Dr. Michael T. Sherman v. Ventnor City Docket No.: 012930-2017

NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
_______________________________
DR. MICHAEL T. SHERMAN, : TAX COURT OF NEW JERSEY
Plaintiff, : DOCKET NO: 012930-2017
:
vs. :
:
VENTNOR CITY, :
Defendant. :
_______________________________:

Decided: November 21, 2019.

Daniel J. Gallagher, Esquire for plaintiff (Law Office of Daniel J.
Gallagher, Esquire, attorney).

Edward O. Lind, III, Esquire for defendant (Hank N. Rovillard
Esquire, L.L.C., attorney).

CIMINO, J.T.C.

I. INTRODUCTION.

Taxpayer, Dr. Michael T. Sherman appealed the assessment of his property in

the City of Ventnor. While the appeal was pending, the property was sold to a third

party. The City wants to inspect the property in preparation for trial, however, the

new owner has rebuffed requests for an inspection. The City has filed a motion to

dismiss for failure to allow discovery. The issue is who had the burden to secure the
inspection, and who should suffer the consequences if an inspection cannot be

completed. For the reasons set forth in much greater detail below, the court

determines that the onus in upon the taxpayer to secure the inspection, and failing

the completion of an inspection, the matter must be dismissed.

II. STATEMENT OF FACTS.

The taxpayer, Dr. Michael T. Sherman, was the owner of a premises located

at 6717 – 6719 Atlantic Avenue, in the City of Ventnor, in the County of Atlantic.

The building is a three-story attached structure with both commercial and residential

units. The property is known as Lots 5 and 6 of Block 75 on the City of Ventnor’s

tax maps.

On April 28, 2017 the taxpayer filed an appeal with the Atlantic County Board

of Taxation challenging the revalued assessment of the property for 2017 which was

set at $198,600.00 for Lot 5 and $264,800.00 for Lot 6. The County Tax Board

dismissed without prejudice the appeal of Lots 5 and 6 by issuing judgments on July

28, 2017 and August 8, 2017. A dismissal without prejudice allows the matter to be

appealed to the Tax Court without risk of the matter being dismissed at the Tax Court

for lack of prosecution before the County Tax Board. See N.J.S.A. 54:51A-1(c).

On September 8, 2017, the taxpayer filed his appeal with the Tax Court. The

County Tax Board attempted to revise its judgments in October to reflect that the

dismissal was with prejudice. The court decided on September 13, 2018, that the

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time for the County Tax Board to redetermine the appeal had expired. Sherman v.

Ventnor, 2018 N.J. Tax Unpub. LEXIS 58, 2018 WL 4368942 (Tax Sept. 13, 2018).

See also N.J.S.A. 54:3-26 (time limit to hear appeals); Vicari v. Township of

Bethlehem, 8 N.J. Tax 513, 519 (Tax 1986) (same issue).

On October 10, 2018, the City requested an inspection of the property. On

October 11, 2018, the taxpayer sold the property to a third party for $286,000.

It is not disputed that the taxpayer attempted to secure the consent of the new

owner to allow the City to inspect, and that the new owner has refused. The taxpayer

alleges that the new owner refused because he was told by City officials that an

inspection could result in an increased assessment. On the other hand, the City

alleges that it was informed that the new owner was in a dispute with the taxpayer

over repairs to the property. Both allegations are hearsay.

The City filed the instant Motion to Dismiss the taxpayer’s complaint for

failure to provide discovery.

III. LEGAL ANAYLSIS.

All property assessment appeals with tax bills of less then $25,000.00 in the

prior tax year can be filed as a small claims case. 1 N.J.S.A. 2B:13-14; R. 8:3-4(d),

R. 8:11(a)(2). For a small claims action, discovery from the taxpayer is limited to

1
Assessment appeals of residential properties consisting of one through four units
also qualify as small claims cases regardless of tax bill amount.
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inspection of the subject premises, a closing statement if there has been a sale of the

subject premises within three years of the assessing date, the cost of improvements

within three years of the assessing date, income, expense and lease information for

income-producing property and information relating to a claim of damage to the

property occurring between October 1st of the pre-tax year and January 1st of the tax

year. R. 8:6-1(a)(4). Discovery from the municipality is limited to the property

record card. Id.

When one party fails to provide discovery, the other party entitled to the

discovery may move for an order dismissing the complaint. R. 4:23-5(a)(1). In this

case, the City has filed such a motion after attempts to inspect the property were

rebuffed by the new owner.

The first question to be resolved is whether the municipality has the burden to

show a need for the inspection or whether the taxpayer needs to demonstrate that the

inspection is not needed. It goes without saying that parties may obtain relevant

discovery. R. 4:10-2(a). Certainly, the inspection of a premises which is the subject

of a tax appeal is relevant. To be sure, the court rules specifically provide that such

an inspection be allowed. R. 8:6-1(a)(4). Thus, no further showing of necessity by

the municipality is needed.

The taxpayer argues that the assessor had a fair opportunity to inspect during

the revaluation process which was completed for the 2017 tax year. Even if the

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property had been previously inspected as part of a revaluation of all properties in

the municipality, that does not diminish the need to inspect. Many times, an appeal

focuses upon a certain characteristic which the taxpayer believes resulted in an

overstated valuation (i.e., quality of facilities, fit and finish of fixtures, usable square

footage, etc.). An inspection allows an assessor to hone in on these issues in

preparation for trial, and more importantly, to be more fully conversant of the

property conditions for settlement discussions. To put it more plainly, if a taxpayer

feels the property is overvalued, the assessor can take another look to see if any

adjustment can be made short of a trial. Even if a settlement is not reached, the

assessor will be fairly prepared for trial which allows the court to more thoroughly

address the taxpayer’s contentions. Regardless of the thoroughness of a revaluation

inspection, the municipality is entitled to inspect the premises again as part of a

taxpayer’s appeal of the assessment.

What the taxpayer wants here is to limit the necessity for an inspection. A

court can enter an order limiting discovery to protect a party from annoyance,

embarrassment, oppression, or undue burden and expense. R. 4:10-3. Taxpayer has

not established good cause for the necessity of such an order. In summary, the

demand of the City to inspect the property is relevant and proper.

The next question is which party should have the onus to procure the

inspection. The City contends that the taxpayer has the onus and the failure to

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provide the inspection should result in dismissal. However, the preliminary question

to this is whether an inspection can be compelled. For if it cannot be compelled, the

issue then becomes who bears the detriment of the inspection not occurring.

An inspection is the one of the few types of discovery which a municipality

can pursue under the small claims practice of Tax Court. R. 8:6-1(a)(4). Subject to

the limitations for Tax Court matters as provided in Part VIII of the court rules, the

mechanics for taking discovery are set forth in Part IV of the rules which govern

civil matters. R. 8:6-1(a), R. 4:10-4 through R. 4:18-2, R. 4:22 through R. 4:25.

Entry upon land for inspection and other purposes is governed by R. 4:18-1.

Subsection (a)(2) of R. 4:18-1 pertains to inspection of land or other property “in

possession or control of a party”. Conversely, subsection (d) provides for inspection

of land of non-parties.

In determining whether to compel inspections of third-party premises, the

courts have seemingly taken different approaches depending on whether the

inspector is a governmental agent. For example, in both Davilla v. Cont’l Can Co.,

205 N.J. Super. 205 (App. Div. 1985) and Arcell v. Ashland Chemical Co., 152 N.J.

Super. 471 (Law Div. 1977), our courts have allowed an inspection in a lawsuit

between two private parties in which the inspector was not a governmental agent.

In both Davilla and Arcell, access to the worksites of plaintiff employees was

sought to determine the extent of liability of defendants for providing alleged

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dangerous products and substances. Davilla, 205 N.J. Super. at 206. Arcell, 152

N.J. Super. at 505. The employers controlling the worksites were not facing liability

from the employee plaintiffs in the Superior Court actions since the claims against

the employers were within the jurisdiction of the workers’ compensation court.

Davilla, 205 N.J. Super. at 206-07. Arcell, 152 N.J. Super. at 487. In Davilla, entry

was allowed to a representative of the plaintiff employee to determine the

manufacturer of a bandsaw used by plaintiff at the time of injury. Davilla, 205 N.J.

Super. at 207. Likewise, in Arcell, access was permitted to assess plaintiffs’

exposure to toxic substances while at the employer’s worksite. Arcell, 152 N.J.

Super. at 507.

Other courts have allowed inspections of third-party premises by non-

governmental witnesses to gather relevant evidence. For example, the Court of

Special Appeals of Maryland will allow under appropriate circumstances an

inspection of a premises formerly owned by a defendant as part of a suit alleging

exposure to lead. Johnson v. Franklin, 115 A.3d 752, 755, 762 (Md. Ct. Spec. App.

2014). Stokes v. 855 N. Wash. St., 784 A.2d 1142, 1143, 1150 (Md. Ct. Spec. App.

2001). In Investors Mortgage Ins. Co. v. Dykema, 598 F. Supp. 666 (D. Or. 1984),

the United States District Court for the District of Oregon allowed an appraiser to

inspect the home of a third-party to determine fair market value as part of a dispute

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between a mortgage lender and mortgage insurer. Id. at 668. The issue was whether

prior appraisals, relied upon at the time of loan origination, were inflated. Id. at 667.

In In re State in the Interest of A.B., 219 N.J. 542 (2014), a juvenile

delinquency proceeding, the defense sought an inspection of a home which was both

the scene of the crime and the home of the victim. Id. at 547-48. The inspection

was not by or for the benefit of the State, but rather by and for the benefit of the

accused to challenge the charge. Ibid. Our Supreme Court determined that the right

of the accused to a fair trial and the right of the purported victim and her family’s

privacy must be balanced. Id. at 547. A fair criminal trial was found to outweigh

the right of the purported victim to privacy. Ibid. Obviously, in a criminal or

juvenile delinquency proceeding, a defendant is facing consequences of magnitude

that can result in incarceration and loss of liberty. This is unlike the case now before

the court in that the taxpayer does not face any consequence of magnitude, but rather

seeks to overcome the presumption of a correct tax assessment. MSGW Real Estate

Fund, LLC v. Borough of Mountain Lakes, 18 N.J. Tax 364, 373 (Tax 1998).

The aforementioned cases involved private parties seeking entry into a

premises. The inspections were sought by private parties for private interests, and

were to be conducted by private parties. Here, regardless of whether the burden of

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seeking entry falls upon the taxpayer or the municipality, the outcome sought is an

inspection by a governmental official or agent.2

Even when an inspection is merely for purposes of a tax assessment appeal, a

number of courts in other jurisdictions have recognized, with varying results, that

Fourth Amendment issues arise. See, e.g., Matter of Jacobowitz v. Bd. of Assessors

for Town of Cornwall, 990 N.Y.S.2d 551, 555-57 (N.Y. App. Div. 2014) (inspection

of appealing owner’s property denied on Fourth Amendment grounds); Matter of

Yee v Town of Orangetown, 904 N.Y.S.2d 88, 94-95 (N.Y. App. Div. 2010) (same);

Schlesinger v. Town of Ramapo, 807 N.Y.S.2d 865, 867-68 (N.Y. Sup. Ct. 2006)

(same); Roketenetz v. Bd. of Assessors, 892 N.E.2d 363, 364 (Mass. App. Ct. 2008)

(order permitting inspection of appealing owner’s property not barred by Fourth

Amendment); Smith v. Ayotte, 356 F. Supp. 2d 9, 16-17 (D.N.H. 2005) (unfair to

allow taxpayer to block access on Fourth Amendment grounds and then appeal);

Poddar v. Department of Revenue, 983 P.2d 527, 533 (Or. 1999) (Fourth

Amendment issues overcome when taxpayer put value at issue); Atkinson v. Gurich,

248 P.3d 356, 358-60 (Okla. 2011) (Fourth Amendment along with statute barred

inspection); MacDonald v. Town of Dover, 899 N.W.2d 303, 313-28 (Wis. 2017)

(same). However, none of the decisions cited above address an inspection when the

2
Even if the City hired a private sector appraiser to conduct the inspection, the
appraiser is acting as an agent of the government. See State v. Scrotsky, 39 N.J. 410,
415-16 (1963).
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property has changed hands. Additionally, in some of the jurisdictions, there are

statutes which limit the assessor’s ability to inspect. In any event, the court has to

be more circumspect in considering inspections by governmental agents since Fourth

Amendment issues are implicated.

The Fourth Amendment of the United States Constitution provides that “[t]he

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated . . .” U.S. Const. amend

IV. The Fourth Amendment then goes on to provide that “no Warrants shall issue,

but upon probable cause . . .” Id. The New Jersey Constitution has similar

provisions. N.J. Const. art. I, ¶ 7. Upon first glance, looking to the Fourth

Amendment to resolve a tax related dispute seems out of place since most

jurisprudence involving this amendment concerns criminal offenses.

However, the Fourth Amendment has deep roots in taxation. “Vivid in the

memory of the newly independent Americans were those general warrants known as

writs of assistance under which officers of the Crown had so bedeviled the colonists.

The hated writs of assistance had given customs officials blanket authority to search

where they pleased for goods imported in violation of the British tax laws.” Stanford

v. Texas, 379 U.S. 476, 481 (1965). In addition to hatred of the writs, there was

irritation with the underlying laws for which the writs were issued. Marshall v.

Barlow’s, Inc., 436 U.S. 307, 310 (1978). These laws included the Stamp Act of

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1765, the Townshend Revenue Act of 1767, and the tea tax of 1773. Id. at 310, n.

7.

“It is well settled . . . that the Fourth Amendment’s protection extends beyond

the sphere of criminal investigations. . .” Grady v. North Carolina, 135 S. Ct. 1368,

1371 (2015). “[T]he Fourth Amendment applies to searches and seizures in the civil

context and may serve to resolve the legality of these governmental actions without

reference to other constitutional provisions . . . .” United States v. James Daniel

Good Real Prop., 510 U.S. 43, 51 (1993). “If the government intrudes on a person’s

property, the privacy interest suffers whether the government’s motivation is to

investigate violations of criminal laws or breaches of other statutory or regulatory

standards.” Marshall v. Barlow’s, Inc., 436 U.S. at 312-313.

“The basic purpose of this Amendment . . . is to safeguard the privacy and

security of individuals against arbitrary invasions by governmental officials.”

Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018) (citing Camara v. Mun. Ct.

of City and County of S. F., 387 U.S. 523, 528 (1967)). The sanctity of private

dwellings is ordinarily afforded the most stringent Fourth Amendment protection.

N.J. Dep’t of Envtl. Protection v. Huber, 213 N.J. 338, 358 (2012) (quoting United

States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976)). However, the Fourth

Amendment protects commercial buildings as well as private homes. Marshall v.

Barlow’s, Inc., 436 U.S. at 312; see also See v. Seattle, 387 U.S. 541, 543 (1967).

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Government inspections were dealt with by our Supreme Court most recently

in Huber. Huber took title to a residential property subject to a recorded deed

restriction that conditioned development on the issuance of a carefully delineated

wetlands permit and transition area waiver. Id., 213 N.J. at 370. As such, Huber

could not claim a full expectation of privacy to such protected lands. Ibid. As part

of the statutory scheme to protect such lands, Huber’s property was subject to

inspection by the Department of Environmental Protection (“DEP”). Ibid. “In

effect, a property owner receives the right to develop restricted land in exchange for

giving the right of reasonable entry to the DEP to inspect. To be sure, this bargained-

for exchange is subject to the reasonableness of the entry and search.” Ibid.

The Court balanced the right of Huber to exclude the DEP against the

bargained-for exchange of receiving the wetlands permit. In other words, if Huber,

or his predecessor in title, did not want the DEP on the land, a permit from the DEP

should not have been sought. However, the Court made clear that it was leaving for

another day whether the inspection law applied to property that was either (1) not

subject to a wetlands permit, (2) consisted of open fields, or (3) entry is sought in

non-residential settings. Id. at 371.

In the case at hand, there is not any bargained-for exchange such as a permit

that governs the relationship between the current owner (or predecessor in title such

as taxpayer) and the municipality when it comes to inspection of the property. This

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is in contrast with a redevelopment parcel which is subject to a long-term payment

in lieu of taxes (PILOT) agreement which mandates the inclusion of a right by the

municipality to inspect the property. N.J.S.A. 40A:20-9(e). This is not to say that a

bargained-for exchange concept as expressed in Huber is a necessary prerequisite to

a search, but rather that the bargained-for exchange concept does create a basis for

a governmental inspection in this case.3

The legal foundation for Huber is Camara, the seminal United States Supreme

Court decision pertaining to administrative searches or inspections by governmental

officials. In Camara, the owner refused entry to a housing inspector for a periodic

inspection. The housing inspector insisted upon entry based upon a housing

ordinance. Id., 387 U.S. at 525-26. While a routine inspection of the physical

condition of private property may be a less hostile intrusion than the typical police

officer’s search for contraband, the Fourth Amendment interests at stake were not

merely peripheral. Id. at 530.

3
It must be emphasized that the court is not deciding whether an assessor has the
right to inspect the property as part of a revaluation or reassessment of all or a
substantial part of the properties in a given municipality. Nor is this court deciding
the right of inspection when the taxpayer is still in possession or control of the
property (as owner, lessee or lessor) and files a tax appeal. Rather, the court is solely
considering the situation of when an appealing taxpayer no longer owns the property,
and the current owner rebuffs the municipality’s request to inspect.

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The Court in Camara determined the Fourth Amendment standard of probable

cause for allowing a non-criminal administrative inspection is formulated with an

eye towards reasonableness. Id. at 537, 539. However, “there can be no ready test

for determining reasonableness other than by balancing the need to search against

the invasion which the search entails.” Id. at 536-37. An inspector is permitted to

seek entry without a warrant, but if refused, has to obtain a warrant. Id. at 540.

Health and safety considerations can form the reasonable basis for the issuance of a

warrant. Id. at 538. Moreover, the passage of a time without a periodic inspection

may justify the issuance of a warrant. Ibid. Once again, the court is balancing the

privacy interests of citizens against the government’s interests in conducting certain

programs to protect or benefit the citizenry at large.

Moreover, the case here is unlike that confronting our Supreme Court in Dome

Realty, Inc. v. Paterson, 83 N.J. 212 (1980). Paterson required inspection of rental

apartments “immediately prior” to a new tenant moving into the premises. Id. at

240. The Court distinguished the case from Camara in that the apartments were

vacant at the time of inspection, the inspector has no discretion in which dwellings

are searched as the inspection only occurs on the request of the inspector and there

is not a criminal investigation. Id. 240-241. Unlike Dome, the current owner of the

premises is not inviting the inspection, but rather has rebuffed efforts to inspect.

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An inspection by a government agent is vastly different from an inspection by

a private individual. A government agent can discover violations of criminal and

civil law which can lead to consequences. A government agent’s inspection can

impact relations and obligations to the government. For example, if upon inspection,

the agent perceives improvements, steps might be available to increase the assessed

value. Twp. of W. Milford v. Van Decker, 120 N.J. 354, 362 (1990). Even if the

government agent is acting in good faith, it does not diminish this real and apparent

concern that accompanies a request for inspection. But for an inspection, it is

unlikely that the current owner’s assessment will change. 4 The exposure which the

current owner has to an increase upon inspection would not be imaginary or trifling.

Arguments that if the current owner has nothing to hide, they should throw

their doors open to inspection are specious. Such arguments gut the Fourth

Amendment for it can be applied in any number of contexts including criminal

warrants. The Constitution, and the Fourth Amendment in particular, serve an

important and vital purpose as a check on governmental power.

To summarize, the common thread which runs through the governmental

administrative inspection cases is balancing the government’s interest in the

inspection versus the property owner’s constitutional right in limiting governmental

4
Of course, construction or destruction of improvements or another municipal-wide
revaluation could affect the assessment.
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intrusion. Camara, 387 U.S. at 536-37. In Camara, the Court indicated that “[t]he

warrant procedure is designed to guarantee that a decision to search private property

is justified by a reasonable governmental interest. But reasonableness is still the

ultimate standard. If a public interest justifies the intrusion contemplated, then there

is probable cause to issue a suitably restricted search warrant”. Id. at 539.

But for the litigation, the City has not expressed any interest in seeking an

inspection of the property. Thus, there is not any public health or welfare concerns,

or broad public policy at stake to justify an inspection. What is left are two private

interests, that of the taxpayer and that of the current owner. The taxpayer has an

interest in seeking a refund of taxes which he believes were overpaid. The taxes on

the property are approximately $14,000 per year. It goes without the saying the

refund would be somewhat smaller than $14,000 if the taxpayer was successful in

establishing that the property was over-assessed. This private interest in a refund is

balanced against the current property owner’s interest as guaranteed by the Fourth

Amendment. This case is unlike A.B. where there were competing constitutional

interests, a fair criminal trial, versus privacy interests. See Id., 219 N.J. at 547. Here,

the current property owner’s Fourth Amendment rights outweigh the taxpayers’

interest in a monetary refund. In other words, the court would not be able to compel

an inspection by virtue of the Fourth Amendment.

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A question also arises as to whether the taxpayer has a due process interest in

securing access to the property if such access is necessary for his case to go forward,

and whether this trumps the Fourth Amendment rights of the current owner. The

current owner is laboring under a tax-burden established by the same assessment

which the taxpayer is contesting. The current owner could have appealed the

assessment, but chose not to appeal. Certainly, the current owner has a right not to

sue and be subjected to the costs, expense and also the rigors of discovery including

inspection of the premises. Taxpayer cannot foist upon the current owner the

burdens and risks of litigation which the current owner has not decided to undertake.

The risks of litigation to the current owner may be greater than the taxpayer

risks. Taxpayer seeks a reduction for 2017. Since 2017 was a revaluation year and

no counterclaim was filed, the City generally cannot seek an increase. Campbell

Soup Co. v. City of Camden, 16 N.J. Tax 219, 226 (Tax 1996). However, the

assessment could potentially be increased for upcoming years to reflect any

perceived improvements to the property. Van Decker, 120 N.J. at 362. Thus, there

is not any downside to the taxpayer appealing, but the current owner does have some

risk. It is not the court’s function to evaluate whether this risk is great or small. The

current owner could not be compelled to effectively participate in this litigation by

this court compelling an inspection.

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Since an inspection cannot be compelled in this case, the question is which

party should bear the detriment of an inspection not occurring. It must be

remembered that as a practical matter, “local tax officials often cannot know whether

a residence has undergone renovations which have increased its value without

entering the residence itself.” Ayotte, 356 F.Supp.2d at 16. In other words, an

inspection is an important part of the tax appeal process. Without an inspection, it

would not be fair to the City, or to the other taxpayers in the City who would have

to make up any shortfall in tax revenues if a reduction in assessment was determined

based upon limited evidence.

While it is true that an order of dismissal does not have to be entered if there

is good cause for not providing discovery, being unable to compel an inspection does

not constitute good cause when a taxpayer may have other avenues of relief to secure

an inspection. See R. 4:23-5(a)(1) (“Unless good cause for other relief is shown, the

court shall enter an order of dismissal . . .”). Since there are other avenues of relief

available to taxpayer which are explained in greater detail below, the adverse

consequences of not securing an inspection must fall upon taxpayer.

This court has dealt with an analogous situation when addressing the failure

of a prior owner to complete a Chapter 91 request. Under Chapter 91, a commercial

taxpayer is required to provide income and expense information within forty-five

days, or otherwise face a bar to a tax appeal. L. 1979, c. 91 § 1. N.J.S.A. 54:4-34.

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The purpose of the provision is to encourage the remittance of financial information

so that the local assessor can arrive at an accurate assessment. In prior cases, the

issue has arisen whether the prohibition of appeal applies to subsequent property

owners when the predecessor in title failed to comply with Chapter 91. This court

has determined that:

[i]t is the obligation of a purchaser to ascertain the facts
concerning the property tax and the property tax
assessment on the property that it proposes to purchase and
to protect itself in its agreement with the seller as to any
rights that it may wish to assert with respect to the property
tax.

[ADP of New Jersey, Inc. v. Parsippany-Troy Hills Tp.,
14 N.J. Tax 372, 378-79 (Tax 1994); 975 Holdings, LLC
v. City of Egg Harbor, 30 N.J. Tax 124, 131-32 (Tax
2017).]

Likewise, it is the obligation of a seller to protect itself in an agreement with

a purchaser as to any rights it may wish to assert with regard to inspection of the

property for tax appeal purposes. In other words, the seller can bargain with the

purchaser for inspection of the property. Certainly, such a request may have to be

supported by adequate consideration. There is not any evidence that the current

owner agreed to allow an inspection so that the taxpayer could continue his tax

appeal. Parenthetically, if the court could compel an inspection, it would give the

taxpayer something beyond what was bargained for with the current owner.

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There may be a multitude of reasons why the current owner opposes an

inspection. As already stated, he may not agree with the litigation or may be fearful

his assessment will increase. The current property owner may not be satisfied with

the property and may well have asked the taxpayer to address certain concerns.

These are broad unsupported allegations from both sides as to the current owner’s

rationale. Those concerns can certainly be addressed through negotiations to allow

an inspection, but is not for the court to speculate or wander into such negotiations.

It is none of the court’s concern, nor should the court inject itself into such a dispute.

It is better left to the parties to resolve, and to determine the appropriate

consideration for any inspection (i.e., indemnification if assessment increases,

agreement to repair, percentage of any tax refund for 2017, etc.)

Placing the burden on the taxpayer to secure the inspection is appropriate for

one other reason. It prevents mischief of a taxpayer in thwarting an inspection

through a transfer of the property. If the burden was placed on the municipality to

secure the inspection, a taxpayer could easily avoid such inspection by conveying

the property to a related entity and then claiming that the inspection is not possible.

Moreover, even in a legitimate transaction, friendly buyers and sellers may perceive

a litigational advantage in thwarting an inspection to put the municipality at a

disadvantage. Cf., Ayotte, 356 F.Supp.2d at 17 (“Allowing a taxpayer to prevent

an inspection of his or her home absent a warrant during the appraisal process and

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then to challenge the result of that process through abatement proceedings would

adversely impact property tax receipts.”). A reduction in prior years may carry

forward and inure to the benefit of a new owner as well. By placing the onus on the

appealing taxpayer with the sanction of dismissal protects against such subterfuge.

The matter is dismissed without prejudice. R. 4:23-5(a)(1). The taxpayer can

arrange an inspection and apply for restoration of the case. Id. Certainly, the

taxpayer can reach out to the current owner and see if he can reach an agreement as

to an inspection. The court is not going to wander in to the thicket of trying to set

the appropriate value or parameters of such entry. The taxpayer and current owner

are free to reach what they consider to be a fair and mutual bargain as to access, or

if the current owner so desires, no access at all.

IV. CONCLUSION.

For the reasons stated in this opinion, Defendant’s Motion to Dismiss

Plaintiff’s Complaint is GRANTED.

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