Fritz, Lynch and Trautwein. The opinion of the court was delivered by Lynch, J.A.D.
This is an appeal from a decision of the Division of Tax Appeals (Division) which held that an action by a county board of taxation, acting in its "equalization" capacity pursuant to N.J.S.A. 54:3-17 to 19, and purporting to fix the assessment of an individual parcel of real property, did amount to such an "assessment" within the meaning of the statutes governing taxation of such property, and that such action was res judicata so as to preclude any further increase in the assessment of the property when appeals were filed with the county board of taxation pursuant to N.J.S.A. 54:3-21.
The appeal herein involves the local property tax assessment for the tax year 1971 upon property owned by Public Service Electric & Gas Co. (Public Service), known as Artificial Island, and adjacent property situate in the Township of Lower Alloways Creek, in Salem County. Consisting of approximately 700 acres in total, the property is being developed by Public Service for a nuclear power plant known as Salem Nuclear Generating Station. The plant site itself consists of 210 acres and is partially surrounded on the north and east by a "buffer zone" of 490 acres, with the Delaware River bordering the site on the west and south. Construction had begun on the project as of the date of the assessment in question, but no permanent buildings had been completed.
During February 1971, the County of Salem,*fn1 the City of Salem, the Township of Pittsgrove, the Township of Pilesgrove and the Borough of Woodstown (hereinafter called petitioners), filed a notice of objection to the preliminary equalization table promulgated by the Salem County Board of Taxation pursuant to N.J.S.A. 54:3-17. In their notice they objected to the " aggregate assessed values for the Township of Lower Alloways Creek as shown on the Preliminary Equalization Table, at $5,796,775" (emphasis added). In addition, petitioners objected "specifically" to the assessment of the property known as Artificial Island and surrounding areas, in that the assessment on Block 26, Lot 1-P, being land $16,650 and improvements of $684,800, or a total of $701,450, was grossly below true value. Petitioners then prayed that the county board of taxation "correct and revise its Equalization Table for the year 1971 by revising and increasing the aggregate assessed value for the taxing district Lower Alloways Creek Township."
The county board of taxation met on March 3, 1971 to consider the foregoing objection. Under date of March 22, 1971 the secretary of the county board of taxation sent a letter to Public Service and the attorneys for the several municipalities saying:
The Salem County Board of Taxation after listening to the facts presented at the hearing held on March 3, 1971 on the Preliminary Table for 1971 and after having visited the above site decided to raise the land assessment on the above property from $80.00 per acre to $1,250.00 per acre for the tax year 1971.
It is noted that the foregoing letter did not relate to all of the property owned by Public Service, but only to the assessment on the plant site land consisting of 210 acres. It purported to increase the assessment thereon from $80 to
$1,250 an acre and to raise the total assessment on that land from $16,650 to $262,500. Since the remaining 490 acres of "buffer" zone was at that time assessed at $5 an acre, the total assessment of all the Public Service land was then $264,950. In any event, so far as appears, the letter is the only evidence of the board's action on March 22. No judgment as to the assessment of the Public Service property was entered.
If the said action of the county board of taxation on March 22, 1971 were to be legally effective*fn2 as an "assessment" of the property, said action would have increased the total assessment from $701,450 to $949,750.*fn3 No appeal from that action was taken by any party. However, prior to August 15, 1971 petitioners filed petitions of appeal with the Salem County Board of Taxation seeking to increase the assessment of the Public Service property. The appeals were grounded in N.J.S.A. 54:3-21 which permits such appeals by a taxing district "which may feel discriminated against * * * by the assessed valuation of property in another taxing district in the county * * *" -- here the Public Service property in Lower Alloways Creek. Pursuant to those appeals the county board held a hearing and entered judgment increasing the assessment on the 490 acres in the buffer zone from $5 to $400 an acre, making the total assessment in the sum of $1,143,000. Petitioners were still not satisfied with that increase and appealed to the Division of Tax Appeals, praying that the assessment be further increased. Public Service did not appeal from the county board judgment, apparently being satisfied therewith.
In the Division, Public Service made a motion to dismiss petitioners' appeal to that body. The motion was granted. The rationale of the Division in its decision may be summarized as follows: (a) the county board, by its action of March 22, 1971, adjudicated the "assessment" on the Public Service property to be $949,750; (b) this action was appealable to the Division under N.J.S.A. 54:2-35; (c) since no appeal pursuant to that section was taken by petitioners, the "action" of the board of March 22, 1971 was res judicata and therefore immune to attack when petitioners filed their appeal to the county board pursuant to N.J.S.A. 54:3-21, and (d) petitioners were collaterally estopped by ...