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Franklin Estates Inc. v. Township of Edison

Decided: May 27, 1976.

FRANKLIN ESTATES, INC., APPELLANT,
v.
TOWNSHIP OF EDISON, RESPONDENT



Matthews, Lora and Morgan.

Per Curiam

Petitioner Franklin Estates, Inc. appeals from a determination of the Division of Tax Appeals rejecting its bid to qualify under the Farmland Assessment Act for reduced property tax assessments. Farmland status under the Act was sought and rejected for the years 1971 and 1972, the assessments for those years being $313,125 and $395,500, respectively. Notice of disallowance of the claim for farmland assessment for 1971 was given on December 7, 1970, the reasons given being "Not Farming for Two Previous Years" and "Site Inspection." Notice of disallowance for 1972 was given on January 26, 1972, the reason given being "No Proof of Income." Both the 1971 and 1972 assessments were affirmed on appeal by the Middlesex County Board of Taxation and thereafter by the Division of Tax Appeals. Notice of appeal was thereafter filed.

The taxpayer's principal witness was Frank DiMuzio, a predecessor in title to the 65 acres in question and whose family had farmed the land for over 35 years. Although he conveyed the parcel to the taxpayer in 1969, he testified that, pursuant to permission granted in the agreement of

sale, he continued to use approximately six acres thereof for growing flowers, tomatoes and corn. Several photographs were received in evidence in an effort to support this testimony. He testified that his gross sales from produce derived from the taxpayer's land and his own land were $21,608 for 1970 and $16,397.32 for 1971. He estimated that approximately half of these sales were attributable to the taxpayer's property. No records, however, were offered to support these contentions.

Joseph Buck, Assistant Tax Assessor for Edison Township, testified that as a result of a number of site inspections, he determined that the conveyed property was not being farmed in 1970. He testified that during 1971-1972 it appeared as if some corn was growing on about half an acre of the land. He acknowledged that prior to the subdivision of the property, as well as in years subsequent to the tax years in question, farmland status was accorded to the property, although his testimony is unclear as to precisely which years.

The Division of Tax Appeals, in a written opinion, held that the taxpayer had not met its burden of proving that it was qualified under the Farmland Assessment Act for reduced property tax assessments, in that the amount of land allegedly being farmed was not shown to be in excess of five acres and that DiMuzio's statement of gross income attributable to the land in question could not be substantiated. It concluded that the taxpayer's testimony was vague, incomplete, nonpersuasive and fell far short of satisfying the necessary statutory criteria.

The taxpayer's initial contention sets up an alleged procedural impediment to the disallowance of its claim for farmland status. Notices of disallowance of claim for the tax years 1971 and 1972 were dated December 7, 1970 and January 26, 1972, respectively. N.J.S.A. 54:4-23.13b requires that where an application for farmland valuation has been timely filed, and it is determined that the taxpayer does not qualify for such treatment, a notice rejecting the

claim must be forwarded to the taxpayer on or before November 1 of the pre-tax year, together with the reasons for the disallowance. Hence, in this case where the notices were late, the taxpayer asserts that the township forfeited its right to reject its claim and that a farmland assessment must be granted. This contention is without substance.

Although the requirement that notice of disallowance be given by November 1 of the pre-tax year is couched in mandatory terms "the assessor of the taxing district * * * shall, on or before November 1 of the pre-tax year, forward to such owner a notice of disallowance * * *"), there is no suggestion that a late notice results in an automatic allowance of farmland status. Although the word "shall" is generally construed to be mandatory and the word "may" permissive or directory, these terms have been held interchangeable whenever necessary to implement legislative intent. Such intent may be implied from the language used or inferred on grounds of policy and reasonableness. Harvey v. Essex Cty. Freeholder Bd. , 30 N.J. 381, 391-392 (1959).

Use of the term "shall" is by no means conclusive of the enactment's purpose to declare compliance therewith a mandatory condition precedent to disallowance of a claim for farmland valuation. It is merely a presumption which can be readily overcome within the context of the purpose of the legislation in which it appears. See Harvey v. Essex Cty. Freeholder Bd., supra; In re Munson-Lied Co. , 68 N.J. Super. 281, 287 (App. Div. 1961); Kohler v. Barnes , 123 N.J. Super. 69, 81 (Law Div. 1973). The significant consideration is whether the provision in question relates to the essence of the law or merely to the form and manner in which it is to be carried out. If no public benefit ensues and no private right is insured by ...


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