The opinion of the court was delivered by: Kuskin
This is an appeal of an assessment for roll-back taxes imposed pursuant to N.J.S.A. 54:4-23.8 on one acre of property in Sparta Township for the tax years 1995, 1994 and 1993. This statute provides in relevant part:
When land which is in agricultural or horticultural use and is being valued, assessed and taxed under the provisions of [the Farmland Assessment Act of 1964, as amended], is applied to a use other than agricultural or horticultural, it shall be subject to additional taxes, hereinafter referred to as roll-back taxes, in an amount equal to the difference, if any, between the taxes paid or payable on the basis of the valuation and the assessment authorized hereunder and the taxes that would have been paid or payable had the land been valued, assessed and taxed as other land in the taxing district, in the current tax year (the year of change in use) and in such of the 2 tax years immediately preceding, in which the land was valued, assessed and taxed as herein provided.
Such one acre was able to qualify for farmland assessment because N.J.S.A. 54:4-23.18 *fn1 permits the combining of contiguous acreage in adjoining municipalities for purposes of satisfying the five acre minimum area requirement imposed by the Farmland Assessment Act of 1964, N.J.S.A. 54:4-23.4 through -23.23.
Plaintiffs are the owners of 9.086 acres of land, of which 1.44 acres are located in Sparta Township and 7.646 acres are located in adjoining Lafayette Township. For tax years 1993, 1994 and 1995, the Sparta Township tax assessor determined that one acre of the 1.44 acres in Sparta, when combined with four contiguous acres of the Lafayette Township land, qualified for farmland assessment. During 1995, however, the Sparta assessor learned that, for 1995 (and for 1991 through 1994), plaintiffs' four acres in Lafayette Township were denied farmland assessment qualification in that Township. Based solely on such denial in Lafayette for 1995, the Sparta assessor (pursuant to N.J.S.A. 54:4-23.9 and N.J.S.A. 54:4-63.13) filed a complaint with the Sussex County Board of Taxation ("County Board") seeking imposition of the assessment for roll-back taxes which is the subject of this appeal. The County Board issued its Judgment imposing the assessment on September 19, 1995.
The issue presented is a narrow one -- whether the denial of farmland assessment qualification to adjoining property in a different municipality constitutes a change in use of the subject property under N.J.S.A. 54:4-23.8, when a combination of the subject property and the adjoining property is required to satisfy the statutory five-acre minimum for farmland assessment qualification.
Plaintiffs contend that their said five acres (one acre in Sparta and four acres in Lafayette) were actively devoted to agricultural use, within the meaning of N.J.S.A. 54:4-23.2 to 23.4 and N.J.S.A. 54:4-23.6, during the tax year 1995 as well as tax years 1994 and 1993, that no change in use, as contemplated by N.J.S.A. 54:4-23.8, occurred during 1995, and that the denial of farmland assessment qualification in Lafayette for 1995 neither required nor permitted a roll-back tax assessment in Sparta.
Defendant has three responses. Firstly, defendant asserts that an assessment for roll-back taxes in Sparta was obligatory once the Lafayette Township assessor denied farmland assessment to plaintiffs' four acres in Lafayette because, under N.J. Const. art. VIII, § 1, P 1b (which, in relevant part, requires the Legislature to enact laws providing for assessment based on agricultural value for land "not less than 5 acres in area, which is determined by the assessing officer of the taxing jurisdiction to be actively devoted to agricultural...use") and Harvey v. Orland Properties, Inc., 108 N.J. Super. 493, 499 (Chan. Div. 1970), aff'd 118 N.J. Super. 104 (App. Div. 1972) (which holds that a municipality "has no legal authority to assess taxes" on property outside its boundaries), the Lafayette assessor was the only person having the authority to determine whether property within Lafayette Township qualified for farmland assessment. Permitting plaintiffs' Sparta property to continue to qualify for farmland assessment, based upon the inclusion of four non-qualified acres in Lafayette Township, would, in the defendant's view, allow the Sparta assessor to usurp authority vested exclusively in the Lafayette assessor. Secondly, the defendant contends that plaintiffs' appeal constitutes an impermissible collateral attack on the Lafayette Township assessor's determination that the four-acre portion of plaintiffs' property located in that Township did not qualify for farmland assessment. Thirdly, defendant urges that this appeal violates the entire controversy doctrine as articulated in Prevratil v. Mohr, 145 N.J. 180, 181 (1996) because plaintiffs are improperly seeking to segregate the issue of farmland assessment qualification for their Sparta land from the inherently related issue of the assessment status of their property in Lafayette Township.
I conclude that the denial of farmland assessment to the four-acre portion of plaintiffs' property located in Lafayette Township does not require or permit the imposition of an assessment for roll-back taxes on the one-acre portion located in Sparta Township, because: a) such denial does not, in itself, constitute a change in use under N.J.S.A. 54:4-23.8; b) whether property qualifies for farmland assessment and whether a change in use has occurred must be determined independently by each assessor, and, therefore, the denial of farmland assessment qualification in Lafayette Township is not binding upon, nor should it have any influence upon, the Sparta assessor, the county board of taxation or this Court; and c) during 1995, the five acres in question were, in fact, not "applied to a use other than agricultural" as contemplated by N.J.S.A. 54:4-23.8.
A change in use which warrants an assessment of roll-back taxes must be a change in actual use. "In ascertaining whether a change in use has occurred, the sole criterion is the actual use of the land." Rossi v. Upper Pittsgrove Tp., 12 N.J. Tax 235, 241 (Tax 1992). A change in title or possession will not trigger a roll-back assessment. N.J.S.A. 54:4-23.5; N.J. Turnpike Auth. v. Washington Tp., 137 N.J. Super. 543, 551 (App. Div. 1975), aff'd per curiam 73 N.J. 180 (1977). Even failure to qualify for farmland assessment (for reasons such as failure to file a timely application or failure to satisfy the statutory minimum income requirements) will not permit an assessment for roll-back taxes if the land remains in agricultural use. South Brunswick Tp. v. Bellemead Development Corp., 8 N.J. Tax 616, 620-21 (Tax 1987).
The determination by the Lafayette tax assessor that plaintiffs' four acres in that Township did not qualify for farmland assessment in 1995 was not, and was not the equivalent of, a change in "the actual use of the land." The defendant presented no proofs as to why the Lafayette assessor refused to grant farmland assessment qualification for 1995, 1994, 1993 or 1992. Plaintiffs' 1991 application for such qualification was denied on the grounds that "No activity related to agriculture noticed in the last year." The County Board affirmed such denial. Even if the Lafayette assessor's denial of farmland assessment qualification for 1995 was based on a finding that plaintiffs' four acres in Lafayette Township were not actually used for agricultural purposes, and even if plaintiffs failed to appeal or unsuccessfully appealed the denial, the imposition of a roll-back tax assessment in Sparta Township would not be justified unless plaintiffs' five acres of land were in physical fact "applied to a use other than agricultural" and the Sparta tax assessor proved such change in use before the County Board or this Court. See Miele v. Jackson Tp., 11 N.J. Tax 97, 99 (App. Div. 1989) (holding that the tax assessor has the burden of proof to establish that a change in actual use has occurred).
The statutes and regulations relating to local property tax assessments impose upon the assessor of each municipality an obligation to reach an independent Conclusion as to the proper assessments on property located within the municipality. N.J.S.A. 54:4-23, for example, requires a tax assessor to: "determine the full and fair value of each parcel of real property situate in the taxing district at such price as, in his judgment, it would sell for at a fair and bona fide sale by private contract on October 1" of the pre-tax year. N.J.S.A. 54:4-35 requires the assessor to "determine his taxable valuations of real property as of October 1 in each year...." N.J.S.A. 54:4-36 requires that assessor to submit an annual affidavit to the county board of taxation accompanying the tax list stating that "I, ... as assessor of ... do swear (or affirm)" that the list is complete, that property has been valued "at its taxable value," and "I have allowed only such exemptions as are prescribed by law."
N.J.A.C. 18:15-2.12(e) authorizes an assessor to disapprove an application for farmland assessment for woodlands "in accordance with his determination as to whether the property is otherwise qualified for farmland assessment" even after the Commissioner of the Department of Environmental Protection has certified that the applicant has satisfied the reporting requirements of N.J.A.C. 18:15-2.7. N.J.A.C. 18:15-3.5(a) permits an assessor to "require the submission of such additional proof as he *fn2 deems necessary to establish the right of an applicant to farmland assessment." Even when a municipal-wide revaluation is performed by an independent appraisal company pursuant to N.J.A.C. 18:12-4.1 to-4.11, it is the assessor who must determine the assessments based upon the revaluation appraisals.
revaluation firm's appraisal, in and of itself, has absolutely no legal status. The revaluation firm's value estimate has legal significance only if it becomes an assessment. This is true because a revaluation firm serves merely ...