The opinion of the court was delivered by: Rimm
This is a local property tax matter in which the taxpayer seeks to have the subject properties declared qualified for farmland assessment for the tax year 1992 in accordance with the Farmland Assessment Act of 1964, N.J.S.A. 54:4-23.1-23.23 (hereafter the Act), especially N.J.S.A. 54:4-23.3, as amended, and N.J.S.A. 54:4-23.3a.
The subject of this litigation is six separately assessed, unimproved contiguous parcels owned by defendant. The land assessments and the total assessments are the same, and the block and lot numbers, original assessments and judgments of the Atlantic County Board of Taxation are as follows:
Block Lot Original Assessments County Board Judgments
The original assessments aggregate $780,200. The county board judgments aggregate $40,100 and are based on the board's determination that the lands qualify for farmland assessment.
There is no dispute between the parties as to the value of the property. If the land qualifies for farmland assessment, the assessments for 1992 will be in the amounts fixed by the county board judgments. If the lands do not qualify for farmland assessment, the 1992 assessments will be in the amounts originally fixed by the assessor.
The parties have stipulated that the total acreage for all six lots is 351.32 acres. Defendant has owned the property since 1972, and he filed a timely application for farmland assessment qualification for 1992 on July 30, 1991. By letter dated December 20, 1991, plaintiff's tax assessor denied defendant's application for farmland assessment for the subject properties because there was no proof of income and no current cutting permit issued by the city. Defendant was dissatisfied with this denial and filed petitions of appeal with the Atlantic County Board of Taxation to set aside the assessments and to have the properties declared qualified for farmland assessment. By judgments dated August 12, 1992, the county board declared the properties qualified for farmland assessment and fixed the assessments as indicated. Plaintiff municipality was dissatisfied with the county board judgments and filed a complaint in the Tax Court seeking a determination that the properties were not qualified for farmland assessment.
In early 1989, defendant entered into an agreement for the preparation of a woodland management plan by a forester approved by the Department of Environmental Protection (hereinafter the DEP), as required by N.J.S.A. 54-23.3.b. The plan was completed on July 18, 1989.
The plan was marked in evidence and is captioned, "Woodland Management Plan for Harry Stern, P.O. Box 23035, Philadelphia, Pennsylvania 19124, Property in City of Estell Manor, Atlantic County, New Jersey, Blocks 30, 31, 32, 33, 34 and 36, all lots 365 acres, prepared by Richard B. Mires, R.P.F., New Jersey approved forester, 1851 W. Landis Avenue, Vineland, New Jersey 08360, Ten-Year Plan, July 18, 1989" (hereafter the plan). It contains in it a property description, a description of the property boundaries, ownership goals and management objectives, past activities, timber stand descriptions of three separate timber stands, designated Stands 1, 2 and 3, management recommendations and a productivity statement. The management recommendations and productivity statement are here quoted in full:
1. Boundary marking will be necessary on all northerly property lines, beginning at 14th Avenue and ending at Beach Avenue. I recommend signs and/or tree paint in two bands or stripes as high as can conveniently be reached, approximately 50 to 100 feet apart on line trees and three stripes on corner witness trees. This work must be completed within three years.
2. To plan for the harvest of sawtimber size pine, particularly on portions of Stand 3 best suited for such harvest. This work would be scheduled for the latter years of the plan, in concert with market availability and the owner's requirements. I recommend clear cutting of small, irregularly shaped areas of approximately three to five acres to afford the best possible character. I estimate harvest of approximately 40 MBF of sawlogs and 41 cords of pulpwood or shaving wood in approximately 400 trees.
3. To reopen, to woods road condition, the extension of 13th Avenue for purposes of fire protection and access for other forestry activity, including future harvest and/or insect or disease control, recognizing that this may create further opportunity for trash dumping, which is an on going problem. This work should be scheduled for mid years of the plan following completion of the boundary work.
4. To continue to monitor the establishment and maturing of the young stands, and to determine if weeding or thinning is desirable or practical; and to take appropriate action in the event of insect or disease outbreak.
The overall productivity of the tract, as discussed in the Stand Description, is in the moderate range of 80 to 90 cubic feet per acre per year. Based upon current growing stock, I estimate total annual growth to be approximately 200 cords. As the young stands mature and grow into small poletimber sizes where measurement takes place, total volume growth will increase sharply in the latter years of this plan term or the early years of the next term.
I further estimate gross receipts from the sale of sawtimber and pulpwood from Stand 3 to range from $6,300 to $6,800.
A review of the various maps marked in evidence discloses the approximate description of the property with regard to streets, tax block numbers and a creek. Blocks 30, 31, 32 and 36, from west to east, front on Maple Avenue, which forms the southern boundary of the tract and which extends for the entire length of the blocks. The westerly boundary of the property, running along the westerly edge of Block 30, is 14th Avenue, if extended north of Maple Avenue to the northerly line of Block 30. The easterly boundary of the tract is: 11th Avenue running along the easterly edge of Block 36 to Beach Avenue; then Beach Avenue which extends in a northwesterly direction along the northern boundary of Block 36 to 12th Avenue; then 12th Avenue, if extended north of Beach Avenue, such extended avenue also being the easterly boundary line of Block 34. The northerly boundary line is an irregular line extending in a westerly direction from 12th Avenue, if extended, to 14th Avenue, if extended.
Stand 1 in the plan consists of Blocks 30, 31 and 32 and constitutes the entire western portion of the tract. Blocks 33 and 34 constitute Stand 2, the northeasterly section of the tract. Stand 3 consists of Block 36 and is the eastern section of the tract.
Stephen Creek runs in an east-west direction across Stands 1 and 2 just south of the northern boundary of the tract. A map is set forth in Appendix A.
The forester who prepared the plan was the taxpayer's first witness. He testified as to the activities he had undertaken to implement the plan. After preparing the plan in 1989, he went back to the property in the spring of 1990. At that time, he marked boundaries at the corner of Beach Avenue and 12th Avenue; along 11th Avenue between Beach Avenue and Maple Avenue; at the corner of 12th Avenue and Maple Avenue; along Maple Avenue between 12th and 13th Avenues; at the corner of Maple Avenue and 14th Avenue; and then partially along 14th Avenue. These constituted the southerly, easterly and westerly boundaries of the property.
The forester also testified that there were trails on the property that were passable by four-wheel drive vehicles or forest fire fighting equipment vehicles. He also found evidence of disease or insect infestation, but he did not find any major outbreaks of insect infestation or disease that would require action on the part of the property owner.
The forester went to the property again in 1991. In 1991, the forester marked boundaries from Beach Avenue at 12th Avenue to the corner of timber Stand 2 as described in the plan; all of the boundaries previously described as having been partially marked were completely marked between 11th Avenue and 12th Avenue on Beach Avenue; between 11th and 12th Avenues on Maple Avenue; between 13th and 14th Avenues; and on 14th Avenue to Stephen Creek, as shown on the plan.
The forester testified that, although his management recommendations included the marking of the northern boundary line, up to the submission of the application for farmland assessment for the tax year 1992, which is dated July 30, 1991, the northern boundary line of the property had not been marked. In addition, although the plan called for the marking of the boundaries within three years of the submission of the plan, the forester testified that he had not marked the northern boundary within the three-year period.
A second recommendation in the plan was that there should be small, clear-cut areas of mature timber in Stand 3. However, an application to the Pinelands Commission by the forester on May 3, 1993 for permission to harvest trees from the Commission shortly thereafter, was for Stand 1. No cutting had been undertaken in Stand 3 in accordance with the plan. Nor had any timber been cut on the subject property between the date of the preparation of the plan in May, 1989 and July 2, 1993, the date of the forester's testimony in this matter. It follows from that fact that there had been no sales of any timber from the tract between May, 1989 and July 2, 1993.
The third recommendation in the plan was to reopen 13th Avenue for fire protection and access purposes. The forester testified that this had not been completely done. Actually, no work had been done on 13th Avenue between the date of the plan and the 1991 inspection by the forester. In addition, between 1989 and 1992, no effort was made to construct any fire protection system on the subject property.
The fourth and final recommendation in the plan provided for monitoring the property to determine if weeding or thinning was desirable or practical. However, no weeding or thinning had been done by the forester. In sum, the forester testified that between July 18, 1989 and December 31, 1992, a period of approximately three and one-half years, to his personal knowledge, there were no activities on the entire 351.32 acre tract other than boundary marking and monitoring. By monitoring, the forester explained he meant the two inspections he made, one in 1990 and one in 1991.
A second professional registered forester also testified on behalf of the property owner. He began his work on the subject property in the fall of 1991. His first work was an attempt to locate the northern boundary so that it could be marked. He referred to deeds and aerial photographs, but advised the property owner that he did not have the necessary information to establish the northern boundary line. He began his field work in the spring of 1992. He marked part of the boundary line with paint. Part of the boundary line was only flagged because he wasn't sure of the location of the entire length of the northern boundary line. He also testified that he believed that a pine harvest should be pursued. He concluded that the harvesting should begin in Stand 1 and not in Stand 3 as set forth in the plan.
The forester testified that it was his opinion that woodland management plans are guides; and that as work on the property progresses through the years, decisions could be made that would change the original plan. So, in addition to the harvest which he recommended, he also recommended that there be a prescribed burn. Accordingly, in December, 1992, he met with an employee of the forest fire service at the property. As a result of what he was told by the employee of the forest fire service, he developed a burning plan. He discussed the burning plan with the owner of the property with regard to the costs for a contractor, insurance, trail construction and a crew to conduct the burning. Trail construction was completed by the end of January, 1993. However, no burning took place that spring because of the wet weather.
The second forester put up yellow plastic forest management signs along Beach Avenue and 12th Avenue for Stand 2. The signs read, "Forest Management Area. No Trespassing. No Deerhunting. No Trash Dumping." He also marked boundaries for Stand 2, but all of his other activity in 1993 was in Stand 1.
In October, 1992, he posted the entire eastern portion of Beach Avenue, the southern portion of 11th Avenue and the Maple Avenue perimeter for Stand 3 with yellow plastic forest management signs. However, the witness also testified that as of July 2, 1993, approximately 60% to 75% of the northern boundary still had not been marked. The witness also indicated that his harvest plan with regard to Stand 1 was inconsistent with the plan which referred to a harvest on Stand 3. Additionally, the work done to open 13th Avenue was not completed until January, 1993. This forester then turned the file back to the forester who had prepared the original plan.
The municipality called three witnesses in this matter. One is the assessor; one is a professional consulting forester; and the third is an employee of the State of New Jersey Forest Management Section.
The assessor testified that he has been tax assessor since May, 1992. He testified that he was familiar with the property and that he had reviewed the application for farmland assessment for 1992 in detail in preparation for the trial. He referred to a package of documents, which had been marked in evidence as a joint exhibit, and which in turn referred to the defendant's application for farmland assessment for the tax year 1992. Among those documents was a letter dated December 20, 1991 to the property owner from the then tax assessor for the city. The letter advised the property owner that his application for farmland assessment for the subject property for 1992 had been disapproved by him for the following reasons: (1) no proof of income for the prior two years; and (2) no current cutting permit issued by Estell Manor. The witness testified that he concurred with the prior assessor's determination based on his own investigation of the matter. He further testified that there was no evidence of any tree cutting on the property for the two years prior to the year for which farmland assessment was sought. He also testified that there was no evidence of opening roadways on the property for logging purposes or for any other access purposes for the two years prior to the year for which farmland qualification was sought. He indicated, however, that there was evidence of boundary line marking. There was also no submission of information or data dealing with anticipated income from the property. He did testify that there were "some fire lines cut in there this springtime, January or February 1993." He had not, however, seen any activity relating to fire control prior to the submission of the application for 1992 on July 30, 1991.
The assessor testified that he made his first inspection of the subject property, as the assessor, in the latter part of the summer of 1992 in anticipation of this litigation. He believes that he rode the perimeter of the property and that he saw no activity anywhere on the property. He drove the complete length of Maple Avenue from 11th Avenue to 14th Avenue. He drove 11th Avenue between Maple Avenue and Beach Avenue. He drove Beach Avenue to 12th Avenue. He drove up 12th Avenue as far as he could go in a northeasterly direction, until it turned into a woods road. He then walked some distance up that woods road. He saw "no forestry activity." The next time he was on the property was in October, 1992 with the state forester. At that time, he started his inspection of the property at the intersection of 11th Avenue and Maple Avenues and went northeast on 11th Avenue to Beach Avenue. He turned left onto Beach Avenue and went to the intersection of 12th Avenue. He turned right on 12th Avenue and went as far as he could go to a dirt road, on which dirt road he then walked a short distance. He then returned to his vehicle and traversed 12th Avenue "straight through across Stephen Creek" to Maple Avenue. On Maple Avenue he made a right turn and went as far as 13th Avenue. On 13th Avenue he drove all the way to Stephen Creek. There is a road between 13th and 14th Avenues near Stephen Creek which he drove to 14th Avenue along which he then drove to Maple Avenue and then to 13th Avenue again. He saw no sign of any forestry activity "with the exception of some boundary markings." He also testified that the boundary of Stand 2, or the northwesterly boundary of the property, had been flagged according to the information he had received on farmland applications, but he found no flags. He saw no equipment on the property; he saw no roadways other than those on which he traveled; he saw no trails of any kind; he saw no logging trails; he saw no activity which would indicate the clearing of any brush or undergrowth; he saw nothing which would indicate the recent cutting of trees; and he saw no fire lanes of recent origin in the fall of 1992. He also did not see any activity which would indicate that any of the so called "4-D trees" had been removed, that is diseased, dying, deformed and dead trees.
The assessor testified that he also was on part of the property in December, 1992 but saw nothing that indicated that there had been any activity between the time of his inspection on October 9, 1992 and his being on the property in December, 1992. He was next on the property in January, 1993. At that time, he observed that fire lines ...