Michael Hammer v. Township of Howell

NOT FOR PUBLICATION WITHOUT APPROVAL OF

THE TAX COURT COMMITTEE ON OPINIONS

TAX COURT OF NEW JERSEY

Mala Sundar R.J. Hughes Justice Complex

JUDGE P.O. Box 975

25 Market Street

Trenton, New Jersey 08625

Telephone (609) 943-4761

TeleFax: (609) 984-0805

taxcourttrenton2@judiciary.state.nj.us

December 24, 2014

BY FIRST-CLASS AND ELECTRONIC MAIL

Michael Hammer, Pro Se

232 Victory Road

Howell, New Jersey 07731

Lani Lombardi, Esq.

Cleary Giacobbe Alfieri Jacobs, L.L.C.

5 Ravine Drive, P.O. Box 533

Matawan, New Jersey 07747

Re: Michael Hammer v. Township of Howell

Block 37, Lot 10.02

Docket Nos. 012523-2013; 007393-2014

Dear Mr. Hammer and Counsel

This letter constitutes the court s decision following trial of the above captioned matters. Plaintiff, as owner of the above referenced property ( Subject ), appealed the judgments of the Monmouth County Board of Taxation ( County Board ) which affirmed the local property tax assessments of $62,500, imposed upon a half-acre portion of the Subject for land only. Prior to these assessments, the Subject was a portion of Lot 10, which was governed by a State approved Forest Stewardship Plan ( Plan ), and which had been granted farmland assessment for several years. Due to a subdivision, Lot 10 was reconfigured, and the Subject was created as Lot 10.02. The 2013 and 2014 notices of assessment from defendant ( Township ) granted farmland assessment to the Subject except for a half-acre portion. The notices indicated the building description as slab and classified the area as 3A (farm residence).

Plaintiff argued that the assessments are incorrect because the Subject did not contain any slab anywhere at any time. He maintained that the Subject (with all contiguous and adjoining lots also owned by him) was at all times dedicated to woodlands management and preservation pursuant to the Plan. Defendant ( Township ) argued that the subdivision map identifying a foundation on the Subject; the presence of scattered and stacked bricks and blocks around a dirt covered hole on the Subject; the depiction of a cleared out area on Google maps on the Subject; and the permits issued to the prior owner permitting construction of a residence on Lot 10; are all ample evidence that there was a foundation on a portion of the Subject, which meant that the cleared out portion on the Subject was not used for or actively devoted to woodlands management, and was thus not qualified for farmland assessment.

The court finds that based on all the evidence on the record, that the denial of farmland assessment for the half-acre portion of the Subject was improper. The facts show that the Subject s predominant use was only for woodland management. The presence of some construction debris, or the grading, leveling, and planting of tree sapling in the area formerly the dirt-covered foundational hole, does not alter the Subject s predominant use as farmland qualified. Therefore, the judgments of the County Board are reversed.

FACTS

Sometime in 2008, plaintiff purchased about 14 lots, all adjacent and contiguous, comprising about 83 acres. One such property was Block 37, Lot 10.1 Prior to plaintiff s ownership, on or about 09/12/1986, the Township had issued a construction permit (as well as permits for electrical, fire protection and plumbing) for Lot 10 to the property s prior owner. The permits were issued to allow construction of a single family home, plans for which were submitted 08/25/1986. The footing/foundation was inspected and approved 09/2/1987.

In 1989, in response to the Township s notice of safety hazards in the proposed construction site, the prior owner stated that he had surrounded the excavation area with a fence made of heavy steel. He also stated that all construction was halted in years after issuance of the 1986 permits due to his financial situation, and he would attempt to have the foundation completed before ground freezes for backfill and framing initiated. In March of 1994, Township notified the prior owner that the property for single family residence dwelling construction is unsafe and unsecured fence not properly erected.

As noted above, in 2008 plaintiff became owner of, among others, Lot 10. Sometime thereafter, he requested reconfiguration of various lot lines since he desired to contain all the various acquired lots (including one from a developer towards the rear of Block 37) in a more contiguous pattern. He signed and submitted a revised subdivision map dated November 28, 2011. The map was prepared by an engineer he had retained. It proposed the subdivision of four lots on Block 37, including Lot 10.2 Per the Notes portion of the map, the property was in the ARE-3 ( Agricultural Rural Estate ) zone.3

Among others, the subdivision map created new Lot 10.02 comprising 3 acres. A small portion of this lot, facing Lane s Pond Road and adjacent to the Right of Way dedicated to the Township, was depicted by a rectangle, inside which was noted existing foundation footing followed by a partially illegible description, and then issued on a date which appears to be 8-25-1986. Outside of the rectangle was noted To be modified to fit proposed new house footprint. The map showed the surrounding area with tree lines, natural buffer zones, setbacks, and easements. The Notes on the map stated that no construction proposed at this time. Property to remain farm assessed. Lot 10.02 was marked F standing for Farm Assessed Use (as opposed to certain lots marked R which stood for residential Use ).

The map was approved by the Township s Zoning Board on December 29, 2011. It was filed with the Monmouth County Clerk on January 13, 2012.4 There was no proof of any other revisions or a superseding subdivision map relative to Lot 10.02.

Sometime after purchase of the properties, plaintiff obtained a Forest Stewardship Plan for the entire acquisition, including Lot 10, for use exclusively as woodlands. The plan was approved by the State and the USDA. The lots including Lot 10, were assessed as farmland for at least five years prior to 2013. Thus, for tax year 2012, Lot 10 was granted farmland assessment being classified 3B ( Farm Qualified ) which applies to land which has qualified and is assessed under the Farmland Assessment Act. N.J.A.C. 18:12-2.2(d).

Plaintiff testified that the entire property was in an overgrown condition when he bought it in 2008, and that over the years, since the time of his purchase, he attempted to and did clear many portions of the entire property. He could not remember the periods during which the clearings were done, or the specific areas or particular lots he cut/cleared/trimmed, because he had done the same over various periods in time, and over several portions of the entire property comprising several lots. He knew of an excavation by the uneven and sloping topography in that area, and stated that the same was overgrown with large trees and other wild plants/bushes. He testified that he graded, leveled and planted saplings to return it to forestry, which included using bulldozers to uproot or sever many tall overgrown trees. He stated that he had never attempted construction of any sort on any portion of the property including the Subject, thus, had never used cement or any other construction materials to fill up the excavation.

Sometime in late 2010, the assistant assessor for the Township was inspecting another property, which was adjacent to the Subject, on Lane s Pond Road. At that time, and while standing between Lane s Pond Road and Amanda Lane (an intersecting street), he noticed a mounded dirt area with concrete building blocks and bricks strewn around the area, and also stacked bricks. He surmised this area to be about 60'x60' and testified that it looked like remnants on an old foundation. He agreed that there were no signs of any ongoing construction, no signs of a cement footing, that only dirt was visible in the crevice, and that there was vegetation and underbrush in the surrounding areas. He did not see any trees in the cleared area. He therefore made a notation of his observation on the permit he had for the other property and reported the same to the assessor. He did not take any pictures of the dirt mound or the surroundings during his observations. He stated that when he re-visited the area in July 2011, there was no change in what he had seen before.

On or about June 27, 2012, plaintiff filed an application for farmland assessment for all lots, including the then existing Lot 10 totaling 83 acres, for tax year 2013. The application indicated that all land was non-appurtenant woodland, and actively devoted accordingly.

The Township s assessor testified that in November of 2012, while in the process of submitting the annual tax list for tax year 2013, he created separate line items pursuant to the recently received subdivision map of the property. At such time, he recollected the assistant assessor s observations as to the bricks/concrete blocks lying on the Subject. He thereafter viewed a google map of the area which showed a clearing in an otherwise densely forested/treed area. Since his research revealed no demolition permits for Lot 10, he imposed a land only assessment for half-acre of the Subject (new lot 10.02) using classification 3A (homestead area included in a farm assessed property). He testified that he had not personally inspected the Subject at the time of the assessment (or prior to that), but he imposed an assessment because he was duty-bound to create separate line items for each lot; to place an assessment based upon the information he had; and to meet the January 10 tax list deadline. He conceded that his decision to use one half-acre was purely subjective, that generally he would use one acre, but since the google map showed the cleared portion as being small, he felt one-half acre was appropriate. His computer generated a value of $62,500 once he input the acreage.

Consequently, for tax year 2013, the Township sent two notices of assessment to plaintiff for the Subject. One assessed land as farmland qualified (Class 3B) at $300. The other imposed an assessment of $62,500 for half an acre of the same Lot (Class 3A). The tax bill in this regard indicated a building s description as slab. The notices of assessment were issued under N.J.S.A. 54:4-38.1, and mailed January 31, 2013.5

Upon receipt of the assessment notices, plaintiff and his partner met with the assessor in February of 2013. The assessor informed them of the basis of his assessment (the assistant assessor s observation), and that if this was incorrect, the appeal process would rectify the same.

Plaintiff appealed the regular assessment to the County Board. His March 2013 letter to the County Board noted that Lot 10.02 was a part of the erstwhile Lot 10, and part of a Forest Stewardship Plan as approved more than four years ago. He asserted that the new lot continue[d] to be [exclusively] devoted to the purposes set forth in that Plan. He concluded by stating [n]o slab exists.

By judgment dated June 28, 2013, the County Board affirmed the assessment. It used Judgment Code 2B ( presumption of correctness [of assessment] not overturned ).6 Plaintiff then filed an appeal to this court.7

For tax year 2014, the assessor carried forward the same assessments, namely, $62,500 for the half-acre portion of the Subject, with farmland assessment for the remainder. Plaintiff wrote a letter dated January 10, 2014 (the addressee was redacted by the Township), maintaining that the assessment was erroneous and should be corrected. Plaintiff noted that the Subject was farmland assessment for many years. He agreed that there was a hole of about 100' x 100' which had no effect for Farm use and regardless, that area was filled and graded and planted early 2013. The letter reiterated that no slab ever existed in this area and questioned why the assessment occurred without notice.

In June 2013, the assessor personally inspected the Subject. He noticed that the dirt mound area had been leveled and there were several tree saplings. However, a small portion still had masonry bricks and concrete blocks lying around. He testified that debris lay along the edge of the treed areas (left corner of the Subject) and this along with the leveled area lay inside of the tree line. He stated that that his inspection and the recent plantings solidified the fact that the excavated or foundation area was not devoted to woodlands or agricultural use. The assessor took pictures with his cell phone (one showing the leveled area with saplings, and one showing a cleared area with the bricks, concrete blocks, and bits of blue plastic cover). While he emailed them to his work address at or about the same time, he failed to provide copies to the plaintiff. He maintained that this was an oversight, and that while reviewing his computer for entirely different work purposes on the trial date, he came across these pictures.8 The assessor stated that he had incorrectly used the term concrete slab as the reason for the assessment, rather than the correct terminology of foundation or foundation footing.

A state approved forester/tree expert who was also a USDA certified technical service provider, testified for plaintiff. He was retained by plaintiff to amend the existing Plan to include the newly created lots (including the Subject). He also assisted in preparing the farmland assessment applications for the entire property including the Subject for tax years 2013 and 2014. The forester testified that based upon the pictures powered by Google Earth (from 1995 and 2010), there was a clearing on the property, however, only a small portion of this, about 2,000 square feet, lay on the Subject (Lot 10.02), the remainder being on Lot 10.03. He claimed that he walked a portion of the Subject and found no concrete slab. He showed a picture of the cleared area on the Subject (and on Lot 10.03) with tree saplings currently planted, which would promote tree diversity and wildlife habitat.

Plaintiff s partner testified that during her walks on the property, including the Subject, she never once saw any slab or a concrete slab. She had personally witnessed plaintiff clearing several overgrown areas over the entire property, at several periods in time, and spending many hours at the property. She personally had seen the dirt-covered hole which had contained bushes, underbrush and heavy/tall trees, and testified that plaintiff had cleared or caused to clear such overgrowth.

FINDINGS

(A) Standard of Review

Original assessments and judgments of county boards of taxation are entitled to a presumption of validity. MSGW Real Estate Fund, L.L.C. v. Borough of Mountain Lakes, 18 N.J. Tax 364, 373 (Tax 1998). This applies to a denial or grant of farmland assessment and the burden is upon the landowner to establish compliance with the statutory conditions. See Hovbilt, Inc. v. Township of Howell, 138 N.J. 598, 620-21 (1994); Township of Byram v. Western World, 111 N.J. 222, 235 (1988).

If the court decides that the evidence proffered fails to overcome the presumptive correctness of an assessment, the complaint will be dismissed. If the court denies such a motion, then, it must determine the value based on a fair preponderance of the evidence. MSGW, supra, 18 N.J. Tax at 312-13. The burden of persuasion in this connection remains with the landowner even if the county board has granted farmland assessment and the plaintiff in court is the municipality. City of Estell Manor v. Stern, 14 N.J. Tax 394, 416 (Tax 1995).

The court found on the record that plaintiff had provided sufficient evidence in quantity and quality to raise a doubt as to the validity of the assessments. See MSGW, supra, 18 N.J. Tax at 376 (for purposes of a motion under R. 4:37-2(b), the court must accept such evidence as true and accord the plaintiff all legitimate inferences which can be deduced from the evidence ). The court will now examine all the evidence to decide the validity of the assessments.

(B) Validity of the Regular Assessments

N.J.S.A. 54:4-23.2 provides that land of 5 acres or more which is actively devoted to agricultural or horticultural use and has been so devoted for at least the 2 successive years immediately preceding the tax year in issue is entitled to preferential assessment provided the land owner applies for, and the assessor approves the same. Such land must also meet certain annual income requirements. N.J.S.A. 54:4-23.5. In this connection, land under the farmhouse, and such additional land as may be actually used in connection with the farmhouse such as lawns, gardens, pools and the like, is excluded in determining the 5-acre requirement. N.J.A.C. 18:15-3.2(b).

The statute deems land to be in agricultural use if it is, among others, devoted as sustainable forestland, and is not appurtenant woodland provided the owner fulfills certain specific additional conditions. N.J.S.A. 54:4-23.3. These conditions are: (i) the owner must create and comply with a forest stewardship plan or a woodland management plan which is approved by the State; (ii) the owner and a State-approved forester annually attest that there is such a plan in existence which is being complied with; and (iii) the owner must make an annual application for farmland assessment along with certain documents, including the plan, to the assessor and the Commissioner of the Department of Environmental Protection ( DEP ). Ibid. See also N.J.A.C. 18:15-6.2(a)(10) ( [l]and on which trees and forest products are produced for sale within a reasonable period of time and . . . is managed in compliance with a written [and approved] woodland management plan is deemed devoted to agricultural use).

Upon review of the documents, the assessor can approve or deny the application for farmland assessment. N.J.S.A. 54:4-23.3a. The assessor must mail a notice of disallowance to a landowner who has filed a timely application for farmland assessment, on or before November 1 of the pretax year. N.J.S.A. 54:4-23.13b. The notice should sent by regular mail and contain the reason or reasons for the disallowance, along with a statement of the owner s right to appeal to the county board of taxation on or before April 1 of the tax year. Ibid. Land which fails to qualify for farmland assessment is to be valued as any other real property, i.e., without any preferential tax treatment. N.J.A.C. 18:15-5.2.

Here, the only issue is whether the Township improperly denied plaintiff s farmland application for a portion of the Subject.9 This in turn requires an examination whether, as contended by the Township, the cleared out portion of the Subject, upon which lay construction debris and characterized as a slab on the tax bills, was not being actively devoted to woodlands or farmland use, thus, subject to regular assessments.10

The evidence presented in the matters shows that when plaintiff purchased the property comprising of several lots, the prior owner had intended to build a single-family residence on a portion of prior Lot 10. In furtherance of this intent, the prior owner had dug a hole for the foundation. Other than that, no further or other construction commenced or continued. Rather, the house building project was delayed and then abandoned.

The evidence also proves that plaintiff was aware of the foundational hole on prior Lot 10. As owner, he knew or constructively knew of the permits for the proposed construction of a home on that Lot. The 2011 subdivision map prepared for plaintiff, in furtherance of plaintiff s desire for re-configuration of Lot 10, clearly indicates the presence of a foundational footing. While plaintiff s testimony is credible that he had been clearing up portions of the wooded lots over a period of time, and over areas in several lots, i.e., over the entire property, he was evasive about when he graded and leveled out the cleared out portion, the area of dispute here. However, it is apparent from the evidence that he commenced to clean up the construction debris, level off the area therein (i.e., the Subject), and plant tree saplings thereon, only after receiving the regular assessment notices in January of 2013, and sometime between then and June 2013.

Nonetheless, this does not require a denial of farmland assessment for the half-acre portion. Generally, if a portion of a farmland or woodland is not used for agricultural purpose, but for some other non-qualified use that is dominant, then the farmland assessment may be jeopardized. See City of East Orange v. Township of Livingston, 102 N.J. Super. 512, 537 (Law Div. 1968), aff d, 54 N.J. 96 (1969). However, farmland assessment is not limited to . . . only the fertile or cultivated area[s]. Township of Andover v. Kymer, 140 N.J. Super. 399, 402-03 (App. Div. 1976) (holding that even though only a portion thereof is actually being farmed, the all the entire tract of farm qualifies for farmland assessment provided the [entire] tract basically is in fact dominantly devoted and dedicated to agricultural, and not to some other alien, principal use and meets the other statutory requirements).

In Atlantic Coast LEH, LLC v. Township of Little Egg Harbor, 26 N.J. Tax 151, (Tax 2011), the court found that the dominant use of a 12.24 acre tract which housed a 290-story income-generating cellular tower on about a one acre, was for non-farmland purposes. There, the contract lessee of the prior property owner had obtained several use variances for construction and operation of a cell tower. Id. at 153-54. There was no mention of an intended agricultural or horticultural use. Id. at 154. The new owner (whose President was the prior owner and also managing member of the contract lessee) then leased the one-acre portion for construction of a cell tower to the same contract lessee which had obtained the use variances. Ibid. The lessee erected the cell tower and paid rental income to the new owner. Id. at 154-55. Subsequently, the new owner made arrangements for bee-keeping activities on the entire tract. Ibid. These facts revealed an intention to construct a cellular telephone tower for commercial exploitation as opposed to using the property for qualified farmland activities. Id. at 164. The court thus found that the entire property was used predominately for the purpose for which it was acquired: the generation of income from the operation of a cellular tower and not for agricultural activity. Id. at 165-66.

Here, it is undisputed that at all times since plaintiff s purchase, the entire property, including prior Lot 10, and the subsequently re-configured and created Subject (Lot 10.02), was dedicated to solely to woodland preservation. During all these periods, the foundational hole existed as a dirt mound. It is undisputed that plaintiff established a Forest Stewardship Plan for the entire property including prior Lot 10, thus, including the area where the foundational hole existed. The Plan was never rejected by the DEP or any other authority. See N.J.S.A. 54:4-23.3(c) (assessor must deny farmland assessment application if the DEP finds the applicant non-compliant with the requirements for woodlands management). Even after plaintiff got the Plan amended to account for the newly re-configured lots, including the Subject, it was never challenged by the DEP, the assessor, or any other authority. The Township did not contend that the amendment of the Plan to include the Subject due to the re-configuration of existing Lot 10 into new lots including the Subject, somehow destroyed or impeded the Subject s farmland assessment qualification.

Even if the half-acre portion may have been intended to be used for a residential dwelling by the prior owner at some time prior to plaintiff s purchase of the property, and plaintiff cleared, graded, leveled, and planted tree saplings in the foundational hole only in 2013, the predominant use of the Subject was and has been for several years, devoted to woodland preservation. Unlike the facts in Atlantic Coast, supra, here, plaintiff was never involved in obtaining permits for construction of a home on the property. Nor at any time since his purchase of the entire property, did he even attempt any type of construction in furtherance of the pre-existing foundational hole. Indeed, the 2011 sub-division map/plan noted that plaintiff did not propose to undertake any construction, and that the Subject (new Lot 10.02) was to remain and be used for Farm Assessed Use. Plaintiff credibly testified that the foundational hole was dirt-filled, with trees and overgrown underbrush. The assessor s pictures of the cleared area (the half-acre portion) with the tree samplings contains pictures of sizeable tree stumps lending credence to plaintiff s testimony that he had to bulldoze the existing trees which grew out of that hole. The assistant assessor s testimony also confirmed that there was only a dirt covered hole. The presence of some bricks and concrete blocks during the valuation date, or the fact that there were no demolition or closed permits, does not negate the fact that the foundational hole was never at any time used for a non-woodland preservation use.

Thus, the court is unpersuaded by the Township s claim that the regular assessments are valid because the plaintiff never produced a Woodland Management Plan to prove that the half-acre was actively devoted to farmland uses under a Woodland Management Plan, or that plaintiff s acts of grading, leveling and planting on the Subject was pursuant to the dictates of such plan. See Kymer, supra, 140 N.J. Super. at 405 (it is contrary to both the legislative purpose [and] common sense to have either the assessor investigate every part of each parcel subject to a farmland assessment application or require an applicant to prove that every part of his land is actively devoted to agricultural or horticultural use ).

In sum, the court finds that the presence of bricks and concrete blocks on the half-acre portion of the Subject, which portion has been qualified for farmland assessment for several years despite its label as a foundation footing or foundational hole, was improperly denied farmland assessment. Plaintiff s recent activities of grading, leveling, and planting tree saplings thereon does not cast any doubt on the fact that the Subject was always, and predominantly, used for woodland preservation. Therefore, the entire Subject should be granted farmland assessment.

CONCLUSION

For the aforementioned reasons, the judgments of the County Board are reversed. The regular assessments for tax years 2013 and 2014 for the half-acre portion of the Subject are hereby voided. Judgments reflecting this memorandum opinion will be entered accordingly.

Very truly yours

Mala Sundar, J.T.C.

1 The 2011 subdivision map indicates that plaintiff s partner, Barbara Herman, was co-owner of two lots on Block 37. However, it is undisputed that plaintiff was sole owner of Block 37, Lot 10.

2 The map indicates that it was drawn July 20, 2010, and revised in December 2010, July 2011, and September 2011. The Notes on the map stated that the property included Lots 2.01, 8.01, 10 and 26 in Block 37, totaling about 62.01 acres, which were being reconfigured by creating new lots.

3 Principal uses in the zone are, among others, agricultural/horticulture and single family residences.

4 The last number in the year appears somewhat illegible but a close perusal shows it to be 2.

5 This statute requires that an assessor must mail notices of assessment before February 1 of the tax year showing the the current assessment and preceding year s taxes.

6 Plaintiff asserted that he was not allowed to proffer any proofs because the Township s attorney successfully moved to bar their entry claiming that plaintiff did not serve them within the time allowed by the regulations.

7 Plaintiff also asserted a claim under the Correction of Errors law, N.J.S.A. 54:51A-7, on grounds that the defendant s assessment was factually incorrect.

8 Plaintiff objected to their use as evidence claiming surprise. The court agreed that there was a surprise element, however, found the assessor s testimony credible that there was no intent to conceal the same for purposes of surprise or obtaining leverage during trial. The court provided plaintiff further time to prepare for cross-examination on the same, which plaintiff declined.

9 The Township s assessor did not send notices of disallowance of farmland assessment to plaintiff. The County Board s judgment was an affirmance of the assessment as opposed to a denial of the farmland assessment claimed by plaintiff. Nonetheless, the Township s regular assessment upon a portion of the Subject was effectively a disallowance of farmland assessment for that portion. It should be noted that plaintiff did not challenge the quantum of the assessment on the half-acre portion of the Subject.

10 Per the assessor, farmland assessment was granted for the entire Subject in 2015 pursuant to N.J.S.A. 54:4-23.6(a) (to obtain farmland assessment, the land must have been actively devoted to agricultural or horticultural use for at least the 2 successive years immediately preceding the tax year in issue ). The two successive years, for purposes of N.J.S.A. 54:4-23.6(a) would be all of calendar year 2013 and 2014. See N.J.A.C. 18:15-3.1. Yet, the basis for the 2014 regular assessment (as for 2013) was that the cleared portion was not being used for farmland qualified purposes.

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