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Wishnick v. Upper Freehold Township

May 20, 1996

PAUL, DANIEL, AND HYMAN WISHNICK, PLAINTIFFS,
v.
UPPER FREEHOLD TOWNSHIP, DEFENDANT.



The opinion of the court was delivered by: Rimm

This is a local property tax matter involving the requirements that must be met to qualify land for farmland assessment under N.J.S.A. 54:4-23.1 to -23.23, the Farmland Assessment Act of 1964, hereafter "the Act."

Plaintiffs, Paul, Daniel, and Hyman Wishnick, own 25.43 acres of land located on Route 537 in Upper Freehold Township. The property is designated as Block 35, Lot 7 on the municipal tax map. On July 30, 1993, plaintiff, Paul Wishnick, filed a verified application, form FA-1, with the municipal tax assessor, seeking farmland assessment qualification for the property for the 1994 tax year. In the application, Wishnick certified that in 1993 fifteen acres of the property were actively devoted to the growing of alfalfa hay, five acres were utilized as permanent pasture, and the remaining 5.43 acres constituted appurtenant woodland. On an attached supplemental form, Wishnick indicated that gross income from the fifteen acres of alfalfa hay totaled $600 for 1993.

At the request of the Division of Taxation, Charles Grayson, a certified tax assessor for another township and a former farmer, undertook inspections of various properties in Upper Freehold Township in 1993 to determine if they met the qualifications for farmland assessment. As part of that responsibility, Grayson inspected the Wishnick property on September 9, 1993, specifically looking for evidence of alfalfa hay, the crop indicated on the farmland assessment application. Grayson found no evidence of any farming activity on the taxpayers' property.

Following Grayson's inspection, the municipality notified the taxpayers that their application for farmland assessment qualification had been denied. For the 1994 tax year, the township then assessed the subject property as follows:

Land: $236,700

Improvements: 51.900

Total: $288,600.

In response, plaintiffs filed an appeal with the Monmouth County Board of Taxation contesting the assessment and seeking farmland assessment qualification. In a memorandum of judgment dated July 19, 1994, the county board denied farmland qualification and affirmed the assessment for the subject property.

On October 14, 1994, plaintiffs filed a complaint with the Tax Court of New Jersey, again challenging the assessment and seeking farmland qualification for their property. The issues of farmland qualification and valuation were bifurcated for trial. On December 11, 1995, the parties tried the farmland assessment qualification issue.

At trial, plaintiffs offered the testimony of two witnesses. First to testify was one of the plaintiffs, Paul Wishnick. Wishnick stated that his property consists of "29.34" [sic] acres of land and that twenty acres of that land "is farmable." Wishnick testified that he owns and operates a retail grocery and liquor store on the property and that, as such, he is present on the property "all the time." Wishnick explained that he employs a farmer, Robert Todd Gaum, to farm the property and that Gaum actually grew and harvested crops on only ten acres of the land. Wishnick further testified that his property had qualified for and received farmland assessment from the municipality for the 1988, 1989, 1990, 1991, 1992, and 1993 tax years.

Following Wishnick's testimony, plaintiffs called Robert Todd Gaum as a witness. Gaum testified that he has farmed the subject property for the Wishnicks since 1992. Gaum stated that in May 1992 he planted approximately ten acres of tomatoes which he finished harvesting at the end of August. According to three receipts marked in evidence by the plaintiffs, Gaum received $1200 in gross income from the sale of tomatoes in July 1992. Gaum indicated that he may have received more income from the sale of tomatoes, but that these were the only receipts he could find from that time period. No income tax records were introduced.

Gaum also stated that, from the time he harvested the tomatoes in August 1992 until October 1993, there were no crops planted on the property. According to Gaum, sometime after October 15, 1993, he did plant rye on the property in the same area where he had previously planted the tomatoes. On questioning by the court, Gaum indicated that he planted a total of thirty acres of rye on all of the property that he worked in 1993, including the ten acres he planted on plaintiffs' land. Gaum testified that severe winter weather then damaged the rye crop, causing him to plow under the crop and plant soybeans in May 1994.

As support for that testimony, plaintiffs had marked in evidence a document dated October 15, 1993 and signed by Joseph Lenhardt. On direct examination, Gaum explained that the document was a receipt for forty bushels of rye seed and for the rental of Lenhardt's planter in return for $550.

Plaintiffs also had marked in evidence two documents detailing the sale of soybeans by Gaum in December 1994. One document, dated December 2, 19.94 and signed only by Gaum, noted a sale of 110 bushels of soybeans to "Joe Lenhardt, Jr.," for $532. The second document was a more detailed receipt dated December 29, 1994, from E.H. Tindall, Inc., showing a sale of 75.17 bushels of soybeans from Gaum to E.H. Tindall, Inc. for a total price of $378.74.

At the Conclusion of plaintiffs' case, counsel for defendant moved to dismiss plaintiffs' claim for farmland qualification "on the basis that there was no income shown for 1993 that would qualify for the [1994] application...." The motion was ...


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