Brigantine Marine Superstores Inc. v. City of Brigantine

NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
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BRIGANTINE MARINE : TAX COURT OF NEW JERSEY
SUPERSTORE INC., : DOCKET NO: 011350-2021
:
Plaintiff, :
:
v. :
:
CITY OF BRIGANTINE, :
:
Defendants. :
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Decided: August 16, 2022
Joseph E. Bock, Jr. for plaintiff (Spiotti & Associates, P.C., attorneys).
Alfred R. Scerni, Jr. for defendant (Parker McCay P.A., attorneys).
CIMINO, J.T.C.
I. INTRODUCTION
Plaintiff taxpayer, Brigantine Marine Superstore, Inc. (taxpayer), is the owner
of an improved parcel in Brigantine City (City). The taxpayer appealed the
assessment of the property to the Atlantic County Board of Taxation (County Board)
for the 2021 tax year. The City has filed a motion to dismiss for failure to respond
to a Chapter 91 request. The issue is whether the mailing of the Chapter 91 request
by the assessor via only certified mail, and not also by regular mail, is sufficient.
For the reasons set forth in greater detail below, attempted service by certified mail
alone is inadequate and the Chapter 91 motion to dismiss is denied.
II. STATEMENT OF FACTS AND PROCEDURAL HISTORY
Brigantine Marine Superstore, Inc. is located at 1225 E. Shore Drive, in the
City of Brigantine, in the County of Atlantic. The property is known as Block 5803,
Lot 21 on the tax maps of the City of Brigantine.
The assessor mailed the taxpayer a request for income and expense
information pursuant to N.J.S.A. 54:4-34, otherwise known as Chapter 91, via
certified mail with return receipt requested on September 15, 2020. This letter was
returned to the assessor on December 15, 2020, marked “Return to Sender – Not
Deliverable As Addressed – Unclaimed.” The request was not sent by regular mail.
Unsurprisingly, the taxpayer did not respond to the Chapter 91 request. The assessor
then set the assessment at $693,000 based on the information she had for the
property.
The taxpayer filed an appeal with the Atlantic County Board of Taxation
challenging the assessment of the property for 2021. In response to the appeal, the
City made a motion under Chapter 91 to dismiss the appeal. The City’s motion was
granted and the taxpayer’s appeal was dismissed.
The taxpayer filed its appeal with the Tax Court and the City renewed the
Chapter 91 motion. The issue now before the court was whether the taxpayer
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received adequate notice that its action challenging the assessment would be
curtailed for failure to respond to the Chapter 91 notice.
III. LEGAL ANALYSIS
Taxpayers in New Jersey have been required to provide certain requested
information to the assessor upon request since 1918. L. 1918, c. 236, § 403. With
the adoption of Chapter 91 in 1979, the failure to respond to a request could result
in the municipality moving to limit the appeal. Chapter 91 added the following to
N.J.S.A 54:4-34:
No appeal shall be heard from the assessor's valuation and
assessment with respect to income-producing property
where the owner has failed or refused to respond to such
written request for information within 45 days of such
request . . . .
[L. 1979, c. 91, § 1.]
The Senate Revenue, Finance and Appropriations Committee’s statement as to the
bill which would become Chapter 91 indicated that “the problem addressed” was
that “the property owner [was] not subject to any penalty for not disclosing property
income information. The property owner [was] free to appeal the assessment,
notwithstanding his refusal to provide information which would have affected the
valuation, and, perhaps, avoided the appeal from the assessment.” S. Revenue, Fin.
& Appropriations Comm. Statement to S. 309 1 (Jan. 26, 1978). As further
explained in the Senate Committee’s statement, the other problem that was
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addressed through the bill was when “an appeal [had] been filed, the assessor [had]
no access to information on which the appellant [was] basing his appeal and thus the
assessor [was] unprepared to testify in argument to the appellant’s representations.”
Ibid. If a taxpayer could withhold the information until the time of appeal, the
assessor would then be required either to prepare a second valuation of the property
– a tremendous waste of valuable time and resources – or to defend the original
valuation on the taxpayer’s appeal. Ocean Pines Ltd. v. Borough of Point Pleasant,
112 N.J. 1, 7 (1988).
In relevant part, N.J.S.A. 54:4-34, as amended by Chapter 91, now reads:
Every owner of real property of the taxing district shall, on
written request of the assessor, made by certified mail,
render a full and true account of his name and real property
and the income therefrom, in the case of income-
producing property, . . . and if he shall fail or refuse to
respond to the written request of the assessor within 45
days of such request, . . . the assessor shall value his
property at such amount as he may, from any information
in his possession or available to him, reasonably determine
to be the full and fair value thereof. No appeal shall be
heard from the assessor's valuation and assessment with
respect to income-producing property where the owner
has failed or refused to respond to such written request for
information within 45 days of such request . . . . In making
such written request for information pursuant to this
section the assessor shall enclose therewith a copy of this
section.
[N.J.S.A. 54:4-34.]
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This court has noted that the assessor has three obligations when sending a Chapter
91 notice, namely, “(1) the letter must include a copy of the text of the statute; (2) it
must be sent by certified mail to the owner of the property; and (3) it must spell out
the consequences of failure to comply with the assessor's demand, namely a bar to
the taxpayer's taking of an appeal from its assessment.”1 Southland Corp. v.
Township of Dover, 21 N.J. Tax 573, 578 (Tax 2004). See also Thirty Mazel LLC
v. City of Orange, 24 N.J. Tax 357, 362 (Tax 2009); Fairfield Dev. v. Borough of
Totawa, 27 N.J. Tax 306, 308 (Tax 2013). The New Jersey Supreme Court also
determined that “statutory provisions governing substantive standards and
procedures for taxation . . . are premised on the concept that government will act
scrupulously, correctly, efficiently, and honestly.” F.M.C. Stores Co. v. Borough of
Morris Plains, 100 N.J. 418, 427, 495 A.2d 1313, 1318 (1985).
Likewise, “[d]ue process requires that deprivation of property by state action
be preceded by notice and an opportunity to be heard.” Twp. of Jefferson v. Block
447A, Lot 10, 228 N.J. Super. 1, 4 (App. Div. 1988). “The touchstone of due process
is fair notice and an opportunity to be heard. The door to tax appeals cannot be
closed unless the municipality has given the property owner fair notice of the
1
As to spelling out the consequences, there is some disagreement as to whether that
is necessary. Town of Phillipsburg v. ME Realty, LLC, 26 N.J. Tax 57, 69 (Tax
2011); James-Dale Enters., Inc. v. Township of Berkeley Heights, 26 N.J. Tax 117,
124-25 (Tax 2011); Pisani v. Township of Wayne, 13 N.J. Tax 412, 414-15 (Tax
1993).
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Chapter 91 obligations.” Towne Oaks at South Bound Brook v. Borough of South
Bound Brook, 326 N.J. Super. 99, 102 (App. Div. 1999), certif. den, 164 N.J. 188(2000) (citing Cassini v. City of Orange, 16 N.J. Tax 438, 450 (Tax 1997)).
Responses to Chapter 91 requests for income and expense information assist
an assessor in generating reasonable assessments. It is in the interest of both
municipalities and taxpayers to have accurate assessments. Without up-to-date
information, assessments can only be completed based upon existing knowledge of
the assessor. Without Chapter 91, reliable information would arguably be
significantly harder to come by for the assessor.
However, a taxpayer is entitled to clear notice that without response, a tax
appeal will be curtailed. In order for the taxpayer to have such notice, the
municipality must first provide adequate service of the Chapter 91 request itself.
Statutorily, a Chapter 91 request must be mailed via certified mail. N.J.S.A. 54:4-
34. Here, the assessor attempted to serve the Chapter 91 request at the taxpayer’s
address via certified mail. The letter was eventually returned to the assessor,
unclaimed, three months later. The assessor did not take any further action to serve
the taxpayer. While the assessor may have satisfied the statutory requirement for
service, a question remains whether the assessor satisfied the constitutional
requirements for service as guaranteed by the Due Process Clause.
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The Due Process Clause of the Fourteenth Amendment requires the
government provide an owner of property “notice and opportunity for hearing
appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 314 (1950). In a later case, the United States Supreme Court held
that the government must take additional reasonable steps to provide notice before
taking an owner’s property. Jones v. Flowers, 547 U.S. 220, 223 (2006).
The threshold issue is whether a loss of a tax appeal is considered a property
interest. The United States Supreme Court determined that a cause of action is a
species of property protected by the Fourteenth Amendment’s Due Process Clause.
Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982) (citing Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). The Court indicated
the Fourteenth Amendment’s Due Process Clause prevented the states from denying
potential litigants use of established adjudicatory procedures, when such an action
“would be the equivalent of denying them an opportunity to be heard upon their
claimed rights.” Id. at 429-430 (citing Boddie v. Connecticut, 401 U.S. 371, 380
(1971)). The Supreme Court of New Jersey has also ruled that a client’s interest in
a lawsuit and the monetary damages that may come from either a verdict or
settlement is unquestionably a property right. S.T. v. 1515 Broad Street, LLC, 241
N.J. 257, 275 (2020).
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The cases above provide us a framework set forth by both the Supreme Court
of the United States and the Supreme Court of New Jersey that a lawsuit and the
monetary benefit that flows therefrom is a species of property that belongs to a
litigant. Here, the taxpayer has a property interest in its suit appealing the property
tax assessment and the monetary refund it hopes to receive. Through Chapter 91,
this suit may be curtailed when there is no response. Because a property interest is
at stake, the court must properly analyze whether the taxpayer has been deprived of
such property interest without adequate due process.
The next issue is whether attempted service by certified mail alone is
sufficient notice to deprive the right to a property interest. An Arkansas statute in
Jones provided that the Commissioner of State Lands needed to serve a taxpayer by
only certified mail that his property would be sold if not redeemed prior to the date
of the sale. Jones, 547 U.S. at 223. Ark. Code Ann. § 26-37-301 (1997). The
Commissioner of State Lands attempted to notify Jones of his tax delinquency and
the right to redeem the property and mailed a certified letter to Jones’ address. Jones,
547 U.S. at 223. This letter went unclaimed and was mailed back to the
Commissioner marked as such. Id. at 224. Two years later, the Commissioner
published a notice of public sale in a newspaper. Ibid. Eventually, the respondent
submitted a purchase offer on the house and the Commissioner again mailed a
certified letter to Jones attempting to notify him the house would be sold if the taxes
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went unpaid. Ibid. Like the first letter, the second letter was returned to the
Commissioner marked “unclaimed.” Ibid. Upon the house being sold, Jones filed a
lawsuit alleging that the Commissioner’s failure to provide notice of the tax sale
resulted in the taking of property without notice required by due process. Ibid.The Court mentioned in Jones that when a letter is returned by the post office,
the sender will ordinarily attempt to resend it, if practicable. Jones, 547 U.S. at 230.
See also Small v. United States, 136 F.3d 1334, 1337 (D.C. Cir. 1998). The Court
further concluded that the State needed to take additional reasonable steps to notify
Jones. Jones, 547 U.S. at 234. One step the Court highlighted was to mail the letter
by regular mail so that a signature was not required. Ibid.Like the Arkansas statute that was questioned in Jones, a Chapter 91 request
is only required to be sent by certified mail. Neither statute specifies that the request
must be sent by regular mail as well. Jones indicates that a state may not take
property without making additional steps to ensure that notice is provided. Ibid. As
indicated above, such a loss of tax appeal and the potential monetary benefits
therefrom would constitute a property right and therefore, one of these additional
steps could possibly be to serve the taxpayer with the notice via regular mail so that
a signature is not required.
However, the question now before this court is not the loss of land, but the
loss of a cause of action and any tax refund that may accrue. Due process is a flexible
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concept, the bedrock of which is to provide notice and opportunity to be heard. Id.
at 223. While it is clear certified mail alone is not sufficient to provide notice in this
case, the question is what type of service is. As stated in Matthews v. Eldridge, 424
U.S. 319, 332-335 (1976), identification of the specific dictates of due process
generally requires consideration of three distinct factors. First, the importance of the
private interest at stake; second, the risk of erroneous deprivation of an interest
through the procedures used, and the probable value of additional safeguards; and
third, the government’s interest. Id. at 335.
Here, the assessor mailed the Chapter 91 request via certified mail and upon
its return as “unclaimed” she took no further action. With the return of the letter, the
assessor understood that the taxpayer did not have receipt. By not taking any further
action the assessor did not give the taxpayer clear notice that failure to comply would
result in a loss of a plenary appeal. This is an important interest that the first factor
of Matthews encompasses. Once the Chapter 91 motion is granted, the taxpayer’s
cause of action is gone except for a reasonableness hearing which is a more difficult
case for a taxpayer to establish.2 See Ocean Pines, 112 N.J. at 11 (as to
reasonableness hearing).
2
“A reasonableness hearing . . . does not include plenary proofs as to the value of
the property under appeal but only proofs as to whether the assessment imposed by
the assessor was reasonable ‘in light of the data available to the assessor at the time
of valuation.’” Lucent Technologies, Inc. v. Township of Berkeley Heights, 24 N.J.
Tax 297, 308 (Tax 2008) (citing Ocean Pines, 112 N.J. at 11).
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The Supreme Court in Jones shows that the second factor of Matthews
indicating that additional safeguards are required does not mean a substantial burden
must be imposed on the assessor, nor must she go above and beyond to find the
taxpayer. Jones, 547 U.S. at 235-36. See also Township of Brick v. Block 48-7 Lots
34, 35, 36, 202 N.J. Super. 246, 251-52 (App. Div. 1985) (In tax foreclosure action,
address supplied by taxpayer to tax assessor sufficient for purposes of service). The
assessor would not have to search or track down the taxpayer. As expounded upon
in Jones:
Due process does not require that a property owner receive
actual notice before the government may take his property.
Rather, we have stated that due process requires the
government to provide “notice reasonably calculated,
under all the circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity
to present their objections.”
[Jones, 547 U.S. at 226 (citing Mullane, 339 U.S., at
313)(citations omitted).]
Sending another copy of the same request by regular mail sufficiently informs
the taxpayer that a loss of a plenary appeal is the consequence of noncompliance.3
3
Jones is not the only foray of Supreme Court into whether regular mail provides
notice reasonably calculated, under all the circumstances, to apprise an interested
party. In Greene v. Lindsey, 456 U.S. 444 (1982), a landlord-tenant action, the Court
required regular mail, in addition to posting on the door, of the pendency of an
eviction proceeding. Id. at 455. There was evidence that notices posted on doors
were torn down by children. Id. at 453. To cure this problem, notice by regular mail
“go[es] a long way” and is an “inexpensive and efficient mechanism . . . to enhance
the reliability of an otherwise unreliable notice procedure . . .” Id. at 455. In the
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Finally, as to the last factor, it is in the government’s interest for assessors to
have complete and accurate information so that the rest of the taxpayers in the
municipality are not unfairly burdened. The government should try to ensure that
each taxpayer is paying the proper amount based on a reasonable assessment.
Without the income and expense information, a reasonable assessment may not
occur and could create a burden on other taxpayers. The governmental interest here
is not to clear the tax appeal docket, but to collect information to ensure accurate
assessments. Just as the Supreme Court observed that “[s]uccessfully providing
notice is often the most efficient way to collect unpaid taxes,” successfully providing
the Chapter 91 request is a most efficient way of ensuring accurate assessments.
Jones, 547 U.S. at 236 (citing Mennonite Bd. of Missions v. Adams, 462 U.S. 791,
800, n. 5 (1983) (more effective notice may ease burden on State if recipient arranges
to pay delinquent taxes prior to tax sale)).
The Appellate Division has held that in a case where the municipality sent a
Chapter 91 request via certified and regular mail and only the regular mail was
received, service was sufficient. Towne Oaks, 326 N.J. Super. at 102. There, a
taxpayer believed that regular mail did not meet the statutory standard of certified
mail. Id. at 101. The court indicated that by properly sending the request via
case now before the court, the issue is not unreliable service, but no service.
Certainly, regular mail, as opposed to certified mail which was not delivered, is more
reasonably calculated to apprise the taxpayer of its Chapter 91 obligations.
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certified mail the assessor had met the statutory requirement of Chapter 91. Ibid.The court distinguished this case from Hammond v. Paterson, 145 N.J. Super. 452(App. Div. 1976), because there, no effort to comply with the statutory requirement
of actual delivery or notice by certified mail was made. Towne Oaks, 326 N.J.
Super. at 102.
The Appellate Division in Towne Oaks shows us that when notice is
statutorily required by certified mail and is sent by both regular and certified mail,
that the receipt of the regular mail is adequate for both due process and statutory
purposes. Had the assessor done so with this Chapter 91 request, service would have
comported with the dictates of the Appellate Division in Towne Oaks. Instead, the
assessor only sent it by certified mail, and it went unreceived. In fact, the taxpayer
is “no better off than if the notice had never been sent.” Jones, 547 U.S. at 230. It
is the job of the assessor, as part of the government, to make sure that taxpayers have
fair notice before a loss of appeal. 4 By not taking any additional steps, the assessor
did not meet the burden to satisfy adequate service as required by due process.
The brief discussion of due process by both our Supreme Court and the
Appellate Division in Ocean Pines is inapposite to the issue now before the court.
4
This is not to say the assessor was not doing her job. Prior to this decision, the
only guidance the assessor had was the plain words of the statute which only
mentions certified mail.
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Unlike the case at hand, in Ocean Pines, the Chapter 91 request was received by the
taxpayer. Ocean Pines, 112 N.J. at 4.
The courts in Ocean Pines discussed due process even though Ocean Pines
received the Chapter 91 request, failed to respond, and was thus barred from
pursuing a plenary proceeding. Ocean Pines, 112 N.J. at 9-10, 213 N.J. Super. 351,
354-55 (App. Div. 1986). As pointed out by the Appellate Division by way of
example, an assessor is not free to raise the assessment ten times just because the
taxpayer did not respond. Ocean Pines, 235 N.J. Super. at 355. Since Chapter 91
requires the assessor in any event to set the assessment at a reasonable amount, the
courts required a reasonableness hearing to be conducted. Ocean Pines, 112 N.J. at
11, 235 N.J. Super. at 355
A reasonableness hearing is “limited in its scope” and “may be disposed . . .
in summary manner, without the taking of testimony.” Ocean Pines, 112 N.J. at 11,
12. The inquiry is “focus[ed] solely on whether the valuation could reasonably have
been arrived at in light of the data available to the assessor at the time of the
valuation.” Id. at 11. There is little doubt that a reasonableness hearing is something
less than the plenary hearing guaranteed in the normal course of filing a tax court
complaint.
It must be remembered that the issue here is not whether a reasonableness
hearing is the type of hearing that satisfies constitutional due process without regard
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to Chapter 91. Rather, the issue is whether losing the statutory right to a plenary
hearing without adequate notice constitutes a deprivation of due process. The
Supreme Court plainly prohibits “denying potential litigants use of established
adjudicatory procedures, when such an action would be ‘the equivalent of denying
them an opportunity to be heard upon their claimed rights.’” Logan, 455 U.S. at
429-30 (quoting Boddie v. Connecticut, 401 U.S. 371, 380 (1971).)
Some may argue that here the taxpayer would not go totally unheard, and an
abbreviated and limited reasonableness hearing is good enough. Instructive to this
issue is the Supreme Court’s decision in Peralta v. Heights Medical Center, Inc., 485
U.S. 80 (1988). Default judgment was entered against Peralta who did not receive
adequate service of the complaint for medical bills which Peralta guaranteed for a
non-party. Id. at 81-82. The Texas courts required the showing of a meritorious
defense in order to vacate the default judgment. Id. at 82-83. Peralta conceded he
did not have a meritorious defense and the Texas courts determined that Peralta
suffered no harm since the same judgment would have ultimately been entered. Id.
at 82-84. Peralta countered that with proper notice, he could have impleaded the
employee whose debt was guaranteed, worked out a settlement or sold property
voluntary, rather than through garnishment, to satisfy the debt. Id. at 85. The court
ruled that:
Where a person has been deprived of property in a manner
contrary to the most basic tenets of due process, “it is no
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answer to say that in his particular case due process of law
would have led to the same result because he had no
adequate defense upon the merits.” Coe v. Armour
Fertilizer Works, 237 U. S. 413, 424 (1915). As we
observed in Armstrong v. Manzo, 380 U. S. 545, 552
(1965), only “wiping the slate clean . . . would have
restored the petitioner to the position he would have
occupied had due process of law been accorded to him in
the first place.” The Due Process Clause demands no less
in this case.
[Peralta, 485 U.S. at 86-87.]
Here, it is far from given that a reasonableness hearing would yield the same
result. Even if it could be argued that the same result would be reached, due process
dictates that the slate be wiped clean and a plenary hearing allowed. With the
limitations of a reasonableness hearing, the bargaining power of the taxpayer has
been diminished as well as chances of success in a limited summary reasonableness
hearing. Wiping the slate clean restores the balance of bargaining power that would
have existed but for the Chapter 91 limitation. As stated, a plenary hearing is a right
enshrined in statutory law, the deprivation of which cannot be accomplished without
due process.
Finally, there is one other consideration besides due process that supports
service by regular mail if the certified mail is not successful. Under the oft-stated
square corners doctrine, government must deal scrupulously, correctly, efficiently,
and honestly with the taxpaying public. F.M.C. Stores Co. v. Borough of Morris
Plains, 100 N.J. 418, 427 (1985). The intent of the Legislature in adopting Chapter
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91 is to have a tool to obtain correct assessments, not a trap to clear the tax appeals
docket. See S. Revenue, Fin. & Appropriations Comm. Statement to S. 309 1. Good
service serves the important goal of the assessor obtaining relevant and accurate
information for not only the property in question, but also other similar properties in
the municipality. Without the small step of regular mail, a taxpayer is not receiving
the fairness that is required by the square corners doctrine when a loss of appeal is
the consequence.
At the end of the day by surviving a Chapter 91 motion, a taxpayer does not
win anything but the right to contest an assessment in court. A challenge to an
assessment could also benefit the municipality and other taxpayers. In most cases
the court is free to increase as well as decrease the assessment. See Campbell Soup
Co. v. City of Camden, 16 N.J. Tax 219, 226-227 (Tax 1996). In other words, the
court can peg the assessment at the correct amount. Certainly, this comports with
the overarching goal of Chapter 91 in obtaining information so that accurate
assessments can be reached.5
5
There is some argument that the deprivation of due process does not occur until
this court limits the hearing on the basis of Chapter 91. Such a cramped approach
would mean that the court would have to be a knowing party to a constitutional
violation for the redress of such violation to be actionable. In other words, this
cramped approach would require that the taxpayer is limited to some sort of post-
deprivation remedy only after the court limits the taxpayer to a reasonableness
hearing despite the court knowing in advance adequate notice has not been provided.
“In situations where the State feasibly can provide a predeprivation hearing before
taking property, it generally must do so regardless of the adequacy of a
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IV. CONCLUSION
For the foregoing reasons, the City’s motion to dismiss is DENIED.
postdeprivation tort remedy to compensate for the taking.” Zinermon v. Burch, 494
U.S. 113, 132 (1990). The action before this court is the pre-deprivation remedy.
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