TAX COURT OF NEW JERSEY

Joshua D. Novin Washington & Court Streets, 1st Floor

 Judge P.O. Box 910 

 Morristown, New Jersey 07963

 Tel: (609) 815-2922, Ext. 54680 

 Fax: (973) 656-4305

NOT FOR PUBLICATION WITHOUT THE APPROVAL

OF THE TAX COURT COMMITTEE ON OPINIONS

 May 31, 2018 

David B. Wolfe, Esq. 

Barbara A. Schweiger, Esq.

Skoloff & Wolfe, P.C. 

293 Eisenhower Parkway 

Livingston, New Jersey 07039 

 

Robert F. Renaud, Esq. 

Palumbo Renaud & DeAppolonio, LLC 

190 North Avenue East 

Cranford, New Jersey 07016 

Marlene Brown, Senior Deputy Attorney General

Division of Law 

R.J. Hughes Justice Complex 

25 Market Street

P.O. Box 106 

Trenton, New Jersey 08625-0106 

Re: Gourmet Dining, LLC v. Union Township, et als. 

 Docket Nos. 016504-2013, 012334-2014 

Dear Counsel: 

This shall constitute the court’s opinion with respect to Gourmet Dining, LLC (“Gourmet 

Dining”) and Kean University’s motion for reconsideration of the court’s March 14, 2018 opinion 

and Order denying their cross-motion for summary judgment and granting Union Township’s 

motion for summary judgment. 

For the reasons expressed herein, the court denies Gourmet Dining and Kean University’s 

motion for reconsideration. 
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I. Procedural History

Gourmet Dining is a restaurant, food service, dining operator, and manager. During the 

tax years at issue, Gourmet Dining operated and managed a fine dining restaurant known as Ursino 

(“Ursino”). Ursino was located in and comprised approximately 7,040 square feet of Kean 

University’s New Jersey Center for Science, Technology, and Mathematics building (“NJCSTM 

Building”). 

By letter dated August 27, 2012, Union Township’s tax assessor notified Gourmet Dining 

that it would be issuing a tax bill “for the Ursino Restaurant facility at Kean University.” Relying 

on N.J.S.A. 54:4-2.3, Union Township’s tax assessor maintained that Gourmet Dining was a 

“lessee” of Kean and therefore, Union Township was “required to assess as taxable real property 

the portion of Kean University’s [NJCSTM] Building used and operated by Gourmet Dining, LLC 

as the Ursino Restaurant.” 

Gourmet Dining filed tax appeals challenging Union Township’s tax assessor’s 

determination and the 2013 and 2014 tax year assessments. 

Union Township subsequently moved before the court seeking entry of an order granting 

summary judgment, arguing that Gourmet Dining was subject to local property tax under N.J.S.A. 

54:4-2.3 and/or N.J.S.A. 54:4-1.10. 

In response, Gourmet Dining cross-moved for summary judgment, arguing that Ursino 

restaurant was exempt from local property tax under N.J.S.A. 54:4-3.3, N.J.S.A. 54:4-3.6, and/or 

N.J.S.A. 18A:72A-18. 

On June 30, 2017, the court entered an Order joining Kean University and the New Jersey 

Educational Facilities Authority (“NJEFA”) as necessary parties to these actions. The court 
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afforded Kean University and NJEFA the opportunity to submit briefs addressing the substance of 

Union Township’s motion and Gourmet Dining’s cross-motion for summary judgment.

On March 14, 2018, the court delivered a written opinion and Order rejecting Gourmet 

Dining and Kean University’s arguments that Ursino restaurant was exempt from local property 

tax under N.J.S.A. 54:4-3.3, N.J.S.A. 54:4-3.6, or N.J.S.A. 18A:72A-18. Correspondingly, the 

court granted Union Township’s motion for summary judgment, concluding that the portion of the 

NJCSTM Building occupied, managed, and operated by Gourmet Dining as Ursino restaurant was 

subject to local property tax under N.J.S.A. 54:4-2.3 and/or N.J.S.A. 54:4-1.10. 

On April 3, 2018, Gourmet Dining and Kean University filed the instant motion for 

reconsideration of the court’s March 14, 2018 opinion and Order. 

II. Conclusions of Law

A. Standard for Reconsideration 

A motion for rehearing or reconsideration in the Tax Court is governed by R. 8:10, which 

states, in part, that:

The provisions of . . . R. 4:49-2 shall apply to Tax Court matters 

except that all such motions shall be filed and served not later than 

20 days after the conclusions of the court are announced orally or in 

writing. . . 

[R. 8:10.] 

R. 4:49-2 requires that any motion for rehearing or reconsideration: 

. . . seeking to alter or amend a judgment or order. . . shall state with 

specificity the basis on which it is made, including a statement of 

the matters or controlling decisions which counsel believes the court 

has overlooked or as to which it has erred. . . 

[R. 4:49-2.]
4 

Thus, a motion for reconsideration must be supported by “a statement ‘of the matters or 

controlling decisions which counsel believes the Court has overlooked or as to which it has erred.’ 

The basis to such a motion, thus, focuses upon what was before the court in the first instance.” 

Lahue v. Pio Costa, 263 N.J. Super. 575, 598 (App. Div. 1993) (internal citations omitted).

A motion for reconsideration is granted sparingly. Nonetheless, reconsideration “is a 

matter within the sound discretion of the court, to be exercised in the interest of justice.” 

Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). However, reconsideration should 

not be used as a vehicle to reiterate the merits of or “reargue a motion.” Capital Fin. Co. of 

Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J.

521 (2008). A motion for reconsideration should be granted “only for those cases which fall into 

that narrow corridor in which either: (1) the Court has expressed its decision based upon a palpably 

incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to 

appreciate the significance of probative, competent evidence . . .” D’Atria v. D’Atria, 242 N.J. 

Super. 392, 401 (Ch. Div. 1990). See also Fusco v. Bd. of Educ. of the City of Newark, 349 N.J. 

Super. 455, 462 (App. Div. 2002). Thus, a motion for reconsideration is not fitting simply because 

a litigant has expressed dissatisfaction or disagreement with the court’s decision, the appropriate 

setting for such arguments are on appeal. See D’Atria, 242 N.J. Super. at 401. 

Although a motion for reconsideration should be narrowly construed, a court may “in the 

interest[s] of justice” consider any “evidence” that the litigant claims is “new or additional . . . 

which it could not have provided” during the initial hearing. Id. at 401. However, consideration 

of such evidence is in the court’s “sound discretion.” Ibid. “[R]epetitive bites at the apple” should 

not be tolerated or “the core will swiftly sour.” Ibid. Accordingly, a court must “be sensitive and 

scrupulous in its analysis of the issues” presented under a motion for reconsideration. Id. at 402. 
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B. Gourmet Dining and Kean University’s Arguments 

1. Agent of NJEFA

The focus of Gourmet Dining and Kean University’s motion for reconsideration centers on 

the court’s finding that Kean University was not an “agent” of the NJEFA, as such term is 

construed under N.J.S.A. 18A:72A-18. Gourmet Dining and Kean University assert that this issue 

was not contested by Union Township, was not raised by the court prior to its March 14, 2018 

opinion, and therefore, was decided without affording the parties an opportunity to address the 

issue.

However, Gourmet Dining and Kean University’s claims are misplaced. In its May 19, 

2015 motion papers, Union Township highlighted the two critical elements in order to qualify for 

exemption under N.J.S.A. 18A:72A-18. First, that no taxes will be due with respect to a “project”

of the NJEFA; and secondly, that the property must be actually “used by the authority or its agent”

in furtherance of the delineated purposes under the New Jersey educational authority facilities law, 

N.J.S.A. 18A:72A-2 to -83. Union Township asserted both in its opposition brief, and during oral 

argument, that Ursino restaurant was neither a “project” of the NJEFA, as contemplated under 

N.J.S.A. 18A:72A-18, nor was it being operated by Gourmet Dining, in furtherance of the 

expressed statutory goals, as a dining hall, student union, or food-service establishment for the 

students, administrators, and faculty of Kean University.

Moreover, the court highlighted in its June 27, 2017 opinion, that “plaintiff asserts, in part, 

entitlement to an exemption under N.J.S.A. 18A:72A-18, as Ursino was a ‘project’ of NJEFA and 

that Kean University Foundation and Gourmet Dining serve as agents of NJEFA.” (emphasis 

added). The court emphasized that if it accepted Gourmet Dining’s argument that “Kean 

University Foundation or Gourmet Dining are agents of NJEFA . . . NJEFA must be joined as an 
6 

indispensable party in this action to be afforded the opportunity to be heard on this issue.” Thus, 

in joining Kean University and NJEFA as parties to these actions, the court underscored one of the 

principle issues in this matter, the alleged principal-agent relationship between NJEFA, Kean 

University, Kean University Foundation, Inc. and Gourmet Dining, and invited the parties to 

address this issue.

1

Additionally, the specter of the principal-agent relationship between Gourmet Dining,

Kean University Foundation, Inc., Kean University, and the NJEFA was again raised by the court 

during oral argument. In response to the court’s query, NJEFA submitted that it does not consider 

Gourmet Dining, Kean University, or Kean University Foundation, Inc. as “agents” of the NJEFA. 

NJEFA stressed that it was not a party to any agreement or arrangement with Gourmet Dining 

and/or Kean University Foundation, Inc. that would give rise to an agency relationship. Moreover, 

NJEFA expressed that no principal-agent relationship exists with Kean University, rather Kean 

University is an entity independent, separate, and distinct from the NJEFA. Although Gourmet 

Dining and Kean University disputed, and continue to dispute such interpretation, neither Gourmet 

Dining, nor Kean University offered, or furnish with this motion for reconsideration, any writing, 

document, or agreement between NJEFA, Gourmet Dining, Kean University Foundation, Inc., and

Kean University that the court has not already reviewed, analyzed, and rejected.

Thus, contrary to the arguments espoused by Gourmet Dining and Kean University, the 

parties were afforded an opportunity to be heard and to offer argument whether Gourmet Dining 

 

1

 The record in this matter disclosed what amounts to three lease agreements: (1) a December 1, 

2005 Lease and Agreement between NJEFA and Kean University Board of Trustees; (2) a 

October 19, 2011 Management Agreement between Kean University and Kean University 

Foundation, Inc. affording Kean University Foundation, Inc. the “exclusive right to operate, 

manage and control” the Ursino property; and (3) a October 19, 2011 Management Subcontract 

Agreement between Kean University Foundation, Inc. and Gourmet Dining for the Ursino 

property. 
7 

and/or Kean University were “agents” of the NJEFA, as such term is contemplated under N.J.S.A. 

18A:72A-18. Moreover, the court thoroughly reviewed the documents, agreements, and 

certifications submitted in support of, and in opposition to, the motions for summary judgment, 

concluding that no principal-agent relationship existed between Kean University and NJEFA.2

In their motion for reconsideration Gourmet Dining and Kean University highlight Sections 

11.02 and 12.02 of the Lease and Agreement, arguing that they should be read as “creat[ing] an 

agency relationship” and as “akin to a limited power of attorney.” These are two of the provisions 

considered and analyzed by the court in its March 14, 2018 opinion. The court’s rationale and 

basis for rejecting these provisions, as evidence of an express or implied principal-agent 

relationship, is detailed in the court’s March 14, 2018 opinion and need not be recited again herein.

Gourmet Dining and Kean University further assert that evidence of a principal-agent 

relationship existed under Sections 2.02 and 2.03 of the Lease and Agreement, which authorized

construction, development, and equipping of the NJCSTM Building, and permitted Kean 

University to establish reasonable rules and regulations for its use. However, these provisions 

exhibit the landlord-tenancy relationship that exists between NJEFA and Kean University under 

the Lease and Agreement, not a principal-agent relationship. The Lease and Agreement vests Kean 

University with the ability to exclusively use, possess, and enjoy the land and NJCSTM Building, 

subject to the terms and limitations expressly set forth under the Lease and Agreement. 

Specifically, Sections 2.02 and 2.03 of the Lease and Agreement contain affirmative covenants 

regarding NJEFA’s use of the bond funds and Kean University’s use of the subject property.

Contrary to Gourmet Dining and Kean University’s assertions, Sections 2.02 and 2.03 of the Lease 

 

2

 During oral argument Kean University acknowledged that no other writing, contract, or 

agreement existed evidencing the relationship between NJEFA and Kean University, other than 

the Lease and Agreement dated December 1, 2005.
8 

and Agreement do not expressly or impliedly authorize Kean University to do or perform any act 

on behalf of NJEFA. A principal-agent relationship is established when one person or entity either 

expressly or impliedly authorizes another to act on its behalf. In order for that agency relationship 

to be created, a party must consent to have another act on its behalf. See Sears Mortgage Corp. v. 

Rose, 134 N.J. 326, 337 (1993). Sections 2.02 and 2.03 of the Lease and Agreement do not create

a principal-agent relationship. 

In sum, Gourmet Dining and Kean University offer no new or additional facts or evidence 

of the relationship that existed between Kean University and NJEFA. Moreover, they have not 

proffered any law or authority that they believe the court failed to weigh and consider in this matter. 

Rather, they highlight a few sentences of a comprehensive 38 page Lease and Agreement, arguing 

that the court should have read those sentences differently, to infer a principal-agent relationship. 

As stated above, arguments expressing disagreement with the court’s conclusions are not fitting 

for a motion for reconsideration, the appropriate setting for such arguments are on appeal. See

D’Atria, 242 N.J. Super. at 401. 

2. New Jersey educational facilities authority law

Gourmet Dining and Kean University further contend that the court misinterpreted two 

provisions of the New Jersey educational facilities authority law, N.J.S.A. 18A:72A-5 and N.J.S.A. 

18A:72A-27.1. 

Gourmet Dining and Kean University argue that N.J.S.A. 18A:72A-5 permits the NJEFA 

to designate a “participating college” as its agent. However, they have offered no agreement, 

writing, or document demonstrating that NJEFA exercised the right expressly afforded it under the 

New Jersey educational facilities authority law, and appointed or designated Kean University its 

agent under N.J.S.A. 18A:72A-5. Although our Legislature afforded the NJEFA the broad 
9 

“power” or authority under N.J.S.A. 18A:72A-5 to designate a “participating college” as its agent, 

the power is discretionary, not mandatory. 

Moreover, the New Jersey educational facilities authority law defines a “participating 

college” as “a public institution of higher education or private college which, pursuant to the 

provisions of this chapter, participates with the authority in undertaking the financing and 

construction or acquisition of a project.” N.J.S.A. 18A:72A-3 (emphasis added). Therefore, the

purpose of designating a “participating college” is not necessarily synonymous with that of a

principal-agent relationship. To the contrary, the law exhibits our Legislature’s intent to keep the 

“participating college” separate and independent from the NJEFA, stating that a participating 

college only “participates with the authority,” rather than expressly affording the participating 

college the authority to act on behalf of the NJEFA. 

Finally, to permit the financing and refinancing of the indebtedness for the construction 

and improvement of dormitories, our Legislature empowered the board of trustees of State 

colleges: (a) to sell and convey to the NJEFA title to the land on which dormitories are located; 

(b) to lease to the NJEFA the land on which dormitories are located for a term not exceeding 50 

years; (c) the power to lease or sublease any dormitories leased from NJEFA; (d) upon notice of 

any assignment by NJEFA of any lease or sublease, to recognize and give effect to such assignment

and to pay the assignee the rent due thereon. N.J.S.A. 18A:72A-26. 

Our Legislature further expanded the authority of the board of trustees of State colleges to: 

in relation to any conveyance, lease or sublease made under 

subsection a., b., or c. of section [N.J.S.A.] 18A:72A-26, with 

respect to revenue producing facilities . . . structures of facilities 

which produce revenues sufficient to pay the rentals due and to 

become due under any lease or sublease made under subsection c. 

of section [N.J.S.A.] 18A:72A:26 including, without limitation, 

student unions and parking facilities. 
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[N.J.S.A. 18A:72A-27.1.] 

Thus, Gourmet Dining and Kean University argue that the court too narrowly construed 

the statute to contemplate an “educational facility” producing revenue. Gourmet Dining and Kean 

University assert that the umbrella of the exemption afforded under N.J.S.A. 18A:72A-18 to a 

“project,” extends to all uses and operations conducted in that project, including Ursino restaurant. 

In essence, Gourmet Dining and Kean University maintain that the court should have taken a more 

expansive view of N.J.S.A. 18A:72A-27.1, to include all non-educational facilities which produce 

revenue, such as Ursino restaurant. 

A “project” of the NJEFA is defined by our Legislature as “a dormitory or an educational 

facility or any combination thereof.” N.J.S.A. 18A:72A-3. Moreover, an “Educational facility” 

is defined as:

a structure suitable for use as a dormitory, dining hall, student 

union, administration building, academic building, library, 

laboratory, research facility, classroom, athletic facility, health care 

facility, teaching hospital, and parking maintenance storage or 

utility facility and other structures or facilities related thereto or 

required or useful for the instruction of students or the conducting 

of research or the operation of an institution for higher education . . 

. and the necessary and usual attendant and related facilities and 

equipment . . . 

[N.J.S.A. 18A:72A-3 (emphasis added).] 

Here, the court concluded that the NJCSTM Building was an “educational facility” and 

therefore, a “project” of the NJEFA under N.J.S.A. 18A:72A-3. The next step in the court’s 

analysis required focusing on use and consideration whether Gourmet Dining and Kean University 

were agents of the NJEFA under N.J.S.A. 18A:72A-18. The statute, plainly written, provides that 

NJEFA and its agents shall not be “required to pay any taxes or assessments upon or in respect of 

a project or any property acquired or used by the [NJEFA] or its agent under the provisions of this 
11 

chapter.” N.J.S.A. 18A:72A-18. As recited above, the court concluded that neither Gourmet 

Dining, nor Kean University were agents of the NJEFA. Accordingly, the court concluded that 

the exemption afforded under N.J.S.A. 18A:72A-18 was not applicable.

The court observed, in its March 14, 2018 opinion, that “the operation of dining halls, 

cafeterias, and other food-service establishments for enrolled students, administrators, and faculty 

is an appropriate purpose for a public university or college.” Thus, to the extent that Kean 

University or Gourmet Dining could possibly be viewed as agents of the NJEFA, the court 

examined whether Gourmet Dining’s use of the property constituted a dining hall, student union, 

or facility required for “the operation of an institution for higher education.” N.J.S.A. 18A:72A3. In rejecting Gourmet Dining and Kean University’s arguments, the court found that Ursino 

restaurant did not constitute a dining hall, student union, cafeteria, or food-service establishment 

necessary and attendant “for the instruction of students or the conducting of research or the 

operation of an institution for higher education.” N.J.S.A. 18A:72A-3. The court found no reason 

to so broadly read N.J.S.A. 18A:72A-18 and N.J.S.A. 18A:72A-3 to extend the exemption to noneducational facility uses which were not contemplated under the New Jersey educational facilities 

authority law. 

Moreover, Gourmet Dining and Kean University’s argument here presupposes that the use 

and operation of Ursino restaurant is “for the benefit of the people of this state,” will result in “the 

improvement of their health and living conditions” and constitutes “the performance of an essential 

public function” as expressly required under N.J.S.A. 18A:72A-18. The court found a lack of 

support for Gourmet Dining and Kean University’s arguments that Ursino restaurant served public 

purposes, was used for a public purpose, or was designed to foster Kean University’s academic or

environmental stewardship programs. Accordingly, the court concluded that neither Gourmet 
12 

Dining, nor Kean University should be entitled to a local property tax exemption under N.J.S.A. 

18A:72A-18. 

Thus, Gourmet Dining and Kean University have not demonstrated that “(1) the Court has 

expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that 

the Court either did not consider, or failed to appreciate the significance of probative, competent 

evidence . . .” D’Atria v. D’Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). No statutory authority 

or “controlling decisions” have been offered which they “believe[] the court has overlooked or as 

to which it has erred” under R. 4:49-2. 

III. Conclusion 

For the above stated reasons, the court denies Gourmet Dining and Kean University’s 

motion for reconsideration of the court’s March 14, 2018 opinion and Order denying their crossmotion for summary judgment and granting Union Township’s motion for summary judgment. 

The court will issue an Order memorializing this opinion. 

 Very truly yours,

 

 Hon. Joshua D. Novin, J.T.C.