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Byram Township v. Western World Inc.

Decided: August 1, 1988.

BYRAM TOWNSHIP, A MUNICIPAL CORPORATION, PLAINTIFF-RESPONDENT,
v.
WESTERN WORLD, INC., AND CHEYENNE CORPORATION, DEFENDANTS-APPELLANTS



On appeal from the Superior Court, Appellate Division.

For reversal -- Chief Justice Wilentz and Justices Clifford, O'Hern, Garibaldi, Stein and Handler. Opposed -- None. The opinion of the Court was delivered by Handler, Justice.

Handler

Defendant taxpayers, Western World, Inc., and Cheyenne Corporation, applied to the Byram Township tax assessor for farmland assessment for several contiguous wooded parcels for the tax year 1983. The assessor denied farmland assessment for all the parcels, and the taxpayers appealed to the Sussex County Board of Taxation. The County Board granted farmland assessment. The Township then filed complaints with the New Jersey Tax Court seeking a reversal of these assessments. The Tax Court entered judgments denying farmland assessment with regard to all the properties on the grounds that the taxpayers' use of their property for the production and sale of trees and forest products was a prohibited use under the Township's zoning ordinance.

Defendants then appealed to the Appellate Division, which affirmed the Tax Court judgments in an unreported opinion. Appellants filed a notice of appeal to this Court pursuant to Rule 2:2-1(a)(1), claiming that the case involves a substantial question arising under the New Jersey Constitution.

I.

The taxpayers are related corporations. The property involved in this proceeding owned by the Cheyenne Corporation consists of approximately ninety-four-and-a-half acres. Of that total acreage, nineteen acres have been developed and operated as a family amusement park with an 1880's western theme called "Wild West City." The tax status of the amusement park site, which is not assessed as farmlands, is not an issue in this proceeding; the farmlands tax status of the balance of the tract, some seventy-five-and-a-half acres of woodlands, is in dispute. The rest of the property at issue in this appeal

consists of slightly more than forty-eight-and-a-half acres of woodland owned by defendant Western World, Inc. Three contiguous small landlocked parcels owned by Cheyenne Corporation are no longer included in the appeal.

Much of the evidence adduced at trial related to the ownership and use of these properties. Michael Stabile, Sr., a principal in both Western World, Inc. and Cheyenne Corporation, testified that Cheyenne Corporation bought the largest tract (Block 314, Lot 17) in 1964 and Western World, Inc. bought the remaining tract (Block 365, Lot 5) in 1980. The seventy-five-acre portion of Lot 17 not devoted to Wild West City activities was heavily wooded, with only two clearings; the cutting of trees on this property has occurred since the early 1970s. Cheyenne Corporation also planted 1,500 Christmas trees on a clearing in this property in accordance with a forester's recommendations. Hay is grown on another four or five acres for the horses used in connection with the operation of Wild West City. Most of the wood cut from Lot 17 has been used for firewood. Other wood taken from the property was sent to a saw mill and cut into lumber for use in the construction and repair of horse stalls and for decking for floors and porches at the Wild West City park. Stabile stated that he had engaged in cleaning up the woodland, cutting trees and selling cord wood. He also had a professional forester survey the property and prepare a map with recommendations for the use of the property for woodland purposes. Stabile further testified that he was encouraged in these efforts by the local tax assessor, both in writing and orally, and was told by the assessor that if he continued with what was being done to the Cheyenne Corporation property it would eventually obtain farmland assessment.

With respect to the property owned by Western World, Inc., Lot 5, Stabile testified that it is entirely wooded. According to his testimony, the former owner sold logs from the property. Woodland harvesting on that property was continued by the current owner under the supervision of several foresters, one of whose plans was introduced into evidence.

The testimony of Michael Stabile, Sr., was both corroborated and augmented by that of his son, Michael Stabile, Jr. The latter testified that the former operation had consisted of logging and the harvesting of trees, including black walnut and other valuable veneer trees. The forest products taken from Lot 17 and Lot 5 consisted of cord wood for firewood as well as planks, 4 X 4s and larger timbers. He also stated that the woodland management on the Cheyenne Corporation property, Lot 17, had been ongoing since the Stabiles acquired the property in 1964. The woodland management program implemented on the subject properties was described as the "selection method" of forest management, which consisted of the removal of competitive trees of an inferior species, diseased trees, trees that might be susceptible to disease, and deformed trees. In their woodland management operations, the taxpayers do not use big logging equipment. They use chain saws, a small tractor, and a small pick-up truck; they have a bulldozer available to them for hauling out larger logs, but they do not have logging equipment such as skidders and winches. Taxpayers stress that this woodlands harvesting activity, dating back to the prior owners of the property, was never challenged by the Township until they sought farmlands assessment of the property.

The Township produced as its witness Ronald A. Bartoo, a private forestry consultant, who had inspected the subject properties. Bartoo testified that he found no evidence of the use of logging machinery or tractors on the subject properties. This witness indicated that his inspection showed a "very meticulous, careful removal of individual trees" from the subject properties. Bartoo testified also that "the forest is really a very nice one", with "potential for very good timber production." However, Bartoo did not think the woodland had been managed intensively enough, which he conceded would not necessarily result in "a thing of beauty." The Township's witness also characterized the taxpayers' efforts as "commendable" and "fine," but stated that they were "not taking advantage

of the productive capacity of the forest." He said the taxpayer seemed to be "more concerned about kind of a park-like forest. . . ." Bartoo also stated that he was "not particularly concerned about the aesthetics" because "[w]hat we're after is to put this thing to work and make it produce." In answers to questions by the court, Bartoo stated that the subject property was "a beautiful woodland" and that it was "suitable for the production of forest products."

Byram Township also called its tax assessor as a witness. The assessor stated that he did not know what the zoning ordinances were in Byram Township before 1978. He also stated that no zoning official of Byram Township had ever issued a stop order against either of the defendants for their woodlands management operations on the subject properties.

II.

Taxpayers claim their entitlement to farmland assessment under Article VIII, Section 1, paragraph 1(b) of the New ...


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