SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2936-18T3

PLAZA TWENTY THREE 

STATION LLC,

Plaintiff-Respondent,

v.

TOWNSHIP OF PEQUANNOCK,

Defendant-Appellant.

_____________________________

Argued January 8, 2020 - Decided

Before Judges Fuentes, Haas and Enright.

On appeal from the Tax Court of New Jersey, Docket 

No. 13577-2017.

Robert H. Oostdyk argued the cause for appellant 

(Murphy Mc Keon PC, attorneys; Robert H. Oostdyk,

of counsel; James Matthew Parisi, on the briefs).

Michael D. Benak argued the cause for respondent (Mc

Carter & English LLP, attorneys; Daniel Peter Zazzali, 

of counsel and on the brief; Michael D. Benak and 

Priscilla Mieir, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

January 28, 2020
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Defendant Township of Pequannock (Township) appeals from the Tax 

Court's February 15, 2019 order granting plaintiff Plaza Twenty Three Station 

LLC's motion for summary judgment, and invalidating an added assessment the 

Township imposed on plaintiff's property for the 2017 tax year. We affirm.

The facts, as derived from the evidence submitted by the parties in support 

of, and in opposition to, the summary judgment motion, are fully detailed in 

Judge Vito L. Bianco's well-reasoned written amplification of his findings of 

fact and conclusions of law pursuant to Rule 2:5-1(b). Therefore, we recite only 

the most salient facts from that decision and, like Judge Bianco, view them in 

the light most favorable to plaintiff, the non-moving party. Polzo v. Cty. of 

Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 

142 N.J. 520, 523 (1995)).

In February 2017, plaintiff purchased a large shopping center (the 

property)1in the Township for $51,050,000. Prior to this purchase, the 

Township had assessed the property in 2016 for $24,446,100. This assessment

had remained unchanged since the last reevaluation of the property in 2011 for 

the 2012 tax year.

1

 The property is approximately 18.76 acres in size, and the shopping center 

itself is approximately 162,000 square feet.
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The shopping center has a number of commercial tenants, including Stop 

and Shop, PNC Bank, Jersey Mike's, Visionworks, and Smashburger. In 2014, 

there were two permits issued for construction projects on the property. The 

first was issued on January 2, 2014, and closed on May 1, 2014. This permit 

was described as an alteration and allowed for floodproofing and a tenant fit-up 

for Stop and Shop. The total cost of construction work was listed as $2,899,500. 

The second permit was issued on February 19, 2014, and completed on May 1, 

2014. The permit described the construction work as an alteration to PNC Bank. 

The total cost of the construction work was listed as $52,000.

In 2016, two more permits were issued for construction projects on the 

property. One permit was issued on February 16, 2016, and completed on April 

26, 2016. The permit described the construction work as an alteration and tenant 

fit-up for Jersey Mike's. The total cost of the construction work was listed as 

$123,910. 

The second permit was issued on October 21, 2016, and completed on 

January 4, 2017. This permit described the construction work as an alteration 

and tenant fit-up for Visionworks. The total cost of the construction work was 

listed as $146,700. The construction work included building (construction of 

two bathrooms, a retail space, a pre-test area, a lens preparation area, and a new 
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ceiling); plumbing (bathroom fixtures, drinking fountains, water heater, gas 

piping, and HVAC); and electric improvements (lighting, service upgrade, and 

furnace/air conditioning).

In 2017, a permit for a project at Smashburger was issued on March 17, 

2017, and closed on May 18, 2017. The permit described the construction work

as an alteration and tenant fit-up for Smashburger. The total cost of the 

construction work was listed as $315,000. The construction included building 

(new tenant separation assembly, vestibule, two dining rooms, two kitchens, two 

bathrooms, and walk-in refrigeration units); plumbing (bathroom fixtures, 

kitchen fixtures, a water heater, and gas piping); electrical (lighting, receptacles, 

switches, and a sprinkler head system); and fire improvements (kitchen hood 

exhaust system and Ansul system).

In his deposition, the Township's tax assessor, Robert Sweeney, testified 

he was responsible for making changes to the municipality's assessment roll, 

such as imposing an added assessment or fixing a clerical error. He explained 

for "something simple like replacing a furnace or hot water heater, I wouldn't 

change [an] assessment[,]" but he would "if it's more substantial [like] either 

[an] addition[] [or] renovation." However, where there was a "big discrepancy," 
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the Township would be required to file a tax appeal, and he would not attempt 

to impose an added assessment.

Sweeney testified that he did not change the property's 2012 assessment 

value prior to 2017 "because the property had a history of flooding issues, [and]

there were the prior appeals with the property with the prior owner." Sweeney 

stated that although he was aware that the property's market value changed 

between 2011 and 2016, he did not change the assessment because "at that time 

I wasn't sure. In retrospect, I would say, yes. But during those years, I wasn't 

sure."

However, after plaintiff purchased the property in February 2017, 

Sweeney imposed a twelve-month added assessment in the amount of 

$20,500,000. This raised the total assessment for 2017 from the original 

assessment of $24,446,100, to a total assessment of $44,946,100.

Although Sweeney alleged he prepared an income-based approach in

determining the amount of the added assessment, he admitted he had no 

supporting documentation in his file to support this claim. Sweeney did not 

submit a Chapter 91 information request as permitted by N.J.S.A. 54:4-34 to any 

of plaintiff's tenants and, therefore, had no information concerning their 
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business income. Sweeney also did not inspect any of the stores before almost 

doubling the amount of the assessment.

Instead, Sweeney testified that in determining to impose an added 

assessment in 2017, he reviewed the construction permits from Stop and Shop, 

PNC Bank, Jersey Mike's, Visionworks, and Smashburger. However, as 

plaintiff pointed out in its motion for summary judgment, and as Judge Bianco 

would later correctly conclude, the imposition of an added assessment is limited 

to a specific timeframe. 

By way of background, N.J.S.A. 54:4-63.2 provides that added 

assessments may be made when "any building or other structure . . . has been 

erected, added to or improved after October 1" of the pretax year, which is the 

date of the original assessment for the tax year, and completed before January 1 

of the tax year. Further, N.J.S.A. 54:4-63.3 allows added assessments to be 

imposed when "any building or other structure . . . has been erected, added to or 

improved after October 1" of the pretax year, and completed between January 1 

and October 1 of the tax year, which would be the next regular assessment date. 

An added assessment can only be imposed after the date of a project's 

completion. See N.J.S.A. 54:4-63.2 and -63.3. N.J.S.A. 54:4-63.1 defines 

"completed" as "substantially ready for the use for which it was intended." See
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also Freehold Borough v. Nestle USA, 21 N.J. Tax 138, 153 (Tax 2003)

("N.J.S.A. 54:4-63.3 does not permit added assessments for the year in which 

an improvement is discovered. Rather, added assessments are made for the tax

year in which an improvement is completed."). Thereafter, "[t]he added 

assessment is prorated for the number of months following completion." Van 

Orden v. Twp. of Wyckoff, 22 N.J. Tax 31, 34 (Tax 2005) (citing N.J.S.A. 54:4-

63.3).

The purpose of the added assessment law "is to permit the taxation of real 

property which becomes taxable during the year following the assessment date 

of October 1. . . ." Snyder v. Borough of South Plainfield, 1 N.J. Tax 3, 7 (Tax 

1980). "Without the added assessments, an improved property would escape 

taxation for a period of several months until the next regular assessment date." 

Otelsberg v. Bloomfield Twp., 18 N.J. Tax 243, 248 (Tax 1999).

However, "[a]n assessor is bound to follow proper procedure for assessing 

the value of property inadvertently left untaxed without resort to methods 

statutorily unauthorized." Parikh v. Livingston Twp., 30 N.J. Tax 326, 338 (Tax 

2018). Therefore, "assessors are obliged to learn of construction projects and 

their progress in a timely manner." Freehold Borough, 21 N.J. Tax at 152. This 

is particularly important because 
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a public entity is duty-bound to "turn square corners" 

when dealing with the public, which includes the

"primary obligation [] to comport itself with 

compunction and integrity . . . ." FMC Stores Co. v. 

Borough of Morris Plains, 100 N.J. 418, 426-27 (1985) 

(citation omitted). The time constraints contained in 

the statutes that govern the property tax scheme are by 

necessity restrictive, and strict compliance is required. 

Ibid. It is the role of the legislature, not the tax court, 

to alter or relax the statutory requirements.

[Parikh, 30 N.J. Tax at 339.] 

Our Supreme Court has also noted that:

[w]hile practicalities obviously preclude most assessors 

reviewing every assessment line item every year, see

Bergen Cty. Bd. of Taxation v. [Borough] of Bogota, 

104 N.J. Super. 499, 507 (Law Div. 1969), there should 

nevertheless be alertness to changed valuation factors 

peculiarly affecting individual properties in years 

between revaluations and requiring prompt revision of 

such assessments in fairness to the particular taxpayer 

or to the taxing district. Cf. [Twp. of Willingboro v. 

Burlington Cty. Bd. of Tax., 62 N.J. 203, 213-214 

(1973)]. It should be obvious that, absent such 

attention, the carrying over of assessments each year 

from one general revaluation to the next is not the 

proper discharge of the assessor's function.

[Tri-Terminal Corp. v. Borough of Edgewater, 68 N.J. 

405, 414 (1975) (emphasis added).] 

In Glen Pointe Assocs. v. Teaneck Twp., 10 N.J. Tax 598, 599-600 (Tax 

1989), the tax assessor imposed two added assessments for construction

completed in September 1984. One added assessment covered the remaining 
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months of 1984 and the other covered the entire year of 1985. Ibid. The Tax 

Court reasoned that the 1985 twelve-month added assessment was invalid

"because it was not imposed for a year in which the property was substantially 

completed within the purview of N.J.S.A. 54:4-63.3. It was not, but should have 

been, part of the regular assessment made on October 1, 1984 pursuant to 

N.J.S.A. 54:4-23." Id. at 600-01. The court further noted: 

The assessor simply failed to consider the full value of 

the subject [property] as of the assessing date, October 

1, 1984, for tax year 1985. The situation is simply an 

erroneous determination of value on the assessing date 

which the assessor attempts to correct administratively 

at a later date. The only way to remedy such an 

incorrect determination is for the taxing district to file

an appeal with county board (or with the Tax Court if 

the assessment exceeds $750,000) pursuant to N.J.S.A. 

54:3-21.

[Id. at 601 (emphasis added).]

Plaintiff filed an appeal from the added assessment for 2017 and, in its 

motion for summary judgment, argued that the Township violated N.J.S.A. 54:4-

63.2 and N.J.S.A. 54:4-63.3 because its assessor based the assessment on 

projects completed well before the 2017 tax year. Judge Bianco agreed with 

plaintiff's contention on this point. Citing the clear language of the statutes and 

the case law interpreting them as referenced above, the judge found 
10 A-2936-18T3

that the flood proofing, which was completed in 2014 

[at the Stop and Shop,] and the work completed at PNC 

Bank and Jersey Mike's, which were completed in 2014 

and 2016 respectively, should not have been 

incorporated into the 2017 added assessment as they 

were completed before October 1, 2016. Consequently, 

only the work at [Visionworks] and [Smashburger]

should have been considered for the 2017 added 

assessment.

In response to this ruling, the Township asserted that the added assessment 

was properly triggered solely by the Visionworks and Smashburger work, which 

occurred during the appropriate time frame for the 2017 tax year. In this regard, 

both N.J.S.A. 54:4-63.2 and -63.3 permit an added assessment to be imposed 

"when any parcel of real property contains any building or other structure which 

has been erected, added to or improved" during the pertinent time period. The 

Township acknowledged that the work at these stores did not constitute the 

erection or addition of a new structure or store. Instead, it asserted the work 

performed under the permits constituted "improvements" that could support the 

imposition of an added assessment.

However, the governing case law points to a different conclusion. In

Harrison Realty Corp. v. Harrison Town, the tax assessor imposed an added 

assessment in March 1995. 16 N.J. Tax 375, 377 (Tax 1997). The renovations 

and upgrades that were the basis of the added assessment included: (1) new 
11 A-2936-18T3

walls, ceilings, and floor coverings; (2) the installation of overhead loading 

doors and upgraded electrical system, sprinkler system, and HVAC system; and 

(3) a demising wall between leased spaces of two tenants. Ibid. 

In invalidating the added assessment, the Tax Court held: 

[t]he evidence shows that the major work done on 

the subject property following plaintiff's acquisition 

was in the nature of retrofitting, upgrading, and 

rectifying deferred maintenance. While the evidence 

does indicate that a demising wall was installed, along 

with three more overhead loading doors, no proofs were 

forthcoming about the cost either of those items or of 

the retrofitting and upgrading.

. . . The critical issue here is whether the work 

done represented an addition or improvement to the 

property within the meaning of the added assessment 

statute. The mere retrofitting, upgrading or 

remediation of deferred maintenance does not 

constitute an addition to the property; nor does it 

constitute an improvement. The term "improved," as 

used in the statute must, under the doctrine of ejusdem 

generis, be read in the context of the word "added" as 

used in the statute. That is to say, an improvement is in 

the nature of an addition.

The mere fact that the work done increased the 

value of the property, as both experts seem to agree, is 

irrelevant. That increase in value can be reflected in 

the assessment for tax year 1996. 

[Id. at 384-85 (emphasis added).]
12 A-2936-18T3

Similarly, the Tax Court found in Fifth Roc Jersey Assocs., LLC v. Town 

of Harrison that an added assessment was invalid because it was also based on 

construction that did not constitute an improvement under N.J.S.A. 54:4-63.2 

and -63.3. 26 N.J. Tax 212, 228 (Tax 2011). In Fifth Roc, the basis for the 

added assessment to a hotel was for construction that included renovations to 

the guestrooms, lobby, ballroom, and bar; the replacement of elevators; and the 

installation of smoke and heat detectors. Id. at 227-28. As in Harrison Realty 

Corp., the Tax Court concluded that this type of the work merely constituted 

retrofitting, upgrading, and remediation of deferred maintenance and, as such, 

was not an improvement under N.J.S.A. 54:4-63.2 and -63.3. Fifth Roc, 26 N.J. 

Tax at 228. The Township was unable to cite to any relevant judicial precedent 

holding otherwise.2

In invalidating the Township's added assessment based on the work 

performed at Visionworks and Smashburger, Judge Bianco stated

Considering the [Fifth Roc and Harrison Realty Corp.] 

decisions, the work done here at the [property] does not 

rise to the level of an "addition" or "improvement." At 

[Visionworks], there was construction of two new 

bathrooms, a retail space, a pretest area, a lens 

preparation area, and a new acoustical ceiling. 

2

 The Township's reliance on Otelsberg is unpersuasive as that case involved 

the valuation of residential, rather than commercial, property and is therefore 

inapposite. 18 N.J. Tax at 246-47.
13 A-2936-18T3

Furthermore, there was installation of new bathroom 

fixtures, drinking fountains, water heater, gas piping, 

HVAC, new lighting, service upgrades, and furnace/air 

conditioning. The total expected cost for the entire 

construction was $146,700. For [Smashburger], there 

was construction of new tenant separation assembly, 

vestibule, cueing area, two dining rooms, two kitchens, 

two bathrooms, and walk[-]in refrigeration units. In 

addition, there was installation of new bathroom 

fixtures, kitchen fixtures, water heater, gas piping, new 

lighting, receptacles, switches, and exit signage. 

Furthermore, new commercial kitchen hood exhaust 

system, Ansul system, and sprinkler head system were 

installed. The total expected cost for the entire 

construction was $315,000. In the court's view, the 

work at both [Visionworks] and [Smashburger] are 

similar to the work described in Fifth Roc and Harrison 

Realty Corp. It was de minimis in nature relative to the 

entire leasable area (2.64% of the entire area) and the 

2017 added assessment (2.25% of the added 

assessment). It constituted a mere retrofitting or 

upgrading, not an addition or improvement to the 

[property].

In so ruling, Judge Bianco rejected the Township's argument that it was 

entitled to a trial because there were allegedly outstanding issues of material 

facts. As the judge explained, the facts were not in dispute and were based upon 

the information provided by the Township's assessor. Moreover, the only matter 

at issue involved solely a legal question, that is, whether the retrofitting work 

done at the Visionworks and Smashburger constituted an "improvement" to 

those stores under N.J.S.A. 54:4-63.2 and -63.3. This appeal followed.
14 A-2936-18T3

On appeal, the Township raises the same arguments it unsuccessfully 

pressed before the Tax Court. Thus, the Township again asserts that despite the 

clear holdings of Fifth Roc and Harrison Realty Corp., the construction work at 

Visionworks and Smashburger was sufficient to support the 2017 added 

assessment on the property. The Township also reiterates its contention that 

Judge Bianco should have conducted a trial instead of resolving the legal issue 

presented on plaintiff's summary judgment motion.

Our review of the Tax Court's decision granting summary judgment is de 

novo, using the same legal standard employed by Judge Bianco. Waksal v. Dir., 

Div. of Taxation, 215 N.J. 224, 231 (2013). "Summary judgment must be 

granted if 'the pleadings, depositions, answers to interrogatories[,] and 

admissions on file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact challenged and that the moving party is 

entitled to a judgment or order as a matter of law.'" Town of Kearny v. Brandt, 

214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).

Thus, we consider, as Judge Bianco did, whether "the competent 

evidential materials presented, when viewed in the light most favorable to the 

non-moving party, are sufficient to permit a rational factfinder to resolve the 

alleged disputed issue in favor of the non-moving party." Ibid. (quoting Brill, 
15 A-2936-18T3

142 N.J. at 540). If there is no genuine issue of material fact, we must then 

"decide whether the trial court correctly interpreted the law." Massachi v. AHL 

Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007) (citing Prudential Prop. 

& Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998)). We owe 

special deference to the expertise of the Tax Court, although we do not defer to 

its interpretation of statutes. Waksal, 215 N.J. at 231.

We have considered plaintiff's contentions in light of the record and these 

applicable legal principles. We are satisfied that Judge Bianco thoroughly and 

correctly addressed the issues in his written opinion, and properly granted 

summary judgment to plaintiff. The Township's appellate arguments are without 

sufficient merit to warrant further discussion here. R. 2:11-3(e)(1)(E). 

Therefore, we affirm substantially for the reasons expressed in the judge's 

February 15, 2019 oral opinion and his subsequent written amplification of his

findings of fact and conclusions of law.

Affirmed.