NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 8, 2013
On appeal from the Tax Court of New Jersey, Docket Nos. 6330-2005, 6572-2006, 14025-2009, 19413-2010, 12312-2011.
Jesse Rosenblum, appellant, argued the cause pro se.
JoAnn Riccardi argued the cause for respondent Borough of Closter (Edward Rogan & Associates, attorneys; JoAnn Riccardi, on the brief).
David M. Watkins, attorney for respondent Beverly Ann Watkins, join in the brief of respondent Borough of Closter.
Before Judges Messano and Ostrer.
Upon cross-motions for summary judgment, the Tax Court granted the motion of the Borough of Closter (Borough) and property owner Beverly Ann Watkins (defendants), dismissing plaintiff's pro se complaint, which challenged the farmland assessment of Watkins's property for the years 2005, 2006, 2009, 2010 and 2011. Plaintiff appeals. Having carefully reviewed the record in light of the applicable legal principles, we reverse and remand.
A Closter resident, plaintiff previously filed numerous petitions challenging the farmland assessment of Watkins's 5.45-acre property. Located in a residential district, the property is bordered to the east by the 150-acre Closter Nature Center; to the west and south by single family homes; and to the north by Dwars Kill. More than half of the property consists of dense woodlands, and the property contains some wetlands. It is also bisected by a brook running north to south. Improvements include a single-family home, a three-car garage with a loft, a barn, a circular paver driveway, a pool and a cabana. Broad lawns and shrubs surround the house, which are bounded by the circular driveway.
The property was purchased by Watkins (and her husband, who later transferred his interest to his wife) in 1989 for $1.1 million. The previous owners had not used it as a farm. Watkins claimed and received a farmland assessment shortly after she acquired the property. The judgment of the Bergen County Tax Board (County Board) for the 2005 tax year assessed the farmland at $1800, and the single family residential property at $541, 700 (consisting of $90, 000 for land, and $451, 700 for improvements). The record includes an undated advertisement, listing the house for sale for $2, 249, 000.
In the application for the 2005 tax year, the landowner certified that .8 acres were devoted to cropland. The reported farm activity included .4 acres for bedding plants; .4 acres of apples; and .8 acres for vegetables, consisting of .4 acres for eggplant, .2 acres of peppers, and .2 acres of white potatoes. Although this itemized activity totaled 1.6 acres, the applicant is required to include "double cropping." The form explains, by way of example, that "two plantings on fifty acres should be reported as 100.0 acres." The landowner claimed 4.59 acres as permanent pasture, but reported no livestock.
For the 2010 tax year, the landowner certified that 1.8 acres were cultivated, although she itemized only 1.6 acres: .5 acres for bedding plants; .4 acres of apples; and .7 acres for vegetables, consisting of .1 acre of lettuce, .2 acres for squash, and .4 acres of tomatoes. The landowner claimed 3.59 acres as permanent pasture, and claimed nine sheep and thirty egg-laying chickens. The report of agricultural activity was unchanged in the application for 2011, except the landowner claimed six sheep and forty chickens. It is undisputed that most, if not substantially all, of the claimed permanent pasture consists of woodlands, and not cleared land. Defendants maintain that this is permissible because they claim the livestock graze in the woodlands.
Farm activity differed during the years preceding those at issue in this appeal. Those previous years are relevant because the municipality argues, as we discuss at length below, that the grant of a farmland assessment for years 1997 through 2000, approved by the Tax Court in a 2002 decision, has preclusive effect on the instant appeal. For the 1999 tax year, the landowner claimed eleven goats, 250 chickens, twelve geese and 3.59 acres of cropland pastured. She claimed 1.8 acres of cropland harvested, but itemized only 1.5 acres — .1 acres of apples; .2 acres of bedding plants; .2 acres of shrubs; .4 acres of lettuce; .2 acres of peas, .2 acres of potatoes, and .2 acres of melons. For the 1997 tax year, she claimed 4.1 acres of cropland harvested, and one acre of cropland pastured, however, the reported livestock and crop activity were the same as reported two years later.
The landowner certified in 2011 that the use of her property had been unchanged since the court's previous decision — apparently referring to the 2002 decision. "The use of my property has been the same for the years which were previously decided by the Tax Court. . . . I have continued to utilize the property farm [sic] raising animals and produce." The landowner filed an identical certification in 2006.
In connection with the cross-motions for summary judgment in 2011, plaintiff submitted two letter briefs, a statement of material facts and a supporting certification dated August 4, 2011, accompanied by numerous exhibits (although not all are included in the record before us). Plaintiff argued that the landowner overstated the area devoted to agricultural use. He asserted that the stream that bisected the property, which he claimed occupied .2 acres, should have been subtracted from the total area allegedly devoted to agricultural use. He contended that the lawns totaling .39 acres should have been excluded as well. He presented photographs to reflect that the woodland was at least partially unenclosed by fencing. He challenged the landowner's claim about the size of the area devoted to vegetables and bedding plants.
Plaintiff also questioned the allocation of woodlands and wetlands as permanent pasture. He challenged counting the wetlands as land devoted to agricultural use because he asserted grazing on wetlands was barred by law. He argued that woodlands could not be considered permanent pasture, citing an email from a person at the Division of Taxation stating, "wooded areas generally are inappropriate as grazing land and . . . would need to be cleared and enclosed with fencing for proper pastureland." The Division email also advised that the first five acres of land "should be at the carrying capacity for raising livestock or poultry on that land[.]"
We have discussed at length, and we shall not recount here, "the tangled procedural web, " which resulted from the Tax Court's failure to timely enter orders, involving plaintiff's challenge to the farmland assessments for years 1997 through 2003. Rosenblum v. Borough of Closter, No. A-1696-09 (App. Div. Mar. 30, 2011). However, we shall summarize the prior procedural history, as defendants urge us to apply principles of issue and claim preclusion based on those prior proceedings.
Suffice it to say, as a result of plaintiff's procedural omissions, we did not address the merits of the Tax Court's decisions regarding assessments for 1997 through 2003. The Tax Court entered judgment in 2007, after a 2001 trial and the 2002 decision, affirming assessments for tax years 1997 through 2000. Id. at slip op. 5, 13. Plaintiff did not directly appeal those judgments, but later moved to amend them. The Tax Court denied the motion. Plaintiff appealed from that denial, and we affirmed, noting plaintiff was precluded from obtaining meaningful review by failing to supply transcripts of the 2001 trial and documentary evidence. Id. at 18-19.
The Tax Court also affirmed the farmland assessments for 2001 through 2003 upon motion, without a trial, by order entered in December 2009. Id. at 16. However, plaintiff did not appeal from the final judgment. Instead, he had appealed, without leave, from an earlier interlocutory order entered October 2009. We declined to grant leave nunc pro tunc. Thus, there was no appellate review of the 2009 judgment affirming the assessments for 2001 through 2003. Id. at 18.
Turning to the instant appeal, over the course of several years, plaintiff filed complaints with the Tax Court challenging the tax assessments for 2005 and 2006 and 2009 through 2011, after unsuccessful appeals to the County Board. The landowner inadvertently did not apply for a farmland assessment in 2008. The parties filed cross-motions for summary judgment. After argument on October 20, 2011, the court, by a new judge, issued an oral decision, and on January 31, 2012, entered separate judgments dismissing plaintiff's complaints as to the six years.
As the judge's 2011 decision rested substantially on the 2002 trial decision of his predecessor, we first review that prior decision. In its 2002 decision, the court rejected plaintiff's claim that less than five acres were actively devoted to agricultural activity. See N.J.S.A. 54:4-23.2. The court found that the landowner met the income requirements of the statute. See N.J.S.A. 54:4-23.5.
The court also found that the woodland acreage was properly counted toward the five-acre minimum because livestock was permitted to graze there.
I find that the facts demonstrate[d] . . . by a fair preponderance that the livestock that is maintained on the property, the goats and chickens and geese and I think there may have been sheep in one or more of the years as well are not exclusively maintained in pens and fed in pens but are allowed to freely roam on the property and that the free roaming of the livestock throughout the property for . . . feeding and grazing purposes is sufficient to permit . . . the given property to qualify for farmland assessment.
The court expressed concern that there was evidence that the woodlands were partially unfenced. But, the court ultimately relied on the assessor, who "made a reasonable inspection of the property" and testified that "there were agricultural uses" on over five acres. The court rejected the opinion of an expert plaintiff presented who apparently opined that inclusion of the woodlands as pastureland was inappropriate.
The court also rejected plaintiff's argument that even if the woodlands were permissibly counted, the total agricultural acreage was less than five acres. Neither party presented a survey or a precise measurement of the land mass devoted to agriculture. The court concluded that the requisite acreage was established, based on the assessor's opinion.
So on the issue of whether or not the areas that should appropriately be excluded from agricultural use, such as the house and the pool and the other recreational areas used by the family members the [water] course which traverses the property and which should be treated as an appurtenant property rather than an actively cultivated property, meaning that there has to be 5 acres independent of the water course, whether all of those areas amount to a sufficient extent as to leave less than 5 acres under active cultivation was a closely litigated and was a vigorously litigated and somewhat close question. But as I say neither party or no party produced actual physical measurements. All of the ultimate conclusions as to whether or not more or less than 5 acres was actively devoted to agricultural purposes depended upon approximate — depended upon approximations based upon observation. And here, again, I am satisfied that the assessor's observations based upon her responsibility to make these determinations and her employment to do so in this and several other taxing districts establishes a factual basis for concluding that there are more than 5 acres utilized so as to preponderate over the testimony of the other parties.
In the 2011 decision granting defendants summary judgment, the court defined plaintiff's argument to be: "one, there's less than five acres on the Defendant's property that are devoted to farmland activities and two, Watkins improperly categorized woodland as permanent pasture on her farmland application." The court credited the landowner's 2011 certification that the use of her property had been unchanged since the court's previous decision. The court concluded that plaintiff had not presented any cognizable evidence to dispute the landowner's claim, referring only to a 2005 certification, and not addressing his submissions in 2011.
The court also found that the 2002 decision precluded relitigation of whether woodlands could be counted as grazing lands devoted to agricultural use. The court also gave preclusive effect to the determination that the five-acre requirement was satisfied.
[The judge in 2002] further found that the goats, sheep, chickens, 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 ...