**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: ( 862**  **) 397** 

**- 5690**  **NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE TAX COURT COMMITTEE ON OPINIONS** 

**1 January 10, 2020**  **Michael J. Donnelly, Esq. Lasser Hochman, L.L.C.**  **75 Eisenhower Parkway, Suite 120 Roseland, New Jersey 07068-1694**  **Fred Semrau, Esq. Robert Rossmeissl, Esq.**  **Dorsey & Semrau, LLC 714 Main Street**  **P.O. Box 228 Boonton, New Jersey 07005** 
**Re: Braemar at West Milford, LLC v. West Milford Township**  **Docket Nos. 012238-2010, 011850-2011, 010904-2012,**

**014484-2013, 011227-2014, 008652-2015, and 008236-2016 Dear Mr. Donnelly,**  **Mr. Semrau and Mr. Rossmeissl**  **: This constitutes the court’s opinion with respect to West Milford Township’s**  **(“ West**  **Milford ”**  **) motion s**  **for reconsideration of the court’s September 20, 2019 letter opinion following trial**  **in the above matters**  **(“motion s**  **for reconsiderat ion”).**  **Specifically, West Milford seeks reconsideration of that limited portion of the court’s opinion finding the highest and best use o**  **f Lots 14, 20, and 23 on the subject property w**  **ere as three**  **single- family home**  **lots, as**  **of the October 1, 2011 and October 1, 2012 valuation dates.**  **1 For the reasons set forth below,**  **West Milford’s motions for reconsideration**  **are denied.** 

**1 West Milford’s motions for reconsideration do not challenge the court’s highest and best**  **use and value conclusions**  **for Lot 19.** **2**

I. Findi ngs of Fact & Procedural History **Braemar at West Milford, LLC (“**  **Braemar”), was the owner of**  **a tract o f real property**  **located along Wooley Road in West Milford, New Jersey. As of the valuation dates a t issue, the**  **real property co**  **nsisted of four contiguous lots containing a total of 76.63 acre**  **s. The property was identified on West Milford’s municipal tax**  **map as Block**  **10001, Lot**  **s 1 4, 19, 20, and 23**  **(the “subject property”).**  **On or about June 25, 2003, Braemar’s predecessor in interest received**  **preliminary major subdivision approval**  **from the West Milford Planning Board (the “Planning Board”)**  **for construction**  **of a seventeen lot single** 

**- family subdivision development on the subject property** 

**. However,**  **as a result of several issues**  **, including without limitation, Braemar**  **’s inability to**  **furnish well water tests satisfying the requirements**  **of West Milford’s Water Supply and Water Quality Requirement Ordinance No. 2007**  **-028 (the “Water Supply Ordinance”), final major subdivision**  **approval for what ultimately became a twelve lot single** 

**- family**  **subdivision development was not**  **granted until approximately a decade later, on December 17, 2015. Braemar f**  **iled complaints challenging the subject property’s 2010, 2011, 2012, 2013, 2014, 2015 and 2016 tax years local property assessments, as being in excess of its true value.**  **During trial, Braemar offered testimony from its principal, its land use attorney, and a**  **State of New Jersey certified general real estate appraiser**  **(the “ Expert”)** 

**. The**  **Expert prepared an**  **appraisal report expressing his**  **opinion of th e market value of the subject property as of the October**  **1, 20 09**  **, October 1, 201 0**  **, October 1, 2011, October 1, 2012, October 1, 2013, October 1, 2014, and October 1, 2015**  **valuation dates. In the**  **E xpert’s opinion,**  **final major subdivision development** 
**approv als were not reasonably probable as of each valuation date. Therefore,**  **he opin ed that**  **the subject property should**  **be valued as four individual lots having a highest and best use as follows:** **3**

**(a) Lot 19, as improved with a single**

**- family home; (b) Lot 14,**  **as a single**

**- family home building**  **lot; (c) Lot 20, for completion of the single**

**- family model home partially constructed on the lot;**  **and (d) Lot 23, as a single-family home building lot. In response,**  **West Milford offered testimony from its municipal tax asse ssor and from its**  **Planning Board attorney. West Milford offered no expert valuation evidence or testim ony.**  **Following six days of trial, o n**  **September 20, 2019 the court issued a letter opinion**  **: (i)**  **reducing the 2009, 2010, 2011, 2012, 2013, 2014, 2015 and 2016 years local property tax**
**assessment s on Lot 19; (ii)**  **affirming the 2011 year local property tax assessment on Lots 14, 20,**  **and 23; and (iii) reducing the 2009, 2010, 2012, 2013, 2014, 2015 and 2016 years local property**
**tax assessment s on Lots 14, 20, and 23.**  **2 Without restating**  **in its entirety the substance of the court’s September 20, 2019**  **opinion, the court methodically**  **detailed the chronology of events and analyzed and evaluated the testimony**  **and evidence offered**  **during trial**

**. After considering**  **all of the foregoing, the court concluded that**  **, as of the October 1, 2011 and October 1, 2012 valuation dates,**  **“ developing the subject property**  **into seventeen single**

**- family home building lots appeared improbable and more problematic**  **.” September 20, 2019 letter opinion, at 25** 

**. T**  **he court found**  **the E**  **xpert’s highest and best use opinions**  **for the subject property**  **, as of the October 1, 2011 and October 1, 2012 valuation dates**  **, to be reasonable and credible, concluding that the most**  **objective probable use of the**  **subject**

**2 In accordance with**  **R. 8:9-**  **3, the court afforded the parties until October 18, 2019 to submit their proposed computations of the local property tax assessments in accordance with the**  **court’s opinion. On November 12, 2019,**  **West Milford filed a letter setting forth the parties agreement regarding the allocation of the local property tax assessments for Lots 14, 19, 20 and 23, f**  **or all tax years at issue.**  **Accordingly, on November 19, 2019, the court entered Judgments for all tax years at issue in these matters.** **4**

**property’s land**  **, as gauged in the marketplace and specific to the user and to the timing of the use,**  **was as a residential development consisting of four single- family**  **home lots.**  **However, the court rejected the E**  **xpert’s highest and best use conclusions for the subject**  **property for the 2010, 2011, 2014, 2015, and 2016 tax years.**  **Specifically, t he court**  **explained t**  **hat it**  **did not find credible the E**  **xpert’s conclusion that final major subdivision approval for a**  **seventeen lot single -f** 

**amily subdivision development was “speculative” as of each valuation date**  **at issue. After analyzing and evaluating the**  **objective facts and data adduced in the trial record by**  **these criteria, the court concluded that the highest and best use of the subject**  **property was :**  **(i) Lot 19, as improved with a single** 

**- family home, as of the October 1, 2009, October 1, 2010, October**  **1, 2011, October 1, 2012, October 1, 2013, October 1, 2014, and October 1, 2015 valuation dates; and (ii) Lots 14, 20**  **, and 23, as a proposed sixteen single** 

**- family home subdivision (seventeen lots**  **less Lot 19), as of the October 1, 2009 and October 1, 2010 valuation dates; (iii) Lots 14, 20 , and**  **23, as three single**

**- family home building lots as of the October 1, 2011 and October 1, 2012**  **valuation dates (four lots less Lot 19); (iv) Lots 14, 20 ,**  **and 23, as a proposed sixteen single**

**- family**  **home subdivision as of the October 1, 2013 and October 1, 2014 valuation dates (seventeen lots less Lot 19); (v) Lots 14, 20**  **, and 23, as a proposed eleven single** 

**- family home subdivision as of**  **the October 1, 2015 valuation date (twelve lots less Lot 19). The court then analyzed the sales data and adjustments applied by the**  **E xpert to discern an**  **estimate of value for the subject property**

**. For t**  **he reasons set forth in the court’s September 20, 2019 letter opinion, the court rejected several sales transactions identified by the**  **E xpert as**  **comparable to the subject property and accepted others. Additionally, the court rejected s everal**  **adjustments a**

**pplied by the Expert**  **for the**  **reasons more particularly set forth in the court’s September 20, 2019 letter opinion** 

**. After explaining its rationale for rejecting certain sales** **5**

**transactions and adjustments, the court compared and analyzed**  **the remaining sales and**  **adjustments applied by the Expert** 

**. From th**  **e remaining data**  **, the court discerned an estimate of**  **true value for the subject property and applied said value as of each valuation date**  **at issue**

**. West Milford**  **subsequently filed motion**  **s for reconsideration of the court’s September 20,**  **2019 opinion. Specifically, West Milford seeks reconsideration of that limited portion of the**  **court’s opinion finding that the highest and best use of Lots 14, 20 and 23 on the subject**  **property**

**was as three**  **single- family home lots as of the October 1, 2011 and October 1, 2012 valuation**  **dates. 3**  **In support of its motions, West Milford pr**  **esent s**  **three argument s**  **: (i) the court’s highest**  **and best use conclusion for Lots 14, 20 and 23 ,**  **as of the October 1, 2011 and October 1, 2012 valuation dates**  **, was “reached upon an incorrect basis, and that the court failed to appreciate the**  **significance of probative, competent evidence in the record”; (ii) “in spite of t he [New Jersey**  **Department of Environmental Protection’s June 27, 2011] letter’s [express] words: 1) the project**  **continued to be exempt, and 2) Braemar had reas o**  **n to believe the project continued to be exempt”**  **4 ;**  **and (iii) “even assuming the Highlands Act**  **[ N.J.S.A. 13:20** 

**- 1 to**  **-35 ]**  **exemp tion had**  **lapsed, the court was erroneous in its conclusion of value for the subject property as of the October**  **1, 2011 and October 1, 2012 valuation dates.”**

**3 West Milford submitted reply**  **papers on January 8, 2020, two days prior to the return date of the**  **motions and outside the time period permitted under R.**  **1:6- 3(a). Despite such deviation**  **, the court**  **accepted the reply papers under R.**  **1:1-2.**

**4 In its reply papers, West Milford**  **submits that it**  **i s the “perception in the marketplace**  **that a protected right has been conferred on the property” and not Braemar’s subjective beli**  **ef that the project continued to be exempt that is paramount. However, as e**  **vidence of the alleged perception in the marketplace West Milford**  **highlights only arguments advanced**  **in August 2011 by**  **one of Braemar’s attorney**  **s as to why the Planning Board should consider Braemar’s application for final**  **major subdivision approval, and n ot**  **any expert valuation testimony as to the marketplace’s**  **reaction to the presence or lack of final**  **approvals. 6** 

II. Conclusions of Law **A. Standard for Reconsideration A motion for rehearing or reconsideration is governed by**  **R. 4:49-2.**  **See also R.**  **8:10**

**. The**  **rule provides, in part, that:**

**[A] 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 t he matters or**  **controlling decisions which counsel believes the court has overlooked or as to which it has erred, . . . .**  **[ R.**  **4:49-2.] Thus, a**  **motion for reconsideration must be supported by “a statement ‘of the matters or contr olling**  **decisions which counsel believes the court has overlooked or as to which it has erred.’ T he 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 rehearing or reconsideration is sparingly granted. Nonethe**  **less, reconsideration “is a matter within the sound discretion of the Court, to be exercis**  **ed in the interest of justice.”**  **Cummings v. Bahr, 295 N.J. Super.**  **374, 384 (App. Div. 1996). However,**  **reconsideration should not be used simply as a vehicle to reiterate the merits of a legal position.**  **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 na**  **rrow 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 c**  **ourt either did not consider, or failed to appreciate the significance of probative, competent evide**  **nce**
**. . . .”**  **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.), certif.**  **denied , 174**  **N.J. 544 (2002).**  **A motion for 7** 

**reconsideration is not fitting because a litigant has expressed dissatisfaction with the court’s**  **decision, the appropriate setting for such arguments are on appeal. D’Atria**  **, 242 N.J. Super. at**  **401.**
**B. Discussion** 

**1. The court’s highest and best use conclusion for Lots 14, 20**  **, and 23, as**  **of the October 1, 2011 and October 1, 2012 valuation dates, was**  **supported by the**  **record and the evidence offered**  **during trial.**
**In its m**  **otions for reconsideration**  **, West Milford**  **argues that the court’s highest and best**  **use conclusion for Lots 14, 20 and 23, as of the October 1, 2011 and October 1, 2012 valuation**  **dates, was “reached upon an incorrect basis, and that the court failed to appreciate the si gnificance**  **of probative, competent evidence in the record.” In support of this contention ,**  **West Milford submits that**  **despite the New Jersey Department of Environmental Protection ’s**  **Ju ne 27, 2011**  **letter stating**  **that “**  **the [Highlands Applicability Determination] issued on December 20, 2004, has also expired and the project is no longer exempt,” Braemar**  **nevertheless commenced litigation against**  **West Milford and the Planning Board in December 2011**

**. West Milford**  **contends t hat Br**  **aemar’s**

**commence ment of**  **this litigation demonstrates that**  **“Braemar did not believe that ‘it could not have**  **built the seventeen lot subdivision under the terms of the Highland’s Act.’”**  **West Milford’s argument is without merit** 

**. “For local property tax**  **assessment purposes, property must be valued at its highest and best use.” Entenmann's Inc. v. Totowa Borough**  **, 18 N.J.**  **Tax 540, 545 (Tax 2000)**

**. T**  **he highest and best use analysis requires objective**  **consideration of**

**“ the reasonably probable and legal use of vacant land or an improved property that is physically**  **possible, appropriately supported, financially feasible, and that results in the highest value.**  **” The**  **Dictionary of Real Estate Appraisal , at 93. The highest and best use analysis requires an appraiser** 
**to “interpret[] the market forces that affect the subject property and identif[y] t**  **he use or uses on 8** 

**which the final opinion of value is based.” Appraisal Institute,**  **The Appraisal of Real Estate , 42**  **(14 th**  **ed. 2013). Thus, a property’s highest and best use is**  **“shaped by the competitive forces within the market where the property is located.”**  **Id. at 331. Sign**  **ificantly , a property’s highest and best** 

**use is**  **: not a function of a particular owner’s use or subjective judgment as** 

**to how a property should be used. . . . Highest and best use is not determined through subjective analysis by the property owner** 

**. The**  **pr oper determination**  **of highest and best use requires a comprehensive market analysis to ascertain the supply and demand**  **characteristics of alternative uses. Additionally, the proposed use**  **must not be remote, speculative, or conjectural. If a party seeks t**  **o demonstrate that a property's highest and best use is other than its**  **current use, it is incumbent upon that party to establish that**  **proposition by a fair preponderance of the evidence. [**  **Clemente v. South Hackensack Twp., 27 N.J. Tax**  **255, 268-69 (Tax**  **2013), aff’d**  **, 28 N.J. Tax 337 (App. Div. 2015) (internal citations**  **omitted).] Thus,**  **whether Braemar subjectively believed**  **, or did not believe**  **, that it could buil**  **d a**
**seventeen lot single** 

**- family home**  **subdivision on the subject property**  **as of the Octob er 1, 2011**  **and October 1, 2012 valuation dates is not conclusive evidence**  **of the subject property’s highest**  **and best use on those dates** 

**. That is not to say that information, facts**  **, and**  **data about a property**  **should be ignored**  **whe n performing a highest and best use analysis. Rather, in performing a**  **highest and best use analysis ,**  **an appraiser must attempt to solicit all available information about**  **the property, including any physical and/or**  **legal issues**  **that impact or affect**  **it . In performing the**  **highest and best use analysis, t he appraiser**  **may give consideration to: (i) whether the existing**  **improvements on the property should be maintained in their current state; (ii) whether the market**  **value of the property with the existing improvements is greater than the market value of t he land**  **as vacant, less the cost to demolish the existing improvements; and**  **(iii) what are the potential alternative uses of the property** 

**. However, in order to meaningfully weigh each of these** **9**

**considerations, the appraiser mus t have examined**  **and analyz ed** 

**supply and demand data from**  **the marketplace**  **, including timing, zoning trends, price, private restrictions, building codes,**  **ordinances, environmental restrictions, etc. Only after**  **detailed information about the property being a**  **ppraised has been gathered**  **and the appraiser has**  **objectively analyz ed**  **and review ed**  **the market data**  **collected ,**  **can the appraiser**  **reach an informed de cision**  **of what**  **uses are physically**  **possible, appropriately supported, financially feasible, and that**  **will result in the highest value**  **of the property.**  **Thus, here, t he**  **Expert was required**  **to e valuate in an objective manner**  **the economic conditions,**  **demand in the marketplace, and**  **the facts and informati**  **on known about the subject**  **property, including without limitation, the reasonable probability of satisfying the preli minary**  **major subdivision approval conditions, to discern its highest and best use.**
**T he**  **testimony and evidence**  **introduced during trial discl**  **osed th**  **e following material**  **facts: (i)**  **in 2003 the subject property received preliminary major subdivision approval for a sevent een**  **lot single**

**- family**  **home subdivision development**  **; (ii) on December 20, 2004, the N**  **ew J**  **ersey D**  **epartment of Environmental Protection (“NJDEP”) granted the project**  **an “**  **exempt [ion]**  **from the provisions of the Highlands Water Protection and Planning Act**  **” ; (iii) i**  **n or about late 2006,**
**Braemar made application for: (a) final major subdivision approval; (b)**  **construction permits to build a single** 

**- family home on Lot 19, and to**  **build a**  **single**

**- family**  **model home on one of the proposed**  **interior building lots**  **; and (c) commenced construction of**  **the two single** 

**- family homes**  **; (iv) on November 7, 2007, West Milford adopted**  **the Water Supply Ordinance; (v) in late 2007,** 
**t he well**  **-documented economic downturn began**  **, resulting in a dramatic slowing of**  **Braemar’s efforts to perfect**  **final major subdivision approval ; (vi) b**  **etween 2007 and 2011 , communications**  **between Braemar ,**  **the Planning Board and their representatives**  **were exchanged regarding the** **10**

**subject property’s aquifer test, aquifer test plan addendum, available groundwater on the subject**  **property, and Braemar’s**  **willingness to comply**  **with the Water Supply Ordinance ; (vii) o**  **n June 27, 2011, the**  **NJDEP i**  **ssued a letter advising that**  **“the Freshwater Wetlands general permit**  **[for the subject property]**  **has expired [and] the [Highlands Applicability Determination] issued on December 20, 2004, has also expired and the project is no longer exempt”**  **; (viii) in 2011,**  **following receipt of the NJDEP’s**  **letter , the Planning Board conducted a**  **completeness hearing resulting in**  **the terminat**  **ion of review of Braemar’s application for final major subdivision approval, finding that the application was incomplete as a result of its noncompliance with the Water**  **Supply Ordinance and lack of a valid Highland’s Act exemption; (ix)**  **on December 12, 2011, Braemar commenced litigation against West Milford and the Planning Board seeking declara**  **tory judgment that approval of its application for final major subdivision approval does not require com**  **pliance with the Water Supply Ordinance, and a writ of mandamus compelling the Planning Board to**  **consider its application for final major subdivision approval; (x) on September 24, 2012, Braemar,**  **West Milford, and the Planning Board entered into a Settlement Agreement and Consent Order**  **(the “Settlement Agreement”) of the litigation; (xi) under the**  **terms of the Settlement Agreement: (a) the Planning Board agreed to reinstate Braemar’s application for final ma**  **jor subdivision approval**  **; (b) Braemar agreed to comply**  **with the Water Supply Ordinance and (c) the Planning Board**  **agreed to grant a conditional approval of Braemar’s**  **final major subdivision application**  **subject to: (i) compliance with the Water Supply Ordinance; and (ii) Braemar s ubmitting**  **satisfactory evidence that the December 20, 2004 Highland’s Act exemption let ter remains**  **effective or h as been reinstated by the NJDEP; (xii)**  **on December 20, 2012, the NJDEP issued a letter reversing its prior finding**  **and concluding that, based o**  **n its review of additional information submitted, “the work conducted under the Freshwater Wetlands General Permits . . . was** **11**

**completed prior to both permit expiration dates, and that the local approval remains valid**  **.” Thus, “the Exempt**  **– Consistent finding from [the] December 20, 2004 [exemption letter] remains valid”;**  **(xiii) on December 17, 2015, the Planning Board conditionally**  **approved Braemar’s revised application for final major subdivision for twelve single-**  **family lots**

**. In its reply papers,**  **West Milford relies on Rockstone Group v. Lakewood Twp., 18 N.J.**  **Tax 117 (Tax 1999), for the proposition that “MUA, DEP and DOT requirements are conditions precedent to obtaining building permits, not to obtaining municipal approvals.”**  **Id. at 124. Thus,**  **West Milford submits that it is the “perception in the marketplace that a protected right h as been**  **conferred on the property” that is most important.**  **However, a closer reading of Judge Axelrad’s**  **opinion Rockstone Group**  **reveals that what was “[o]f most rel evance”**  **in determining whether there was a substantial and meaningful increase in**  **property value under the Freeze Act, N.J.S.A.** 
**54:51A-8 , was the “**  **property rights that the Legislature conferred upon the developer [under the**
**M unicipal Land Use Act, N.J.S.A.**  **40:55D- 50(a)] upon**  **final approval of a site plan.”**  **Rockstone Group**  **, 18 N.J. Tax at 124 (emphasis added). Here, final major subdivision approval for twelve**  **single- family home lots**  **was not granted until December 17, 2015, three to four years after the** 
**Oct ober 1, 2011 and October 1, 2012 valuation dates**  **at issue**

**. Significantly,**  **West Milford elected to offer no expert valuation**  **testimony with respect the marketplace’s reaction or perception that a**  **protected right was conferred on the property, if any.**
**Conve rsely, as expressed by the court in the September 20, 2019 letter opinion, during trial**  **Braemar’s Expert presented credible testimony and evidence with respect to his ex amination and**  **analysis of supply and demand data in**  **the marketplace, including but not limited to use, zoning, price, ordinances, and environmental restrictions.** **12**

**A fter**  **evaluating and analyzing all of the testimony**  **, the court determined that the**  **E xpert’s**  **highest and best use**  **conclusions for the subject property, as of the October 1, 2011 and October 1, 2012 valuation dates, that final major subdivision approval was “speculative,”**  **and that “**  **the property did not have development potential beyond four lots**  **,” was**  **both objectively**  **reasonable based on his analysis of the marketplace**  **and was supported by the empirical evidence.**  **In sum, the court conclu**  **d ed**  **that the highest and best use of**  **the subject property’s Lots 14, 20 ,**  **and 23 ,**  **as of the October 1, 2011 and October 1, 2012 valuation dates**  **, was as**  **three single-**  **family home lots and did not f** 

**ail to appreciate the significance of any probative, competent evidence in the record.** 
**2. The subject property’s Highland’s Act exemption**  **was revoked by the NJDEP, but was later reinstated.**  **West Milford now argues that the NJDEP’s June 27, 2011 letter was an “erroneous determination” and that the court “must consider how the June 27, 2011 letter from the NJDEP**  **came into existence ,**  **” and that “Braemar itself might be culpable” for why the NJDE**  **P arrived at its determination.**  **Contrary to West Milford’s assertions, the court considered**  **both the origins of the NJDEP’s June 27, 2011**  **letter and how that letter impacted the probability of obtaining final major**  **subdivision approval. Moreover,**  **despite West Milford’s acknowledgement in its motion s**  **for reconsideration that the NJDEP’s June 27, 2011 letter was “erroneous,” c**  **redible testimony was presented by**  **Braemar’s land use attorney, Mr. Loveys**  **, and West Milford’s Planning Board**  **attorney, Thomas Germinario, that**  **the NJDEP’s June 27, 2011 letter unequivocally stated that “the**  **Freshwater Wetlands general permit has expired [and] the [Highlands Applic ability**  **Determination] issued on December 20, 2004, has also expired and the project is no longer exempt**  **.” (emphasis added.) 13** 

**T he record**  **further disclosed**  **that although**  **Braemar disagreed with the conclusions reached by**  **the NJDEP in the**  **June 27, 2011 letter and began**  **pursuing an**  **administrative appeal**  **, it was not an absolute certainty**  **that it s**  **efforts to challenge the NJDEP’s**  **determination would prove successful**  **. To the contrary, Mr. Loveys readily acknowle dged**  **that s hould**  **Braemar’s efforts**  **have proven unsuccessful,**  **“the ramifications of [the loss of the Highland’s Act exemption], it was very serious . . .**  **,” w ithout the Highland’s Act exemption**  **, Braemar “ could not have built the seventeen**  **lot subdivision. . . .” Moreover, the**  **trial record**  **failed to demonstrate that**  **when the NJDEP issued its June 27, 2011 letter that the Planning Board agreed with**  **character iz**  **ing it as “erroneous.”**  **Rather ,**  **testimony was elicited**  **during trial that**  **the NJDEP’s June 27, 2011 letter directly**  **impacted how the Planning**  **Board viewed Braemar’s application for final major subdivision approval. According to Mr. Germinario, he “reque**  **sted that [NJDEP] make a determination on that issue, whether or not the exemption was still good, because we needed to know that. We**  **[the Planning Board]**  **couldn’t create lots with the uncertainty as to whether [Braemar] still retained the**  **[Highland’s Act] exemption.” Mr. Germinario further expressed that i f it was**  **determined after**  **final major subdivision approval was granted and the plat filed that “the [Highland’s A ct]**  **exemption was terminated we would have lots that could have no water s upply** 

**. . . T**  **hen we would have created lots that were undevelopable.**  **” In Mr. Germinario’s opinion, as the Planning Board’s**  **counsel, he bore an obligation to “make a determination that [Braemar] still had their Highland’s**  **Exemption status because I [Mr. Ge**  **rminario] was aware that that provision in the Highlands**  **Regulation said that you could not have a cessation or lapse of construction of . . . over one year.”**  **Mr. Germinario’s rationale for requesting clarification from the NJDEP regarding the**  **status of Br aemar’s Highlands Act exemption**  **is not unreasonable in light of the time period that** **14**

**elapsed from the date preliminary major subdivision approval was**  **granted. This was further**  **reinforced by Mr. Germinario’s testimony that if an applicant in West Milford sought s ubdivision**  **approval without having received a Highland’s Act exemption from the NJDEP there “would be no way for them to get approval of water or septic . . . if they tried to create lots. . . .”**  **However, notwithstanding Mr. Germinario’s**  **reasoning for soliciting the NJDEP’s opinion,**  **following receipt of the NJDEP’s June 27, 2011 letter**  **, the Planning Board cond**  **ucted a completeness hearing. Pursuant to Mr. Germinario’s testimony,** 

**we were unable to get any firm determination of when the exemption iss**  **ue would be clarified . . . So rather than . . . continuing [our] obligation to make completeness determinations and these things**  **keep coming back up on our agenda . . . we just ruled that we would terminate the review until they . . . were in a position to comply with**  **both the aquifer testing and the Highlands Exemption requirements**

**. Therefore, according to Mr. Germinario,**  **t he Planning Board**  **terminated review of Braemar’s application for final major subdivision approval, permitting**  **it “ to reapply for**  **final major subdivision approval**  **when ,**  **and if**  **, they have a valid Highlands Exemption**  **and/or approval and**  **when they are prepared to complete the aquifer testing required by ordinance . . . .”**  **(emphasis added.)**  **Additionally, although Braemar commence d**  **litiga tion in December 2011 against**  **West Milford and the Planning Board seeking review of**  **its final major subdivision**  **application , the** 

**commenc ement of**  **such litigation did not amount to an acknowledgement by Braemar that a seventeen lot**  **single- family home**  **subdivi sion remained possible. In fact,**  **under paragraph 7 of the**  **Settlement Agreement, the parties**  **expressly recognize d**  **that the Planning Board “determined that**  **[Braemar’s] Final Major Subdivision Application was incomplete due to noncomplia nce with [the** 
**Water S upply Ordinance] and because [Braemar] lacked a currently valid Highlands Exemption** 

**. . . , requiring [Braemar] to file a new final major subdivision application**  **should they be in a** **15**

**position to fulfill the aforesaid completeness requirements in the future.**

**. . . ”**  **(emphasis added). Significantly, the Settlement Agreement did not say that the Planning Board will consi**  **der the**  **application when Braemar’s Highlands Act exemption is reinstated. Rather, the Set tlement**  **Agreement stated that it will consider Braemar’s application should the Highlands Act exemption**  **be reinstated, thereby contemplating that Braemar may never be in a po sition to fulfill that**  **conditions of the settlement. (emphasis added.) Additionally, the Settlement Agreement expressly conditioned the Planning Board’s grant**  **of conditional a** 

**pproval of Braemar’s**  **application for f**  **inal m**  **ajor subdivision approval**  **on Braemar submitting “evidence to the reasonable satisfaction of the [Planning] Board . . . that the**  **Highlands Applicability Determination granting the Highlands Exemption, which was issued to [Br**  **aemar] on or about December 20, 2004, remains effective or has been re** 

**- issued or re**  **-instated.” Thus,** 
**Braemar , West Milford**  **, and the Planning Board observed, as of September 24, 2012, that receipt**  **of reinstatement of the Highlands Act exemption was not a foregone conclusion, but rather wa s**  **an uncertain**  **, but necessary**  **, condit ion precedent to the grant of conditional approval of Braemar’s**  **application for f**

**inal major subdivision approval.**  **Therefore, for the foregoing reasons, the court rejects West Milford’s ar gument that the**  **Highlands Act exemption for the subject property was actually**  **never revoked by the NJDEP**  **and that Braemar** 

**understood that the Highlands Act exemption was never actually**  **revoked.**
**3. The court did not reach an erroneous conclusion of value for the subject**  **property as of the October 1, 2011 and October 1, 2012 valuation dates. West Milford argues that the court’s September 20, 2019 letter opinion**  **unjustly enriches** 
**Braemar because the court “valued Lots 14, 20**  **[,] and 23 of the subject property upon an incorrect**  **basis as of these dates, and failed to appreciate the significance of probative, compet ent evidence.”** **16**

**Additionally , West Milford contends that the court’s decision deprived West Milford’s tax**  **assessor of th e right to**  **“appropriately capture the value of the subject property**  **” as an omitted** 
**assessment . B**  **ecause, “[h]ad Defendant’s Township’s Assessor known during the span of the**  **appeal that the Subject Property’s Highlands Act exemption was lost effective as of the NJDEP’s**  **letter of June 27, 2011, and that said exemption as restored as of the NJDEP’s letter of De cember**  **20, 2012, then the Assessor would have had the opportunity . . . to enact an Omitted Assessment after the October 1, 2012 valuation date. . . .”**  **West Milford’s argument is without support**

**. First,**  **during trial, West Milford elected not to present any evidence to the court from a valuation expert**  **regarding the subject property’s**  **highest and best use, or its true value**

**. Therefore,**  **bas ed on the evidence and testimony adduced**  **during trial, the court concluded that the E**  **xpert’s highest and best use**  **conclusions , as of the**  **October 1, 2011 and October 1, 2012 valuation dates, were reasonable and supported by the evidence, finding that the highest and best use**  **of Lots 14, 20, and 23 on the subject property, as of**  **those dates ,**  **was as three single** 

**- family**  **home lots. Accordingly,**  **in attempting to discern the true value of the subject**  **property as of the**  **October 1, 2011 and October 1, 2012 valuation dates**  **, the court evaluated and analyzed the**  **comparable sales evidence presented by**  **the E xpert. Giving due consideration to that price which**  **a hypothetical buyer would pay a hypothetical seller, as of October 1**  **st of the pretax year,**  **neither of which**  **we re**  **constrained to purchase or sell the property, the court concluded, for the reasons**  **expressed in**  **the September 20, 2019 letter opinion, that the true or fair market value of Lots 14,**  **20, and 23 was $275,000. A solemn principle**  **is set forth**  **under the Uniformity Clause of our state’s Constitution**  **, requiring an equality of treatment and of burden in setting property tax assessments. N.J. Cons**  **t. 17** 

**art. VIII, § 1, ¶ 1(a) ;**  **s ee**  **also West Milford Twp. v. Van Decker**  **, 120 N.J. 354, 360-61 (1990);**  **Baldwin Construction Co. v. Essex County Board of Taxation, 16 N.J. 329 (1954). “Consistent**  **with the command of the Uniformity Clause**  **[is] that all property in a taxing district be assessed at**  **the same standard of value, [and] assessors are obligated by statute to make an annual assessment**  **of each parcel of real property in a taxing district at its full and fair value. ” Chadwick 99 Associates**  **v. Dir**

**. , Div. of Taxation, 23 N.J. Tax 390, 412**  **-413 (Tax 2007)** 

**. That rule**  **is memorialized under** 
**N.J.S.A. 54:4**

**- 23, requiring**  **tax a ssessor**  **s to “ determine the full and fair value of each parcel of real**  **property situate in the taxing district at such price as, in his judgment, it would sell f or at a fair and**  **bona fide sale by private contract on October 1 next preceding the date on which the assessor shal l** 

**co mplete his assessments . . . .” N.J.S.A. 54:4-23.** 
**A s**  **expressed by our Supreme Court, in attempting to**  **discern a property’s true value for**
**tax purposes**  **“[t]he search, of course, is for the fair value of the property, the price a willi ng buyer**  **would pay a willing seller. ”**  **New Brunswick v. State Div. of Tax Appeals, 39 N.J. at**  **537, 544 (1963).**  **This concept is**  **often r eferred to as value in ex**  **change or the “value, in terms of cash, of**  **a property which is bartered for another asset or assets, cash being the yardstick by whic h the**  **comparative value of each can be assessed.” Appraisal Institute, The Dictionary o f Real Estate**  **Appraisal , 260 (5**  **th ed. 2010).**  **However, in order**  **to derive a property’s**  **estimated value in exchange ,**  **as of October 1 st**  **of the pretax year,**  **a thorough examination is required of the “ particular facts**  **[about a property] and**  **the reaction to them of experts steeped in the history and hopes of the area.” New Brun**  **swick , 39** 
**N.J. at**  **544**

**. See**  **also Petrizzo v**  **. Edgewater Borough, 2 N.J. Tax 197, 200 (Tax 1981); Genola**  **Ventures v. Shrewsbury Borough ,**  **2 N.J. Tax 541, 551 (Tax 1981)**

**. Thus,**  **in order to discern the value of Lots 14, 20, and 23 on the**  **subject property ,**  **as o f the October 1, 2011 and October 1, 2012** **18**

**valuation dates, the court**  **was required to not only objectively weigh and consider the facts and information available, including without limitation, the status of the subject property’**  **s Highland’s Act exemption, b**  **ut to consider the marketplace’s anticipated reaction to those facts and**  **information ,**  **in terms of a value in exchange transaction, based on the testimony and evidence**  **offered during trial. Here, the court considered all of**  **the factual and valuation evidence, thoughtfully and carefully analyzed the E**  **xpert’s opinion s**  **, including the basis for such opinions, and rendered an opinion based on the credible evidence presented. Th**  **erefore , the court rejects West Milford’s**  **assertion that the court**  **failed to appreciate the significance of probative and competent evidence in these matters**  **and unjustly enriched Braemar. Finally,**  **West Milford hypothesizes that had its assessor known that the subject property’s**  **Highland’s Act exemption was lost**  **as a result of the NJDEP’s June 27, 2011 letter, its assessor**  **could have valued the s**  **ubject p**  **roperty differently and then “would have had the opportunity after the October 1, 2012 valuation date to enact an Omitted Assessment once the Assessor had re**  **ceive d**  **notice of the NJDEP’s letter of December 20, 2012.” However, West Milford’s**  **argument is**
**contrar y to the law**  **and amounts to**  **little more than**  **unfounded hypothe ses, speculation, and**  **conjecture. It is the well settled law in this state that “real property must be valued in accordanc**  **e with events known or reasonably foreseeable on the assessing date and without the benefit of hindsight**  **.” 200 43rd Street, L.L.C. v. Union City, 16 N.J. Tax 138, 141 (Tax 1996)** 

**. See also**  **Lamm A ssocs.**  **v. Borough of West Caldwell, 1 N.J. Tax 373 , 385**  **(Tax 1980) (concluding that**  **“[t] he more**  **desirable approach is to conclude a value based on facts known or reasonably foresee able as of the**  **assessment date with subsequent events deemed relevant only if they are corroborati ve or** **19**

**consistent with the reasoning and approach utilized .”)**  **; Borough of Fort Lee v. Invesco Holding**  **Corp. , 3 N.J. Tax 332, 343**  **(Tax 1981) (concluding that “it is still the duty of the court to find the**  **true value on what was known or reasonably foreseeable” as of the valuation date.)**  **, aff'd in part,**  **rev'd in part, and remanded, 6 N.J. Tax 255 (App. Div.), cert.**  **denied , 94 N.J. 606 (1983); Inwood**  **at Great Notch v. Little Falls , 6 N.J. Tax 316**  **, 332 -333**  **(Tax 1984) (concluding that “[p]os**  **t assessing date events are not probative of true value unless they corroborate facts in exi**  **stence on the assessing date or unless such events are reasonably foreseeable on the assess**  **ing date.”) Additionally, the record before the court failed to disclose**  **that West Milford’s tax assessor undertook any action in response to the NJDEP’s June 27, 2011 letter advising that “the [Highla**  **nds Applicability Determination] issued on December 20, 2004, has also expired and the project is**  **no longer exempt,”**  **to alter or modify the subject property’s 2012 or 2013 tax year assessments. The**  **hypothetical arguments that West Milford now raises in its motions for reconsidera tion**  **are simply not the facts of the case.** 
**Here ,**  **the court evaluated and considered the facts and evidence known and which w**  **ere reasonably foreseeable**  **about the condition and limitations of the subject property as of the October 1, 2011 and October 1, 2012 valuation dates. The court observed that although**  **preliminary major subdivision approval was granted in 2003**  **for a seventeen lot single** 

**- family subdivision**  **development, the grant of final major subdivision approval was**  **not inevitable**

**. Rather, the road to**  **achieve final major subdivision approval was highlighted by a series of economic, physical and**  **legal s**  **etbacks , including without limitation the NJDEP’s June 27, 2011**  **letter advising**  **that “the**  **project is no longer exempt” under the Highland’s Act. Thus, due to t**  **he uncertainty facing**  **Braemar’s efforts to obtain final major subdivision approval the court concluded that**  **, as of the** **20**

**October 1, 2011 and October 1, 2012 valuation dates, the highest and best use of Lots 14, 20, and**
**23 w ere**  **as three single -family home building lots and should be valued accordingly.** 

III. Conclusion **For the above stated reasons, the court denies**  **West Milford’s motions for reconsideration**  **of the court’s September 20, 2019r opinion following trial in the above matters. An Order reflecting this opinion will be simultaneously entered herewith.**  **Very truly yours,**

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