Assoc., Inc.,
identified as “Normandy Beach & Ocean”, Tax Lot 1 in Block 905 on the tax map
5
Similarly, appeals of the 2020 tax assessments for the Toms River properties described below were also filed, however, Toms River did not file any motion to dismiss such actions. As a result those appeals are not discussed herein.
5
of Toms River, and the real property owned by Normandy Shores Beach Club, Inc.,
identified as 3576 Atlantic Ocean, Tax Lot 8 in Block 921.15 on the tax map of
Toms River (the “Toms River properties”). The assessments for the Toms River
properties were set at $0.00, which plaintiffs contended was “underassessed and
error.” On July 14, 2022, the County Board affirmed the assessments, referencing
Code 6A and 6B respectively. On August 4, 2022, plaintiffs filed in the Tax Court
appeals of the judgments of the County Board, docketed as 008087-2022 and
009583-2022 (the “2022 appeals”).
In or about March 2023, plaintiffs filed similar appeals with the County Board
contesting the 2023 tax assessments of the Toms River properties. On May 1, 2023,
the County Board issued judgments affirming the assessments, referencing Code 6A.
On June 13, 2023, plaintiffs appealed the County Board judgments to the Tax Court,
which were docketed as 007534-2023 and 007535-2023 (the “2023 appeals”).
II. Conclusions of Law
A. Amendment to third-party appeals under N.J.S.A. 54:3-21
The Tax Court is a court of limited jurisdiction, defined by statute. McMahon
v. City of Newark, 195 N.J. 526, 546 (2008) (citing N.J.S.A. 2B:13-2 and Union
City Assocs. v. Union City, 115 N.J. 17, 23 (1989)). For example, “[f]ailure to file
a timely appeal is a fatal jurisdictional defect.” F.M.C. Stores Co. v. Borough of
Morris Plains, 100 N.J. 418, 425 (1985) (citing Clairol v. Kingsley, 109 N.J. Super.
6
22 (App. Div.), aff’d, 57 N.J. 199 (1970), appeal dismissed, 402 U.S. 902 (1971)).
This is true even in the absence of harm to the defendant municipality.
Lawrenceville Garden Apartments v. Township of Lawrence, 14 N.J. Tax 285 (App.
Div. 1994).
Alid, Inc. v. North Bergen Twp., 180 N.J. Super. 592 (App. Div. 1981)
provides an in- depth discussion of the genesis of the Tax Court and its jurisdiction.
As discussed by the court, the Tax Court’s primary jurisdiction is to hear local
property tax appeals and those actions previously heard by the Division of Tax
Appeals. Id. at 599-601.
The within matters are local property tax appeals, colloquially referred to as
“third-party appeals.” As to such appeals, the provisions of N.J.S.A. 54:3-21 are
controlling. Prior to February 21, 2022, N.J.S.A. 54:3-21(a) read as follows:
a. (1) Except as provided in subsection b. of this section a
taxpayer feeling aggrieved by the assessed valuation of the
taxpayer's property, or feeling discriminated against by the
assessed valuation of other property in the county, or a
taxing district which may feel discriminated against by the
assessed valuation of property in the taxing district, or by
the assessed valuation of property in another taxing district
in the county, may on or before April 1, or 45 days from
the date the bulk mailing of notification of assessment is
completed in the taxing district, whichever is later, appeal
to the county board of taxation by filing with it a petition
of appeal;
[N.J.S.A. 54:3-21(a)(1) (emphasis supplied).]
7
The statute permitted a taxpayer to appeal the assessed valuation of the
taxpayer’s own property as well as permitting a taxpayer in a county to appeal the
assessed valuation of another taxpayer’s property within that county, thus “thirdparty appeals”.
Effective February 21, 2021, however, the relevant portion of the statute was
amended to read as follows:
a. (1) Except as provided in subsection b. of this section a
taxpayer feeling aggrieved by the assessed valuation or
exempt status of the taxpayer's property or a taxing district
which may feel discriminated against by the assessed
valuation or exempt status of property in the taxing
district, or by the assessed valuation or exempt status of
property in another taxing district in the county, may on or
before April 1, or 45 days from the date the bulk mailing
of notification of assessment is completed in the taxing
district, whichever is later, appeal to the county board of
taxation by filing with it a petition of appeal;
[L. 2021, c. 17, sec. 6]
The import of the revision to the statute was to eliminate the ability of a
taxpayer to file a third-party appeal at the county board. The legislative history of
the amendment to N.J.S.A. 54:3-21 above indicates that the then proposed
amendment “prohibits taxpayers from filing property tax appeals with respect to the
property of others.” Sponsor’s Statement to A. 1135 12. Thus, from and after
February 22, 2021, third party appeals were no longer cognizable before a county
board or before the Tax Court.
8
B. Brick’s motion to dismiss the 2020 Appeals pending in the Tax Court
As noted, prior to February 22, 2021, third party appeals, whether made to a
county Board or to this court was contemplated and allowed by N.J.S.A. 54:3-21.
The 2020 appeals were filed long before the amendment to N.J.S.A. 54:3-21
eliminating such third-party appeals and are therefore cognizable before the Tax
Court. Accordingly, the court denies defendant Brick’s motion to dismiss the 2020
appeals.
C. Defendants’ motions to dismiss the 2022 and 2023 appeals pending in the
Tax Court
Defendants argue that it is clear that N.J.S.A. 54:3-21, as amended, deprived
the County Board of jurisdiction to hear the third-party appeals filed by plaintiffs for
tax years 2022 and 2023. L. 2021, c. 17, sec. 6. Consequently, they maintain that
the Tax Court had no jurisdiction to hear appeals of the County Board’s judgments.
Defendants’ therefore argue that the 2022 appeals and the 2023 appeals must be
dismissed for lack of jurisdiction.
Plaintiffs do not suggest that their third-party appeals may be heard by the Tax
Court. In fact, plaintiffs concede that such actions are not cognizable before county
boards and the Tax Court. There was no argument made that the amendment to the
statute eliminated the ability of a taxpayer to bring an action in the nature of a third9
party appeal in any court.6 However, in opposition to defendants’ motions to
dismiss, plaintiffs argue that their third party appeals are actions in lieu of
prerogative writs and should be transferred to the Law Division. In making such
arguments plaintiffs relied upon Alid and on W. Milford Twp. v. Garfield Recreation
Comm., Inc., 91 N.J. 233 (1982).
While neither case is on point, those cases do provide guidance. In Alid, our
Supreme Court stated that:
when relief in lieu of a prerogative writ is sought with
respect to any matter then pending in the Tax Court
involving a state or local tax, including enforcement of an
order or judgment of the Tax Court or county board of
taxation, the action shall be transferred to the Superior
Court, Law Division . . .
[Alid, Inc., v. North Bergen Twp., 89 N.J. 388, 389
(1981).]
In Garfield Recreation, the court reiterated its position set forth in Alid with
respect to the transfer of a prerogative writ action filed in Tax Court.
Although the court concurs that plaintiffs’ 2022 and 2023 appeals should be
transferred to the Law Division, the court rejects plaintiffs’ broad contention that a
matter otherwise cognizable before the Tax court is transferrable to the Law
Division. While the Tax Court does not have prerogative writ jurisdiction, an action
6
It could be argued that the intent of the legislature was to eliminate third-party appeals in their entirety in any court, including actions in lieu of prerogative writs. The court does not address the issues as they were not raised and argued before it.
10
brought under N.J.S.A. 54:51A-1(a) is not an action in lieu of prerogative writ.
Berkeley Arms Apartment Corp. v. City of Hackensack, 7 N.J. Tax 457, 464 (Tax
1985). Neither Alid nor Garfield support such a conclusion.
In Alid, the issues under appeal, as framed by the Appellate Division from
which the appeal was taken, related to a motion before the Tax Court: “1) to restrain
the township and its governing body from adopting its preliminary or final 1980
budget pending further order of the Tax Court, and (2) to compel and direct the
governing body to include in the 1980 budget specific line items permitting payment
of the refunds.” Alid, Inc., 180 N.J. Super. at 594. After an extensive review of the
history of the creation of the Tax Court, the court found that the Tax Court had no
jurisdiction to grant the relief requested by the plaintiffs. Id. at 599. It was this
decision of the Appellate Court’s decision to transfer the matter to the Law Division
to be heard as an action in lieu of prerogative writ which was affirmed by our
Supreme Court. 89 N.J. 388.
The facts of Garfield, as illuminated by the decision of the Appellate Division
issued in that matter after the Supreme Court’s remand to that court, support the view
that only actions not cognizable in the Tax Court were the basis for the transfer of
the matter to Law Division. West Milford Twp. v. Garfield Recreation Comm., Inc.,
194 N.J. Super 148 (App. Div. 1983). The Appellate Court’s recitation of the
procedural history of that matter demonstrates that the reason for the transfer to the
11
Law Division was the court’s determination that the court’s prior remand to the Tax
Court was improper because “appeals from DEP determinations made pursuant to
N.J.S.A. 54:4-3.63 et. seq., should properly be heard in the Appellate Division.” Id.
at 154. It is therefore clear that neither issue in Alid nor Garfield concerned a tax
appeal otherwise properly heard in the Tax Court. Instead, both matters involved
issues which were at all times matters properly heard in the Law Division over which
the Tax Court had no jurisdiction. Thus neither decision supports plaintiffs’
generalized contention that all matters brought before the Tax Court may be
transferred to Law Division as prerogative writ actions.
Neither Alid nor Garfield involved an issue otherwise cognizable in the Tax
Court and properly heard in this court. Generally, “any party who is dissatisfied
with the judgment action or determination of the county board of taxation may seek
review . . . in the Tax Court pursuant to the rules of court.” N.J.S.A. 54:51A-1(a).
Further “[t]he Tax Court shall have initial review jurisdiction of all final decisions .
. . of a County Board of Taxation.” R. 8:2(a). Here, the County Board was deprived
of the jurisdiction to review plaintiffs’ 2022 and 2023 third-party appeals by virtue
of the amendment to N.J.S.A. 54:3-21 effective after February 22, 2021, L. 2021, c.
17, sec. 6. Absent such jurisdiction, an appeal of the judgment of the County Board
is not cognizable in this court. Because plaintiffs’ third party tax appeals for 2022
and 2023 are not cognizable in the Tax Court, the court finds they should be
12
transferred to the Law Division. See R. 1:13-4(a). The court will enter an order
transferring the 2022 and 2023 appeals to the Law Division.7
III. Conclusion
For the foregoing reasons, the court:
a. Denies defendant Brick Township’s motion to dismiss the 2020 appeals
pending in the Tax Court; and
b. Denies defendants’ motions to dismiss the 2022 and 2023 appeals now
pending in the Tax Court, but instead transfers them to the Superior Court,
Law Division.
7
It is unclear why plaintiffs seek to transfer these matters to the Superior court as they have already filed as actions in lieu of prerogative writs under R. 4:69 identical challenges to the assessments for tax years 2022 and 2023. See n.1. In other words, the actions plaintiffs seek to transfer to the Superior Court are already pending there. The court also notes that the actions filed by plaintiffs in the Superior Court, as well as defendants’ motions to dismiss, raise several issues of concern which the court believes are of first impression, including the procedural conundrum of resolving a traditional local property tax appeal in a summary proceeding under R.4:69, and the determination of the date that the right being review accrued; and therefore the filing deadline. In this regard, R. 4:69-6 provides none of the finite dates set forth in N.J.S.A. 54:3-21 for the filing of tax appeals. The determination of when the right to review accrues under R. 4:69-6 may implicate the application of a number of statutory provisions, including but not limited to N.J.S.A. 4:38-1 (requiring the mailing of “Chapter 75” notices to be accomplished by February 1 for the tax year; N.J.S.A. 54:4-55 (setting June 3 as the date for the certification of the assessor duplicates); N.J.S.A. 54:4-38 (requiring the assessor to give “public notice by advertisement” in a newspaper at least ten days prior to the filing of the complete assessment list with the County Board). Its resolution requires a thoughtful and comprehensive review in the appropriate forum.
13