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Township of Andover v. Kymer

Decided: March 29, 1976.

TOWNSHIP OF ANDOVER, PETITIONER-APPELLANT,
v.
FRANK KYMER, GEORGE HAYEK, ALEXANDER LAZOR, FRANK E. MAZUY, II AND FREDERICK J. SCHUMAN, RESPONDENTS-RESPONDENTS



Allcorn, Kole and Ard.

Per Curiam

The Division of Tax Appeals affirmed judgments of the county board of taxation. It held that, except for a portion of the lands (not subject to this appeal), all of the remaining approximately 200 acres owned by respondents (the taxpayer) were qualified for farmland assessment status for the tax year 1970 under the Farmland Assessment Act of 1964, N.J.S.A. 54:4-23.1 et seq. The township appeals.

In 1970 the taxpayer purchased the Washer Farm consisting of approximately 210 acres. Shortly thereafter it was put on the market for resale. An agreement with the previous owners that the Swanson family farm the land was continued. No rental was received from the Swansons by the taxpayer. In 1968, 1969 and 1970 the Swansons grew and cut hay on the farm for a value of over $500 each year. The land subject to this appeal was used for no other purpose. Mrs. Swanson testified they grew hay on all the fields that were tillable, which amounted to about 100 acres. The township engineer estimated that between 52 and 70 acres

could be utilized for agriculture. The township tax assessor determined that only 41 acres qualified for farmland assessment. She had disallowed portions of the land that were wooded or swampy or consisted of rocky terrain, with no evidence of cultivation. She apparently qualified for such assessment only those areas where fields of hay were observed. The Division made no finding as to how many acres actually were in hay. In the view we take of this case that finding was not required.

On this appeal, as it did below, the township argues that (1) the lower farmland assessment should be limited to that part of the tract which is actually devoted to agricultural or horticultural use, and all acreage in a tract "does not qualify for farmland assessment solely because the portion farmed meets the minimum acreage and gross sales requirements under" the act, and (2) land cannot qualify for farmland assessment where "it is held primarily for speculation and the agricultural use is merely incidental thereto."

We affirm the judgments of the Division of Tax Appeals essentially for the reasons given by Judge Evers in his opinion below. We add, however, some additional comments.

The entire tract subject to this appeal is entitled to assessment as farmland under the statute even though only a portion thereof is actually being farmed as long as it may be said, as here, that (1) the tract basically is in fact dominantly devoted and dedicated to agricultural, and not to some other alien, principal use and (2) the statutory requirements as to area (five acres or more) and gross sales have been met -- i.e. , agricultural products produced thereon averaging at least $500 a year during the two-year period immediately preceding the tax year in issue (1970). The tract is thus "actively devoted" to agricultural use "for at least the 2 successive years immediately preceding" that tax year. N.J.S.A. 54:4-23.2; 54:4-23.3; 54:4-23.5; 54:4-23.7.*fn1 Compare

East Orange v. Livingston Tp. , 102 N.J. Super. 512, 535-537 (Law Div. 1968), aff'd o.b. 54 N.J. 96 (1969).

In the present case, although the taxpayer may be holding the land for eventual resale or for speculation, the entire land, just as it was before the taxpayer's acquisition, is deemed to be in agricultural use -- the production and sale of hay -- since it is being "devoted to the production for sale of plants * * * useful to man, including but not limiting to: * * * grains and feed crops." N.J.S.A. 54:4-23.3. In this setting the satisfaction of the sales criteria of N.J.S.A. 54:4-23.5 renders the entire tract land actively devoted to agricultural use. See East Orange v. Livingston, supra.

Under these circumstances the special farmland tax treatment is not limited to that part of the tract shown to be used for an agricultural purpose -- i.e. , only the fertile or cultivated area of the farm. Woodland, wet areas and other acreage having a marginal value for agricultural or horticultural use may also be given such tax advantage, as long as it is part of, appurtenant to, or reasonably required for the purpose of maintaining, the land actually devoted to farm use, particularly where it has been part of the farm for a number of years. See N.J.S.A. 54:4-23.11; N.J.A.C. 18:15-6.2.*fn2

In the present case no portion of the land was used for a purpose other than farming. The woodland and the swampy areas and the rocky terrain have been part of the farm and considered as such for many years. We cannot say that this ...


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