Opinion
DOCKET NO. A-4568-11T3
05-23-2013
DANIEL D. FISHER, SR., Plaintiff-Appellant, v. TOWNSHIP OF SOUTHAMPTON, Defendant-Respondent.
Michael J. Ward, IV, argued the cause for appellant. Stacy L. Moore, Jr., argued the cause for respondent (Parker McCay, P.A., attorneys; George M. Morris, of counsel; Mr. Moore, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Simonelli.
On appeal from the Tax Court of New Jersey, Docket No. 14535-2011.
Michael J. Ward, IV, argued the cause for appellant.
Stacy L. Moore, Jr., argued the cause for respondent (Parker McCay, P.A., attorneys; George M. Morris, of counsel; Mr. Moore, on the brief). PER CURIAM
Plaintiff Daniel D. Fisher, Sr. appeals from the February 17, 2012 Tax Court judgment, which dismissed his complaint seeking a farmland assessment pursuant to the Farmland Assessment Act of 1964, N.J.S.A. 54:4-23.1 to -23.24. Plaintiff also appeals from the April 2, 2012 order, which denied his motion for a new trial. We affirm.
Plaintiff owns property located in the Pinelands, and known as Lots 9 and 14, Block 3201 on the tax map of the Township of Southampton (Township). Lot 14, which is the subject of this appeal, is a forty-four acre wooded lot consisting mostly of wetland. Prior to 2010, Lot 14 qualified for a farmland assessment.
Plaintiff also owns property known as Lots 6 and 6Q, Block 1204, a ninety-three acre lot used as a grain and hay farm that qualifies for a farmland assessment (Lot 6). Lot 6 is located approximately six miles from Lot 14, and there are several residential communities separating the lots.
In 2010, the Township's tax assessor reviewed all farmland-assessed properties to determine whether they qualified for a farmland assessment. He inspected Lot 14 and found it was a wooded parcel with no Management Plan and where no routine agricultural or horticultural activities took place. Accordingly, the tax assessor determined that Lot 14 did not qualify for a farmland assessment pursuant to N.J.A.C. 18:15-1.1.
Plaintiff applied for a farmland assessment for Lot 14. The tax assessor denied the application, and the Burlington County Board of Taxation (Board) affirmed. Plaintiff then filed a pro se complaint in the Tax Court, alleging that Lot 14 was supportive of and beneficial to Lot 6 because wood from Lot 14 was used as firewood to heat the farmhouse on Lot 14, thus saving thousands of dollars for heating oil, and the wood was also used to construct and repair farm buildings, sheds and fences on Lot 6.
At trial, plaintiff admitted that Lot 14 did not qualify for a farmland assessment on its own, the lot did not provide a windbreak, watershed enrichment, buffers, or soil erosion control for Lot 6, and he had not applied for a Woodland Management Plan for Lot 14. He testified that in 2010, he cut three or four cords of wood on Lot 14, which he used as firewood to heat the farmhouse on Lot 6, and ten poles, which he used to repair a small shed on Lot 6 that he intended to use to house horses and cattle.
In a December 20, 2011 oral decision, Judge DeAlmeida found granted the Township a directed verdict, concluding as follows:
We get there because this property, according to testimony, is not operated as - under a woodland management plan. The only way it can qualify is if it's appurtenant woodland to Lot 6. It's appurtenant woodland if it's contiguous to part of or beneficial to Lot 6. It's not contiguous to Lot 6. It's six miles away. It's not part of Lot 6. It's separated by many hundreds of homes that
are in between and they're just - they're not part of the same thing.
The question is Lot 14 beneficial to Lot 6? Beneficial is defined in the regulation N.J.A.C. 18:51-1[.1]. It means that land which enhances the use of other lands devoted to agricultural use by providing benefits such as, but not limited to, windbreaks, watershed, buffers, soil erosion, or other recognizable enhancements of the viability of the qualifying land.
There's been testimony that Lot 14 does not provide windbreaks, watershed, buffers, or soil erosion. It is far away from the property. It couldn't provide those kinds of things. And this regulation illustrates what I believe was the legislative intent with appurtenant woodland that that would be close in proximity.
It may not necessarily have to be directly next to a farm, but close enough to provide the kind of benefit that is tangible and recognizable such as windbreaks and watershed and buffers, the type of things that a farm may need to operate and this property doesn't provide any of that.
Supportive woodland was also defined in the regulations as a wooded piece of property beneficial to, and we've discussed beneficial, or reasonably required for the purpose of maintaining the agricultural use on the farm to which it is supportive. And so, here, this is the one area where Lot 14 might qualify.
It might be reasonably required for the purpose of maintaining the farming on Lot 6, but by the testimony I've received today I cannot make a determination that it is, in fact, reasonably required. It provides wood to heat the farmhouse and it provided in 2010
wood to prepare a barn for the storage of horses.
The farming activity on Lot 6 is a hay and grain farm. The use of Lot 14 is not required to maintain the farm, which is [plaintiff's] testimony, with respect to the fact that without Lot 14 wood farming activity on Lot 6 would have to stop. Also, I note that Lot 14 is 44 acres. Even if a small portion of it was harvested for wood for the heating of the house and to repair a barn it certainly wasn't anywhere near the majority or even a substantial or significant portion of the 44 acres of Lot 14, most of which or much of which is wetland.
There's no way that the property supported the kind of harvest that would justify giv[ing] 44 acres of farmland exemption even if the use of that was necessary for the farm. But, I find that the activity that took place in 2010 was not reasonably required for the purpose of maintaining the farm activity on Lot 6. [Plaintiff] may use Lot 14 to generate income.
He may use it to help in some ways with the farm, but it's not reasonably required. It is a detached piece of property that is six [miles] away that is occasionally used by [plaintiff] for the harvesting of wood. It's not the kind of appurtenant property that was within the intention of the legislature to be considered woodland - appurtenant woodland qualified for farmland exemption. It doesn't support the farm in a kind of way that would be required for it to be reasonably required for the farming activity to continue.
Plaintiff filed a motion for a new trial. In a March 30, 2012 oral decision, Judge DeAlmeida denied the motion, concluding as follows:
But, even assuming that [plaintiff] would have introduced [his] farmland exemption application for tax year 2010 that wouldn't have changed the Court's decision. It wasn't the application that was at issue, it was the use of the property. And [plaintiff's] testimony to the Court was entirely unconvincing that that [plaintiff was] using that property and that it was reasonably required to maintain the agricultural use of Lot 6.This appeal followed.
[Plaintiff's] testimony in sum was that [he] had harvested wood to repair a barn on one occasion on the farm and that [he] had harvested wood on other occasions that intermittently to sell it either to Native Americans or to use it as heating at the farmhouse.[ ] There was nothing in the evidence to suggest that the use of Lot 14 was reasonably required to maintain the farm on Lot 6.
In addition, I noticed - I noted on the record that the Lot 14 was large. It was 40 some odd acres. [Plaintiff] had testified about using - clearing wood from a very small portion of that large piece of property and that it was completely not credible to conclude that the entire 40 some odd acres were reasonably required to maintain the farm.
I also noted on the record that much of Lot 14 was wetlands. It was not useable for
purposes of assisting the farm, and that [plaintiff] had not established in any way that the Lot 14 was reasonably required to maintain the farm. And the Court found that it was not, therefore, land that was qualified for an exemption as beneficial to the farmland which I will note again on the record Lot 14 is quite a distance from Lot 6. They're not contiguous. They're not even close to one another.
There is an entire basically township between the two of them and many, many houses between the two of them. Farmland had been developed, so you have a farm on one side, you have developments, and then you have this - the Lot 14 away. And although that alone wasn't a significant factor it certainly was part of what the Court considered on whether the use of Lot 14 was reasonably required for Lot 6.
I am not at all convinced that a new trial is necessary here or that the result would be different if I allowed [plaintiff] to reopen the trial, and I accepted the photographs [of the shed on Lot 6 that plaintiff] submitted with [his] motion. If anything they show a very small building with some hay in it. It certainly doesn't strike the Court that this would change the Court's decision on whether the perhaps dozen logs from poles from Lot 14 that are holding up the shed on Lot 6 were - means that Lot 14's use is reasonably required to maintain the farm on Lot 6. It just doesn't add up in the Court's mind, so the motion for [a new trial] is denied. Thank you.
Plaintiff testified that he sold poles from Lot 14 to Native-American tribe in the past and the last sale was in 2001.
On appeal, plaintiff contends that the judge erred in directing a verdict in the Township's favor and denying his motion for a new trial. He asserts the evidence established that Lot 14 was sufficiently beneficial and supportive of the farm on Lot 6, and thus, qualified for a farmland assessment as appurtenant woodland pursuant to N.J.A.C. 18:15-1.1.
Under Rule 4:40-1, "[a] motion for judgment . . . may be made by a party . . . at the close of all the evidence offered by an opponent." The standard of review is the same as that for a motion for Rule 4:37-2(b) involuntary dismissal and Rule 4:40-2 judgment notwithstanding the verdict. Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:40-2 (2013).
In deciding the motion, the court "'must accept as true all evidence supporting the position of the party defending against the motion and must accord that party the benefit of all legitimate inferences which can be deduced [from the evidence].'" Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch. Dist., 201 N.J. 544, 572 (2010) (alteration in original) (quoting Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998)). If reasonable minds could reach different conclusions, the motion must be denied. Rena, Inc. v. Brien, 310 N.J. Super. 304, 311 (App. Div. 1998). If the evidence is so one-sided, however, that one party must prevail as a matter of law, then a directed verdict is appropriate. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). The trial judge may not consider issues of witness credibility in making the determination. See Rena, supra, 310 N.J. Super. at 311.
We utilize the same standard that governed in the trial court. Frugis, supra, 177 N.J. at 269. If the evidence was such that, with all reasonable inferences being given to the non-moving party, reasonable minds could not differ, then we must affirm the directed verdict in favor of the moving party. See id. at 269-71.
In addition, "granting or denying a motion for a new trial rests with the sound discretion of the trial court and should only be granted if, having given due regard to the opportunity of the [factfinder] to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." Borough of Saddle River v. 66 E. Allendale, LLC, 424 N.J. Super. 516, 526 (App. Div.) (citations and internal quotation marks omitted), certif. granted, 211 N.J. 274 (2012).
We apply to the new trial motion the same review standard that the trial judge applied, i.e., "whether there was a miscarriage of justice under the law." Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 522 (2011). At the same time, we give "'due deference' to the trial court's 'feel of the case.'" Ibid. (quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008)).
Applying the above standards, we discern no reason to disturb the judge's rulings. We have considered plaintiff's contentions in light of the record and applicable legal principles, and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons Judge DeAlmeida expressed in his well-reasoned oral decisions rendered on December 20, 2011, and March 30, 2012.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION