                        NOT FOR PUBLICATION WITHOUT THE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.




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