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Jesse Rosenblum v. Borough of Closter and Beverly Ann Watkins


March 30, 2011


On appeal from Tax Court of New Jersey, Docket Nos. 5863-97, 5762-98, 4025-99, 3532-00, 2419-01, 3319-02, and 5696-03.

Per curiam.


Argued: November 15, 2010

Before Judges C.L. Miniman and LeWinn.

Plaintiff Jesse Rosenblum appeals from an October 30, 2009, final order denying "all applications for reconsideration, reopening, or amendment of findings and judgments [in Tax Court Docket Nos. 5863-97, 5762-98, 4025-99, 3532-00, 2419-01, 3319-02, and 5696-03] or any other actions concerning assessment of Block 1402, Lot 24.01, (102 Blanch Avenue) for tax years 1997 through 2003." We now affirm.

Plaintiff filed petitions with the Bergen County Tax Board (the Board) contesting the 1997, 1998, 1999, 2000, 2001, and 2002 farmland assessments for Block 1402, Lot 24.01, located in defendant Borough of Closter (the Borough), commonly known as "Watkins Farm," which is owned by defendant Beverly Watkins (Watkins).*fn1 When those petitions were denied by the County Tax Board, plaintiff filed annual appeals with the Tax Court. In order to resolve the issues on appeal, we must address a tangled procedural web as a result of the Tax Court judge's failure to timely enter orders disposing of motions and judgments affirming assessments. Before doing so, we briefly describe the property.

When Watkins acquired the 5.45-acre property*fn2 in 1989, it was not used as a farm. Watkins claimed and was given a farmland assessment shortly after she acquired the property. The property is in a residential district and is bordered to the east by the 150-acre Closter Nature Center. More than half of the northern boundary is along Dwars Kill Stream, and the property is bisected diagonally from north to south by Smith Brook. There are single-family homes along the western and southern borders. The improvements on the property include a home, a barn, a pool, and a cabana. The property is partially wooded and contains some wetlands.

The appeals for tax years 1997 through 2000 were tried during the fall of 2001. The Tax Court judge placed his decision on those four appeals on the record on November 4, 2002. Although the 2001 and 2002 appeals were pending at that time, the judge did not address them. He found that the use of the property had not changed over the years from 1997 to 2000. He also found that Watkins had satisfied the income requirements for each year. The remaining questions to be decided were (1) whether the nature of the agricultural and horticultural activities conducted on the property qualified for farmland assessment and, if so, (2) whether those activities were conducted on at least five acres.

As to the first question, he found that the goats, sheep, chickens, and geese on the property were not exclusively maintained and fed in pens but were allowed to freely roam on the property for feeding and grazing purposes sufficient to permit the property to qualify for farmland assessments. Additionally, the property was used for the production of crops, fruit, ornamental shrubs, vegetables, decorative grasses, and other products that are raised on the land. He found that the evidence presented by defendants fairly preponderated over that which was presented by plaintiff.

The judge further found that the assessor understood the factors to consider in making her assessments and that she visited the property twice yearly. He found that she made a reasonable inspection and made proper assessments. He concluded that the opinions expressed by plaintiff's expert were less weighty than that of the assessor in light of their differing expertise. Thus, "the assessor's observations and conclusions establish[ed] the appropriate factual basis for allowance of the assessment."

Turning to the second question, the judge observed that no precise physical measurement was made by either party, nor did any surveyor testify. He observed that the house, pool, and other recreational areas used by the family and the water course that traversed the property had to be excluded from the farmland assessment. He observed that whether a full five acres remained for farmland was a close question. Nonetheless, he concluded that the assessor's observations established a factual basis for concluding that there were more than five acres utilized as farmland and that her testimony respecting same was entitled to more weight than that of the parties. Thus, he concluded that the property was entitled to the farmland assessments for tax years 1997, 1998, 1999, and 2000. The judgments for each of these tax years were not entered until June 22, 2007. No appeal was taken from any of these judgments.

January 2004 Motion to Vacate

After the judge's oral decision on November 4, 2002, plaintiff filed a series of motions, one of which was a January 26, 2004, motion*fn3 to vacate the decisions for tax years 1997-2002.*fn4 The Borough opposed this motion and Watkins cross-moved for summary judgment, which plaintiff opposed. The judge issued a written decision denying plaintiff's motion on February 25, 2004. He found that "this motion presents no question of law or fact not adequately considered at the time of the original decision" with respect to tax years 1997 through 2000. He scheduled the cross-motion for argument on March 26, 2004.

On that date, the judge observed that the appeals for tax years 2001, 2002, and 2003 were still open and were the subject of Watkins's summary judgment motion. Plaintiff did not object to the judge granting summary judgment for tax years 2002 and 2003 on the ground that the essential facts had not changed since the time of the trial covering tax years 1997 to 2000. As to tax year 2001, plaintiff urged that the application for a farmland assessment had not been timely filed. Watkins urged that it was timely filed, but plaintiff submitted an application dated August 16,*fn5 2001, which would have been untimely. The assessor was not available to resolve the issue, and the matter was carried to April 23, 2004.

On the rescheduled date, the judge observed that farmland assessment applications were required by N.J.S.A. 54:4-23.13 to be filed by August 1 of the year preceding the tax year for which the assessment was sought. The assessor submitted a certification which characterized the August 16, 2001, dating of the application as being a scrivener's error, which plaintiff did not accept. As a result, the matter was adjourned once again, this time for testimony on May 7, 2004.

At that time, the assessor testified that she was certain the form was transmitted with a letter from Watkins's husband and was received in a timely manner by August 1, 2000, but was unsigned. As a result, she contacted Watkins to come to the assessor's office to sign the application, at which time Watkins inadvertently forward-dated the application to August 16, 2001, when it should have been dated August 16, 2000.

The assessor testified that, after the form was signed, she went to Watkins Farm in August to inspect the property, after which she would have returned a countersigned copy to Watkins. She explained that it could not have been signed on August 16, 2001, because she would have sent the form to the Bergen County Board of Taxation (the Board) in January of 2001.

The judge determined that, when an application is timely filed on August 1 but signed on August 16 of the same year, it has been signed in a timely manner and is not ineffective. That, however, did not resolve the "troublesome" question about the year in which the application was signed.

Thereafter, the Bergen County Tax Administrator was called to testify and explained that the Board receives applications for farmland assessments by January 1 of the year for which the assessment is sought. The applications are then submitted to the Division of Taxation (the Division) by February 15 of the year for which the assessment is sought. By that time, the Board has received the tax lists for all municipalities in the county. However, the Tax Administrator does not compare the applications to the list to verify that he has applications for all properties assessed as farmland.

He further explained that once a farmland assessment application is received by the Division, the form is forwarded to the Department of Agriculture, which archives the forms. If the Division does not receive a farmland assessment application for a property listed on the tax rolls as farmland, the Division will send a letter to the Board advising it that the application for the property had not been received. He had no recollection of receiving such a letter about a farm in Closter. The Board does not question the timeliness of applications, accepting all applications that the assessors submit.

The parties then presented closing arguments, and the judge placed his decision on the record. Initially, he found that the burden of proving that the application was untimely rested on plaintiff because he was a third party contesting the assessment. Next, he credited the assessor's testimony and found that the unsigned application was timely filed on August 1, 2000. He then found that the application was actually signed on August 16, 2000, despite the inaccurate date, timely curing the defect in the application. Last, he found that plaintiff had not carried his burden of proving the application was untimely and granted Watkins's motion for summary judgment with respect to the tax year 2001. No order was entered at this time or for many years thereafter.

August 2005 Motion to Vacate

On August 22, 2005, still prior to the entry of judgments on the appeals for tax years 1997 to 2000, plaintiff filed another motion under Rule 4:49-2 to vacate the decision respecting those tax years and attached allegedly additional evidence to his supporting certification. He sought to raise disputes with respect to the true boundaries and total acreage of the property, reasserted a trial contention that a portion of the woodland has a fence precluding pasturage, and claimed that the property owners had not been candid with the court about the uses to which the property was put. The return date on this motion was September 23, 2005. The Borough objected that this motion was very similar to plaintiff's 2004 motion, which the judge had denied by letter opinion dated February 25, 2004.

On February 1, 2006, with the August 22, 2005, motion still undecided, counsel for plaintiff, David Golub, wrote to the judge arguing that woodlands and wetlands could not be included in pastureland. He attached an email dated January 27, 2006, from Susan Dobay at the Division's Local Property Tax/Policy & Planning, Property Administration, who advised:

The N.J. Department of Agriculture's position is that the first 5 acres of land should be at the carrying capacity for raising livestock or poultry on that land, depending on the animal and the management practice in use. . . .

Again, per Agriculture Dept., pasture area for livestock should be fenced. Agriculture also indicates that wooded areas generally are inappropriate as grazing land and may be particularly so for llamas. The area would need to be cleared and enclosed with fencing for proper pastureland.

Like the January 2004 motion to vacate, no order disposing of this motion was entered prior to entry of the judgments dated June 22, 2007.

January 2007 Motion for Summary Judgment

Plaintiff's next motion was filed on January 3, 2007, and sought summary judgment for tax years 1997-2003 and 2005-2006. The motion was returnable on February 2, 2007. In his supporting letter to the judge, he urged that the $1000 per acre assessment was a "high figure" generally associated with very productive cropland, but 3.2 acres of the land were primarily woodlands, which should have been assessed at $43 per acre. Even the pasture should have been assessed at $100 to $160 per acre. He urged that only cropland and pastureland qualified for the initial five acres of farmland. Yet, the assessor failed to submit required details to the Division pursuant to N.J.A.C. 18:15-14.6 when a valuation standard differs from those established by the State Farmland Evaluation Advisory Committee.

Plaintiff attached an email to the Division dated May 2, 2005, from "" respecting "Woods as Pasturage for Farmland Assess[ment]," which plaintiff contended was specific to the Watkins Farm. The writer posited that his client wanted to buy property to raise llamas, and the land had a three-acre meadow and a 2.5-acre woodland. The writer asked whether the woodland, where the llamas would graze, could be included with the meadow in pasturage to meet the five-acre minimum for a farmland assessment. Plaintiff also attached the January 27, 2006, response from Dobay that had been submitted to the judge by his attorney on February 1, 2006.

Plaintiff further urged that a constitutional issue existed in the deprivation of his right to contest a farmland, which is an exemption from taxation that must be strictly construed in favor of the taxing authority. He also contended that the assessor, who claimed to walk Watkins Farm, was ignoring waterways and wetlands, which cannot be included in pastureland, and that only the footprints of structures were deducted from the pastureland, even though some areas were used for family activities. He pointed out that the assessor took no measurements to determine actual pastureland, which was required where the total amount of property was so close to the minimum of five acres for farmland. He argued that someone in authority should investigate the assessor's acts when the Division's views were identical to those of plaintiff.

Additional exhibits to this motion were the Watkins Farm property record cards for 1997 through 2005; Watkins's application for 2005; Local Property Branch News, March-April, 1989, page 1; and the State Farmland Evaluation Advisory Committee report dated October 2004.

On February 1, 2007, counsel for the Borough wrote to the judge confirming that oral argument on various pending motions was not required on February 2, 2007. Those motions included plaintiff's August 2005 motion and, presumably, the motion plaintiff made returnable on February 2, 2007. The judge failed to enter orders disposing of these motions before entering the June 22, 2007, judgments affirming the farmland assessments for tax years 1997-2000.

When a judgment is entered disposing of a cause of action, such as the tax appeals here, it has the effect of denying all pending motions. As a consequence, the June 22, 2007, judgments disposed of the portion of the January 2004 motion to vacate relating to tax years 1997-2000; all of the August 22, 2005, motion to vacate; and the portion of the January 3, 2007, summary judgment motion that related to tax years 1997-2000, despite the judge's failure to timely enter orders ruling on those motions.

Because no appeals from the June 2007 judgments for tax years 1997-2000 were filed, the judgments became final and binding on the parties. See In re Estate of Pfizer, 6 N.J. 233, 239-40 (1951) ("As the respondents here did not perfect their appeal within time they are effectively and forever barred from seeking further relief and we are precluded from considering the case on the merits."). The October 30, 2009, order did not determine these motions. We have no jurisdiction over the issues raised by plaintiff in this appeal insofar as they concern those judgments and the motions preceding them. See ibid.

Once the June 2007 judgments were entered, the only matters remaining unresolved were (1) the portion of the January 26, 2004, motion to vacate relating to tax years 2001-02 and (2) the portion of the January 2007 summary judgment motion that related to tax years 2001-03 and 2005-06.

June 2007 Motion to Vacate

Once again, plaintiff filed a motion to vacate on June 28, 2007, with respect to tax years 1997 through 2000. This was a post-judgment motion to alter or amend a judgment pursuant to Rule 4:49-2.

In his letter to the judge, plaintiff argued that the portion of Watkins Farm that was used during tax years 1997 through 1999 for harvested cropland and the portion used for pastured cropland had differing values and should not have been valued equally at $1000 per acre, which was "a figure more indicative of very productive farmland." As such, "the assessor neglected to inform the Division of (1) such alternative land valuation methodology, N.J.A.C. 18:15-14.6, and (2) other farmland procedures, such as the arbitrary upgrading of land uses."

As to the first issue, plaintiff asserted that Watkins admitted that the applications were in error and should have been for permanent pasture rather than successive years of ornamental crops never planted. As to the 2000 tax year, plaintiff pointed out that the application indicated 1.8 acres as tillable and 3.2 acres in woodland. He urged that tillable land is valued at $936 per acre and woodland at $43 per acre, yet the Form FA-1 claimed "devotion to permanent pasture or grazing," which had higher values.

As to the second issue, plaintiff asserted that "[t]he present assessor admitted that [the] issue of 'land use upgrading' was never brought up to the Division," and the Division, in an email dated January 27, 2006, "stated that woodland has to be cleared into the state of proper pastureland, and wetlands are unacceptable for grazing." He urged that the right to a farmland assessment is strictly construed, and the assessor's acceptance of woodlands as pasture contravened N.J.S.A. 54:4-21*fn6 and -23.21; N.J.A.C. 18:15; and Van Vugt v. Pequannock Twp., 20 N.J. Tax 129, 136 (Tax 2002). Although this motion was returnable on July 20, 2007, there was no request for oral argument.

The Borough opposed the motion on July 2, 2007, and argued that plaintiff was not eligible for relief under Rule 4:49-2 because the judge had not expressed his decision based on a palpably incorrect or irrational basis and it was not obvious that he either did not consider or failed to appreciate the significance of probative, competent evidence. Watkins joined in this opposition. In reply, plaintiff reiterated his position without addressing the standards for reconsideration under Rule 4:49-2.

As with the prior motions, the judge failed to enter a timely order disposing of these motions. As a consequence, when the judge entered his omnibus order of October 30, 2009, under the docket numbers for the tax years 1997-2003, he disposed of the portion of the January 2004 motion to vacate relating to tax years 2001-02; the portion of the January 2007 summary judgment motion that related to tax years 2001-03; and the June 2007 motion to vacate with respect to tax years 1997-2000.

The judgments affirming the assessments for tax years 2001-03 were not entered until December 11, 2009. As a result, to the extent that the order dated October 30, 2009, denied the portion of the January 2004 motion to vacate relating to tax years 2001-02 and the portion of the January 2007 summary judgment motion that related to tax years 2001-03, the October 2009 order was not a final judgment appealable as of right. Rather, plaintiff was required to seek leave to appeal pursuant to Rule 2:5-6(a). Where leave to appeal has not been granted, we will not in most circumstances grant such leave nunc pro tunc. Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006) ("At a time when this court struggles to decide over 7,000 appeals a year in a timely manner, it should not be presented with piecemeal litigation and should be reviewing interlocutory determinations only when they genuinely warrant pretrial review." (citations omitted)). The denial of these two motions certainly does not warrant pretrial review. Thus, we are required to review only the denial on June 28, 2007, of the motion to alter or amend the judgments for tax years 1997-2000 entered six days earlier.

Rule 4:49-2 provides in pertinent part that such "motion[s] shall state with specificity the basis on which [they are] made, including a statement of the matters or controlling decisions which [the party] believes the court has overlooked or as to which it has erred." "Reconsideration is a matter within the sound discretion of the [c]court, to be exercised in the interest of justice." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990) (citations omitted); see also Capital Finance Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008). Reconsideration should not be sought merely because a litigant is dissatisfied with a judicial decision. Capital Finance Co., supra, 398 N.J. Super. at 310; D'Atria, supra, 242 N.J. Super. at 401.

Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence. Said another way, a litigant must initially demonstrate that the [c]court acted in an arbitrary, capricious, or unreasonable manner, before the [c]court should engage in the actual reconsideration process. The arbitrary or capricious standard calls for a less searching inquiry than other formulas relating to the scope of review. Although it is an overstatement to say that a decision is not arbitrary, capricious, or unreasonable whenever a [c]court can review the reasons stated for the decision without a loud guffaw or involuntary gasp, it is not much of an overstatement. The arbitrary, capricious or unreasonable standard is the least demanding form of judicial review. [D'Atria, supra, 242 N.J. Super. at 401-02; accord Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).]

"Reconsideration cannot be used to expand the record and reargue a motion." Capital Finance Co., supra, 398 N.J. Super. at 310. It "is designed to seek review of an order based on the evidence before the court" initially. Ibid. (citation omitted).

We may disturb the judge's decision on a motion to alter or amend a judgment only if we find error that was "'clearly capable of producing an unjust result.'" Casino Reinvestment Dev. Auth. v. Teller, 384 N.J. Super. 408, 413 (App. Div. 2006) (quoting R. 2:10-2). Of course, a trial court's interpretation of the law is subject to our de novo review as it is entitled to no deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Although plaintiff requested a transcript for October 30, 2009, none has been provided. We assume that none was available. Thus, the judge did not place his reasons for denying consideration on the record that day, nor did he issue a written opinion. Although we might ordinarily remand for a statement of reasons, the judge has since retired.

In order to permit meaningful review of plaintiff's motion to vacate the judgments for tax years 1997-2000, he was required to supply us with transcripts of the trial conducted in the fall of 2001 and to include in his appendix all of the documentary evidence submitted to the judge during that trial. He did not do so. Without that information, we cannot assess whether plaintiff was entitled to reconsideration of those judgments. Thus, we are required to affirm as we cannot decide this appeal on the merits.


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