On appeal from Superior Court, Law Division Bergen County.
Petrella and Dreier. The opinion of the court was delivered by Petrella, P.J.A.D.
The Borough of Franklin Lakes appeals from a dismissal of its complaint against defendant Otto K. Mutzberg, its former tax assessor.
Mutzberg was tax assessor for Franklin Lakes from 1967 until 1986. During this period he resided on property he owned in Franklin Lakes. In addition to the property he owned in Franklin Lakes, during 1976-1986 Mutzberg also partly owned property at 729 Colonial Road, Franklin Lakes consisting of about six acres. This property was purchased by Mutzberg's parents in 1925. Defendant's affidavit states that since then the property has been used as a farm. He submitted photographs of the farming operations on the property in his brief to the trial court, verified by a supporting affidavit. In 1961 Mutzberg's father died. On May 1, 1962 his mother, Bertha Mutzberg, conveyed this property (Lots 1 and Lots 1Q in Block 1304) to Mutzberg and his brother, Robert, and their wives. They in turn reconveyed an undivided 1/3 interest in the property to Bertha Mutzberg. The following year she conveyed an undivided 1/6 interest in the property to Mutzberg, his brother and their wives. An affidavit submitted to the trial court stated that Bertha Mutzberg entered into these transactions in order to retain an interest in the property so that she could not be removed against her will, notwithstanding that her children and their wives were involved.
Defendant's affidavit and attached exhibit indicated that he and his brother and their wives conveyed a life estate in the subject property to his mother who was then 69 years of age. The document, which was unrecorded but nevertheless apparently effective, was signed in approximately 1965 by defendant, his brother and their wives and stated:
Re: 729 Colonial Rd., Franklin Lakes, N.J.
It is hereby understood and agreed that we, the undersigned, hereby grant to Bertha Mutzberg, a life estate in the above subject premises, which life estate is to remain in force and effect during that period of time that Bertha Mutzberg, aforesaid, is a resident thereof.
Mutzberg's affidavit also stated that Bertha applied for and received a senior citizen's deduction for each year between 1968 and 1985. She entered a nursing home in 1985.
It appears undisputed that in 1984 defendant and his brother entered into an agreement with Paramus Nursery which permitted the use of the subject property as a nursery. The owners thereafter received over $500 per year from the property which was used for the growing and transplanting of trees and shrubs for sale. Prior to that time the property was assertedly a working farm and this was supported by photographs and an affidavit.
Apparently, there was a long-standing dispute between Franklin Lakes and defendant regarding his performance of his duties as tax assessor and his assessment practices.*fn1 It also appears, without dispute, that in 1978 Franklin Lakes hired a private firm to reevaluate all the properties in the municipality.
In its complaint Franklin Lakes alleges that defendant intentionally or negligently misclassified his own property during 1976-1986 under the Farmland Assessment Act, N.J.S.A. 54:4-23.1 et seq., while he was the Borough's tax assessor; fraudulently awarded his property a senior citizen's deduction under
N.J.S.A. 54:4-8.40 et seq.; negligently credited his property with a senior citizen's deduction; misrepresented that he was impartially performing his duties by improperly assessing his property, and that his assessment of his own property constituted a conflict of interest.
For purposes of the motion based on the statute of limitations, defendant demurred to the claim that during 1976 through 1986 he "incorrectly, or even improperly, classified properties in which he had an interest as being eligible for a senior citizen's deduction and a farmland assessment deduction." Although Franklin Lakes argues that the concession was broader, our reading of the preliminary statement in defendant's brief on its summary judgment motion, as well as the thrust of the moving papers, satisfies us that the concession was limited to that aspect of the motion relating to the claimed bar of the statute of limitations either under the tax laws or N.J.S.A. 2A:14-1.*fn2 We note that Point 3 of that brief argued that the fourth count of the complaint failed to state a claim upon which relief could be granted. It also became obvious upon the filing of defendant's reply brief in support of his summary judgment motion that defendant asserted alternative grounds for dismissal because he asserted in his statement of facts that there was no basis for establishing that either the
property had not been used as farmland for the claimed period or that the senior citizen's deduction was improper. The affidavit and briefs on the summary judgment motion thus, at least from defendant's perspective, expanded the issues beyond the statute of limitations issue (which issue might appropriately have been the subject of a motion to dismiss). There was apparently no ...