TAX COURT OF NEW JERSEY

Joshua D. Novin Washington & Court Streets, 1 st 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- 4305 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE TAX COURT COMMITTEE ON OPINIONS
M ay 3 1, 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 shal l 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.2

I. Procedural History Gourmet Dining is a restaurant, food service, dining operator , an d manager. During the tax years at issue, Gourmet Dining o perated and managed a fine dining resta urant known as Ursino (“Ursino”). Ursino was located in and comprised approximately 7,040 square feet of Kean University’s N ew 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 th e court seeking entry of an o rder granting summary ju dgment, arguing that Gourmet Dining wa s 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 U rsino restaurant was exempt from local p roperty 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 court3

afforded Kean University and N JEFA 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 reject ing Gourmet Dining and Kean University’s argument s that Ursino restaurant wa s 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 B uilding occupied, managed , and operated by Gourmet Dining as Ursino restaurant wa s subject to local property tax under N.J.S.A. 54:4-2.3 and/or N.J.S.A. 54:4-1.10.
O n 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 . Conclusion s 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 deci sions 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 C ourt 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 c ourt, to be exercised in the interest of justice.” Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). However, r econsideration 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 C ourt 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 t o 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 “evide nce” 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” sh ould 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 402.5

B. Gourmet Dining and Kean University’s Arguments
1. Agent of NJEFA
T he focus of Gourmet Dining and Kean University’s motion for reconsideration centers on the court’s finding that Kean University wa s not an “agent” of the N JEFA , 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 afford ing the parties an opportunity to address the issue.
Ho wever, Gourmet Dining and Kean University’s claims are misplaced. I n 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 second ly , 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 a sserted both in its opposition brief, and during oral argument, that Ursino restaurant was n either 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
expre ssed statutory goals , as a dining hall , student union , or food

- service establishment for the students, administrator s, and faculty of Kean University. Moreover, the court highlighted in its June 27, 2017 opinion, th at “ 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). T he 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 an6

indispensable party in this action to be afforded the opportunity to be heard on this issue .” Thus,
i n joining Kean University and NJEFA as parties to these actions , the court underscored one of the principle issue s in this matter , the alleged principal

- agen t 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

- agen t 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 i s an entity independent , separate, and distinct from the NJEFA

. Al though Gourmet Dining and Kean University disputed , and continue to dispute such interpretation , neither Gourmet Dining, nor Kean University offer ed , or furnish with this motion for reconsideration, any writing , document, or agr eement 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 an d Kean University, the parties were afford ed an opportunity to be heard and to offer argument wh ether 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 Trustee s; (2) a October 19, 2011 Management Agreement between Kean University and Kean University Foundation, Inc. affording Kean University F oundation, Inc. the “exclusive right to operate, manage and control” the Ursino property; and (3) a October 19, 2011 Management Subcontrac t Agreement between Kean University Foundation, Inc. and Gourmet Dining for the Ursino property.7

and/or Kean University were “ agent s” 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 Universit y 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.” The se 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- agen t relationship , is detailed in the court’s March 14, 2018 opinion and need not be recited again he rein.
Gourmet Dining and Kean University further assert that evidence of a principal- agen t relationship exist ed under Sections 2.02 and 2.03 of the Lease and Agreement, which authoriz ed construction , develop ment, and equipping of the NJCSTM Building , and permitted Kean University to establish reasonable ru les 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- agen t rel ationship. T he Lease and Agreement vest s 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 Ag reement. Specifically, Sections 2.02 and 2.03 of the Lease and Agreement contain affirmative c ovenants regarding NJEFA’s use of the bond funds and Kean University’s use of the subjec t property. Contrary to Gourmet Dining and Kean University’s assertions, Sections 2.02 and 2.03 of the Lease

2 During oral argumen t Kean University ackn owledged 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 perf orm any act on behalf of NJEFA. A principal

- agen t relationship is established when one person or entity either expressly or implied ly 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)

. Section s 2.02 and 2.03 of the Lease and Agreement do not create a principal

- agen t 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 cons ider 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

. A s 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 app eal. See D’Atria , 242 N.J. Super. at 401.

2. New Jersey e ducational f acilities authority l aw Gourmet Dining and Kean University further contend that the court misinterpreted two provisions of the New Jersey educational f acilities 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 ha ve offered no agreement, writing, or document demonstrating that NJEFA exercis ed 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 broad9

“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 e ducational 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). The refore, the purpose of designating a “ participating college ” is not necessarily synonymous with that of a principal- agen t relationship . To the contrary, th e 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 exceedi ng 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 giv e 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 authori ty 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.10 [N.J.S.A. 18A:72A-27.1.] Thus, Gourmet Dining and Kean Unive rsity argue that the court too narrowly construed the statute to contemplate an “educational facilit y ” produc ing 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 Ursi no restaurant. In essence, Gourmet Dining and Kean University maintain that the court should have take n 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 i s 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, clas sroom, 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 wa s a n “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 consider ation whether Gourmet Dining and Kean University were agents of the NJEFA under N.J.S.A. 18A:72A

- 18. Th e 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 this11

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 constitute d a dining hall, student union, or facility required for “ the operation of an institution for higher education.” N.J.S.A. 18A:72A

3. In reject ing 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

necessar y and attendant “for the instruction of students or the conducting of research or t he 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 t he exemption t o 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 r esult 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. 1 8A:72A-18. T he court found a lack of support for Gourmet Dining and Kean University’s arguments that Ursino rest aurant served public
purposes, was used for a public purpose, or was designed to foster Kean University’s academic or environmental stewardship program s. Accordingly, the court concluded that neither Gourmet12

Dining, nor Kean University should be entitled to a local property tax exemption under N.J.S.A.
18A:72A-18.
Th us, Gourmet Dining and Kean University have not demonstrated that “(1) the Court ha s 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). N o statutory authority

or “controlling decisio ns ” 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 den ying their cross motion for summary judgment and granting Union Township’s motion for summary judgment. The cour t will issue an Order memorializing this opinion. Very truly yours,

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