FARMLAND DAIRIES, INC. VS. BOROUGH OF WALLINGTON (TAX COUNRT 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NOT FOR PUBLICATION WITHOUT THE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-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
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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
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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.
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