                        NOT FOR PUBLICATION WITHOUT THE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-1976-15T1

NEWTON WEST, LTD.,

        Plaintiff-Appellant,

v.

TOWN OF NEWTON,

        Defendant-Respondent.

_________________________________

              Argued telephonically on           June   12,   2017    –
              Decided September 8, 2017

              Before Judges Koblitz, Rothstadt and Sumners.

              On appeal from the Tax Court of New Jersey,
              Docket No. 9612-2010.

              Lawrence S. Berger argued the cause for
              appellant (Berger & Bornstein, LLC, attorneys;
              Mr. Berger, on the briefs).

              Thomas H. Prol argued the cause for respondent
              (Laddey, Clark & Ryan, LLP, attorneys; Mr.
              Prol, on the brief).

PER CURIAM
     In this appeal from the Tax Court's rejection of a taxpayer's

Freeze Act action, N.J.S.A. 54:51A-8,1 plaintiff, Newton West,

Ltd., the owner of an apartment building in defendant Town of

Newton challenges the court's finding that plaintiff's action was

time barred, the court was without jurisdiction to consider the

matter and, in any event, defendant was permitted to increase

plaintiff's   property's   assessment   under   an   exception   to   the

application of the Freeze Act when a municipality conducts a

"complete reassessment or complete revaluation" of all properties.

For the reasons stated below, we vacate the court's denial of

relief and remand to the Tax Court for reconsideration.


1
    The Freeze Act states:

          Where a judgment not subject to further appeal
          has been rendered by the Tax Court involving
          real   property,   the   judgment   shall   be
          conclusive and binding upon the municipal
          assessor and the taxing district, parties to
          the proceeding, for the assessment year and
          for the 2 assessment years succeeding the
          assessment year covered by the final judgment,
          except as to changes in the value of the
          property occurring after the assessment date.
          The conclusive and binding effect of the
          judgment shall terminate with the tax year
          immediately preceding the year in which a
          program for a complete revaluation or complete
          reassessment of all real property within the
          district has been put into effect.

          [N.J.S.A. 54:51A-8 (emphasis added).]



                                  2                              A-1976-15T1
       The material facts are not disputed and are summarized as

follows.      After plaintiff filed a tax appeal from its property's

2010 assessed valuation, the parties reached an agreement as to

the value and the Tax Court entered a judgment on June 17, 2011,

fixing the assessment in the agreed upon amount.                          Prior to the

entry of the judgment and despite the Freeze Act's "conclusive and

binding" effect, defendant increased the property's assessed value

for 2011, and the next two years.2

       Defendant notified plaintiff of the increased assessments

based upon its reassessment3 of properties                        within the entire

community,     which      began   in    2010.          In   order    to    pursue    the

reassessment, defendant submitted an application to the County Tax

Board   and    the   State    Division           of   Taxation    (Division).        The

application indicated that the reassessment would not include an

attempt to inspect all properties in the communities.                            In an

addendum to the application, defendant noted a "diligent attempt

will    be   made    to   inspect      the       interior   and     exterior   of    all

improvements that remain as 'estimates' from the 2008 Revaluation



2
    The reassessment valued plaintiff's property at $9,433,000.00
for the 2011 tax year, an increase of $1,033,000 above the agreed
upon 2010 property value.
3
    Defendant had previously conducted a revaluation in 2008 in
order to redistribute the burden of falling property values among
the commercial and residential properties.

                                             3                                  A-1976-15T1
. . . . [a]n attempt will also be made to gain entry into any

properties that have sold within the past 2 years, . . . . [and]

[a]n attempt will be made to gain entry into any properties that

are currently listed 'for sale' through the [Garden State Multiple

Listing Service]." The reassessment was to be completed by January

10, 2011.

     After conducting a public hearing, the County Tax Board

approved defendant's application, including defendant's proposal

to use an outside contractor, Appraisal Systems, Inc. (ASI), to

assist in the process.      The Division also stated that it expected

to receive "monthly status reports on the progress of the work

from the assessor."        On October 13, 2010, defendant's council

passed a resolution authorizing defendant's retaining ASI "for the

complete assessment of all real property with the Town of Newton."

     Defendant sent property owners letters dated November 5,

2010, advising them of the planned reassessment.        According to the

letter,     not   all   properties   would   be   inspected.   Instead,

"[i]nspections will be conducted on properties that have been

recently sold and/or listed for sale, properties that were never

inspected during the last Revaluation, and properties that have

had substantial renovations since the last Revaluation or where

the [property record cards] data is in question."         The assessment



                                     4                           A-1976-15T1
was to be finalized by early January 2011 "at which point all new

assessments will become effective for the 2011 tax year."

     According to plaintiff, ASI's actual work was limited to

inspecting only a fraction of the municipality's properties for

the purpose of defendant completing the revaluation.               As proof,

it relied upon defendant's agreement with ASI that only required

inspection of a property's interior and exterior "that require[d]

inspection."     Also, defendant's tax assessor instructed ASI to

inspect only a fraction – 400 of 2900 – of the properties, and,

ultimately, only 101 properties were actually inspected.4

     After receiving notice of the increased assessments for its

property, plaintiff filed timely tax appeals for each year.                 The

court     dismissed    plaintiff's    action       challenging    the      2011

assessment, which did not seek enforcement of the Freeze Act,

because    plaintiff    would   not       supply    "Chapter     91"    income

information.5


4
    In 2013, the County Tax Board "determined that the assessment
of [defendant] result[ed] in an unequal distribution of the tax
burden within [the] municipality" and directed defendant to
"implement a municipal wide reassessment to be completed by
December 31, 2013 and to be effective for the 2014 tax year." The
Division later entered an order implementing the Board's
directive.
5
    A Chapter 91 request is the common name for a request by a
municipal assessor for income information from the taxpayer in
accordance with N.J.S.A. 54:4-34.  1717 Realty Assocs., LLC v.


                                      5                                A-1976-15T1
     Plaintiff filed a motion with the Tax Court in November 2014

seeking   to    enforce     the   Freeze       Act   as    to   the   2011    and   2012

assessments – more than three years after the filing deadline for

appealing      the   2011   assessment         and   two    years     for    the    2012

assessment.      In its supporting papers, plaintiff stated that the

increase in the assessment was not the product of "a complete

revaluation or complete reassessment."                    Defendant responded and

asserted that that the increased assessments were allowed by an

exception to the Freeze Act that permits an increase when it is

due to a "complete" revaluation of the municipality.                        The parties

engaged in discovery as to the issue of whether defendant conducted

the complete revaluation contemplated by the Freeze Act, and once

completed, provided the court with supplemental submissions on the

issue.

     The Tax Court judge considered the matter, denied plaintiff

any relief and placed his decision on the record on December 4,

2015, which he later amplified in writing, Rule 2:5-6(c).                            The

judge explained that plaintiff's action was untimely because, as


Borough of Fair Lawn, 201 N.J. 275, 275 n.1 (2010). Under N.J.S.A.
54:4-34, "[n]o appeal shall be heard from the assessor's valuation
and assessment with respect to income-producing property where the
owner has failed or refused to respond to such written request for
information within 45 days of such a request." N.J.S.A. 54:4-34.
See 1717 Realty Assocs., supra, 201 N.J. at 279-80 (upholding the
constitutionality "of the appeal-preclusion sanction of N.J.S.A.
54:4-34").

                                           6                                    A-1976-15T1
a tax appeal, the matter should have been filed by April 1, 2011,

for the 2011 tax year and, by not complying with the Chapter 91

requests, plaintiff "lost its shot" to challenge the application

of the exception to the Freeze Act.   If the action was considered

as a challenge to defendant's decision to pursue the reassessment,

the judge found that the action was cognizable as an action in

lieu of prerogative writs only in the Superior Court, unless that

court referred the matter to the Tax Court.   Ultimately, the judge

concluded, that plaintiff was not entitled to any relief because

the increased assessment was the result of defendant's complete

revaluation as contemplated by the exception to the Freeze Act.

In his written amplification, the judge stated that he "concluded

that [defendant's] 2011 reassessment was indeed complete, and

therefore the application of the Freeze Act to tax years 2011 and

2012 was not appropriate."    The judge found that although the

Freeze Act does not define the word "complete" as it relates to

reassessment, the Division has promulgated regulations setting for

the requirements that must be met, N.J.A.C. 18:12A-1.14(c)(3),

which "the evidence demonstrates that [defendant] has satisfied

the preconditions necessary for its 2011 complete reassessment."

He found that defendant satisfied the statutory requirements of a

"complete" reassessment because it held a public hearing before

it adopted a formal resolution authorizing the revaluation, the

                                7                           A-1976-15T1
County Tax Board formally approved its application to conduct the

revaluation, and it obtained approval from the Division.

     Plaintiff argues that the approved plan was not a "complete

reassessment," and, even if it was, the execution of the approved

plan was insufficient to constitute a "complete reassessment."

According to plaintiff, defendant failed to establish a prima

facie showing that it was entitled to application of the exception

under the Freeze Act.   Moreover, plaintiff contends that even if

defendant proved it satisfied the requirement for the exception

to the act, the exception still should not be applied because it

"should be invoked only where application of the Freeze Act results

in [in]equitably favorable treatment of a particular taxpayer."

Defendant disagrees, arguing that plaintiff's challenge to the

complete reassessment is untimely and that defendant conducted the

reassessment in accordance with the plan approved by the County

and State, is consistent with the Freeze Act and applicable

regulations and, in any event,       plaintiff has no standing to

challenge the implementation of the reassessment process.

     In our review of a Tax Court's judgment, we "recognize the

expertise of the Tax Court in this 'specialized and complex area.'"

Advance Hous., Inc. v. Twp. of Teaneck, 215 N.J. 549, 566 (2013)

(quoting Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313,

327 (1984)).   Our review is limited to whether the Tax Court's

                                 8                          A-1976-15T1
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. Borough 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 (1974)).                    "[J]udges

presiding in the Tax Court have special expertise; for that reason

their findings will not be disturbed unless they are plainly

arbitrary or there is a lack of substantial credible evidence to

support them."       Hackensack City v. Bergen Cty., 405 N.J. Super.

235, 243 (App. Div. 2009) (alteration in original) (citations

omitted). "Although the Tax Court's factual findings 'are entitled

to deference because of that court's expertise in the field,' we

need   not   defer   to   its   interpretation   of   a   statute   or   legal

principles." Advance Hous., supra, 215 N.J. at 566 (quoting Waksal

v. Dir., Div. of Taxation, 215 N.J. 224, 231 (2013)).

       We begin with the Freeze Act, which does not refer to any

time period for filing a motion to enforce its provisions.                 See

N.J.S.A. 54:51A-8; see also R. 8:7(d). The act protects a taxpayer

by "freezing" an assessment for the two years following a tax year

for which there is a final judgment of the Tax Court.                    Ibid.

"[J]udgments of the Tax Court obtained by settlement between the

parties . . . are entitled to Freeze Act protection."                Grandal

Enters., Inc. v. Borough of Keansburg, 292 N.J. Super. 529, 537

                                      9                               A-1976-15T1
(App. Div. 1996) (citing S. Plainfield Borough v. Kentile Floors,

Inc., 92 N.J. 483, 487-89 (1983)). The act "is designed to protect

the taxpayer and grant repose to a final judgment of the Tax Court

for a period of two years, preventing arbitrary actions of the

taxing authority."    Hackensack City, supra, 405 N.J. Super. at 250

(citation omitted).

     A Freeze Act action filed by a taxpayer is independent of any

tax appeal pursued by the taxpayer under N.J.S.A. 54:3-21,6 which

challenges the fairness of an assessment.      Because the statute is

"self executing," "[i]t is not necessary for a taxpayer to file a

tax appeal to obtain the benefit of the Freeze Act.        Hackensack

City, supra, 405 N.J. Super. at 247 (quoting Grandal Enters.,

supra, 292 N.J. Super. at 537).        A taxpayer can, at its option,

seek both a reduction in a property's assessment and pursue a




6
    An appeal may be brought by

          a taxpayer feeling aggrieved by the assessed
          valuation of the taxpayer's property, or
          feeling discriminated against by the assessed
          valuation of other property in the county, or
          a taxing district which may feel discriminated
          against by the assessed valuation of property
          in the taxing district, or by the assessed
          valuation of property in another taxing
          district in the county[.]

          [N.J.S.A. 54:3-21.]

                                  10                          A-1976-15T1
Freeze Act claim.          See Grandal Enters., supra, 292 N.J. Super. at

538.

       There are two exceptions to the Freeze Act.                      "[W]hen the

taxing authority demonstrates circumstances occurring after the

base year assessment date that result in an increase in the value

of   the     property      or   when   the    taxing    authority   implements      a

revaluation program affecting all property in the tax district."

Id. at 536. Unless one of these exceptions apply, "the application

of the Freeze Act is 'mandatory and self-executing.'"                      Rockaway

80 Assocs. v. Rockaway Twp., 15 N.J. Tax 326, 331 (Tax 1996)

(quoting Clearview Gardens Assocs. v. Parsippany-Troy Hills Twp.,

196 N.J. Super. 323, 328 (App. Div. 1984)).

       "If    the   base    year   final     judgment    is   entered    after   the

assessing date for the freeze year, the taxpayer must apply for

Freeze Act relief," and the burden is on the municipality to prove

the application of one of the exceptions.                  Rockaway 80 Assocs.,

supra, 15 N.J. Tax at 331 (citing Clearview Gardens Assocs., supra,

196 N.J. Super. at 328) (addressing a municipality's claim of

change in value); see Grandal Enters., supra, 292 N.J. Super. at

536.   If the municipality establishes a prima facie case as to an

exception applying, the court should order a plenary hearing to

resolve any questions of fact as to the exception's application.

See Entenmann's Inc. v. Totowa Borough, 19 N.J. Tax 505, 512 (Tax

                                         11                                 A-1976-15T1
2001) (citing AVR Realty Co. v. Cranford Twp., 294 N.J. Super.

294, 300 (App. Div. 1996), certif. denied, 148 N.J. 460 (1997)),

aff’d, 21 N.J. Tax 182 (App. Div. 2003).     If there are no factual

issues, the matter should be decided on summary judgment.            R.

4:46-2(c).

       "[A] timely [tax] appeal . . . or the dismissal of an untimely

appeal has no effect on the application of the Freeze Act."

Hackensack City, supra, 405 N.J. Super. at 247.     Unlike the timing

of the filing of a tax appeal, which requires a swift determination

because of its relation to a municipality's budget, concerns about

timeliness do not outweigh a taxpayer's rights under the Freeze

Act.    Grandal Enters., supra, 292 N.J. Super. at 540.    Because a

Freeze Act action is independent of a tax appeal, it is not subject

to the same deadlines. See N.J.S.A. 54:3-21 (requiring tax appeals

be filed "on or before April 1, or 45 days from the date the bulk

mailing of notification of assessment is completed in the taxing

district, whichever is later").

       "The Freeze Act . . . may be invoked at the option of the

taxpayer on motion for supplementary relief to the Tax Court under

the caption of the Tax Court judgment for the base year to which

the Freeze Application is sought."    R. 8:7(d).   "The taxpayer need

not submit any affidavits concerning the lack of change in value

or that there has been no general revaluation."    Clearview Gardens

                                 12                           A-1976-15T1
Assocs., supra, 196 N.J. Super. at 329.    Although there is also

no "statutory provision requiring that a Freeze Act motion be

brought within a specific period of time," Grandal Enterprises,

supra, 292 N.J. Super. at 540, regulations provide that "[a]

taxpayer may apply to the county board of taxation within a

reasonable period of time upon proper notice to the municipality

seeking the enforcement of the Freeze Act with regard to a judgment

previously entered by the county board of taxation."      N.J.A.C.

18:12A-1.13(e).

     In Freeze Act actions relating to Tax Court judgments, courts

that confronted the timeliness of a Freeze Act action have looked

to the doctrine of laches to determine whether an alleged delay

in filing was reasonable, justified, and without prejudice to the

taxing authority.   See Fifth Roc Jersey Assocs., LLC v. Town of

Morristown, 26 N.J. Tax 212, 229-30 (Tax 2011) ("The 'Freeze Act'

has 'no specified time limitation . . . . Since there exists no

applicable statute of limitations [courts] must [ ] ascertain

whether the facts presented [ ] justify the imposition' of the

Doctrine of Laches" (alterations in original) (quoting Jack Nissim

& Sons, Inc. v. Bordentown Twp., 10 N.J. Tax 464, 468 (Tax 1989))).

     "To determine whether the Doctrine of Laches applies, the

court must weigh the 'length of the delay, the reasons for delay,

and the changing conditions of either or both parties during the

                               13                           A-1976-15T1
delay.'" Ibid. (quoting Knorr v. Smeal, 178 N.J. 169, 181 (2003)).

For laches to apply "[t]here 'must be a delay for a length of time

which,   unexplained   and    unexcused,   is   unreasonable      under   the

circumstances and has been prejudicial to the other party.'"              Id.

at 230 (quoting W. Jersey Title & Guar. Co. v. Indus. Trust Co.,

27 N.J. 144, 153 (1958)).

     We conclude that the Tax Court judge here did not engage in

this required analysis when considering whether plaintiff's Freeze

Act claim was timely filed.      Instead, he found that by not filing

it within the period for filing a tax appeal plaintiff could be

barred from pursuing the Freeze Act action.

     We also conclude the judge erred by considering plaintiff's

motion an action in lieu of prerogative writs, subject to the

applicable forty-five day for filing a complaint in the Superior

Court, see R. 4:69-6(a), and, as such, untimely and not cognizable

in the Tax Court.        We find no support for this conclusion.

Plaintiff argued the approved plan did not call for a "complete

reassessment"   and    also   that   the   execution   of   the   plan    was

inconsistent with the approval.

     We conclude that the Tax Court judge's finding that the plan

was complete because of the approvals obtained from the County and

Division established defendant's prima facie entitlement to the

exception's application.      We part company with the judge as to his

                                     14                              A-1976-15T1
belief that the approvals alone were sufficient to establish as a

matter of law that the plan resulted in a "complete reassessment"

in   light   of   plaintiff's   evidence-based   allegations   about   the

plan's implementation.     The fact that the County and the Division

approved the reassessment plan does not necessarily mean the

assessor and ASI conducted it in accordance with the approved

plan.

      Contrary to plaintiff's assertions, the fact that each and

every property was not inspected does not mean a reassessment was

not "complete."     While Tax Courts have recognized "the Freeze Act

[does not apply] in a year in which a county tax board approved

reassessment program is adopted by a taxing district," Ennis,

supra, 13 N.J. Tax at 430, they have looked to how the reassessment

was conducted to determine whether it was done properly.         In City

of Elizabeth v. 264 First St., LLC, 28 N.J. Tax 408, 439-40 (Tax

2015), the court explained:

             [T]he term "reassessment", involves a change
             in the property assessments of all property
             or all property in a given class in a taxing
             district; or changes in property assessments
             to a substantial number of individual parcels
             in a taxing district, resulting in a variance
             in property values from one year to the next
             (except for changes to assessments permitted
             for    added,   omitted    or   added/omitted
             assessments,   correction   of   mathematical
             errors, exemptions, demolitions, or changes
             required by tax appeal judgments).          A
             reassessment of property is conducted and

                                    15                           A-1976-15T1
             carried out by, and under the supervision of,
             the tax municipal tax assessor. . . .      [A]
             "good reassessment program includes: an
             analysis of all recent sales of real property
             occurring within a taxing district, including
             a comparison of sales with the assessed values
             of the properties sold; an identification of
             real property value trends occurring within
             the taxing district; a review of all real
             property values, parcel by parcel within a
             taxing district; . . . gathering of pertinent
             income data and utilization of such data where
             applicable;...a reconciliation and revised
             true value developed for each property . . .
             and carrying forward revised taxable values
             to the tax list for the year in which the
             reassessment is to become effective." Ennis,
             supra, 13 N.J. Tax at 426-27 (quoting Handbook
             for New Jersey Assessors, Section 801.13 (3d
             ed. 1989)).    Thus, an effective and useful
             reassessment program "seeks to spread the tax
             burden   equitably    throughout    a   taxing
             district." Ibid.

       Whether a tax assessor conducted a reassessment in accordance

with an approved "complete" plan is subject to the Tax Court's

review and "must be based on the evidence before it and the data

that are properly at its disposal.          It must also be consistent

with   the    issues   as   framed   by   proper   pleadings   or   settled

presumptive rules reflecting the underlying policy that government

action is valid." Id. at 447 (quoting F.M.C. Stores Co. v. Borough

of Morris Plains, 100 N.J. 418, 430 (1985)).

       We are therefore constrained to vacate the order denying

plaintiff relief and remand this matter for the Tax Court judge

to consider whether laches barred the filing of plaintiff's Freeze

                                     16                             A-1976-15T1
Act action and, if not, whether plaintiff raised a viable issue

as to whether the reassessment was executed in accordance with the

approved plan.   If the court finds that an issue exists, it should

conduct a plenary hearing to resolve any questions as to material

facts.

     The order under appeal is vacated and the matter remanded to

the Tax Court for further proceedings consistent with this opinion.

We do not retain jurisdiction.




                                 17                         A-1976-15T1
