                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0277-18T2
                                                                     A-0278-18T2

BOROUGH OF RED BANK,

          Plaintiff-Appellant,

v.

RMC-MERIDIAN HEALTH,

     Defendant-Respondent.
_____________________________

                    Submitted February 27, 2019 – Decided March 14, 2019

                    Before Judges Nugent and Mawla.

                    On appeal from the Tax Court of New Jersey, Docket
                    Nos. 0007-2016 and 0008-2016.

                    DiFrancesco, Bateman, Kunzman, Davis, Lehrer &
                    Flaum, PC, attorneys for appellant (Martin Allen, of
                    counsel and on the brief; Kevin A. McDonald, on the
                    briefs).

                    McCarter & English, LLP, attorneys for respondent
                    (Susan A. Feeney, of counsel and on the brief; Farhan
                    Ali, on the brief).

PER CURIAM
      In these consolidated tax appeals, the Borough of Red Bank challenges

July 26, 2018 orders granting RMC-Meridian Health (Meridian) summary

judgment dismissal of the Borough's complaints. Those complaints sought to

impose a tax assessment against a hospital operated by Meridian for 2014 and

2015. Meridian had been exempt from taxation by the tax assessor pursuant to

a payment in lieu of taxes agreement.

      On appeal, the Borough raises the following arguments: 1) the Borough

had independent authority to tax Meridian and was not bound by the tax

assessor's ability to impose omitted assessments; 2) Meridian could be taxed

since it was no longer operating the hospital as intended by the statute, entitling

it to the tax exemption, because it had experienced a change in use, and the tax

court erred by entering summary judgment without permitting the Borough

discovery on the change in use; 3) the tax court ignored AHS Hosp. Corp. v.

Morristown, 28 N.J. Tax 456 (Tax 2015), which permits taxation on omitted

assessments; and 4) the tax court's error was a mistake of law and subject to our

de novo review.

      Having reviewed the Borough's arguments and considered the record, we

affirm for the reasons expressed in the thorough and well-reasoned opinion of




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                                        2
Judge Mala Sundar in Borough of Red Bank v. RMC-Meridian Health, 30 N.J.

Tax 551 (Tax 2018). We add the following comments.

      "An appellate court accords a highly deferential standard of review to tax

court decisions." N.J. Tpk. Auth. v. Twp. of Monroe, 30 N.J. Tax 313, 318

(App. Div. 2017) (citing Brown v. Borough of Glen Rock, 19 N.J. Tax 366, 375

(App. Div. 2001)). "[We] will not disturb a tax court's findings 'unless they are

plainly arbitrary or there is a lack of substantial evidence to support them'

because '[t]he judges presiding in the Tax Court have special expertise.'" Ibid.

(quoting Glenpointe Assoc. v. Twp. of Teaneck, 241 N.J. Super. 37, 46 (App.

Div. 1990)). "Although [we] defer[] to a tax court's valuation decisions, [we]

will review de novo a tax court's legal decisions." Ibid. (citing Toll Bros. v.

Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).

      The Borough argues the judge misinterpreted N.J.S.A. 54:4-63.26 and

"ignored the municipality's independent right to seek omitted assessments" upon

the property owned by Meridian.       The Borough claims the judge ignored

N.J.S.A. 54:63.12 "as a basis for the review of [d]efendant's property tax

exemption by the municipality." We disagree.

      "Tax laws are creatures of the Legislature and as such are to be strictly

construed." Little Egg Harbor Twp. v. Am. Tel. & Tel. Co., 9 N.J. Tax 314, 323


                                                                         A-0277-18T2
                                       3
(Tax 1987), aff'd o.b., 10 N.J. Tax 236 (App. Div. 1988). "Tax laws generally

require that tax determinations be subject to review in a mandatory manner in

strict conformity with statutory time limitations." Hovbilt, Inc. v. Twp. of

Howell, 138 N.J. 598, 603 (1994) (quoting Egg Harbor, 9 N.J. Tax at 323).

      Here, the Borough attempted to impose an omitted assessment for the

2014 and 2015 tax years, outside the procedural requirements of N.J.S.A. 54:3-

21 and N.J.S.A. 54:4-63.26. The Borough assessor determined Meridian was

exempt for the 2015 tax year based on the assessment made during the pretax

year, 2014. N.J.S.A. 54:3-21 requires a party to appeal the assessment on or

before April 1 of the tax year. The Borough filed its complaints after the April

1 statutory deadlines for 2014 and 2015, respectively. The Borough's only

avenue of appeal was filing a timely complaint pursuant to N.J.S.A. 54:3-21,

which it failed to do. Egg Harbor, 9 N.J. Tax at 329. Judge Sundar did not

misinterpret the statutory requirements, which governed the Borough's right to

appeal.

      We also reject the Borough's argument the judge misinterpreted N.J.S.A.

54:4-63.26. The statute allows omitted assessments when the exemption status

of real property "ceases by reason of a change in use or ownership of such

property[.]" Ibid. However, in order to impose an omitted assessment, there


                                                                        A-0277-18T2
                                       4
must be facts indicating a change in use or ownership of real property causing it

to lose its exemption status. Boys' Club of Clifton, Inc. v. Jefferson Twp., 72

N.J. 389, 400 n.4 (1977) (citing N.J.S.A. 54:4-63.26).

      The Borough adduced no evidence of a change in use of Meridian's

property. The Borough argued it was owed discovery related to its "theory

regarding 'change in use,'" however, it provided no explanation for either its

theory or the discovery sought to corroborate the theory.          Judge Sundar

concluded, "[a]s [Meridian] correctly argues, the Borough is using the discovery

process as a fishing expedition and as an attempt to find support for denial of an

exemption." Borough of Red Bank, 30 N.J. Tax at 563.

      We agree. The judge did not misinterpret N.J.S.A. 54:4-63.26 because

there was no evidence suggesting there had been a change in use.

      Finally, the Borough argues "the [t]ax [c]ourt's interpretation of N.J.S.A.

54:4-63.26 [is] against the overall statutory scheme" and its "interpretation of

the legislation . . . is novel and against the myriad of existing case law." The

Borough points to AHS and argues "the plaintiff in [AHS] filed a partial

summary judgment motion that employed the same arguments as [Meridian

does] here."




                                                                          A-0277-18T2
                                        5
      In AHS, a tax court assessed the appeals of two omitted assessments levied

by a taxing district against a plaintiff which operated a hospital. 28 N.J. Tax at

471. The hospital timely challenged each of the omitted assessments. Ibid. The

AHS court decided the hospital did "not meet the current criteria for property

tax exemption under N.J.S.A. 54:4-3.6 and the applicable case law" based on

"the court's findings that the [s]ubject [p]roperty is being used substantially for

profit" pursuant to the evidence presented on appeal. Id. at 536.

      AHS was not binding on Judge Sundar and is not binding on us. More

importantly, its procedural posture and facts are distinguishable from this case.

As we noted, in AHS, the omitted assessments already existed on the subject

property and the court's decision regarded the property owner's timely direct

appeal of those omitted assessments. Here, the Borough sought to impose an

omitted assessment for the 2014 and 2015 tax years, not challenge an already

omitted assessment.

      For these reasons, we conclude Judge Sundar correctly granted summary

judgment in favor of Meridian. To the extent we have not addressed the other

arguments raised by the Borough, it is because they are without sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.


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