                        NOT FOR PUBLICATION WITHOUT THE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-3390-15T3



UNIVERSITY HEIGHTS, LLC,

        Plaintiff-Respondent,

v.

FRANKLIN LAKES BOROUGH,

        Defendant-Appellant.



              Argued May 9, 2017 - Decided          May 26, 2017

              Before Judges Rothstadt and Mayer.

              On appeal from the Tax Court of New Jersey,
              Docket No. 015897-2014.

              William T. Smith argued the cause for
              appellant (Smith, Crotty, Meyer & Bruins,
              attorneys; Mr. Smith, on the briefs).

              Michael I. Schneck argued the cause for
              respondent (Schneck Law Group, LLC, attorneys;
              Mr. Schneck, on the brief).

        PER CURIAM

        Defendant Franklin Lakes Borough (Borough) appeals from the

decision of the Tax Court invalidating and vacating the Borough's
2013    omitted    assessment   against    property   owned   by   plaintiff

University Heights, LLC (University).          We affirm for the reasons

stated in Judge Kathi F. Fiamingo's March 16, 2016 thorough and

well-reasoned written opinion.       We add these comments.

       University is the owner of property in the Borough located

at 100 Sterling Drive (Property), designated as Lot 1 in Block

2514 on the Official Tax Map.            University obtained approval to

construct    ten    residential   buildings     on    the   Property,    each

containing ten units. The Borough issued certificates of occupancy

for each building constructed by University. Most of the buildings

were completed as of October 1, 2007.         A certificate of occupancy

was issued for University's last building prior to October 1,

2008.

       The Borough assessed six of University's ten buildings in

2007.   In 2008, University completed construction of the last four

buildings. For reasons not entirely clear in the record, the

Borough did not make an additional assessment when the last four

buildings were completed.

       University filed tax appeals, challenging the Borough's 2008

and 2009 regular assessments.            The parties resolved these two

earlier tax challenges by executing a stipulation of settlement

in December 2010 that stated for 2008 and 2009, the assessed value

of the Property be "at the fair assessable value of the property

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consistent with assessing practices generally applicable in the

taxing district as required by law."           The parties also agreed that

for 2010, the property's total assessment would be $12,000,000.

      In 2011, the Borough conducted a borough-wide reassessment

to reflect market conditions of property as of 2010.                University's

property   remained   assessed     at       $12,000,000,    the     same     amount

assessed for that year pursuant to the 2010 stipulation.

      In 2014, a new tax assessor discovered an error in the

Property's    assessment.         The       Borough   imposed       an     "omitted

assessment" to include University's last four buildings for the

tax year 2013, increasing the Property's value to twenty million

dollars.

      University appealed the imposition of the omitted assessment

to the Bergen County Board of Taxation (Board), which upheld the

assessment.    University appealed to the Tax Court.

      After   considering   the    tax      assessor's     testimony       and   the

pertinent tax records relating to the property, Judge Fiamingo

invalidated the omitted assessment.           The judge noted three methods

for   imposing    assessments       outside       the      annual        assessment

requirements authorized by statute – added assessments, omitted

assessments and omitted-added assessments.                 In this case, the

Borough sought to levy an omitted assessment against the Property

in accordance with N.J.S.A. 54:4-63.31.               The Borough claimed it

                                        3                                   A-3390-15T3
utilized   the       statute's   omitted        assessment    method      to     assess

improvements on the Property, which, through inadvertence, were

never included on the Borough's tax records.                  However, relying on

the   applicable      case    law,   the     judge   stated    that    the      omitted

assessment procedure may not be used in every circumstance to

correct situations where improvements to property were not taxed.

See 200 43rd Street, L.L.C. v. City of Union City, 16 N.J. Tax

138, 142 (Tax 1996)(deliberately assessing zero dollars for an

improvement cannot be remedied through the omitted assessment

procedure); Inwood Owners, Inc. v. Twp. of Little Falls, 216 N.J.

Super.   485,    493    (App.    Div.),        certif.    denied,   108    N.J.      184

(1987)(increasing       the    value    of     property    upon   conversion        from

rental housing to cooperative housing cannot be accomplished by

an omitted assessment); SLR Associates of Millville v. Millville

City, 11 N.J. Tax 1, 3 (Tax 1989)(omitted assessment cannot be

used to correct an alleged clerical error).

      Based     on     the    omitted        assessment     statute       and     cases

interpreting the statute, Judge Fiamingo held that the buildings

on the Property were completed as of October 1, 2008, the date on

which the Borough's tax assessor set a value for the Property's

improvements.        Having signed the December 2010 stipulation of

settlement resolving the 2008 and 2009 annual assessments for the



                                           4                                    A-3390-15T3
Property, the tax assessor knew that all ten buildings were ready

for use and had certificates of occupancy.

     Based on this information, the judge concluded that the tax

assessor "made conscious decisions to value [the Property] in the

amounts set forth in those assessments."      Quoting Glen Pointe

Associates v. Teaneck Township, 10 N.J. Tax 598, 601 (Tax 1989),

aff'd, 12 N.J. Tax 127 (App. Div. 1991), Judge Fiamingo noted:

          An assessor's failure to consider the full
          value of improvements about which he was aware
          when   he    placed   assessment    on   those
          improvements is not an omission, but "is
          simply an erroneous determination of value on
          the assessing date," which cannot be corrected
          through the omitted assessment procedure.

Based upon her findings, she concluded:

          If there was an erroneous determination of
          value, as urged by the Borough, it may not be
          corrected through the use of the omitted
          assessment procedure.

     Our review of a Tax Court judgment is limited to whether the

Tax Court's determination is supported by substantial credible

evidence "with due regard to the Tax Court's expertise and ability

to judge credibility."   Southbridge Park Inc. v. Bor. of Fort Lee,

201 N.J. Super. 91, 94 (App. Div. 1985) (citing Rova Farms Resort,

Inc. v. Investors Ins. Co., 65 N.J. 474 (1994)).     "The scope of

appellate review from a determination of the Tax Court is no

different from that applicable to a nonjury determination of any


                                 5                          A-3390-15T3
other trial court."   G & S Co. v. Bor. of Eatontown, 6 N.J. Tax

at 218, 220 (App. Div. 1982).

     There is substantial, credible evidence in the record to

support Judge Fiamingo's decision.    The testimony and documents

presented during the trial substantiate her finding that the

assessor knew the number of buildings on University's property as

of 2010, and intentionally assessed them at the value included in

the 2010 stipulation of settlement.

     Affirmed.




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