On appeal from the Tax Court of New Jersey, Docket No. 7994-2007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 10, 2008
Before Judges C.L. Miniman and King.
Plaintiffs Douglas and Mary Ann Schwartz, residents of defendant Township of Wayne (Wayne), appeal from a February 22, 2008, judgment affirming the May 8, 2007, Memorandum of Judgment of the Passaic County Board of Taxation (the Board), affirming the assessment of plaintiffs' land at $124,000 and improvements at $241,000, for a total assessment of $365,000. We affirm.
In 2001, plaintiffs moved into their newly constructed home at 2 Holmes Lane, an east-west cul-de-sac in Wayne, which is lot 46.01 in block 1119 on Wayne's tax map. Lot 46.01 had been subdivided in 1998 and was subsequently assessed for tax year 1999. There are nine lots on Holmes Lane, all in block 1119. Seven of the lots had access adjustments to the land valuation. The access adjustments for lots 39, 43, 44, 44.01 and 45 were all .95. The access adjustment for lot 40 was .90. Finally, the access adjustment for lot 42 was .93. Lots 41 and 46.01 had no access adjustments.
Lots 39-45 apparently all had existing homes as of 1991 when the last revaluation took place in Wayne. In or around 1997, lot 44 was subdivided into lots 44 and 44.01 and both lots retained the access adjustment of .95 for the land valuation. A new home was to be constructed on lot 44.01 and it was completed on December 15, 1999. The existing home on lot 44 was demolished in January 1999 and construction of a new home began on June 14, 1999. At the same time, lot 45 was subdivided into lots 45 and 46.01 and, although lot 45 retained an access adjustment of .95 for land valuation, no access adjustment was given to lot 46.01. Some of the other lots had existing homes demolished and new homes constructed: lot 39 in 1997-98, lot 40 in 1999, and lot 41 in 2004. The access adjustment for lots 39 and 40 remained in place, but it is not known whether lot 41 lost a prior access adjustment or never had one. Ultimately, the two lots that had the newest construction, in 2000 and 2004, had no access adjustment whereas the lots that had new construction between 1997 and 1999 retained their access adjustments, as did the lots with older homes.
In its interrogatory answers, Wayne certified that the access adjustments "were made to reflect a private roadway, not a public right-of-way. At the time of the  revaluation, the roadway was not paved." It also certified that at the time lot 46.01 was subdivided, it was "on a dedicated public roadway owned by the municipality." A minor subdivision map dated February 1, 1997 (only a portion of which is included in the plain-tiff's appendix) indicates that Holmes Lane was a public road up to plaintiffs' property line with lot 45*fn1 and beyond that point it was a private road.
Each residence on Holmes Lane, including that of plaintiffs, has received and continues to receive garbage, vegetative-waste, recycling, and snow-plowing services. When plaintiffs moved into their home, Holmes Lane was not fully paved or curbed; however, by October 1, 2006, it was. As of October 1, 2006, there were no impediments to access for any property on Holmes Lane. The record, however, does not disclose whether Holmes Lane continued in 2006 to be partially public and partially private requiring Wayne to traverse private property to provide services.
In 2006, Wayne assessed plaintiffs' land at a net adjustment of 1.0, reflecting no access adjustment.*fn2 Unhappy with this assessment, plaintiffs filed a verified Petition of Appeal from Wayne's assessment of their property for the 2007 tax year with the Board, contending that Wayne had acted arbitrarily and capriciously in singling them out for discriminatory tax treatment. On May 8, 2007, the Board denied plaintiffs' appeal.
Plaintiffs then filed a complaint on July 9, 2007, against Wayne in Tax Court pursuant to N.J.S.A. 54:3-21(a). They alleged that Wayne had arbitrarily singled them out for discriminatory tax treatment because their property was "the only parcel on Holmes Lane . . . where the land tax rate [is] assessed at 100% of value." The matter was tried before a Tax Court judge on December 14, 2007, at which time plaintiffs acknowledged that lot 41 also had no access adjustment to the true value of the land.
At trial, plaintiffs contended that Wayne was arbitrarily and capriciously singling out lots with new homes and assessing the land value at 100% of true value, whereas all the other lots had the land value adjusted downward for "access." Plaintiffs very specifically rejected Wayne's assertion that the issue in the case was whether the assessment was correct. Rather, they stated that they did not contest the property values of their or any other property on the street and so had not submitted any comparable sales. All they contested was the dichotomy of access adjustments for seven of the nine lots, but none for lots 41 and 46.01.
Plaintiffs argued that, because lot 41 had a new modular home constructed in 2004, it followed that Wayne was essentially "spot assessing" the newest homes on the street by not giving them access adjustments. They asserted that their claim of new-home "spot assessing" was reinforced by the fact that lot 41 was at the end of Holmes Lane on the corner of the cul-de-sac where the roadway had been private in 1997 when the subdivision took place. They urged if lot 41 was not given an access adjustment, then the road must have become public to the end of the cul-desac at some point in time, which would have required all the other lots to be assessed at 100% of true value. We additionally note that the lot across the street from lot 46.01 received an access adjustment, although it is not clear from the map whether the road in front of that lot was public or private.
At the close of plaintiffs' case, Wayne moved to dismiss under Rule 4:37-2(b), arguing that plaintiffs had failed to establish a cause of action for tax discrimination because they had not established the true value of the property as a whole, not just one portion of the assessment. Thus, it argued ...