                        NOT FOR PUBLICATION WITHOUT THE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-4104-15T2


JESSE ROSENBLUM,

        Plaintiff-Appellant,

v.

BOROUGH OF CLOSTER, JOSEPH
MIELE and GLORIA MIELE,

     Defendants-Respondents.
______________________________

              Argued January 22, 2018 – Decided July 11, 2018

              Before Judges Whipple and Rose.

              On appeal from the Tax Court of New Jersey,
              Docket Nos. 15202-2014 and 10168-2015.

              Jesse Rosenblum, appellant, argued the
              cause pro se.

              Edward T. Rogan argued the cause for respondent
              Borough of Closter (Edward Rogan & Associates,
              LLC, attorneys; JoAnn Riccardi Schuman, on the
              brief).

              Kathryn A. Gilbert argued the cause for
              respondents Joseph Miele and Gloria Miele.

PER CURIAM
     Plaintiff Jesse Rosenblum appeals from April 15, and April

22, 2016 judgments of the Tax Court dismissing his third-party

challenge to a neighboring property owner's 2014 and 2015 farmland

tax assessments in the Borough of Closter.        We affirm.

     Joseph and Gloria Miele (collectively the Mieles) purchased

approximately 9.9 acres of land in the Borough of Closter (the

Borough) in 1983.      The Mieles utilize 5.57 acres of the property

as a pasture for their llamas, allowing the animals to roam freely.

The property also has a stream running through it and contains

many trees.    The trees provide the animals with shade, cover, and

leaves for food.

     Since 1991, plaintiff has filed numerous complaints against

the Mieles, including a tax appeal on their property every year

for twenty-four years.       In 1999, the Tax Court sustained the

Mieles' farmland tax assessment for the 1997 and 1998 tax years.

Rosenblum v. Borough of Closter, A-1329-04 (App. Div. Jan. 17),

certif. denied, 186 N.J. 365 (2006).           Challenges to the 1999,

2000, 2001, and 2002 tax years were rejected on motions for summary

judgment.     Ibid.   We affirmed on appeal.    Ibid.

     During the years at issue here - the 2014 and 2015 tax years

- the Borough's tax assessor reviewed the Mieles' application for

a farmland tax assessment and approved it.



                                   2                           A-4104-15T2
     On October 23, 2014, plaintiff filed a third-party taxpayer

complaint against the Mieles and the Borough, contesting the

Mieles'   2014    farmland    tax    assessment.      We     distilled     from

plaintiff's   complaint      that   his   argument   is   that   the   Mieles'

property cannot be assessed as a farmland pasture because it is

heavily wooded.     Plaintiff did not offer at trial nor does he

offer now any legitimate support for this argument.

     Commencing    in   November     2014,   both    sides    filed    several

dispositive motions.         In or around June 2015, plaintiff filed

another complaint in the Tax Court, this time contesting the

Mieles' 2015 farmland tax assessment.           The Honorable Joseph M.

Andresini, J.T.C., consolidated the cases for both tax years.                 He

also bifurcated the proceedings so plaintiff would first have to

overcome the presumption of validity that attaches to a tax

assessment before moving onto the second portion of trial in which

the Mieles had the burden of proving the farmland assessment was

proper.

     Following discovery, trial was held on August 3, August 4,

and October 15, 2015. At the close of plaintiff's case, defendants

moved for involuntary dismissal, pursuant to Rule 4:37-2(b), and

Judge Andresini requested the parties submit briefs in support or

in opposition to this motion.



                                      3                                A-4104-15T2
    On   March   11,   2016,   Judge   Andresini   granted   defendants'

motion, delivering the following reasons from the bench:

               When determining whether a party has
          overcome the presumption the court should
          analyze the evidence as if a motion for
          [judgment] at the close of all the evidence
          has been presented pursuant to [Rule] 4:40-1
          whether or not the defendant or plaintiff
          actually so moves. Employing the evidentiary
          standards applicable to such a motion the
          court must accept, . . . and I do, as true the
          proofs of the party challenging the assessment
          and according the party, and I underscore
          this, all legitimate favorable inferences from
          that   evidence.     And   that's   legitimate
          favorable inferences.    You don't get all of
          the inferences. They must be legitimate. You
          must present something to the court. We get
          that from [Brill v. Guardian Life Ins. Co. of
          Am., 142 N.J. 520, 530-35 (1995)].

               In   this  case,   the  plaintiff,   Mr.
          Rosenblum, must overcome the presumption of
          validity by establishing competent and cogent
          evidence that a debatable question exists
          regarding defendant's farmland assessment.

               A   property   qualifies  for   farmland
          assessment if the following four criteria are
          met: 1) the land is actively devoted to
          agricultural/horticultural use for at least
          two years prior to the tax year in question,
          N.J.S.A. 54:4-23.7 and N.J.S.A. 54:4-23.5; 2)
          the alleged farmland is not less than five
          acres, N.J.S.A. 54:4-23.6; 3) the average
          gross sales of the agricultural/horticultural
          products or services over the course of the
          two-year period immediately preceding the tax
          year at issue must be at least $500, in this
          case for tax year 2014, and $1,000 for tax
          year 2015 as there was an amendment to the
          statute going forward effective 2015; and 4)
          the applicant has submitted on or before

                                   4                             A-4104-15T2
          August 1st of the year immediately [preceding]
          the tax year in question.

               Agricultural use of a property means that
          "a taxpayer must demonstrate an ongoing animal
          husbandry operation which demands that such
          animals must remain on or feed off the land
          for a sustained reasonable period of time.
          Their   presence    must   amount   to   being
          . . . produce of the land." We get that from
          [Gottdiener v. Roxbury Twp., 2 N.J. Tax 206,
          218 (1981)].

               The testimony in evidence presented by
          Mr. Rosenblum, plaintiff in this matter, does
          not provide competent or cogent evidence that
          may raise the debatable question in this case.
          To the contrary, the evidence and testimony
          actually serves to prove that the four
          previously   outlined    farmland   assessment
          criteria were met in this case.

               Defendant filed – timely filed a farmland
          assessment application. The area claimed as
          farmland exceeds five acres. The 5.57 acres
          are used for and have been used for the benefit
          of defendants' animals as pastures for
          approximately 20 years.

               Additionally,   defendant  consistently
          produces over $1000 of gross income from the
          sale of their animals during the years under
          scrutiny.

     The judge concluded plaintiff was not credible as a witness

and had not presented competent evidence. The judge then dismissed

plaintiff's complaints, and issued orders to that effect.       This

appeal followed.

     While plaintiff presents fourteen arguments on appeal, the

essential issue we consider is narrowly constrained to whether the


                                5                           A-4104-15T2
trial court erred in granting defendants' motion for involuntary

dismissal under Rule 4:37-2(b).           We affirm substantially for the

reasons expressed by the Tax Court judge in his thorough decision

issued from the bench granting defendants' motion for involuntary

dismissal.       We add the following comments.

       A motion for an involuntary dismissal is premised on "the

ground that upon the facts and upon the law the plaintiff has

shown no right to relief."         R. 4:37-2(b).        The motion "shall be

denied if the evidence, together with the legitimate inferences

therefrom, could sustain a judgment in plaintiff's favor."                Ibid.

In other words, "if, accepting as true all the evidence which

supports the position of the party defending against the motion

and   according     him   the   benefit   of    all    inferences   which     can

reasonably and legitimately be deduced therefrom, reasonable minds

could differ, the motion must be denied."              Hitesman v. Bridgeway,

Inc., 218 N.J. 8, 26 (2014) (quoting Estate of Roach v. TRW, Inc.,

164 N.J. 598, 612 (2000)).         This court applies the same standard

when reviewing a trial court's Rule 4:37-2(b) determination. Ibid.

(citing Fox v. Millman, 210 N.J. 401, 428 (2012)).

       The Farmland Assessment Act of 1964, N.J.S.A. 54:4-23.1 to -

23.23, provides preferential tax treatment to land devoted to

agricultural or horticultural use.             Certain criteria must be met

to    qualify.      First,   the   land   must    be    actively    devoted    to

                                      6                                 A-4104-15T2
agricultural     or   horticultural           use.    N.J.S.A.     54:4-23.2.

Additionally, "the land shall be considered actively devoted to

agricultural or horticultural use only if a minimum level of gross

sales, prescribed by statute, has been, or by clear evidence will

be, achieved."   Hovbilt, Inc. v. Twp. of Howell, 138 N.J. 598, 620

(1994) (citing N.J.S.A. 54:4-23.5). It must also have been devoted

to agricultural or horticultural use for at least two years

immediately    preceding   the   tax       year.     N.J.S.A.    54:4-23.6(a).

Lastly, the land must exceed five acres.             N.J.S.A. 54:4-23.6(b).

     The property owner bears the burden to establish his or her

land qualifies for a farmland tax assessment.             Hovbilt, 138 N.J.

at 620.    Thereafter, a tax assessor's determination is entitled

to "a presumption of validity"; this presumption also attaches to

the county board's decision when it is challenged before the Tax

Court.    Byram Twp. v. W. World, 111 N.J. 222, 235 (1988).

     "Based on this presumption, the appealing taxpayer has the

burden of proving that the assessment is erroneous."                Pantasote

Co. v. Passaic, 100 N.J. 408, 413 (1985) (citing Riverview Gardens,

Section One, Inc. v. N. Arlington, 9 N.J. 167, 174 (1952)).                    A

third-party taxpayer must present evidence that is "definite,

positive, and certain in quality and quantity to overcome the

presumption."    Aetna Life Ins. Co. v. City of Newark, 10 N.J. 99,

105 (1952) (citation omitted).

                                       7                               A-4104-15T2
     Applying these standards, we conclude plaintiff's arguments

are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E). Even though the judge gave plaintiff

every   reasonable   inference   and   every   opportunity   to   present

admissible evidence relevant to the tax years at issue, plaintiff

did not do so.

     Affirmed.




                                   8                              A-4104-15T2
