Opinion
DOCKET NO. A-2741-10T4 DOCKET NO. A-3679-10T4
05-13-2013
KANT ASSOCIATES, Plaintiff-Appellant, v. TOWNSHIP OF JEFFERSON, Defendant-Respondent.
The Marchese Law Firm, LLC, attorneys for appellant (Daniel G.P. Marchese, of counsel and on the brief). Courter, Kobert & Cohen, attorneys for respondent (Lawrence P. Cohen, of counsel; Richard W. Wenner, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from the Tax Court of New Jersey, Docket Nos. 009094-2007 and 008621-2008.
The Marchese Law Firm, LLC, attorneys for appellant (Daniel G.P. Marchese, of counsel and on the brief).
Courter, Kobert & Cohen, attorneys for respondent (Lawrence P. Cohen, of counsel; Richard W. Wenner, on the brief). PER CURIAM
Plaintiff appeals from the involuntary dismissal at trial of two tax court complaints challenging the denial of farmland assessment of its property in 2007 and 2008. Judge Kuskin dismissed the complaints because plaintiff failed to present evidence of an approved woodland management plan as of January 1, 2005 or January 1, 2006. Plaintiff contends that the trial court erred in determining that Department of Environmental Protection (DEP) approval of its woodland management plan was necessary and further argues that there was no indication from the Jefferson Township tax assessor that the State disapproved its plan or otherwise found plaintiff not in compliance with N.J.S.A. 54:4-23.3. Because we agree that the burden was on plaintiff to show that it had an approved woodland management plan two years prior to the year for which farmland assessment was sought and that it failed to make such showing at trial, we affirm.
The property at issue is an approximately fifteen-acre partly wooded parcel on Route 15 North in Jefferson Township assessed at $627,100, which plaintiff has owned for over twenty years. Plaintiff first made application for farmland assessment in 2005. In support of that application, plaintiff's forester sent the Jefferson Township assessor a woodland management plan for the property on December 29, 2004. The assessor denied that application, as well as plaintiff's subsequent applications in 2006 and 2007. The denial letters were not specific, advising only that plaintiff had not met the requirements of the Farmland Assessment Act. The 2007 denial added that "[t]he property has not met the requirement of actively devoted for two successive years prior to 2008." Plaintiff appealed the assessment to the Morris County Board of Taxation (the Board) for tax years 2007 and 2008. The Board affirmed the assessments and plaintiff timely appealed to the tax court where the cases were consolidated for trial.
Although at trial, defendant appeared to initially concede that plaintiff had an approved woodland management plan in place in 2005, it moved to dismiss the claims at the close of plaintiff's proofs on the basis that plaintiff had failed to provide evidence of a State-approved plan. In a well-reasoned opinion from the bench, later supplemented by letter to the parties, Judge Kuskin determined that DEP approval of plaintiff's woodland management plan was necessary in order for the property to qualify for farmland assessment in accordance with N.J.S.A. 54:4-23.2 and N.J.A.C. 18:15-6.2(a)(6). Finding that plaintiff had failed to present any evidence from which he could either find or infer the existence of an approved woodland management plan for the years in question, the judge granted the motion.
Specifically, Judge Kuskin found that plaintiff had presented no proof that the woodland management plan mailed to the Jefferson Township assessor on December 29, 2004 was submitted to the DEP for review at that time or any other. Relying on Alexandria Twp. v. Orban, 21 N.J. Tax 298 (Tax 2004), which held that a woodland management plan must be filed at least two full years before the year in which the farmland assessment is sought in order to comply with the statute, the court determined that the mere existence of a woodland management plan on December 29, 2004 did not satisfy the requirements of the farmland assessment statute because the plan must have been approved by DEP as of January 1, 2005 in order to qualify the property for farmland assessment in 2007.
In order to qualify for farmland assessment, a wooded parcel must comply with the general requirements of the Farmland Assessment Act, N.J.S.A. 54:4-23.1 to -23.23 (the Act), and the Act's more specific requirements related to woodlands, N.J.S.A. 54:4-23.3. Estell Manor City v. Stern, 14 N.J. Tax 394, 415 (Tax 1995). Among the Act's general requirements relevant here, is that the land be "actively devoted to agricultural or horticultural use" and have "been so devoted for at least the 2 successive years immediately preceding the tax year in issue." N.J.S.A. 54:4-23.2. The pertinent provision of the Act's more specific requirements for woodlands provides that the woodland owner must establish and comply with
N.J.S.A. 54:4-23.3 was amended after Judge Kuskin's opinion to expand the definition of woodland in agricultural use to include land devoted to sustainable forestland managed in accordance with a stewardship plan approved by the DEP. Those amendments are not relevant to the issues on appeal.
a woodland management plan for this land, prepared in accordance with policies, guidelines and practices approved by the Division of Parks and Forestry in the Department of Environmental Protection, in consultation with the Department of Agriculture and the Dean of Cook College at Rutgers, The State University, which policies, guidelines and practices are designed to eliminate excessive and unnecessary cutting.
[N.J.S.A. 54:4-23.3(a).]
The Act requires the DEP to acknowledge receipt of an application for woodland to be deemed in agricultural use to both the landowner and the local tax assessor. N.J.S.A. 54:4-23.3a(a). The DEP is to review each application to insure compliance with the woodland management plan, conducting an on-site inspection of the property during one of the first three years in which applications were received, and at least once every three years thereafter. N.J.S.A. 54:4-23.3a(b). The Department "must thereafter notify the assessor that the [landowner] has, or has not, established or complied with the woodland management plan in accordance with N.J.S.A. 54:4-23.3 and -23.3a. If the DEP indicates to the assessor that the applicant is not in compliance, the assessor shall disapprove the application." Orban, supra, 21 N.J. Tax at 303 (citing N.J.S.A. 54:4-23.3a). Should the Department fail to give timely notice to the assessor of its findings, the assessor may approve or disapprove an application for farmland assessment of a woodland lot as the assessor would any other application for farmland assessment. N.J.S.A. 54:4-23.3a(d).
As Judge Small explained in Orban, the more specific requirements for woodland lots were adopted by the Legislature in 1986, more than twenty years after adoption of the Act, to curb the then-widespread practice of indiscriminate cutting of forested land to meet the income threshold for farmland assessment thereby obtaining beneficial tax treatment. Orban, supra, 21 N.J. Tax at 304-05. "The impact of these amendments to the statute and the conforming regulations are that the granting of farmland assessments for woodlands would be more rigorously monitored to avoid abuse." Id. at 305. Among the amended regulations adopted by the Director of the Division of Taxation to implement the more specific requirements for woodlands was N.J.A.C. 18:15-6.2(a)(6), defining "[d]evoted to agricultural or horticultural use" as "land in which trees and forest products are produced for sale and such land is in compliance with the written approved woodland management plan." N.J.A.C. 18:15-6.2(a)(6) (emphasis added); Orban, supra, 21 N.J. Tax at 304 (noting that "the amended regulation was adopted effective October 6, 1997 so that it would comply with N.J.S.A. 54:4-23.3 as amended by L. 1986 c. 201 and L. 1995 c. 276" (citing 29 N.J.R. 2803, 2804 (July 7, 1997) (proposing and explaining the reason for the amendment) and 29 N.J.R. 4335 (October 7, 1997) (adopting the amended regulation))).
This regulation was amended and renumbered effective February 19, 2013 to provide: "10. Land on which trees and forest products are produced for sale within a reasonable period of time and such land is managed in compliance with a written woodland management plan approved by the State Forester." N.J.A.C. 18:15-6.2(a)(10).
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Because statutes granting preferential property tax treatment provide benefits at the expense of a municipality's remaining taxpayers, Estell Manor, supra, 14 N.J. Tax at 417, they, like tax exemptions, represent a departure from the fundamental principle that all property is to share equally the public burden of taxation, Princeton Univ. Press v. Borough of Princeton, 35 N.J. 209, 214 (1961), and are thus strictly construed against the taxpayer, Interstate 78 Office Park, Ltd. v. Tewksbury Twp., 11 N.J. Tax 172, 185 (Tax 1990). The assessment made by the tax assessor is presumed correct, and the burden is on the taxpayer seeking farmland assessment to show otherwise. Miele v. Twp. of Jackson, 11 N.J. Tax 97, 99 (Tax 1989).
Like Judge Kuskin, we reject the taxpayer's argument that DEP approval of its woodland management plan was not necessary for entitlement to farmland assessment and that "[m]erely the filing suffices." First, we note that plaintiff presented no proof of any filing with DEP. The transmittal letter of December 29, 2004 was addressed only to the assessor and no copy to the DEP is anywhere noted. Further, as Judge Kuskin noted in his supplemental letter opinion
the requirement for an approved plan is consistent with the Assembly Economic Development and Agricultural Committee Statement to A. 1925, enacted as L. 1986, c. 201. This Bill included provisions appearing in N.J.S.A. 54:4-23.3 and the entirety of N.J.S.A. 54:4-23.3a. The Committee Statement sets forth that the Bill "imposes stricter requirements for certain woodlands to receive the benefits of farmland assessment," and discusses the requirement for submission of a woodland management plan to the Department of Environmental Protection for review and approval. This legislative history reflects a concern that a taxpayer comply strictly with the requirements of the farmland assessment statutes in order to qualify for the tax preference conferred by those statutes. My determination that an approved woodland management plan must be in effect during the entirety of the two-year qualifying period under the farmland assessment statutes is consistent with the concept of strict compliance, and with other objectives of the woodland management
statutes, namely, achieving uniformity in application of the standards for farmland assessment qualification relating to woodlands and insuring that the woodland management is conducted in accordance with State policies and objectives. The fact that a plan has been prepared by a DEP approved forester does not provide assurance that the plan itself complies with those policies and objectives.
We agree with Judge Kuskin that DEP approval of a woodlands management plan is required for a woodland property to be farmland assessed for the reasons he stated. Further, N.J.A.C. 18:15-6.2(a)(6), the implementing regulation in effect at all times relevant here, expressly required a written and approved woodland management plan. That exact requirement has been express in the regulations for over fifteen years. "An agency's construction of a statute over a period of years without legislative interference will generally be granted great weight as evidence of its conformity with the legislative intent." Last Chance Dev. P'ship v. Kean, 119 N.J. 425, 434 (1990). As plaintiff does not argue that the regulation is ultra vires, there is no basis to question the Legislature's delegation of the authority to interpret and implement the Act. See T.H. v. Div. of Developmental Disabilities, 189 N.J. 478, 490 (2007) ("That the Legislature may delegate to an administrative agency the authority to promulgate rules and regulations interpreting and implementing a statute is beyond peradventure.").
Although defendant's apparent concession at the start of trial that the taxpayer had an approved woodland management plan might give one pause in considering the grant of a Rule 4:37-2(b) motion on the ground that plaintiff had failed to offer proof of such, we are satisfied that it was appropriate here. Plaintiff has never argued that DEP actually approved its filed woodland management plan nor sought to reopen the record to introduce evidence of any such approval. Its argument on appeal is that no approval was required. Because we conclude that plaintiff was required to show that it had an approved woodland management plan two years prior to the year for which farmland assessment was sought and that it failed to make such showing at trial, we agree that defendant's motion to dismiss at the close of plaintiff's case was properly granted. Dolson v. Anastasia, 55 N.J. 2, 5 (1969).
We likewise reject plaintiff's argument that the assessor's denials of its applications for farmland assessment did not comport with N.J.S.A. 54:4-23.3. The assessment made by the tax assessor is entitled to a presumption of correctness. Miele, supra, 11 N.J. Tax at 99. Because plaintiff failed to present any proof of an approved woodland management plan, it failed to carry its burden of proving its entitlement to farmland assessment for its woodland lot.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION