**-1- NOT FOR PUBLICATION WITHOUT APPROVAL OF**  **THE TAX COURT COMMITTEE ON OPINIONS**

**------------------------------------------------------x F & E REALTY BY RACEWAY**  **: PETROLEUM,**  **: TAX COURT OF NEW JERSEY** 

**Plaintiff, :**  **DOCKET NO: 01**  **1927**

**- 2020**  **: 011412** 

**- 2021** 

**v. :**  **: TOWNSHIP OF GREEN BROOK**  **, : :** 

**Defendant. :**  **: ------------------------------------------------------x** 

**Decided: March 27**  **, 202 4.**  **John W. Zipp and Paul Tannenbaum for plaintiff**  **(Zipp & Tannenbaum, LLC)** 

**. Kevin A. McDonald**  **for defendant (**  **Di Francesco ,**  **Bateman ,**  **Kunzman, Davis, Lehrer & Flaum, P**  **C). CIMINO, J.T.C.**  **I. INTRODUCTION**  **The primary function of a municipal assessor is to determine the assessed**  **value of every parcel of**  **real property in a municipality** 

**. For both 2020 and 2021,**  **t he Gree**  **n Brook**  **a ssessor determined the value of taxpayer’s property**  **using computer assisted mass appraisal**  **and certified the value as correct to the county board of taxation.**  **After the**  **taxpayer filed an appeal to reduce the assessment**  **, t he**  **municipality filed a counterclaim to raise the assessment. T**  **he assessor prepared** **-2-**

**individual appraisals**  **for the properties under appeal for**  **2020 and 2021 opining**  **the prior assessments set by her are too low. In a prior appeal by the same taxpayer for**  **2019, the assessor did the same thing.**  **The taxpayer now moves to bar the assessor from testifying contrary to the assessment**  **s which she initially certified to the county**  **board. It is premature to bar the assessor’s testimony**  **. The testimony may**  **or may not be**  **problematic considering the inherent independence of the assessor**  **as an agent of the Legislature** 

**. While a**  **n assessor assesses property, the court assesses credibility.**  **T he court**  **must hear**  **the assessor**  **’s testimony to**  **a ssess**  **credibility**

**. II.**  **BACKGROUND The**  **tax maps of the defe**  **ndant municipality ,**  **Township of Green Brook**  **, designate**  **the property of plaintiff taxpayer ,**  **F & E Realty ,**  **as Lot 19, Block 19.02. T**  **he assessor assessed the property at $825,000**  **for 2020 and $935,000 for 2021** 

**. Green Brook is a participant in**  **the Somerset County annual reassessment**  **demonstration program . The program**  **uses computer aided mass appraisal**  **to set property assessments**  **at 100% of true value each year. See**  **N.J.S.A. 54:1 -104(c)(1).**  **Unlike the annual reassessment demonstration program, t he traditional**  **assessment method is to set the**  **assessment s**  **every so many years**  **, but not annually. During the intervening**  **years , a**  **pplying a**  **n equalization ratio to the assessed value** **-3-**

**allows for comparison to true value**

**. 1**  **N.J.S.A. 54:3**

**- 17, 1** 

**- 35.1.**  **The equalization ratio is determined by an annual sales study of propert**  **ies sold**  **in the municipality. N.J.S.A. 54:1** 

**- 35.3;**  **Township of Jefferson v. Dir., Div. of Tax’n ,**  **26 N.J. Tax 1, 5 n.5 (Tax 2011) (citing**  **Memorandum from the Dep’ t of the Treas** 

**. , Div** 

**. of Tax’**  **n, Local Prop** 

**. Tax Bureau, to The Sec**  **’ y of Each C**  **n ty** 
**. Bd** 

**. of Tax**  **’ n, All Mun** 

**. Assessors, and All Mun** 

**. Clerks (July 30, 1970)**  **). For consistency,**  **the formulas used for**  **the sales study are uniform statewide.**  **Ibid. Despite**  **certifying to the county board that**  **the assessments of the property for 2021 and 2022**  **are correct, the assessor now claims the assessments are incorrect**  **and should increase to $950,000 based upon an**  **eighty**

**- page appraisal report.**  **See N.J.S.A. 54:4** 

**- 36 (requiring affidavit of assessor).**  **The taxpayer wants to limit the**  **assessor to defending the assessments she previously certified to the county tax**  **board , thus barring the assessor**  **from testifying in support of raising the assessment s.**  **The taxpayer argues th e assessor’s status as an independent agent of the Legislature**  **bar s**  **her from taking sides with the municipality. On the other hand, the municipality**  **argues that the assessor is not taking sides, but merely reevaluating the**  **prior assessment**  **s.**

**1 The frequency of when a municipality conducts an assessment varies.**  **Municipalities have conducted**  **assessments within a decade and others have waited**  **decades. In all instances**  **, the equalization ratio allows for comparison to true value** 

**. The court is not deciding whether it is appropriate for an assessor to support an**  **increase a number of**  **years out from the assessment.** **-4-**

**This is not the parties**  **first foray into this issue. The taxpayer previously**  **appealed the 2019 assessment. The assessor assessed the property for**  **$8 25,000**  **in 2019** 
**. After an appeal by the taxpayer,**  **the municipality cross**

**- appealed and**  **t he**  **assessor prepared an apprais al**  **report pegging the assessment at $950,000. The court**  **denied a motion to**  **bar the assessor’s testimony**

**. The**  **taxpayer and the municipality withdrew their**  **appeal s**  **and t he**  **assessment remained a**  **t $825,000**

**. III.**  **THE ASSESSOR’S TES T**  **IMONY IS NOT BARRED While it is true the municipal**  **governing body appoints the assessor**  **and provides for both the assessor’s salary and h**  **er office, the assessor is an agent of the**  **Legislature with the constitutional mandate of ensuring uniform assessments.**  **N.J.S.A. 40A:9**

**- 146 (funding)**  **; Mobil Oil**  **Corp. v.**  **Township of Greenwich , 20 N.J.**  **Tax 66, 81 (Tax 2002) (agent)**  **; N.J. Const.**  **art. VIII, § 1, ¶ 1 (a)**  **(uniformity)**

**. T**  **he assessor is accountable to the Director of the Division of Taxation** 

**. N.J.S.A. 54:1** 

**- 25;** 

**- 35.29.**  **The county tax board and county tax administrator provide oversight.**  **N.J.S.A. 54:1**

**- 36; 3** 

**- 15, 3** 

**- 16.**  **“[Assessors] perform ‘**  **quasi**

**- judicial functions**  **’ by**  **applying ‘**  **independent judgment. ’”**  **VNO 1105 State Hwy. 36, LLC v. Township of Hazlet**  **, 33 N.J. Tax 20, 26 (App. Div. 2021) (**  **quoting Ream v. Kuhlman**  **, 112 N.J.**  **Super. 175, 190 (App. Div. 1970)). Assessors have the “challenging task in making annual assessments**  **completely free and independent of the needs and interests of their paymaster s, the** **-5-**

**mayors and councils.” Mobil Oil**  **, 20 N.J. Tax at**  **84. See also**  **McMahon v. City of Newark**  **, 195 N.J. 526, 541 (2008) (“ [T]**  **he assessor –**  **although a municipal employee**

**– remains free of any local control** 

**. ”).**  **T ax appeals**  **exasp erate**  **this already challenging task.**  **The Director currently defines the assessor’s duties to include “represent**  **[ing] the assessing office and the taxing district at formal tax appeal**  **hearings.” N.J.A.C. 18:17**

**- 4.1. This**  **longstanding duty of the assessor goes back to**  **at least 1964. Comm. on Training of Tax Assessors, Qualified Tax Assessors for**  **New Jersey 7 (1964).**  **More than defending her prior assessment, the municipality is calling the**  **assessor to rebut her prior assessment s**  **. To that end, she has prepared an eighty**

**- page**  **report outlining a basis to increase her prior assessments. She previously cer tified**  **the 2020 and 2021 assessments to the county board of taxation as correct. N.J.S.A. 54:4** 

**- 36. The essence of her testimony**  **is that the individually prepared appraisal report reveals the computer assisted mass appraisal technique she previously utilized**  **is incorrect . In response to a prior appeal, she opined the 2019 assessment to be**  **incorrect as well. The taxpayer**  **is not challenging whether an assessor can defend h er**  **assessment s**  **before the county tax board or this c**  **ourt. Instead, the taxpayer is challenging whether the assessor can present testimony that**  **varies from her prior**  **assessment s**  **. As explained by Judge Small, “ [a]**  **lthough the appeal of an assessment -6-** 

**should be adversarial (a contest between the taxpayer and the taxing district), the setting of assessments must be the objective and independent act of the assessor**  **without regard to the defense of prior assessments and the litigating interests of the taxp**  **ayers or the municipalities.” Mobil Oil**  **, 20 N.J. Tax at 84** 

**- 85.**  **Assessing credibility is something courts do often**

**. A**  **ssessing the credibility of an expert such as an assessor or apprais**  **er differs from the run** 

**- of** 

**- the** 

**- mill**  **credibility determination util ized for fact** 

**- finding.**  **For typical non**

**- expert fact**  **finding , the court must determine whose version of events are truthful, or**  **many times**  **, more truthful. While truthfulness is a factor with expert testimony, the role of the expert is not to**  **proffer the facts , but assist the court in finding the truth.**  **N.J.R.E. 702. Finding an expert’s testimony not credible, does not**  **necessarily equate with**  **untruthfulness, but**  **may merely constitute**  **a rejection of the t heory**  **presented**

**. On the other hand, finding a fact witness not credible**  **, many times points**  **to a lack of candor or truthfulness** 

**. 2**  **I n a typical tax appeal, each side**  **has an expert, either an assessor or apprais**  **er .**  **The experts provide differing testimony as to what the property is worth. Just because the court rejects some or all the testimony of an expert does not equate with**  **a lack of candor or untruthfulness. Rather, it reflects the courts rejection of the** 

**2 Finding a lack of credibility does not automatically equate with a determination**  **the witness is lying**

**. For example, a witness on a dark street may mistakenly identify**  **the perpetrator of a crime. -7-** 

**theory advanced by the expert for valuation of the property. Reasonable minds can differ as to the valuation.**  **The court arrive s**  **at a value**  **based upon the input from both experts whose role is to assist the court.**  **In this case, the assessor is not merely defending her assessment s**  **of the property.**  **If only the initial assessment s w**  **ere at issue**  **, the court’s dis**  **agreement with**  **the assessment**  **s does**  **not automatically mean the assessor lack**  **s candor or**  **truthfulness. I**  **t may merely**  **reflect a difference of opinion. B**  **y offering differing opinions of value,**  **the assessor has not only placed the credibility of her theory of**  **value at issue but has also**  **placed her personal credibility at issue.**  **The first valuation**  **is part of the computer assiste**  **d mass appraisal**  **for the municipality**  **and certified by the assessor as correct. The second is the**  **eighty**

**- page**  **appraisal report specifically prepared for the property a**  **t issue. No longer is this case**  **only about the assessor**  **’ s theory of valuation competing with that of the appraiser**  **for the taxpayer**

**. B**  **y offering the assessor**  **’s testimony as to an increase**  **, the municipality**  **places the assessor**  **out on a tightrope. To stay on this tightrope**  **, t he assessor**  **must balance the competing**  **crosswind s**  **of her**  **current report**  **gusting agai nst**  **the initial assessment**  **s prepared**  **with computer assisted mass appraisal** 

**. There may**  **be a way**  **to reconcile the two, however, the conflicting valuations make t**  **he job of the**  **municipality more difficult.** **-8-**

**Falling to one side**  **of this testimonial**  **tightrope ,**  **if the assessor**  **provide s**  **a credible**  **explanation as to why her initial assessment s are**  **wrong, it raises the question whether the computer assisted mass appraisal technique utilized by the**  **municipality is incorrectly assessing properties** 

**. Cf.**  **Forsgate Ventures IX LLC v. Township of**  **South Hackensack , 29 N.J. Tax 28, 45 (Tax 2016);**  **Pall sadium**  **Management Corp. v. Borough of Cliffside Park, 29 N.J. Tax 245, 263 (Tax 2016). This is not the first time the**  **assessor found**  **the technique to be w**  **anting. In 2019,**  **the assessor prepared a report for the same property**  **setting the assessment greater than the mass appraisal determination.**  **A s made known during**  **oral argument, s he**  **has prepared individual**  **appraisals for other p**  **roperties**

**. Whether appeals triggered**  **these appraisals is unknown.**  **The percentage of her**  **appraisals finding**  **increases or decreases is also unknown.**  **Falling to the other side**  **of the testimonial tightrope**  **, if this court keeps the**  **assessment s the same or reduces the assessments, such a finding may or may not**  **call into question the assessor**  **’s candor with this tribunal. While the assessor does not have an explicit obligation such as an attorney to provide candor to the tribunal, she**  **is an independent legislative agent performing quasi** 

**- judicial functions, not an**  **advocate for one side or the other. V**  **NO , 33 N.J. Tax at 26.**  **C andor and zealous**  **advocacy have**  **long been in tension for attorney**  **s. See**  **Bru nd**  **ag e**  **v. Estate of Cara**  **mbio , 195 N.J. 595, 602 (1995). Assessors face**  **a similar tension.** **-9-**

**The assessor’s dut**  **ies and that of the municipality differ**  **at times**

**. The**  **assessor’s obligation is to the**  **L egislature**  **. T he municipality’s obligation is to the**  **taxpaying public in the municipality. The assessor has tenure in her employment**  **and is accountable to the Director. The municipal leaders are subject to periodic election by the individual taxpayers and other individuals living in the municipality.**  **While both the municipal**  **ity and the assessor**  **must turn square corners, the**  **municipality , unlike**  **the assessor, does not have independent**  **quasi**

**- judicial**  **duties**

**. See**  **F.M.C. Stores Co. v. Borough of Morris Plains , 100 N.J. 418, 426**  **(1985) (square**  **corners); VNO**  **, 33 N.J. Tax at 26 (quasi**

**- judicial)** 

**. Our**  **C onstitution requires uniform assess**  **ment of property. N.J. Const.**  **a rt.**  **VIII , §1, ¶1**  **(a) . Commercial taxpayers do not pay taxes at a different rate. Having**  **the assessor as an independent legislative agent furthers the mandate of uniformity. The assessor is not subject to the pressure of voting residential taxpayers attempting**  **to raise more taxes from nonvoting commercial taxpayers, nor the influence of**  **campaign contributing commercial taxpayer**  **s seeking to pay less than their fair share**  **to the detriment of residential taxpayers. The Court is not suggesting that either is**  **true in this case, but merely emphasizing why the independence of the assessor is critical to upholding the mandate of uniformity enshrined in our**  **C onstitution.**  **A n**  **appropriate explanation may exist**  **for the assessor revising her assessment**  **s upward. On the other hand, there may not be. “Cross** 

**- examination is** **-10-**

**the greatest legal engine ever invented for the discovery of truth. Courts have a broad discretion in determining the scope of cross** 

**- examination.”**  **State v. Silva , 131**  **N.J. 438, 444 (1993) (citations omitted**  **) . It is without doubt “that prior inconsistent**  **statements may be used to impeach the credibility of a witness.” Id.**  **at 444**

**- 45.**  **T axpayer’s counsel is going to have**  **a full and fair opportunity to engage in**  **vigorous**
**cross -**  **examination**

**. T**  **he court is confident the skill of counsel for both sides**  **will**
**rev eal the truth** 

**. The**  **ta xpayer is not satisfied with the opportunity for vigorous cross** 

**** **examination. The taxpayer seeks to bar the assessor from testifying. However,**  **“[r] esort to a court’s inherent expert** 

**- excluding authority**  **‘ is a drastic measure that**  **courts should impose only hesitantly, reluctantly, and rarely.**  **’” VNO**  **, 33 N.J. Tax at**  **40 (quoting**  **In re Pelvic Mesh/Gynecare Litig., 426 N.J. Super. 167, 198 (App. Div. 2012) (Sabatino, J., concurring))** 

**. The**  **court considers several factors. “**  **First, a party enjoys**  **a ‘**  **presumptive right to designate one or more expert witnesses.**  **’” VNO**  **, 33 N.J. Tax at 40 (quoting**  **In re Pelvic Mesh , 426 N.J. Super.**  **at 19**  **6 (Sab**  **a tino,**  **J., concurring) )** 

**. The municipality has designated the assessor in this case. The court**  **is not going to dictate to the municipality how it should litigate its case. However,**  **t he court is mindful of the duties and obligations of the assessor as an independent**  **agent of the Legislature**

**. T**  **he municipality cannot compel the assessor**  **to challenge a recent assessment**  **unless she voluntarily agrees to do so. In other words, while the -11-** 

**municipality may be free to designate the assessor as a witness**  **, it does not have**  **the right to**  **direct an**  **assessor to advocate for an increased assessment.**  **It is unknown how the assessor now comes before the court.**  **Unlike an attorney, who can ethically represent a client despite disagreement with the client’s views, the assessor’s role**  **“in his**  **relation to the municipality ,**  **is in much the same position as a magistrate.” Mobil Oil**  **, 20 N.J. Tax at 8 1**  **(quoting Clinton Twp. Citizens Comm.**  **v . Township of**  **Clinton , 185 N.J. Super. 343, 354 (Law Div. 1982))** 

**. See also**  **RPC 1.2 (b) (attorney**  **representation does not constitute endorsement of client views). “Second**  **, t**  **he ex**  **clusion of any relevant testimony undermines the search for the truth.”**  **VNO , 33 N.J. Tax at 41.**  **The assessor may have a reasonable**  **rationa le**  **for wanting to increase the assessment**  **s .**  **That is certainly a question of fact the court must evaluate**  **after examination and cross**

**- examination of the assessor** 

**. The taxpayer**  **asserts tha**  **t the assessor ’s**  **testimony will breach a duty. Since**  **this is**  **a factual determination, the court**  **must first**  **hear testimony to determine a**  **breach of duty**

**. Since the court is the finder of fact, there are not the**  **same concerns**  **present w hen a jury is a factfinder** 

**. See**  **e.g. ,**  **N.J.R.E. 104( a**  **) (separate hearing for preliminary matter if jury).**  **Only upon hearing th e assessor’s testimony**  **will this**
**c ourt be able to determine whether there is a breach of**  **duty. If indeed the c**  **ourt does find that there is a breach of duty, the**  **c ourt will then have to determine whether to**  **disregard her testimony in total which is the**  **equivalent of barring her testimony. -12-** 

**The record is incomplete at this juncture for the c**  **ourt to reach any conclusion as to**  **the assessor’s testimony.**  **“The determination of the evidential value and weight to be given to the testimony of [an expert**  **] . . . depends upon**  **[ the expert’s**  **] candor, intelligence,**  **knowledge, experience ,**  **and especially upon the facts and reasoning . . . offered as the**  **foundation of [the] opinion[].” Coastal Eagle Point Oil Co. v. Township of West**  **Deptford , 13 N.J. Tax 242, 299** 

**- 300**  **(Tax 1993), aff’d. o.b. ,**  **15 N.J. Tax 190 (App. Div. 1995). The parties need not be concerned with the “poisoning of the well” by**  **the court hearing the testimony of the assessor. Just because she is an i ndependent**  **agent of the Legislature, does not mean that her testimony is sacr osanct. The tax**  **court has a special expertise fo r tax matters.**  **Yilmaz Inc. v. Dir., Div. of Tax’n , 390**  **N.J. Super. 435, 443 (App. Div. 2007). Just because the assessor says it’s so**  **, does**  **not mean it is so. The court can give her testimony the weight it deserves. Finally,**  **the c**  **ourt should tread cautiously when relying on the inherent power to exclude witnesses**  **, mindful that the Supreme Court alone may establish rules of**  **practice. VNO**  **, 33 N.J. Tax at 41. There is certainly no rule of practice**  **that excludes**  **the testimony of an assessor in favor of raising her prior assessment. There certainly**  **may be a reasonable explanation to raise the assessment** 

**. Furthermore, in light of this opinion, the**  **c ourt will certainly give**  **the municipality**  **time to retain another expert if the assessor reconsiders and declines to** **-13-**

**testify as to raising the assessment. This**  **would ensur e**  **th e c**  **ourt fulfills its duty to set the assessment**  **s at the proper value.**  **IV. CONCLUSION**  **For the foregoing reasons, the court denies the taxpayer ’s motion.**