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

NOT FOR PUBLICATION WITHOUT THE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-5495-17T1
FARMLAND DAIRIES, INC.,
Plaintiff-Respondent,
v.
BOROUGH OF WALLINGTON
(Bergen County),
Defendant-Respondent.
___________________________
DONALD NUCKEL,
Appellant.
___________________________
Argued January 7, 2019 – Decided January 15, 2019
Before Judges Sabatino, Sumners and Mitterhoff.
On appeal from the Tax Court of New Jersey, Docket
Nos. 009501-2014, 004801-2015, and 002499-2016,
whose opinion is reported at 30 N.J. Tax 465 (Tax
2018).
Arthur N. Chagaris argued the cause for appellant
(Beattie Padovano, LLC, attorneys; Arthur N. Chagaris,
of counsel and on the briefs; John J. Lamb, of counsel;
Levi J. Kool and Martin R. Kafafian, on the briefs).
Peter L. Davidson argued the cause for respondent
Farmland Dairies, Inc. (The Davidson Legal Group,
LLC, attorneys; Peter L. Davidson, on the brief).
Paul M. Elias argued the cause for respondent Borough
of Wallington (Bittiger Elias & Triolo, PC, attorneys;
Paul M. Elias, of counsel and on the brief).
PER CURIAM
This matter, involving an effort by a taxpayer to intervene in another
landowner's local property tax appeal, returns following a remand this court
ordered in a November 13, 2017 per curiam opinion. Farmland Dairies, Inc. v.
Borough of Wallington, 30 N.J. Tax 322 (App. Div. 2017). In our original
decision, we affirmed the Tax Court's initial June 21, 2016 opinion insofar as
the Tax Court concluded that proposed intervenor Donald Nuckel did not have
a right under Rule 4:33-1 to intervene in the tax appeal of Farmland Dairies, Inc.
("Farmland") relating to the 2014, 2015, and 2016 tax assessments by the
Borough of Wallington of Farmland's property.1 Id. at 325 (affirming in part
and remanding in part Farmland Dairies, Inc. v. Borough of Wallington, 29 N.J.
Tax 310 (Tax 2016)). However, because the Tax Court at that time did not reach
Nuckel's alternative argument that he should have been granted permissive
1
The briefs advise us that the Farmland property was sold to UMDASCH Real
Estate U.S.A., LTD in September 2017. That buyer is not a party to this appeal.
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intervention under Rule 4:33-2, we remanded the matter to the Tax Court to
consider that discrete issue. Ibid.The Tax Court accordingly reconsidered the matter and concluded in a
detailed opinion by Judge Kathi F. Fiamingo dated June 8, 2018 that Nuckel had
failed to show that he should be permitted to intervene in Farmland's 2014-2016
tax appeals under Rule 4:33-2. See Farmland Dairies, Inc. v. Borough of
Wallington, 30 N.J. Tax 465 (Tax 2018). Nuckel now appeals that June 8, 2018
determination.
Among other things, Nuckel argues: (1) the Tax Court improperly treated
his motions to intervene as untimely under the applicable statutes of limitations;
(2) there would be no undue delay or material prejudice in allowing him to
intervene in these tax appeals; and (3) he has a substantial interest as a fellow
resident taxpayer in arguing that the Borough has not under assessed Farmland's
property and in assuring that its appraisals are not diminished through a
settlement or defeated in the Tax Court litigation. The Borough and Farmland
both urge that we reject these contentions and allow this Tax Court litigation to
proceed unencumbered by Nuckel's participation.
Having considered these points and others raised by Nuckel on appeal, we
affirm the Tax Court's denial of permissive intervention to Nuckel under Rule
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4:33-2, substantially for the sound reasons expressed in Judge Fiamingo's
scholarly June 8, 2018 post-remand opinion.
We add only a few amplifying comments. The Tax Court appropriately
enforced the statute of limitations prescribed by N.J.S.A. 54:3-21(a)(1) in
rejecting Nuckel's attempt to intervene permissively after that statute of
limitations had expired. Notably, both the provisions concerning intervention
as of right, Rule 4:33-1, and permissive intervention under Rule 4:33-2, begin
with the qualifying phrase "Upon timely application . . . ." As Judge Fiamingo's
opinion explains, that language should be heeded in the special context of local
property tax appeals, in which statutes of limitations are jurisdictional and thus
strictly enforced. Id. at 474-75; see also McMahon v. City of Newark, 195 N.J.
526, 530 (2008).
Nuckel has not demonstrated that it is unfair to enforce the statute of
limitations against him as a proposed intervenor. Nor has he shown it is not
feasible for motions to intervene to be filed within the statute of limitations.
Indeed, the parties' submissions inform us that Nuckel did, in fact, file timely
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motions to intervene in Farmland's tax appeals for the subsequent tax years of
2017 and 2018. 2
We disagree with Nuckel's contention that the Tax Court strayed from this
court's mandate in our November 2017 opinion. To the contrary, the Tax Court
faithfully applied the law and fairly took into account equitable principles as we
instructed. Moreover, to the extent that Nuckel's motions to intervene in the
2014-2016 tax cases could be interpreted as seeking to join the Borough's
defense of the tax appeals, his proposed involvement was appropriately barred
because "the only party with standing to defend a[] [tax] assessment . . . is the
taxing district in which the property is located." Farmland Dairies, Inc., 30 N.J.
Tax at 477.
Lastly, the judge reasonably found no equitable factors to warrant
Nuckel's permissive intervention under Rule 4:33-2.
Affirmed.
2
We express no views here concerning the propriety of Nuckel's participation
in those appeals, in which he apparently has asserted counterclaims.
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