Hazbro Realty, Inc. v. Township of Hazlet ( 2021 )

NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
TAX COURT OF NEW JERSEY
MALA SUNDAR Richard J. Hughes Justice Complex
PRESIDING JUDGE P.O. Box 975
Trenton, New Jersey 08625-0975
609 815-2922, Ext. 54630 Fax 609 376-3018
May 21, 2021
Daniel Ryan Kanoff, Esq.
Blau & Blau,
Attorneys for Plaintiff
James H. Gorman, Esq.
Attorney for Defendant
Re: Hazbro Realty, Inc. v. Township of Hazlet
Block 166.09, Lot 11
Docket No. 006452-2021
Dear Counsel:
This is the court’s opinion deciding defendant’s motion to dismiss the above referenced complaint
on grounds plaintiff failed to respond to defendant’s tax assessor’s request for income and expense
information pursuant to N.J.S.A. 54:4-34 (commonly known as “Chapter 91”) as to the above referenced
property (Subject). Plaintiff’s owner contends that the signature on the return receipt (commonly called
“green card”) is not his, therefore, plaintiff never received the Chapter 91 request. Defendant (Borough)
argues that it did everything the statute requires, and refuting receipt despite clear evidence of delivery
to the undisputed address, a P.O. Box, will undo and undermine the plain language of Chapter 91.
Chapter 91 requires a taxing district to request, in writing, the income information of an income
producing property, and mail that request by certified mail along with a copy of the Chapter 91 statute.
N.J.S.A. 54:4-34. If the property owner does not respond within 45 days of the request, the right to
appeal the property’s tax assessment is limited to a hearing on the reasonableness of the assessment.
Ibid., Ocean Pines, Ltd. v. Borough of Point Pleasant, 112 N.J. 1 (1988). Since the loss of appeal rights
is a harsh consequence, courts do not grant motions to dismiss the complaints liberally. See e.g. J & J
Realty Co. v. Township of Wayne, 22 N.J. Tax 157, 163 (Tax 2005). Cf. Waterside Villas Holdings,
ADA
Americans with
Disabilities Act
ENSURING
AN OPEN DOOR TO
JUSTICE rm
LLC v. Township of Monroe, 434 N.J. Super. 275 (App. Div. 2014) (property owner must respond and
cannot simply rest on litigational arguments of confusion or lack of clarity).
Here, the Borough’s assessor initially mailed a Chapter 91 request in May of 2020 to plaintiff’s
P.O. Box, but by regular mail. When she received no response, she sent another request on September
30, 2020 this time by certified mail, to the same P.O. Box address. She received the green card, which
indicated that the mail was received on October 3, 2020. Additionally, the United States Postal Service
(USPS) electronic tracking information shows that the mail was “arrived” at the Tennent post office,
where plaintiff maintains its P.O. Box, on October 2, 2020, that it was “available for pick up” on the
same day, and that it was “delivered” on October 3, 2020 at 10:38 a.m.
Plaintiff does not dispute any aspect of the Chapter 91 request, i.e., the correctness of the mailing
address, identification of the property owner and property, the certified mailing receipt, and copies of the
contents of the Chapter 91 request. Nor does it dispute the address on the green card, and that the same
had a signature acknowledging receipt. It only disputes that the signature on the green card is unknown,
therefore, it argues, it did not receive the Chapter 91 request. In this regard, plaintiff included documents
such as a lease and responses to the Borough’s interrogatories as evidence of plaintiff’s owner’s signature.
Mail which is properly addressed, stamped, and posted is presumed to be received. SSI Medical
Servs. v. HHS, Div. of Medical Assistance & Health Servs., 146 N.J. 614, 621 (1996). This presumption
applies to certified mailing also. Waite v. Doe, 204 N.J. Super. 632, 636-37 (App. Div. 1985) (“It is well
settled that proof of the correct addressing and due posting of a letter raises the presumption that it was
received by the addressee”) (citations omitted). This presumption “is rebuttable” so that the court can
accept credible evidence that the piece of mail was “never in fact received.” SSI, 146 N.J. at 625 (citation
and internal quotation marks omitted).
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At a plenary hearing, plaintiff’s owner testified as follows: he owns about 10-12 properties in
New Jersey, all strip shopping centers (similar to the Subject). He receives all mail at the P.O. Box
address (to which the Chapter 91 request was sent). He has a business office in Freehold New Jersey
from where he conducts business. The office had about four to five employees, one of whom was his
secretary, who picked up mail at the P.O. Box (apart from him). After March 2020, due to COVID-19,
he let go of his secretary, took back the key she had to the P.O. Box, and thereafter, only he picked up
the mail. If he received certified mail or other mail which required acknowledgement, the post office
would leave a note in the P.O. Box to this effect, and then he would go to the front area with the note,
signed for the mail (often after providing valid identification), and then picked it up. Here, he speculated,
the post office may have left the “you have mail to sign” note in some other P.O. Box, and that P.O. Box
holder may have signed the green card and picked up the Chapter 91 request. He said this has happened
with rent checks sent by his tenants.
When asked about the receipt of the Chapter 91 request sent by ordinary mail on May 20, 2020,
plaintiff’s owner claimed non-receipt of the same. He stated that if he had received it, he would have
sent it to plaintiff’s counsel for further action. The Borough’s assessor testified that the ordinary mail
was never returned as undeliverable. She also stated that she sends Chapter 91 requests to plaintiff every
year, and receives responses in some years but not in other years.
The court does not find credible plaintiff’s owner’s evidence (testimony) as to non-receipt of the
certified mail. The P.O. Box has restricted access, as the Borough points out. To claim certified mail,
additional steps are required whereby the USPS verifies the mail holder, and then delivers it after
obtaining the recipient’s signature. It is difficult to believe that this did not occur here. Even if, as
plaintiff’s owner speculated, the post office placed the “you have mail” notice in a different P.O. Box., it
is a stretch to believe that the holder of that P.O. Box would then sign the acknowledgement of receipt
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and take plaintiff’s mail. This is especially where plaintiff’s owner stated that if such a notice belonging
to another P.O. Box was placed in plaintiff’s P.O. Box, he would alert the post office of this error, thus
not take someone else’s mail. Additionally, his testimony that he did not receive even the regular mailed
Chapter 91 is not believable. There was no proof that he sent the letter to plaintiff’s attorney, or that the
attorney received the same. While the court is aware that the Chapter 91 request must be sent by certified
mail, here, the claim of non-receipt of even the regular mail is used to test credibility of the claim of non-
receipt of the certified mail. While the signatures of plaintiff’s owner on the documents provided to the
court appear to be more legible, the court is not satisfied that an unknown person claimed plaintiff’s mail
based on a somewhat scribbled signature on the green card.
Under the totality of the evidence, the court is satisfied that the Borough’s Chapter 91 request
satisfied all of the statutory requirements for sending such request to plaintiff, the same was delivered to
and received by plaintiff. Therefore, the Borough “has given the property owner fair notice of the Chapter
91 obligations.” Towne Oaks at South Bound Brook v. Borough of South Bound Brook, 326 N.J. Super.
99, 102 (App. Div. 1999).
CONCLUSION
For the reasons stated above, the court grants the Borough’s motion to dismiss the complaint for
plaintiff’s failure to comply with the Chapter 91 request. Plaintiff is entitled to a reasonableness hearing
under Ocean Pines, Ltd. v. Borough of Point Pleasant, 112 N.J. 1 (1988).
Very Truly Yours,
/s/ Mala Sundar
Hon. Mala Sundar, P.J.T.C.
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