ALCATEL-LUCENT USA INC. VS. TOWNSHIP OF BERKELEY HEIGHTS (TAX COURT OF NEW JERSEY)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0743-16T1

ALCATEL-LUCENT USA INC.,

Plaintiff-Appellant,

APPROVED FOR PUBLICATION

v. July 18, 2019

APPELLATE DIVISION

TOWNSHIP OF BERKELEY

HEIGHTS,

Defendant-Respondent.

_____________________________

Submitted March 6, 2019 – Decided July 18, 2019

Before Judges Fuentes, Vernoia and Moynihan.

On appeal from the Tax Court of New Jersey, Docket

No. 6661-2015.

Riker Danzig Scherer Hyland & Perretti LLP,

attorneys for appellant (Stuart M. Lederman, of

counsel and on the brief; Rudy Randazzo, on the

brief).

DiFrancesco, Bateman, Kunzman, Davis, Lehrer &

Flaum, PC, attorneys for respondent (Sandra Belli, on

the brief).

The opinion of the court was delivered by

MOYNIHAN, J.A.D.

Plaintiff Alcatel-Lucent USA Inc. (Alcatel),1 is the owner of real

property in the Township of Berkeley Heights on which is located its North

American headquarters. The Tax Court found there are approximately 1.5

million square feet of improvements on the 153.4 acre Berkeley Heights

property – of which Alcatel contends 53 acres are woodlands – designated on

the Township's tax map as block 3701, lot 1. 2 Alcatel appeals from that

portion of the Tax Court's order, later confirmed as a final judgment,

dismissing its complaint that challenged the Township's 2015 denial of a

farmland assessment for the woodlands portion of the property because Alcatel

failed to respond to a request sent by the Township's tax assessor pursuant to

1

The property was conveyed by Lucent Technologies, Inc. (Lucent) to LTI NJ

Finance LLC (LTI), which simultaneously entered into a twenty-year

agreement with Lucent, the sole member of LTI, pursuant to which Lucent was

considered the "beneficial owner." Lucent merged with Alcatel, a French

company, in 2006, to form Alcatel-Lucent USA Inc. The agreement between

LTI and Lucent was terminated in 2013 and LTI was merged into Alcatel. We

are informed by Alcatel's merits brief that it is now known as "Nokia."

2

Alcatel contends in its merits brief there are approximately 1.2 million

square feet of improvements on 151 acres. A 2010 Forest Management Plan

prepared for LTI indicates the total property – including that extending into the

neighboring Borough of New Providence – "encompasses 195.63 acres, of

which 57.27 acres are woodland. The balance of the property consists of

138.36 acres associated with the [Alcatel] corporate campus." The

discrepancy between those measurements and those found by the Tax Court

judge have no bearing on our decision.

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N.J.S.A. 54:4-34. Following our de novo review, we affirm substantially for

the reasons set forth in Judge Joshua D. Novin's cogent written opinion.

N.J.S.A. 54:4-343 requires, in part, every real property owner, "on

written request of the assessor . . . [to] render a full and true account of his

name and real property and the income therefrom, in the case of income -

producing property." The Township's tax assessor forwarded by certified mail,

return receipt requested, a Chapter 91 request for income and expense data to:

Block: 3701 Lot: 1 4A

Property Location:

600 MOUNTAIN AVENUE

BERKELEY HEIGHTS, NJ

ALCATEL-LUCENT USA/ATN.CORP.COUNSEL

600 MOUNTAIN AVE-REAL EST

MURRAY HILL, NJ 07974

It is undisputed that Alcatel received and did not respond to the Chapter 91

request. Fifty-four days after the Township sent the Chapter 91 request, LTI

submitted an application for farmland assessment, a woodland data form and a

Forest Management Plan to the assessor seeking an assessment for the 2015

tax year pursuant to the Farmland Assessment Act of 1964 (the Act), N.J.S.A.

54:4-23.1 to -23.23, for the woodland portion of the property. The assessor

denied the application asserting the "[a]gricultural use is not [dominant] use."

3

The statute is commonly referred to as "Chapter 91" because the Legislature

last amended it with L.1979, c. 91, § 1. Cascade Corp. v. Twp. of Middle, 323

N.J. Super. 184, 185, n.* (App. Div. 1999).

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Judge Novin dismissed Alcatel's complaint challenging the denial

pursuant to that portion of Chapter 91 that provides that if the property owner

fails or refuses

to respond to the written request of the assessor within

45 days of such request . . . the assessor shall value his

property at such amount as he may, from any

information in his possession or available to him,

reasonably determine to be the full and fair value

thereof. No appeal shall be heard from the assessor’s

valuation and assessment with respect to income-

producing property where the owner has failed or

refused to respond to such written request.

[N.J.S.A. 54:4-34.]

Alcatel contends the Tax Court erred in: extending the application of the

Chapter 91 preclusion penalty to its farmland assessment appeal; applying the

Chapter 91 preclusion penalty to the woodland property because it is not

income producing; and formulating a new rule that misinterprets our prior

holding and undermines the legislative purpose of Chapter 91 and the Act. It

also argues that technical deficiencies in the Township's Chapter 91 request

bar preclusion of its claim. 4

4

Alcatel does not contest the dismissal – also based on its failure to respond

to the Chapter 91 request – of its complaint challenging the 2015 tax

assessment of the entire property. See H.J. Bailey Co. v. Neptune Twp., 399

N.J. Super. 381, 382-83, 386 (App. Div. 2008) (holding, although owners of

both income-producing and non-income-producing properties must respond to

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Although our review of a Tax Court decision is deferential, Estate of

Taylor v. Dir., Div. of Taxation, 422 N.J. Super. 336, 341 (App. Div. 2011),

because "judges presiding in the Tax Court have special expertise," Glenpointe

Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 46 (App. Div. 1990), we

review a Tax Court's legal determinations de novo, United Parcel Serv. Gen.

Servs. Co. v. Dir., Div. of Taxation, 430 N.J. Super. 1, 8 (App. Div. 2013),

aff'd, 220 N.J. 90 (2014). "Statutory interpretation involves the examination of

legal issues and is, therefore, a question of law subject to de novo review."

Saccone v. Bd. of Trs. of Police & Firemen's Ret. Sys., 219 N.J. 369, 380

(2014); see also Twp. of Holmdel v. N.J. Highway Auth., 190 N.J. 74, 86

(2007).

Our goal in interpreting Chapter 91 and the Act, especially since they

deal with "taxation or exemption therefrom," is to determine and effectuate the

Legislature's intent. Pub. Serv. Elec. & Gas Co., v. Twp. of Woodbridge, 73

N.J. 474, 478 (1977). "[T]he best approach to the meaning of a tax statute is to

give to the words used by the Legislature 'their generally accepted meaning,

unless another or different meaning is expressly indicated.'" Ibid. (quoting

N.J. Power & Light Co. v. Twp. of Denville, 80 N.J. Super. 435, 440 (App.

an assessor's Chapter 91 request, the appeal preclusion provisions apply only

to owners of income-producing properties who fail to respond to a request).

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Div. 1963)). We seek "further guidance only to the extent that the

Legislature's intent cannot be derived from the words that it has chosen."

Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264 (2008).

Our Supreme Court noted the "clear and unambiguous" language of

N.J.S.A. 54:4-34 precludes a taxpayer who fails to make any response to a

Chapter 91 request from pursuing an appeal.5 Ocean Pines, Ltd. v. Borough of

Point Pleasant, 112 N.J. 1, 7, 9 (1988); see also Lucent Technologies, Inc. v.

Twp. of Berkeley Heights, 201 N.J. 237, 248 (2010). We recognized in SKG

Realty Corp., v. Township of Wall, 8 N.J. Tax 209, 211 (App. Div. 1985), the

purpose of Chapter 91's mandatory response provision "is to afford the

assessor access to fiscal information that can aid in valuing the property. The

purpose of the provision outlawing appeals by non-responding owners is to

encourage compliance with the accounting requirement." As we noted in H.J.

Bailey, 399 N.J. Super. at 387, the Court in Ocean Pines recognized the need

for such compliance was necessitated by "the difficulties faced by tax

assessors when property owners fail or refuse to respond to reasonable

requests for information,"

5

Even if the taxpayer is precluded from appealing, the assessor's valuation is

still subject to the court's review of the data considered and the methodology

used by the assessor at a reasonableness hearing. Ocean Pines, 112 N.J. at 11.

Final judgment was entered in this matter after Alcatel waived its right to that

hearing.

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the very problem that [Chapter 91] was designed to

remedy. It is the local tax assessor, and not the county

board or Tax Court, that is charged with the

responsibility of valuing and assessing real property.

If the economic data are to be of any use in the

valuation process, they must be submitted in timely

fashion to the assessor, and not to a tribunal on a

subsequent appeal.

[Ocean Pines, 112 N.J. at 7-8 (citation omitted).]

We reject Alcatel's argument that the Act provides the sole framework

for assessing farmland properties, and that Chapter 91 has no applicability.

That parochial view ignores a more global view of tax assessments that was

recognized by the Court in McMahon v. City of Newark, 195 N.J. 526, 541

(2008):

Taxation of real property in New Jersey is of

constitutional dimension. In addition to requiring that

"[p]roperty shall be assessed for taxation under

general laws and by uniform rules[,]" N.J. Const. art.

VIII, § 1, ¶ 1(a), New Jersey's Constitution requires

that "[a]ll real property assessed and taxed . . . shall be

assessed according to the same standard of value,

[and] shall be taxed at the general tax rate of the

taxing district in which the property is situated, for the

use of such taxing district." Ibid.

A comprehensive statutory scheme seeks to

implement that constitutional mandate. Thus, the

Legislature has required that all real property taxes in

New Jersey be assessed annually at the local or

municipal level. See N.J.S.A. 40A:9-146 (requiring

that municipal governing body or chief executive

"shall provide for the appointment of a tax assessor

and such deputy tax assessors as it may determine

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necessary"); N.J.S.A. 54:4-23 (providing that "[a]ll

real property shall be assessed to the person owning

the same on October 1 in each year").

[(alterations in original).]

Pursuant to that statutory scheme, a tax assessor is mandated to "make a

list in tabular form of the names of the owners . . . of each parcel . . . and the

taxable value of each parcel as determined by him." N.J.S.A. 54:4-24; see also

Young v. Bergen Cty. Bd. of Taxation, 5 N.J. Tax 102, 106 (Tax 1982).

Assessors are obliged to keep the tax rolls current by assessing each property

at its full and fair value each year. Regent Care Ctr., Inc. v. Hackensack City,

362 N.J. Super. 403, 415 (App. Div. 2003). Even tax exempt properties must

be valued as if they were not exempt. N.J.S.A. 54:4-27; Cascade, 323 N.J.

Super. at 188. "Once a tax assessor completes the assessments for the

municipality, the assessment roll is submitted to the county board of taxation

and, based in part on the assessments provided by all assessors in that county,

the county board sets the tax rate for the municipality." McMahon, 195 N.J. at

542 (citations omitted).

The Act is part of the warp and weft woven into a comprehensive tax

scheme created by the Legislature which we determine must be viewed, not

separately, but in pari materia with Chapter 91. We thus heed the Court's

prescription that

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[s]tatutes must be read in their entirety; each part or

section should be construed in connection with every

other part or section to provide a harmonious whole.

When reviewing two separate enactments, the Court

has an affirmative duty to reconcile them, so as to give

effect to both expressions of the lawmakers' will.

Statutes that deal with the same matter or subject

should be read in pari materia and construed together

as a unitary and harmonious whole.

[In re Petition for Referendum on Trenton Ordinance

09-02, 201 N.J. 349, 359 (2010) (citations omitted).]

The Act implemented a 1963 amendment to our Constitution 6 that

responded to the Court's ruling in Switz v. Kingsley, 37 N.J. 566 (1962), which

declared unconstitutional a statute that prohibited the inclusion of "prospective

value for subdivisions or nonagricultural use" in the assessment of land

devoted to agricultural use, L. 1960, c. 51, § 23. The Act mandates that land

devoted to agricultural or horticultural uses, that otherwise meets statutory

requirements, be valued for those uses. N.J.S.A. 54:4-23.2.

"The primary purpose of the Act . . . was to preserve the 'family farm'

by providing farmers with some measure of economic relief by permitting

farmland to be taxed on its value as a continuing farm and not on any other

basis." Hovbilt, Inc. v. Twp. of Howell, 138 N.J. 598, 619 (1994) (quoting

Urban Farms, Inc. v. Twp. of Wayne, 159 N.J. Super. 61, 67 (App. Div.

6

N.J. Const. art. VIII, § 1, ¶ 1(b).

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1978)). Incidental benefits that were significant factors in the passage of the

Constitutional amendment were "maintenance of open spaces and the

preservation of the beauty of the countryside." Ibid.

As Judge Novin recognized, the assessment of farmland pursuant to the

Act is analogous to a tax exemption. Soc'y of the Holy Child Jesus v. City of

Summit, 418 N.J. Super. 365, 378 (App. Div. 2011); see Cheyenne Corp. v.

Twp. of Byram, 248 N.J. Super. 588, 592 (App. Div. 1991). The Act's

favorable tax rates "favor[] certain taxpayers at the expense of the remaining

taxpayers in the taxing district," Dep't of Envtl. Prot. v. Franklin Twp., 3 N.J.

Tax 105, 119 (Tax 1981), aff'd o.b., 5 N.J. Tax 476 (App. Div. 1983),

diverging from the tenet that "[a]ll real property within New Jersey is subject

to taxation unless expressly exempted by the Legislature," N.J. Highway

Auth., 190 N.J. at 87 (citation omitted). Contrary to Alcatel's argument that

tax laws are to be construed against the State, the preferential treatment

accorded owners of assessed farmland, although derived from a Constitutional

amendment, requires strict construction against the party claiming the tax

benefit. See Pruent-Stevens v. Toms River Twp., 458 N.J. Super. 501, 514

(App. Div. 2019) (holding doubts regarding a statutory veteran's property tax

exemption, stemming from Article VIII, Section 1, Paragraph 3 of the New

Jersey Constitution, are resolved against the party seeking the exemption).

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Considering these statutes together, we conclude Judge Novin did not err

in applying our holding in Cascade when he dismissed Alcatel's complaint. If

the judge created a new rule of law as Alcatel contends, it is a good one,

especially apropos where a portion of the property is not subject to preferential

tax treatment.

Judge Novin recognized that, in Cascade, we held the owners of income-

producing properties must respond to a Chapter 91 inquiry even if the owner

claims the property is exempt. 323 N.J. Super. at 189. We reasoned,

[i]f the tax assessor denies the exemption, he or she

must be prepared to go on to make an appropriate

assessment in a timely fashion, subject, of course, to

judicial review. The submission of Chapter 91 data

permits the assessor to discharge his or her overall

responsibilities based upon current information

regarding income-producing property. If the data can

be withheld pending separate evaluation of the

exemption claim, assessors may well be impeded in

discharging their essential functions as required by

law. Certainly, they will be delayed, at least to some

extent, as they become involved in two proceedings

rather than one.

[Ibid.]

The assessor's need for data "is essential" where the property may be

partially free from full assessment in order to determine what portion is fully

taxable. Ibid. Split-use property may or may not qualify for special treatment

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such as a farmland assessment. Twp. of Wantage v. Rivlin Corp., 23 N.J. Tax

441, 448 (Tax 2007).

[I]f the separated or split off portion of the lot is

appurtenant to agricultural activities on the balance of

a tax lot, reasonably required for the maintenance of

those activities, and used for the benefit of the

agricultural activities, then the separated or split off

portion of the tax lot will qualify for farmland

assessment as will the remainder of the lot. If,

however, a portion of a tax lot is used for

"independent commercial operations not conducted for

the benefit of the farm or the farmer but as a

completely separate business activity," then that

portion of the tax lot cannot qualify for farmland

assessment even if the non-farming use is not the

predominant use of the entire lot.

[Ibid. (citation omitted) (quoting Wiesenfeld v. Twp.

of S. Brunswick, 166 N.J. Super. 90, 95 (App. Div.

1979)).]

Depending on the assessor's determination regarding the applicability of

an exemption, he would, if provided with the Chapter 91 information, be able

to assess the property for tax purposes without delay. Cascade, 323 N.J.

Super. at 188-89. The property owner's response to the Chapter 91 request

would "assist the assessor in the first instance, to make the assessment and

thereby . . . avoid unnecessary expense, time and effort in litigation." Ocean

Pines, 112 N.J. at 7 (quoting Terrace View Gardens v. Twp. of Dover, 5 N.J.

Tax 469, 471-72 (Tax 1982), aff'd o.b., 5 N.J. Tax 475 (App. Div. 1983)).

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Inasmuch as the Chapter 91 data is essential to the valuation of a split -

use property, and, in turn, to the fulfillment of the assessor's statutory duties

for the entire municipality, we agree with Judge Novin that the statute's

preclusion provision should be applied to owners who fail to respond to the

assessor's request. As the judge astutely noted, the Legislature, which enacted

Chapter 91 with full knowledge of its farmland legislation, "did not carve out

exceptions for any property owner group or property class." See Twp. of

Mahwah v. Bergen Cty. Bd. of Taxation, 98 N.J. 268, 279 (1985) (holding the

Legislature "is presumed to have been aware of existing legislation" when it

adopts a statute). Judge Novin also concluded,

to render a request for information under Chapter 91

inapplicable or irrelevant before a property tax

assessment has been fixed, or before a property has

qualified for preferential farmland assessment, or

before a property has been determined wholly or

partially exempt from taxation, would be

counterproductive to the very goals Chapter 91 sought

to achieve.

The judge's logic comports with our holding in Cascade, 323 N.J. Super

at 190:

Simply enough, assessors, in order to do their jobs in

every particular, must be seen to possess the authority

to require the production of the data sought here. The

Legislature has recognized this, imposing, as the cost

of non-compliance, waiver of the right to appeal a

valuation and assessment arrived at by the assessor in

an exercise of his or her best judgment in the absence

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of the information required, which is, after all, in the

possession and control of the property owner.

"In any event, the taxpayer cannot just sit by and do nothing until the

assessment is finalized, as this taxpayer did, and thereafter seek to appeal the

assessment by plenary review. Such conduct results in 'unnecessary expense,

time and effort in litigation.'" Tower Ctr. Assocs. v. Twp. of E. Brunswick,

286 N.J. Super. 433, 438-39 (App. Div. 1996) (quoting Terrace View Gardens,

5 N.J. Tax at 471-72). As we said in H.J. Bailey, 399 N.J. Super. at 389,

property owners who fail to respond to Chapter 91 requests run "the risk that

the property will ultimately be found to be income-producing. In such a case,

the taxpayer's appeal would properly be limited under Ocean Pines." (footnote

omitted).

Preclusion of claims does not hinder any of the Act's objectives. Those

property owners who comply with Chapter 91's mandate will, if the property

qualifies, enjoy the benefits of a reduced assessment. Application of the

preclusion provision, however, fosters compliance with Chapter 91 so as to

ensure properties are expeditiously and fairly assessed for all taxpayers.

We are unpersuaded by Alcatel's argument that preclusion was improper

because the property was not income-producing as it was "not rented or

leased." Once more, Alcatel attempts to segregate the woodland property from

the entire tract which is delineated on one tax map lot. As we have already

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determined, Alcatel was required to respond to the Chapter 91 request for the

entire lot in order for the assessor to properly value same.

Alcatel argued to the Tax Court that because it did not market the

property for rent or seek outside occupants or tenants, any leases "were not

entered into to generate income" and were de minimus in nature serving only

as business accommodations to service providers. Judge Novin, however,

concluded that Alcatel received rent for leased space and the property was thus

income-producing. The judge's findings were based on: a letter sent by

Alcatel's managing corporate counsel in response to a 2013 Chapter 91

request7 in which counsel admitted Alcatel received rent from a company that

occupied over 17,000 square feet of a building located on the property; other

documents submitted by counsel to the Township with his letter that identified

other subtenants of the building; and Alcatel's brief to the Tax Court that

acknowledged, as Judge Novin found, "the 'only "income" received [by

Alcatel] is from certain license and lease agreement[s] for less than [one

percent] of the [p]roperty and for which [Alcatel] received inconsequential

7

Judge Novin considered the Township's motions to dismiss Alcatel's 2014

and 2015 tax complaints and 2014 and 2015 farmland assessment complaints;

he thus considered evidence relating to the year prior to the case under review.

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license fees and rent.'" (second alteration in original). We agree with the

judge's supported conclusion that the property was income-producing.

Alcatel contends the woodland property was not income-producing. As

stated, if that assertion was accurate, Alcatel would still be obligated to

respond to the Chapter 91 request prior to a determination of its farmland

assessment application in order to ensure that the assessor could readily value

the property no matter the outcome of the application. 8

Further, Alcatel's claim that the woodlands property is not income

producing is belied by the documents that accompanied its application. The

Forest Management Plan indicates, "[m]anagement will work to improve the

quality, health and vigor of the forest, and will additionally aid in the

generation of periodic income from the harvest and sale of wood products"; the

generation of income was also listed as one of the objectives of the plan. The

plan also delineated the yield in terms of board feet and cords for all but two of

the ten stands of trees located in the woodland. Part of the proposed plan

called for the select harvest of trees for timber, the timing of which "will be

[dependent] on the owners' objectives and markets for timber products" and

8

Whether the woodland portion of the property meets the statutory criteria for

a farmland assessment, N.J.S.A. 54:4-23.2 to -23.6, or is disqualified because

agriculture is not the predominant use, see City of E. Orange v. Twp. of

Livingston, 102 N.J. Super. 512, 535-37 (Law Div. 1968), aff'd, 54 N.J. 96

(1969), is not before us. We, therefore, do not address that issue.

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firewood; and that "[w]ood should continue to be sold as firewood or other

wood products, such as mulch and chipwood." The plan concluded that "[t]he

productivity of this woodland can meet the fiscal requirement of the Farm Tax

law," a seeming reference to the requirement that the property generate a

minimum amount of "yearly gross sales, payments, fees, and imputed income"

in order to qualify for a farmland assessment, N.J.S.A. 54:4-23.5(a).

Moreover, the woodland data form sets forth a dollar amount under the

"[i]ncome received" section for the commercial harvest of forest products.

We determine Alcatel's argument – the application of Chapter 91's

preclusion provision is inequitable because the Township failed to: "properly

identify the property for which it was seeking a response"; "identify the

specific information it required"; and "identify the time frame for which the

information was necessary" – is without sufficient merit to warrant discussion

in this opinion. R. 2:11-3(e)(1)(E). We add only that Alcatel received the

same request the year prior, to which its counsel responded, albeit by letter.

And this is not the case where an unsophisticated property owner may have

been confused by an ambiguous request. See ML Plainsboro Ltd. P'ship v.

Twp. of Plainsboro, 16 N.J. Tax 250, 257 (App. Div. 1997). Further, the

Township's submissions to Alcatel – the request letter for "income and expense

data," copy of N.J.S.A. 54:4-34, "Annual Statement of Business Income and

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Expenses Commercial Properties" form, "Instructions for Completion of

Schedule A" form, and a rental schedule form titled "Schedule A" – provided

sufficient information to compel Alcatel to respond in whole or part or at least

pose any questions or complaints about deficiencies; it could not, as it did,

"just sit by and do nothing." Tower Ctr., 286 N.J. Super. at 438.

We perceive no reason why Chapter 91's preclusion should not apply to

Alcatel's farmland assessment complaint and affirm Judge Novin's dis missal.

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