                                NOT FOR PUBLICATION WITHOUT THE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-3547-17T2

CHRISTIAN MISSION
JOHN 316,

          Plaintiff-Appellant,

v.

PASSAIC CITY,

     Defendant-Respondent.
__________________________

                   Argued March 12, 2019 – Decided August 30, 2019

                   Before Judges Hoffman, Suter and Geiger.

                   On appeal from the Tax Court of New Jersey, Docket
                   No. 013203-2013, whose opinion is reported at 30 N.J.
                   Tax 357 (Tax 2018).

                   Tova L. Lutz argued the cause for appellant (Lutz Law
                   Group, LLC, attorneys; Tova L. Lutz, of counsel and
                   on the briefs; Jeffrey Zajac, on the briefs).

                   Kenneth A. Porro argued the cause for respondent
                   (Chasan Lamparello Mallon & Cappuzzo, PC,
                   attorneys; Kenneth A. Porro, of counsel and on the
                   brief; Edna J. Jordan, on the brief).
            Christopher John Stracco argued the cause for amicus
            curiae Gill St. Bernards School, Inc. (Day Pitney LLP,
            attorneys; Christopher John Stracco and Jennifer Gorga
            Capone, on the brief).

PER CURIAM

      Plaintiff Christian Mission John 316 (Christian Mission) appeals the

February 28, 2018 order of the Tax Court that denied its motion for summary

judgment and granted the cross-motion by defendant City of Passaic, the result

of which was to dismiss Christian Mission's complaint for tax exemption for the

2013 tax year. We affirm the Tax Court's order.

      Christian Mission is a church in the City of Passaic. Its parking lot and

church building are on lots twelve and thirteen of a specific block. In 2009, it

purchased lot eleven in the same block. That lot contained a warehouse that

previously was used by a commercial business.          Between 2009 and 2011,

Christian Mission used the warehouse "as an extension of its regular religious

activities," although these "primarily" were conducted at the existing church.

Reverend Francisco Joissim certified that from 2009 to 2011, the warehouse

"remained in its original form, essentially that of a large open space." Activities

there included "ceremonial activities, religious services during mild weather

months, youth rallies, women's rallies, fundraising activities, fairs and storage

of various items associated with church functions. At all times the basement

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was used for storage of church items." At some point between 2009 and 2011,

Christian Mission applied for a tax exemption for lot eleven, having obtained

exemption for lots twelve and thirteen in prior years. Its application was denied

and it did not appeal.

        In late 2011, Christian Mission wanted to renovate the warehouse on lot

eleven to transition it "to a formal church." It applied for, and was granted, a

number of construction-related permits. A tax assessor for defendant certified

that as part of the reconstruction, "[t]he walls and interior [of the building were]

stripped down to the frame, the windows [were] covered with plastic," and by

July 2012, the "building was essentially a shell or frame . . . ."

        The reverend certified that "significant renovations" were made to the

warehouse beginning in January 2012, and "conclude[ed] around September

2012." He also certified that "[c]ommunity religious services began sometime

around September [2012] with formal services commenc[ing] around the time

of Thanksgiving 2012 . . . ." The reverend noted the warehouse was used

between January and September 2012 for religious services at the construction

site.

             These services were comprised of approximately [ten]
             people, including church members who were part of the
             construction crew, and often other members and/or
             spouses joining. These services lasted approximately

                                                                            A-3547-17T2
                                         3
              [twenty] minutes . . . and concluded with [the reverend]
              blessing the workers as they were about to begin their
              work day ahead.

Sometimes participants would bring food.          At other times, the reverend

counseled congregants at the site.

        City inspections of the property were conducted on several dates both

before and after Thanksgiving 2012, and continued through July 2013. These

included inspections of the building, fire alarm and electrical and mechanical

systems. Christian Mission was issued a temporary certificate of occupancy on

April 15, 2013. The final certificate of occupancy was issued on July 23, 2013.

        Christian Mission's application for a 2013 tax year exemption for the

warehouse lot was denied by defendant on July 31, 2013. 1 Shortly after, it filed

a complaint in the Tax Court in which it contested both the denial of the 2013

tax year exemption and the amount of taxes assessed.2           In October 2017,

Christian Mission filed a motion for summary judgment, and the next month,

defendant filed a cross-motion for summary judgment on the exemption issue.




1
  The next year, Christian Mission was granted a tax exemption for the 2014 tax
year.
2
    Plaintiff subsequently withdrew its claim about the amount of taxes assessed.
                                                                         A-3547-17T2
                                         4
      In February 2018, the Tax Court denied Christian Mission's motion for

summary judgment and granted defendant's, the effect of which was to deny

plaintiff's request in 2013 for a tax exemption for the warehouse lot. In its

written decision, the Tax Court found that as of October 1, 2012, which was the

assessing date, "plaintiff was making limited use of the partially renovated

structure . . . by conducting daily [twenty] minute morning prayer services."

Christian Mission John 316 v. Passaic City, 30 N.J. Tax 357, 372 (Tax 2018).

However, these were "limited to church members, who were part of the

construction team offering inspirational blessings as they began their workday

to renovate the subject property." Ibid. It found that these "were not available

to the public," and concluded that this was not actual use as contemplated by

N.J.S.A. 54:4-3.6.     Ibid.    It found that formal services began around

Thanksgiving in 2012, after the assessing date. City inspections of the building

continued thereafter. A temporary certificate of occupancy was not issued until

April 2013. Because of this, the Tax Court found "plaintiff was not in a position

to provide its services and/or benefits to the public, as of the October 1, 2012

assessment date." Id. at 373. In fact,

            as of the assessing date, the only recipients of plaintiff's
            religious services on the subject property were the
            parishioners and their spouses, who were part of the
            construction team, dedicated to renovating the

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                                         5
            structure. Neither the public, nor the vast majority of
            plaintiff's congregation[,] derived any benefit from the
            partially completed structure as of the October 1, 2012
            assessing date.

            [Ibid.]

      The Tax Court rejected the argument that the failure to have a certificate

of occupancy was not dispositive of "actual use" within the statute. Id. at 374-

76. Citing N.J.S.A. 52:27D-133, the Tax Court concluded the State Uniform

Construction Code Act, N.J.S.A. 52:27D-119 to -141, "prohibit[ed] the use or

occupancy of a structure until a certificate of occupancy has issued." Id. at 377.

For properties not previously afforded a tax exemption, the court concluded that

N.J.S.A. 54:4-3.6 implied "that the use cannot be achieved at the expense of the

safety, welfare and well-being of the public." Id. at 377. Because this property

did not have a temporary certificate of occupancy until April 2013, under the

statute, the property "cannot be viewed as actually in use." Id. at 378. The Tax

Court limited its holding to properties, such as this, "that: (1) have not been

previously granted tax exemption; (2) are experiencing new construction or

renovation to permit an intended use of the property for an exempt purpose; and

(3) have not been the subject of an added assessment." Ibid. The Tax Court

granted defendant's cross-motion for summary judgment because the warehouse

lot "was not ready to be occupied and used by the public for a tax-exempt

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                                        6
purpose until sometime following the October 1, 2012 assessment date." Id. at

380.

       On appeal, plaintiff argues that the Tax Court erred in finding plaintiff

was not "actually using" the property for religious purposes prior to the October

1, 2012 assessment date. It contends the lack of a certificate of occupancy

should not have been dispositive about its actual use of the property. It also

argues that it was contrary to public policy and equitable considerations to deny

it a tax exemption.

       We review a court's grant of summary judgment de novo, applying the

same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017)

(citing Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,

224 N.J. 189, 199 (2016)).       Summary judgment must be granted if "the

pleadings, depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact challenged and that the moving party is entitled to a judgment or

order as a matter of law." Templo Fuente De Vida Corp., 224 N.J. at 199

(quoting R. 4:46-2(c)). On this appeal, we review the facts most favorably to

Christian Mission. See ibid.




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                                        7
      "[A]ll real property is subject to local property taxation . . . unless its use

has been exempted." Hunterdon Med. Ctr. v. Twp. of Readington, 195 N.J. 549,

553 (2007). N.J.S.A. 54:4-3.6 sets forth certain exemptions. Christian Mission

filed for an exemption for its warehouse lot under this statute. In relevant part,

it provides an exemption for "all buildings actually used in the work of

associations and corporations organized exclusively for religious purposes,

including religious worship, or charitable purposes." N.J.S.A. 54:4-3.6.

      Our Supreme Court has recognized that this statute "requires three criteria

for exemption, (1) [the owner of the property] must be organized exclusively for

the [exempt purpose]; (2) its property must be actually and exclusively[3] used

for the tax-exempt purpose; and (3) its operation and use of its property must

not be conducted for profit." Hunterdon Med. Ctr., 195 N.J. at 561 (alteration

in original) (footnote omitted) (quoting Paper Mill Playhouse v. Millburn Twp.,

95 N.J. 503, 506 (1984)). These criteria have been applied to the religious

purposes exemption. See Roman Catholic Archdiocese of Newark v. City of E.

Orange, 18 N.J. Tax 649, 653 (App. Div. 2000).


3
  The exclusive use requirement was deleted by Legislative amendment in 1985;
now the property must be "actually" used for the tax-exempt purpose, rather than
"actually and exclusively used." See Int'l Schs. Servs. Inc. v. West Windsor
Twp., 207 N.J. 3, 21 (2011); Compare L. 1985, c. 395 § 1, with L. 1983, c. 224
§ 1.
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                                         8
       In this case, defendant did not contest that Christian Mission satisfied the

first and third criteria. Its request for an exemption was denied based on the

"actual use" criterion.

      "Tax-exemption statutes are strictly construed against those claiming

exemption because of the compelling public policy that all property bear its fair

share of the burden of taxation." N.J. Carpenters Apprentice Training & Educ.

Fund v. Borough of Kenilworth, 147 N.J. 171, 177 (1996) (citing Princeton

Univ. Press v. Borough of Princeton, 35 N.J. 209, 214 (1961)). "The 'legislative

design' of [N.J.S.A. 54:4-3.6] . . . has been long-recognized as '[a] concession

. . . due as quid pro quo for the performance of a service essentially public, and

which the state thereby is relieved . . . from the necessity of performing.'"

Society of the Holy Child Jesus v. City of Summit, 418 N.J. Super. 365, 373

(App. Div. 2011) (second alteration in original) (quoting Carteret Acad. v. State

Bd. of Taxes & Assessment, 102 N.J.L. 525, 528 (Sup. Ct. 1926)). The Supreme

Court noted "[t]he exemption is granted by the State because of the contribution

of the exempt facility to the public good." Roman Catholic Diocese of Newark

v. Ho-Ho-Kus Borough, 42 N.J. 556, 566 (1964). "[T]he Tax Court evaluates

whether the property is 'reasonably necessary' for such tax-exempt purposes."

Borough of Hamburg v. Tr. of Presbytery of Newton, 28 N.J. Tax 311, 318 (Tax


                                                                           A-3547-17T2
                                        9
Ct. 2015) (quoting Roman Catholic Archdiocese of Newark v. East Orange City,

18 N.J. Tax 649 (Tax 2000)).

      Christian Mission argues the Tax Court erred in denying its motion for

summary judgment because it actually was using the warehouse as of October

1, 2012 by holding religious services there and by storing church items. We

agree with the Tax Court that Christian Mission did not meet its burden of

proving actual use based on the uncontested facts.

      The uses of the warehouse from 2009 to 2011 prior to reconstruction in

January 2012 are not determinative of the issue raised. Although Christian

Mission applied for an exemption prior to 2011, that exemption application was

denied and then not appealed. In addition, properties are assessed "on October

1 in each year," thus, it is the use of the property on October 1, 2012 that

determines whether the property can be exempt from taxes. See Atlantic Cty.

New School, Inc. v. City of Pleasantville, 2 N.J. Tax 192, 195-96 (Tax 1981);

see also N.J.S.A. 54:4-23. Christian Mission acknowledges that the building

underwent extensive renovation beginning in January 2012. It did not dispute

that by July 2012, "the building was essentially a shell or frame . . . ." Taking

the facts alleged by Christian Mission, the reverend certified that the building

was used to store church items from 2009 to 2011; there actually was no


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                                      10
evidence that items were stored after the extensive renovations started in January

2012 or that it was used for storage as of October 1, 2012. Storage prior to

reconstruction was not actual use on the assessment date.         "[E]ach annual

assessment [is] a separate entity distinct from the assessments for other years."

City of E. Orange v. Church of Our Lady of Most Blessed Sacrament, 25 N.J.

Misc. 58, 61 (Div. Tax App. 1946).

      Christian Mission acknowledged that formal church services commenced

around Thanksgiving 2012, which was after the assessment date of October 1,

2012. Just before that acknowledgement in his certification, the reverend states

that "community religious services began some time around September" of the

same year. The certification's description—about the services that occurred

before the "formal services" started in Thanksgiving—stated that there were

prayer services for the construction workers, who were members of the

congregation, and that sometimes their spouses joined them. Christian Mission

has not claimed the services were open to the public or even to other congregants

of the church who may have been present. There was no allegation the church's

regular services were being held at the warehouse until Thanksgiving 2012.

      That the building did not have even a temporary certificate of occupancy

is some evidence that the building was not open to the general public. In Grace


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                                       11
& Peace Fellowship Church, Inc. v. Cranford Twp., 4 N.J. Tax 391, 401 (Tax

1982), the Tax Court would not grant an exemption for a church building that

was incomplete and had no temporary certificate of occupancy although it was

used for occasional meetings of prayer groups while the construction was in

progress. The church volunteers worked at the site and held prayer services. Id.

at 394-95. Citing a series of case precedents that denied tax exemptions for

buildings under construction, the Tax Court reasoned that the public benefit

underlying tax exemption had not yet begun, and that denying the tax exemption

was both consistent with the language of the statute and was an appropriate

incentive for the exempt organization to complete the construction. Id. at 397-

401; see Inst. of Holy Angels v. Borough of Fort Lee, 80 N.J.L. 545 (Sup. Ct.

1910) (church building under construction not exempt from property tax); see

also Holy Cross Precious Zion Glorious Church of God v. Trenton City, 2 N.J.

Tax 352, 357-58 (1981) (holding the intent to make use of building under

renovation for religious purposes did not constitute actual use as required by

exemption statute). The plaintiff in Grace and Peace, "was not in a position to

provide its services and/or benefits to the public in general." 4 N.J. Tax at 401.

The building in that case was "not available nor was it used for the public

benefit" until after the tax assessment date. Ibid. The Tax Court noted that it


                                                                          A-3547-17T2
                                       12
was unlikely "the Legislature had intended to encourage the use of incomplete

structures so that taxpayers could avoid taxation during the construction period."

Ibid.

        Similarly here, there was no evidence the warehouse was available for

public use or was being used for the public benefit as of October 1, 2012. This

is particularly the case because there was no certificate of occupancy, which

implied that the building was not actually in use for religious activities at the

relevant time.

        This case is distinguishable from Society of the Holy Child Jesus, 418 N.J.

Super. at 365. In that case, the City of Summit revoked the plaintiff's long-

standing tax exemption because a property that previously was used as a

residence for nuns was converted to use for school purposes, which was contrary

to a zoning ordinance without a conditional use variance. Id. at 368-71. In

reversing the Tax Court, we were "convinced that [N.J.S.A. 54:4-3.6 did] not

require the property to be a lawful use under the municipality's zoning ordinance

in order to qualify for tax exemption." Id. at 386. We said that "the [s]tatute

clearly and unambiguously contains no such requirement." Ibid.         One of our

concerns was that the statute could be subject to inconsistent applications if the




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                                        13
Tax Court were required "to evaluate the nature of the zoning violation before

deciding whether the property is exempt . . . ." Id. at 378.

      It is not a case involving the revocation of a long-standing exemption

based on a change in use. Christian Mission's warehouse had no tax exemption

because the prior owner previously used it for commercial purposes. More

importantly, this case does not involve any evaluation of the nature of a zoning

violation because there simply was no certificate of occupancy, temporary or

permanent. The Tax Court was not called upon to interpret the zoning laws, as

it was acknowledged that there simply was no certificate. We see no reason why

the Tax Court could not consider this as evidence in evaluating whether the

property was in actual use by the public in considering an exemption under

N.J.S.A. 54:4-3.6.

      The Tax Court's order was not contrary to public policy or equitable

considerations. It was Christian Mission that had the burden of proving it was

entitled to the tax exemption. Although it claims the date for issuing a certificate

of occupancy could be subject to manipulation, we have no need to address this

because there was no allegation of delay in this case, and the tax exemption was

granted the next tax year. Therefore, we agree with the Tax Court that use of




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                                        14
the property on October 1, 2012 did not constitute actual use as required by

N.J.S.A. 54:4-3.6 for a tax exemption in 2013.

      Affirmed.




                                                                     A-3547-17T2
                                     15
