On appeal from Tax Court of New Jersey whose decision is reported at 9 N.J. Tax 359 (1987).
Baime and D'Annunzio. The opinion of the court was delivered by Baime, J.A.D.
[230 NJSuper Page 531] Plaintiff NYT Cable TV, a division of the New York Times Company (NYT), appeals from a judgment of the Tax Court. The sole question presented is whether NYT's 250 foot high cable antenna tower, anchored to a sophisticated three-tier, six component, underground concrete foundation, should be taxed
as "[p]ersonal property used in business" under N.J.S.A. 54:11A-2(b) of the Business Personal Property Tax Act (N.J.S.A. 54:11A-1 et seq.) or as real property under N.J.S.A. 54:4-1 et seq. After unsuccessfully appealing its assessment to the Camden County Board of Taxation, NYT filed a complaint in the Tax Court, claiming that the structure was business personal property and was exempt from real property taxation by N.J.S.A. 54:4-1a and b. That statute renders taxable as real property "personal property affixed to . . . real property" unless (1) "[t]he personal property so affixed can be removed or severed without material injury" to itself and the real property, and it is of a type "not ordinarily intended to be affixed permanently to real property," or (2) "[t]he personal property so affixed is machinery, apparatus, or equipment which is neither functionally essential to a structure" in which it is placed or to which it is "affixed nor constitutes a structure itself." N.J.S.A. 54:4-1a and b. In its complaint, NYT contended that its antenna tower was personal property used in business and fell within the purview of the statutory exemptions contained in N.J.S.A. 54:4-1a and b.
Following a plenary hearing, the trial judge in a reported opinion found that the tower was of a type "ordinarily intended to be affixed permanently to real property." 9 N.J. Tax. 359. In making this determination, the judge acknowledged that the land was originally owned by defendant Borough of Audubon and was leased to NYT's predecessor with a provision requiring the lessee at the expiration of the term to remove the tower, including the reinforced foundation. 9 N.J. Tax. at 368. Citing Koester v. Hunterdon Cty. Bd. of Tax, 79 N.J. 381 (1979), the trial judge found that this lease provision was not controlling. 9 N.J. Tax. at 368. Rather, the judge emphasized that the statutory language, specifically the use of the word "ordinarily" before the word "intended," as appears in N.J.S.A. 54:4-1a(3), shifted the focus of the inquiry from what was actually intended to what was "ordinarily intended" with respect to like property. 9 N.J. Tax at 366. In reaching his ultimate conclusion,
the judge determined that "as of the date of [the] tower's installation a prudent cable [television] company would intend that [it] . . . remain in place" as long as it could be used for its designated purpose and "would not be curtailed within the foreseeable future." 9 N.J. Tax. at 369. The judge thus concluded that the tower failed to qualify under the statutory exemption provided by N.J.S.A. 54:4-1a(3).
Alternatively, the judge concluded that the tower did not constitute "tangible goods and chattels" or "personal property used in business," subject to taxation under N.J.S.A. 54:11A-2(b) of the Business Property Tax Act but exempt from assessment as real property, by N.J.S.A. 54:4-1a(1), where the object can be removed or severed without material injury to the real property. 9 N.J. Tax. at 369-370. In this respect, the judge stated that the statutory references to "goods and chattels," N.J.S.A. 54:11A-2(b), and "personal property," N.J.S.A. 54:4-1a, pertained to "movable" articles, machinery and equipment that "might lose their character as personal property when attached to realty." 9 N.J. Tax. at 370-371. In contrast, the judge stated that "[t]hey do not refer to improvements that are primarily real estate." 9 N.J. Tax. at 371. Within this conceptual framework, the judge found that "the tower consist[ed] of the steel reinforced concrete foundation and its metal triangular superstructure" and that "[t]he total structure was intended to be built as a whole unit and as completed it constitutes a unitary improvement to real estate." Ibid. The steel vertical and diagonal cross bars, concrete and circular metal ties "when utilized together in the construction [were said to] result[ ] in a single structure and improvement to the freehold." Ibid. Accordingly, the judge concluded that the metal superstructure was "part of the real estate and not 'goods and chattels' or 'personal property so affixed to the real property.'" 9 N.J. Tax. at 372. The trial judge further found that "in the event it is so determined to be personal property affixed to real property, [he would] conclude that the metal superstructure's removal would materially injure the freehold." Ibid.
We find ample support in the record for the trial judge's conclusion that NYT's tower is of a type "ordinarily intended to be affixed permanently to real property" and is thus not exempt from real property taxation by N.J.S.A. 54:4-1a(3). Despite the prodigious efforts of NYT's counsel, we are convinced that the trial judge decided the issue based upon substantial evidence in the record. As we noted in Kearny Leasing Corp. v. Town of Kearny, 7 N.J. Tax 665 (App.Div.1985), "'[s]ince the judges assigned to the New Jersey Tax Court have special expertise, we will not disturb their findings unless they are plainly arbitrary or there is a lack of substantial evidence to support them.'" Id. at 667, quoting G & S Company v. Eatontown Bor., 2 N.J. Tax. 94 (1980), aff'd 6 N.J. Tax. 218, 220 (App.Div.1982). Applying that principle, we cannot fairly say that the trial judge went so wide of the mark that a mistake must have been made. P.T. & L. Const. v. Dept. of Transp., 108 N.J. 539, 560 (1987). See Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 485-486 (1974); State v. Johnson, 42 N.J. 146, 162 (1964). Instead, we are satisfied that the finding made "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, supra, 42 N.J. at 162.
We are also fully satisfied that the judge correctly applied an objective standard in making this determination, rather than assessing what was subjectively intended as to the permanence of the tower. In this respect, the judge fully complied with the statutory mandate. Compare Chevron U.S.A., Inc. v. Perth Amboy, 9 N.J. Tax. 205, 242-243 (Tax Ct.1987) with Westinghouse Broadcasting Co., Inc. v. Taxation Div. Director, 141 N.J. Super. 301, 305 (App.Div.1976). We are thus in complete accord with the trial judge's conclusion that NYT's antenna tower was not exempt from real property taxation by the exclusion set forth in N.J.S.A. 54:4-1a(3).
In light of this disposition, we have no occasion to address whether or not the trial judge was correct in his alternative [230 NJSuper Page 535] holding that the tower and its foundation constituted a "unitary improvement to real estate" and the "metal superstructure was never 'goods and chattels,' or 'machinery,' or 'equipment' that was attached to real estate." 9 N.J. Tax. at 371. In reaching this conclusion, the judge determined that the "tower consist[ed] of the steel reinforced foundation and its metal triangular superstructure." Ibid. NYT challenges this factual conclusion on the basis that the concrete foundation and the steel tower should have been treated separately. Stated another way, NYT argues that, while the concrete foundation constituted real property, the metal superstructure fell within the definition of "personal property used for business" and "goods and chattels" subject to taxation under the Business Personal Property Tax Act. See N.J.S.A. 54:11A-2(b). Our research discloses some support for the thesis advanced by NYT. See, e.g., City of Bayonne v. Port Jersey Corporation, 79 N.J. 367 (1979); Stem Bros., Inc. v. Alexandria Tp., 6 N.J. Tax. 537 (Tax Ct.1984); Sta-Seal, Inc. v. Taxation Div. Director, 5 N.J. Tax. 272 (Tax Ct.1983), aff'd 6 N.J. Tax. 345 (App.Div.1984), certif. den. 97 N.J. 644 (1984); Union Tp. v. Taxation Div. Director, 1 N.J. Tax. 15 (Tax Ct.1980). Cf. Minetto v. Borough of Northvale, 7 N.J. Tax. 293 (Tax Ct.1985), aff'd 210 N.J. Super. 312, 314 (App.Div.1986). On the other hand, it has been pointed out that the cited decisions pertained to objects which, although extremely large, heavy or unwieldy, were nevertheless readily movable. See Chevron U.S.A., Inc. v. Perth Amboy, supra, 9 N.J. Tax. at 244-248 (Hopkins, J.T.C. concurring). It has been cogently argued by some that the issue should be resolved ...