FARMLAND DAIRIES, INC. VS. BOROUGH OF WALLINGTON (TAX COUNRT OF NEW JERSEY)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 13, 2017
• Docket: A-3523-16T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3523-16T4

FARMLAND DAIRIES, INC.,

Plaintiff-Respondent,

v.

BOROUGH OF WALLINGTON (Bergen County),

Defendant-Respondent. ___________________________

DONALD NUCKEL,

Appellant. ___________________________

Argued October 30, 2017 – Decided November 13, 2017

Before Judges Sabatino, Whipple and Rose.

On appeal from the Tax Court of New Jersey, Docket Nos. 009501-2014, 004801-2015, and 002499-2016.

Arthur N. Chagaris argued the cause for appellant (Beattie Padovano, LLC, attorneys; Mr. Chagaris, of counsel and on the briefs; Martin R. Kafafian and Mariya Gonor, on the briefs).

Peter L. Davidson argued the cause for respondent Farmland Dairies, Inc. (The Davidson Legal Group, LLC, attorneys; Mr. Davidson, on the brief). Paul M. Elias argued the cause for respondent Borough of Wallington (Bittiger Elias & Triolo, PC, attorneys; Mr. Elias, of counsel and on the brief; Michael C. Feinberg, on the brief).

PER CURIAM

Donald Nuckel, the owner of several properties in the Borough

of Wallington, appeals from the Tax Court's opinion (published at

29 N.J. Tax 310 (Tax 2016)), denying his motion to intervene

pursuant to Rule 4:33-1 in a pending Tax Court case involving

another property in the Borough owned by Farmland Dairies, Inc.

Nuckel wishes as an intervenor to assert a counterclaim

against Farmland alleging that the assessments of Farmland's

property for various years were too low. Notably, the Borough

unsuccessfully attempted to pursue such a claim of underassessment

against Farmland earlier in its own counterclaim, which was

dismissed as untimely.

Among other things, Nuckel contends that the Tax Court

misapplied legal principles, including the statute of limitations

and the "relation back" doctrine. Nuckel also argues that the Tax

Court failed to address his alternative claim for permissive

intervention under Rule 4:33-2.

The Borough and Farmland oppose these arguments. They assert

that it is inappropriate to allow another taxpayer such as Nuckel

to intervene after the expiration of the strict statute of

2 A-3523-16T4 limitations for contesting local property tax assessments. See

N.J.S.A. 54:3-21. They further contend that granting a third

party such intervention status will unduly interfere with the

ability of a local government and a property owner to settle their

disputes, since the intervenor would possess "veto power" over

settlement as a party to the case.

We were advised at oral argument that the underlying

litigation remains open in the Tax Court, apparently due in part

to the pendency of Nuckel's present appeal. Discovery has not yet

been completed.

Having duly considered the parties' competing arguments, we

affirm the Tax Court's denial of a right to intervene under Rule

4:33-1, substantially for the cogent and well-supported reasons

expressed in Tax Court Judge Kathi F. Fiamingo's June 21, 2016

published opinion. Nuckel has no right under Rule 4:33-1 to

intervene in order to revive or assert counterclaims that are

time-barred. We reject his contention that the absence of specific

individual notice to him of Farmland's pending tax appeal entitles

him to extra time to file a pleading in that case.

That said, because the opinion below did not expressly address

Nuckel's alternative argument for permissive intervention under

Rule 4:33-2, we remand this matter for the Tax Court to consider

that discrete argument. In particular, in exercising its

3 A-3523-16T4 discretion under that separate provision in light of the current

posture of the litigation, the court "shall consider whether [such]

intervention will unduly delay or prejudice the adjudication of

the rights of the original parties." Ibid.; see also Asbury Park

v. Asbury Park Towers, 388 N.J. Super. 1, 12 (App. Div. 2006).

Affirmed in part and remanded in part. We do not retain

jurisdiction.

4 A-3523-16T4