Crown Castle Towers 09, LLC v. Township of Tabernacle

NOT FOR PUBLICATION WITHOUT APPROVAL OF

THE TAX COURT COMMITTEE ON OPINIONS

TAX COURT OF NEW JERSEY

Patrick DeAlmeida R.J. Hughes Justice Complex

Presiding Judge P.O. Box 975

25 Market Street

Trenton, New Jersey 08625-0975

(609) 292-8108 Fax: (609) 984-0805

October 6, 2014

Farhan Ali, Esq.

McCarter & English, LLP

Four Gateway Center

100 Mulberry Street

Newark, New Jersey 07102

Peter C. Lang, Jr., Esq.

150 Himmelein Road

Medford, New Jersey 08055

Re: Crown Castle Towers 09, LLC v. Township of Tabernacle

Docket No. 000020-2012

Docket No. 000021-2012

Dear Counsel

This letter constitutes the court s opinion after an evidentiary hearing on plaintiff s motion for summary judgment in the above-referenced matters. Plaintiff challenges omitted assessments for tax years 2010 and 2011 on real property on which it holds an easement and is responsible for local property taxes. For the reasons stated more fully below, the court invalidates the assessments.

I. Procedural History and Findings of Fact

The following findings of fact and conclusions of law are based on the evidence and testimony admitted at the evidentiary hearing.

These appeals concern real property on Chatsworth Road in Tabernacle Township owned by Clarence F. Hillman. The earliest evidence in the record is Mr. Hillman s July 1998 application for farmland assessment for the parcel, then designated in the records of the municipality as Block 404, Lot 6.01. In the application, the parcel is described as 20.95 acres of harvested cropland and 9 acres of non-appurtenant woodland. As a result of this application, the property was granted farmland assessment for tax year 1999.

Mr. Hillman also applied for farmland assessment for the property in July 2000. That application, which included the subject property and an adjoining parcel owned by Mr. Hillman, described the subject property as 29.95 acres of harvested cropland. As a result of this application, the property was granted farmland assessment for tax year 2001. The tax year 2001 assessment on the property was as follows

Land $ 13,200

Improvements $ 0

Total $ 13,200

It is clear from the record, however, that as of 2001 a 280-feet high communications tower and related improvements were located on the property. On May 12, 2001, a municipal official approved a construction permit for the subject property to replace existing 280 guyed tower with new tower (280 ) replace existing foundations w/new. Demo old foundation to be low grade. It is also apparent that the assessor failed to include the value of the tower and related improvements in the tax year 2001 assessment on the property, as he attributed $0 to the value of improvements.

The vacant land assessment remained on the property for tax year 2002.

On March 25, 2002, construction of the new tower and foundation was completed.

Despite the construction of the cell tower and related improvements, the vacant land assessment remained on the property for tax year 2003. In addition, the assessor made no attempt to impose an added assessment or omitted added assessment for tax year 2002.

On March 7, 2003, the township s construction official issued a construction permit for a pre-fabricated communications shelter on the subject property. The estimate cost of the project was reported as $88,850. On April 23, 2003, the township s construction official issued a construction permit for an antenna on existing tower & radio cabinets at base of tower. The estimated cost of the project was reported as $35,000.

Despite the issuance of these permits, which further evidence that a communications tower existed on the property, the vacant land assessment remained on the parcel for tax year 2004.

For tax year 2005, the assessment on the parcel changed. A portion of the parcel designated as Block 404, Lot 6.01, Q FARM, was assessed as follows

Land $ 13,200

Improvements $ 0

Total $ 13,200

A portion of the parcel designated as Block 404, Lot 6.01 was assessed as follows

Land $ 0

Improvements $ 10,700

Total $ 10,700

It is not clear from the record which improvements were included in the tax year 2005 assessment. The parties did not produce as a witness the tax assessor in office at the time that the tax year 2005 assessments were made. The current tax assessor testified and produced a property record card maintained by the municipality for the subject property. The property record card indicated a tax year 2005 assessment of $11,000 for improvements at the subject property described as FARM BLDG with 0 Livable Area. The card also indicated a Year Built of 1999. The assessor did not explain the discrepancy between the actual assessment of $10,700 and the assessment of $11,000 reported on the record card. Nor could he provide any evidence of first-hand knowledge of the structure described as FARM BLDG. The assessor, who was not in office when the tax year 2005 assessment was made, speculated that the assessment was for a building related to farming because no land assessment accompanied the building and any land, in his opinion, below a non-farming structure, such as a cell tower, would have been assessed.

On March 19, 2005, the township s construction official issued a Certificate of Approval for a new tower on the subject property. No added assessment was placed on the property as a result of this new construction.

The township underwent a municipal-wide reassessment for tax year 2006. The subject property, like all parcels in the township, was inspected for purposes of the reassessment. After the inspection, both the land assessment and the improvements assessment for the parcel were increased. The portion of the parcel designated as Block 404, Lot 6.01, Q FARM, was assessed as follows

Land $ 22,200

Improvements $ 0

Total $ 22,200

The portion of the parcel designated as Block 404, Lot 6.01 was assessed as follows

Land $ 0

Improvements $ 11,000

Total $ 11,000

Because the parties did not call the assessor who was in office during the 2006 reassessment, the record contains no clear evidence with respect to which improvements at the property were included in the 2006 assessment or why the assessment on improvements increased from tax year 2005 to tax year 2006.

The assessments remained unchanged for tax years 2007, 2008, and 2009. During those years plaintiff obtained title to the cell tower and the municipality issued a number of construction permits for the subject property. In 2008, the township construction official authorized a cell tower antenna swap estimated to cost $2,900. In 2009, the municipality approved an equipment upgrade for the existing tower estimated to cost $10,000. These projects, which were completed in 2009 and 2010, did not result in added assessments or a change in the assessment on the improvements at the subject property.

In 2010, Mr. Hillman received approval from the municipal construction official to perform building and electrical alterations at the subject property estimated to cost $30,000. It is not clear from the record if and when this project was completed. For tax year 2010, the assessment on the land at the subject parcel was increased to $24,000. The reason for this increase was not explained at the hearing.

A new tax assessor took office in 2010.

On December 22, 2010, the Burlington County Clerk s Office recorded a grant of easement from Mr. Hillman to plaintiff. The easement allows plaintiff access to and use of the cell tower on the subject property and the land beneath the tower. The recorded purchase price of the easement is $750,000. The parties do not dispute that, as a result of the easement, plaintiff is responsible for the payment of local property taxes on the tower and associated improvements. Evidence of the recordation of the easement was forwarded to the municipality s new assessor.

As a result of having received evidence of the recordation of the easement, the assessor reviewed the assessment on the subject property. He inspected the property and formed the opinion that the parcel should not be accorded farmland treatment and that the value of the tower, related improvements, and the land under the tower had been omitted from the assessments on the property in all prior years.

On October 7, 2011, the assessor issued two notices to plaintiff with respect to the subject property. The notice addressed to tax year 2010 creates a new line item, Block 404, Lot 6.01, Unit T01, for the cell tower, related improvements and land under the tower. The notice states that it is sent to you to inform you of an added tax assessment for new construction or substantial improvement to your property. This language suggests that the assessor sought impose an added assessment. However, further down in the notice the assessment is described as an Omitted Assessment Amount of $700,100, prorated for the entire tax year. This suggests that the assessor intended to impose an omitted assessment. The assessment is accurately described as follows

Land $ 700,000

Improvements $ 100

Total $ 700,100

The consequence of the assessment is $16,144.31 in additional taxes for tax year 2010.

The notice for tax year 2011 is identical to the tax year 2010 notice, except for the tax year noted and the fact that the assessment resulted in $16,088.30 in additional taxes for tax year 2011.

On December 1, 2011, plaintiff filed two Petitions of Appeal with the Burlington County Board of Taxation challenging the assessments. The Petitions characterized the assessments as omitted assessments.

On December 14, 2011, the municipality filed two Cross-Petitions of Appeal seeking to increase the assessments. The Cross-Petitions indicate that the assessments are omitted assessments but incongruously state that the improvements assessed were completed in 2009, suggesting that the municipality considered the assessments to be added assessments.

On December 20, 2011, the county board issued two Judgments under Judgment code 16C, affirming omitted assessments for both tax years and increasing the assessments as follows

Land $ 750,000

Improvements $ 150,000

Total $ 900,000

On January 9, 2012, plaintiff filed two Complaints in this court challenging the Judgments of the county board.1

On May 9, 2012, plaintiff moved for summary judgment. The court denied the motion, electing instead to hold an evidentiary hearing with respect to the validity of the assessments.

II. Conclusions of Law

Summary judgment should be granted where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. R. 4:46-2 (c). In Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995), our Supreme Court established the standard for summary judgment as follows

[W]hen deciding a motion for summary judgment under Rule 4:46-2, the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

The express import of the Brill decision was to encourage trial courts not to refrain from granting summary judgment when the proper circumstances present themselves. Township of Howell v. Monmouth County Bd. of Taxation, 18 N.J. Tax 149, 153 (Tax 1999)(quoting Brill, supra, 142 N.J. at 541). The court concludes that this matter is ripe for decision by summary judgment. There are no material facts in dispute between the parties. The court is presented with questions of statutory interpretation which can be determined by application of the law to the undisputed facts.

Generally, all real property in the State is assessed yearly. The assessed value is determined as of October 1 preceding the tax year. N.J.S.A. 54:4-23; Aperion Enterprises, Inc. v. Borough of Fair Lawn, 25 N.J. Tax 70, 86 (Tax 2009). The value of the land and improvements are listed separately and the combined value of the two components constitutes the assessment on the parcel. N.J.S.A. 54:4-26. Assessors are required to submit a tax list not later than January 10 of the tax year, establishing the assessment on each parcel reflecting its true market value as of October 1 of the preceding year. N.J.S.A. 54:4-35. There are three avenues of assessment added assessments, omitted assessments, and omitted added assessments that allow for the assessment of real property outside of the ordinary, annual assessment process. A determination with respect to the validity of the assessments at issue here requires an analysis of the distinction between these types of assessments, which will be discussed in turn.

A. Added Assessments.

An added assessment is intended to capture any increase in value that occurs as a consequence of the completion of the erection, addition to or improvement of any building or structure after the October 1 valuation date for a particular tax year. American Hydro Power Partners, LP v. City of Clifton, 239 N.J. Super. 130, 138 (App. Div. 1989).

There are two added assessment statutes. The first, N.J.S.A. 54:4-63.2, provides for the making of an added assessment when a structure has been erected, added to or improved after the October 1valuation date and before the January 1 start of the tax year. In such a case, the assessor makes an added assessment for the entire subsequent tax year, and also an added assessment for a pro-rated portion of the tax year of completion from the first day of the month following completion through December 31.

The second added assessment statute, N.J.S.A. 54:4-63.3, allows for an added assessment where a structure has been erected, added to or improved after the October 1 valuation date for a particular tax year and between the following January 1 and October 1 of the tax year. N.J.S.A. 54:4-63.3 provides that the assessor, after examination and inquiry, is to determine the taxable value of the improvements as of the first of the month following completion. If the value exceeds the assessment made as of the preceding October 1, the assessor makes the added assessment by multiplying the excess value by the number of whole months remaining in the tax year after completion of the improvements and dividing the result by 12. N.J.S.A. 54:4-63.3. The purpose of this statute is to permit the taxation of real property which becomes taxable during the year following the assessment date of October 1 in order to avoid having properties escape taxation until the next assessment date arrives. Snyder v. Borough of South Plainfield, 1 N.J. Tax 3, 7 (Tax 1980).

An assessor must file with the county board of taxation an added assessment list by the October 1 first following the completion of the improvements. N.J.S.A. 54:4-63.5. The county board examines the added assessment list, makes necessary revisions or corrections, and delivers a certified copy of the list to the municipality s tax collector on or before October 10. Ibid. The tax collector prepares, completes and delivers tax bills to the property owner based on the added assessment at least one week before November first. N.J.S.A. 54:4-63.7. The tax due as a result of the added assessment is payable on November 1 of the tax year. N.J.S.A. 54:4-63.8. Thus, the statute creates a 30-day window of opportunity to begin and to perfect the added assessment process. American Hydro, supra, 239 N.J. Super. at 133. An attempt to impose an added assessment outside of the statutory timeframe is invalid. Ibid. at 138-39.

B. Omitted Assessments.

Omitted assessments are authorized by N.J.S.A. 54:4-63.31. That statute provides

In any tax year or in the next succeeding tax year the assessor of any taxing district, may in accordance with the provisions of this act, assess any taxable property omitted from the assessment list for the particular tax year. The taxable value of such property shall be determined as of October 1 of the preceding year.

[N.J.S.A. 54:4-63.31.]

There are two methods for assessment of property that has been omitted from the tax list. Judge Pizzuto succinctly explained the two methods in Van Orden v. Township of Wyckoff, 22 N.J. Tax 31, 35 (Tax 2005)

The older method (N.J.S.A. 54:4-63.12 through 63.24) provides for a hearing before the county board of taxation, upon complaint of a municipal official or resolution by the board with notice to the property owner. Any omitted assessment is then made by judgment of the board. N.J.S.A. 54:4-63.14. A municipality s omitted assessment list, as revised and corrected by the county board s judgments, is to be completed by October 10. N.J.S.A. 54:4-63.17. The newer or alternative method (N.J.S.A. 54:4-63.31 through 63.40) resembles the procedure for added assessments in that the omitted assessment is initiated by the assessor s filing of an omitted assessment list with the county board. After revision and correction by the board, the list is certified on or before October 10. N.J.S.A. 54:4-63.32. Thereupon the assessor is to give notice to the affected property owners by certified mail, and tax bills are prepared. N.J.S.A. 54:4-63.35, 36. Appeals from omitted assessments made under the alternative method may be filed with the county board before December 1. N.J.S.A. 54:4-63.39.

Our Supreme Court long ago held that the omitted assessment procedure is intended to provide means whereby . . . property omitted from the tax rolls through design or inadvertence can be added and included and taxed . . . for the year in which it was omitted from the tax rolls. In re New York State Realty & Terminal Co., 21 N.J. 90, 97 (1956). The effect of the statute is to aid in accomplishing a proper and equitable distribution of the tax burden. Ibid. Taxes are the life blood of government and no taxpayer should be permitted to escape his or her just share of the cost of public services. Any procedure which would permit avoidance of such taxes when a substantial basis therefor exists is inequitable. Ibid.

A parcel need not be omitted entirely to qualify for inclusion on the omitted assessment list. For example, in Boardwalk Properties v. City of Atlantic City, 5 N.J. Tax 192, 198 (Tax 1983), Judge Rimm held that where an assessor overlooks an improvement on a parcel in that case a partially constructed building but places a value on the land as if vacant, the omitted assessment procedure may be used to remedy the omission. Any parcel or improvement not assessed by an assessor, whether the assessor intended to benefit a taxpayer or merely through inadvertence, may be placed on the tax rolls through an omitted assessment.

There are, however, limitations on the omitted assessment process. Where an assessor places a value on improvements that exist as of October 1 of the pre-tax year and subsequently attempts to increase that value, the omitted assessment procedure may not be used. 200 43rdStreet, LLC v. City of Union City, 16 N.J. Tax 138, 142 (Tax 1996)(omitted assessment procedure not permitted where assessor deliberately placed $0 value on improvements he believed worthless because the assessor s failure to make an assessment for improvements on the subject property . . . was not an oversight; it was a deliberate judgment that the improvement had no value. ); Glen Pointe Assocs. v. Township of Teaneck, 10 N.J. Tax 598 (Tax 1989)(assessor s failure to consider the full value of improvements about which he was aware when he placed assessment on those improvements is simply an erroneous determination of value on the assessing date which the assessor cannot correct through the omitted assessment procedure), aff d, 12 N.J. Tax 127 (App. Div. 1991); Boardwalk Properties, supra, 5 N.J. Tax at 198 (omitted assessment procedure permissible where the assessor did not determine that the improvements had no value as of valuation date but rather . . . omitted altogether to assess the improvements. ).

Nor can an assessor place a $1 fictitious omitted assessment on improvements as a placeholder in an attempt to delay reaching an opinion of value until the municipality files an appeal of the omitted assessment. Borough of Freehold v. Nestle USA, 21 N.J. Tax 138, 147-49 (Tax 2003). In addition, the Legislature has imposed time limits on the making of omitted assessments: they may be imposed in the year in which the property should have been assessed or in the next succeeding year. See N.J.S.A. 54:4-63.12 (the original method omitted assessment statute) and N.J.S.A. 54:4-63.31 (the alternate method omitted assessment statute).

C. Omitted Added Assessment.

In New York State Realty, supra, the Supreme Court authorized the so-called omitted added assessment where an assessor through design or neglect fails to make an added assessment after the substantial completion of improvements on property. In that case, the property owner completed construction of new structures on its parcel on June 30, 1952. The assessor made no attempt to place an added assessment on the parcel for the six months of 1952 during which the improvements were in place. Nor did the assessor include the value of the improvements in the assessment for 1953, even though the improvements were in place as of October 1, 1952, the valuation date for tax year 1953. Id. at 92. In December 1953, the taxpayers were served with a notice of what the assessor called an omitted added assessment for the value of the improvements. The taxpayer challenged the assessor s action, arguing that his failure to impose an added assessment in the time required by statute precluded him from using the omitted assessment procedure to remedy the omitted added assessment. Id. 95-96.

The Supreme Court rejected the taxpayer s argument. The Court held that the added assessment statute and the omitted assessment statutes could be read together to allow an assessor to remedy a failure to make an added assessment. The Court explained that the two statutes had a similar purpose: to prevent avoidance of . . . taxes when a substantial basis therefor exists . . . . The guiding philosophy for the fair and just assessment and collection of taxes is found in the[] words of our statutes . . . . Id. at 96. To allow an overlooked added assessment to go without remedy

so obviously leaves open the possibility of corruption in the assessment and collection of municipal taxes and the temptation to favor new builders as to ascribe no such defect as being within the intent of the Legislature of this State.

[Ibid.]

D. The Assessments at Issue Here.

The parties dispute the type of assessments intended to be imposed by the assessor. The notices he sent to the taxpayer were not models of clarity. As stated above, both notices indicate that they were sent to the taxpayer to inform you of an added tax assessment for new construction or substantial improvement to your property. This language plainly refers to an added assessment. The notices further this impression by stating that

This is not a tax bill. Added Assessment tax bills are issued by the Tax Collector s Office in October.

Adding to the confusion, later in the notices the following reference appears: Omitted Assessment Amount: 700,100.

The municipality s subsequently filed Cross-Petitions of Appeal refer to Omitted Assessments but also refer to a Completion Date of 2009, suggesting, perhaps, that the assessor intended to impose omitted added assessments.

This lack of precision muddies the procedural history of the assessments and raises due process concerns. A greater attention to detail would help to ensure the appropriate procedures are followed and that taxpayers are put on fair notice of the assessor s intentions. It appears that these goals can be accomplished with minimal administrative burden. There are, after all, only three possible assessment categories appropriate for imposition on October 1 of a tax year. These assessment categories apply to discrete circumstances defined in statutes and explained in numerous published judicial opinions. Sufficient information exists to allow assessors to address the correct category of assessment in notices sent to taxpayers.

The record in these matters establishes that the taxpayer did not suffer a meaningful deprivation of its rights as a result of the conflicting information in the assessor s notices. The taxpayer filed timely challenges to the assessments and had a full opportunity to challenge the validity of the assessor s actions. Nothing in the record suggests the varying characterizations of the assessments in the notices hindered the taxpayer s ability to establish its claim that the assessments were not authorized by law.

Although it appears to the court that the assessor intended to impose omitted assessments for tax years 2010 and 2011, the court will examine the validity of the assessments under each of the three categories of assessments discussed above.

1. Added Assessments.

The improvements the cell tower and related structures were completed on March 25, 2002. These improvements were not completed between the October 1 and January 1 so N.J.S.A. 54:4-63.2 does not apply. The improvements were completed between January 1 and October 1 of the 2002 tax year, making N.J.S.A. 54:4-63.3 applicable for the portion of tax year 2002 during which the improvements existed but were not assessed. An added assessment for a portion of tax year 2002, therefore, could have been made through the filing by the assessor of an added assessment list by October 1, 2002, the October 1 first following the completion of the improvements. N.J.S.A. 54:4-63.5. The assessor failed to make this added assessment in the time permitted by statute.

The same reasoning precludes the use of the added assessment procedure for the value of the new tower completed on the property on March 19, 2005. An added assessment for this improvement would have been appropriate in October 2005. The assessor failed to make this added assessment in the time permitted by statute.

The alleged discovery of the cell tower by the newly appointed assessor in 2010 does not justify use of the added assessment procedure in 2011. The added assessment statute is linked to the date on which an improvement is completed. N.J.S.A. 54:4-63.3 does not permit added assessments for the year in which an improvement is discovered. Nestle, supra, 21 N.J. Tax 153.

2. Omitted Added Assessments.

By virtue of the assessor s failure in October 2002 and October 2005 to impose timely added assessments, the added assessments, in effect, became omitted added assessments for tax year 2002 and tax year 2005, respectively. Under the holding in New York State Realty, the assessor could have imposed an omitted added assessment in the year following the year in which the added assessment should have been made. In this case, an omitted added assessment could have been made by the assessor on October 1, 2003 for the period April 1, 2002 through December 31, 2012 and on October 1, 2006 for the period April 1, 2005 through December 31, 2005. As Judge Menyuk explained in Nestle, supra, added assessments are made for the tax year in which an improvement is completed. When an assessor fails to discover an improvement in the year in which it is completed, he or she may, in the following year, make an omitted added assessment. 21 N.J. Tax at 153. The assessor did not act on October 1, 2003 or October 1, 2006, however. Having failed to make an added assessment in 2002 and 2005 or an omitted added assessment in 2003 and 2006, the assessor is without statutory authority to make an omitted added assessment for the improvements for tax years 2010 or 2011.

3. Omitted Assessments.

The township argues that the value of the cell tower, associated improvements and land was not included in the assessments for the property for tax years 2010 and 2011. If this is true, these omissions could be cured through the omitted assessment procedure. The flaw in the municipality s position, however, is that the record does not establish that the value of the cell tower, associated improvements and land was not included in the assessments for the property for tax years 2010 and 2011.

It is evident that from the March 25, 2002 completion of the cell tower and associated improvements through tax year 2004, the value of those items was not included in the assessment on the subject property. This is so because the property was assessed only as vacant land.

However, in tax year 2005, when the new tower was constructed, the assessor created two line items for the property. The first was for vacant land assessed as farmland. The second was for improvements valued at $10,700. A property record card produced by the municipality for tax year 2005 has an entry for FARM BLDG of 0 Livable Area valued at $11,000. The assessor who made this assessment was not presented as a witness. As a result, there is no testimony in the record explaining what improvements were included in the $10,700 assessment, describing the FARM BLDG noted on the property record card or explaining the discrepancy between the $10,700 assessment and the $11,000 value reflected on the property record card.

For tax year 2006, the municipality underwent a reassessment of all line items, including the subject property. An inspection of the subject property was performed and the improvement assessment was raised to $11,000 from $10,700. Again, because the assessor in office in 2006 was not called as a witness at the evidentiary hearing, the record contains no evidence with respect to what improvements were included in the $11,000 assessment for tax year 2006. While it is possible that the assessor simply overlooked the new cell tower and associated improvements when determining the improvement value, it is also possible that the assessor exercised his judgment and determined that the new cell tower and associated improvements had no value or that those improvements had a value which he included in the $11,000 assessment.

The current assessor speculated that the prior assessor could not have included the value of the cell tower and related improvements in the assessment because he did not include a value for the land under the tower. The court finds this speculation to lack credibility as evidence of what transpired with respect to tax year 2006. It is just as likely that the assessor included the value of the cell tower and associated improvements in the tax year 2006 assessment but exercised his judgment not to include a land value for the land on which those improvements sat. He may have determined that the land under the tower had no value or that the value of the land under the tower was sufficiently represented in the land value attributed to the Q FARM line item for the subject property, which the assessor increased from $13,200 to $22,200 from tax year 2005 to tax year 2006. While the current assessor might disagree with how the prior assessor exercised his judgment with respect to assessing the cell tower, associated improvements and related land, in the absence of evidence that the value of those improvements and land were omitted from the assessments on the subject property, the assessor may not use the omitted assessment procedure to substitute his judgment for that of the prior assessor.

In addition, the current assessor speculated that the prior assessor may have thought that the cell tower and related improvements were on a neighboring parcel on which a commercial enterprise operates. There is no evidence in the record to support this speculation. No evidence was produced that the prior assessor included the value of the cell tower and related improvements in the assessment on the neighboring property. Nor did the current assessor explain how such an error could have been made, given the fact that numerous municipal construction records, copies of which were in the assessor s file, indicate that the cell tower and related improvements are on the subject parcel. If, in fact, the value of the cell tower and associated improvements had been assigned to the incorrect parcel, the municipality could have called the prior assessor as a witness to explain what transpired with respect to tax year 2006.

The improvement assessment did not change after the tax year 2006 reassessment, remaining the same through tax year 2010. Thus, the failure to establish that the value of the cell tower and associated improvements was not included in the tax year 2006 assessment applies to all subsequent tax years.

Having concluded that the record contains insufficient evidence establishing that the value of the cell tower and associated improvements and land was not included in the assessment on the subject property for tax years 2006 through 2010, the court concludes that the assessor lacked statutory authority to impose omitted assessments on the subject property for tax years 2010 and 2011. Plaintiff s motion for summary judgment is granted. The court will enter Judgments reversing the Judgments of the county board of taxation.2

Very truly yours,

Patrick DeAlmeida, P.J.T.C.

1 In addition to challenging the validity of the assessment process, plaintiff challenges the value attributed to the cell tower improvements and associated land. In light of the court s legal conclusion that the assessment process was flawed, the court need not reach the valuation allegations in the Complaint.

2 Having concluded that the record does not establish that the value of the cell tower, associated improvements and land was omitted from the assessment on the subject property for tax years 2010 and 2011, the court need not address the question of whether the assessor s placement of a nominal $100 value on these improvements in his September 2011 notices to permit the municipality to file a counterclaim seeking an increase in the nominal assessment was appropriate. A similar use of a nominal assessment in similar circumstances was rejected by this court in Nestle, supra.

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