Never a dull moment at Tabernacle Township meetings. The February 9, 2015 Workshop was jam packed with interesting discussions about charges on the bill lists, the $700,000 bond ordinance for the new fire truck and the new procedure for public comment. The Committee held its first-ever discussion of litigation in public session.
Taxes: Brooks v. Tabernacle.
The Committee took the very unusual step of discussing litigation in public session, rather than in Executive Session (which is closed to the public). They discussed Brooks v. Tabernacle, a case that I filed for documents that support the assessment of the property next to mine as farmland. Farmland assessment reduces the taxes on land by 98% (active farms should get this special tax assessment; more on that below). Because the property has not been actively farmed for at least the past 20 years (more on that below), and the actual “farming’’ has never been verified by the Tax Assessor, I want to know that it is properly assessed.
The Farmland Assessment law has two qualification tests: an acreage requirement and an income requirement. The income requirement consists of proof of gross sales of agricultural or horticultural products. My OPRA request asked for the gross sales receipts that the landowner provided Township Assessor Jay Renwick, in support of his farmland assessment application. I received three redacted documents: 1) Tabernacle Township Affidavit of Income; 2) Account of Sale; and 3) IRS Form 1040, Schedule F. “Profit or Loss From Farming.” My complaint only asks for the first two documents to be provided un-redacted because IRS forms are protected.
In his report, Township Attorney Peter Lange explained that he was discussing Brooks v Tabernacle in public session so that the public could understand the issues and because “the public should benefit from the unusual nuances of the suit.” So, under the guise of teaching us a lesson, Mr. Lange and the Committee presented an incomplete and inaccurate story.
Mr. Lange explained that there was no public purpose to my document request, and I had unnecessarily forced the Township to defend itself against what he described as my purposeless claims and the legitimate privacy interests of the property owner, who didn’t want the documents released. Mr. Lange repeated the “no public purpose” phrase 10 times so that no one would miss his point.
The fairness and integrity of property assessment is one of the most basic public issues. Property owners face it quarterly when they pay their taxes. They face it every day when the Committee spends their taxes.
I know that Mr. Lange understands this public purpose. He and Township Assessor Jay Renwick spoke extensively about it at the March 11, 2013 meeting as part of their justification of the Township’s expenditure of $160,000 – $200,000 for a professional real estate consultant to re-assess the entire township. Mr. Lange informed the Committee that Mr. Renwick and Township Administrator Doug Cramer recommended hiring a consultant to assist Mr. Renwick.
Mr. Lange and Mr. Renwick explained how important it was for our assessor to have quality data so that he could make accurate assessments. The existing property assessment cards were inaccurate and unreliable.
They also said that a re-assessment was needed to reduce inequities between taxpayers. Then-Mayor Rick Franzen agreed that this was an important issue and described how he had been approached by a resident who had this concern. He expressed his opinion that there may be a lot of other people who believe that they are paying more than their fair share, and said that this should be addressed. Mr. Lange and Mr. Renwick also pointed out that an accurate assessment would stabilize Tabernacle’s tax revenue every year by eliminating the losses from tax appeals. (Recording, March 11, 2013).
My lawsuit raises these same issues concerning a property that does not look like it has been actively farmed in 20 years; has received farmland assessment for many years; has not been inspected by the Assessor but is still granted the 98% reduction.
Although Mr. Lange repeatedly told the public that he could not see the public purpose in my lawsuit, the papers that were filed spell it out very clearly. In the section regarding OPRA, I said that I wanted to know if the property “was properly assessed under New Jersey law with respect to the farmland assessment” (Complaint, paragraph 16). In the section regarding the common law right to know, I additionally said that the document that I sought “[was] being used to support a farmland assessment application that results in a lower assessment and lower revenue” (Complaint, paragraph 20).
Mr. Lange may disagree with the strength of this public purpose or he may feel that the privacy interests of the property owner outweigh the public interest, but he cannot honestly pretend that there is no public purpose. His repeated statements that there was no public purpose, and the Committee’s discussion of the lack of a public purpose, was not education about nuances. It was grandstanding.
On a broader level, New Jersey citizens long ago rejected Mr. Lange’s idea that there is no public purpose in farmland assessment. The Farmland Assessment Act of 1964 was passed because the State recognized the importance of the farming industry and saw the need to tax farmland based on its production value, not its market value. If farmland was taxed at market value, farmers would face severe financial pressure to convert their farms to houses and strip malls. The Farmland Assessment Act helps to preserve farming by taxing farmland based on its agricultural value, not its real estate or market value. However, the farmer’s house, the land around it and other buildings are assessed at the market rate.
Land must be actively farmed for the owner to get farmland assessment. It is widely known by New Jersey citizens, though unmentioned by Mr. Lange, that the farmland assessment program is often abused. Senator Jennifer Beck (R-Monmouth), who sponsored recent legislation to tighten up the Farmland Assessment Act, said this at the Senate Environment and Energy Committee hearing on the bill:
…there is nothing that guides our tax assessors as to what is and isn’t a farm and so the result is that we have a lot of fake farmers [emphasis added].
Assemblywoman Pamela Lampitt (D-Camden) also said:
The law establishing this program [farmland assessment] is nearly 50 years old, and it’s past time to close the loopholes to make certain only real farmers benefit from it. Too many have taken advantage of it to the detriment of taxpayers throughout our state, so let’s close this loophole and make sure the program helps only those it was intended to help [emphasis added] (May 17, 2012).
Senator Beck’s bill, “The Fake Farmer Bill,” excludes farmland owners who are not bona fide farmers and requires greater documentation and assessor training (Williams, South Jersey Times, April 21, 2013).
The bill was widely supported, even by the New Jersey Farm Bureau. Its spokesperson said: “The changes proposed by the legislation are reasonable, they go to the integrity of the program” [emphasis added] (April 2013).
I emphasize this because, at the February 9 meeting, Noble McNaughton, a highly-respected Tabernacle nurseryman, mentioned New Jersey Farm Bureau, but he didn’t mention the problem of farmland assessment abuse or New Jersey Farm Bureau’s position opposing “fake farmers.”
I did not file this lawsuit lightly or for frivolous reasons. I care deeply about the farming industry in Tabernacle and in New Jersey. Much of my career was spent working on behalf of the farm community. I am proud to say that my research played a major role in the development of the state’s Right to Farm Law and the Agricultural Retention Act. I understand that real farmers, like Mr. McNaughton, don’t want government looking over their shoulder. But real farmers should be especially concerned that “fake farmers” do not undermine the farmland assessment program. The farm community and the general public share the same interest in assuring that all property is assessed with integrity.
In the rush to deny that there is a public purpose in the proper assessment of farmland, Mr. Lange, Mr. Renwick and Committee members never bothered to ask about the property that was the subject of my document request. There were no questions about what the property was like; how it is farmed; why Mr. Renwick determined that it qualified for farmland assessment; or why I questioned his determination.
Here are the answers to those questions.
1. After the Township’s 2013 re-assessment, I saw that the assessment of the land associated with the house on the neighbor’s property was very inconsistent with the assessment of the land associated with my house. I also saw that the remainder of the property was still assessed as farmland, even though it was obvious that it was not actively farmed.
I brought these issues to Mr. Renwick’s attention. He recognized that the assessment of the house was wrong and had to appeal his own assessment. But he continued to assess the balance of the property as farmland. I was surprised by this because Mr. Renwick is an experienced assessor and real estate appraiser. He is the assessor in several other Burlington County townships that have substantial agriculture, including Shamong and Washington Township.
2. The applications for farmland assessment say that cranberries are harvested. I am including two of these applications so TTJ readers can see what information is required and what information the landowner submitted for the years 2013 and 2014 (Farmland Assessment Applications).
There was a cranberry bog in the rear of the property years ago. We can see it from our property. It is overgrown with grasses and 15-20 foot trees; it has been overgrown for a very long time. There is no way to get farm equipment or even a pickup truck back to this “bog.” We’ve never heard any equipment operating in it. It looks abandoned.
Because the bog is inaccessible, and because the appraisal consultant had not inspected it, I offered access to Mr. Renwick through our property so that he could inspect it. He declined.
3. After Mr. Renwick determined that the property was farmland, I wanted to see what his inspection report said. In November 2014, I asked for the Assessor’s records of on-site inspections. The record says “Actively cultivating blueberries/cranberries per application, could not verify NO ACCESS” [emphasis added] (Inspection Record).
So, this overgrown and inaccessible area (and all of the adjacent appurtenant lands) is assessed as farmland even though no actual farming was verified there. It was not inspected by the consultant or by Mr. Renwick, even though the main purpose of the re-assessment was to get accurate and reliable data to ensure the integrity of the assessment.
4. The application for farmland assessment also says that blueberries are being harvested. The blueberry “field” is overgrown with pine trees that are 10 to 20 feet tall. The rows have not been cultivated in at least 20 years. The plants have not been pruned in 20 years either. There is no irrigation, no fertilization, no spraying. I have never seen a crew or a machine harvesting fruit. There is a rotting blueberry picking machine at the front of the property that has not moved in 20 years. I have never seen any bee hives on the site. On active farms, bees are imported to pollinate the blueberry flowers. Interestingly, the landowner’s IRS 1040, Schedule F shows “Bee Hive Rental” with the actual expense redacted.
Nothing about this property looks like an active farm. Its assessment as farmland does not pass the smell test. There is clearly a public purpose to my complaint to get the records un-redacted and to determine whether this property was properly assessed as farmland.
Other Highlights Of The Meeting.
Fire Truck – 1: Don’t Ask; Don’t Show Up.
Committee members Barton, Franzen, Yates and Brown voted to approve the $700,000 bond ordinance for the purchase of a 500-gallon pumper truck and associated equipment. Committeeman Lee voted NO.
At the hearing, some residents commented on the absence of Fire Chief Dave Smith who was not there to explain how the proposed truck fits in with the Township’s fire safety needs. When it came time to vote, to his credit, Mr. Lee voted against the ordinance because: 1) Chief Smith did not provide a list of the equipment that was being bought for the truck and 2) Chief Smith did not show up to speak about the truck and the bond ordinance.
I am not sure what was worse. Was it that Chief Smith did not bother to show up? Was it that the Committee did not bother to tell Chief Smith to be at the meeting? Was it that four members of the Committee voted to buy equipment that they knew nothing about?
Fire Truck – 2: Who Really Wants To Know The Actual Need.
The adoption of this ordinance is another vindication of the Fire District and another example of the dishonesty of the people who circulated the Petition to Dissolve it; Shawn Vena, Mark Lemire, Clifford Toye and Peter Locke.
One of the primary reasons stated in their Petition to Dissolve the Fire District was that the District:
…continues to pursue referenda for additional equipment and trucks, without demonstrating an actual need for these items, and voters, in the past four elections (2010-2013) have summarily voted against these purchases.
The fact is that the Fire District, when it considered buying a pumper, allowed unlimited comments, questions and dialogue from everyone who came to their meetings. AND it sent a letter of explanation to every resident in the Township. That is exemplary demonstration of public need.
In contrast, the Township Committee did not discuss public need at all. It did not allow any public comment at the first reading of the Ordinance. At the second reading, neither the Committee nor staff initially presented any information. They did not require the Fire Chief to attend the meeting so that he could share his expertise or opinions. Instead, the Committee proceeded directly to public comment. Only through the public comment, which the Committee limited, did some information about the truck come out. That is a failure to demonstrate public need for the truck.
Although Mr. Vena and Mr. Lemire were present at the bond ordinance hearing, they said nothing. Apparently they do not really want to know that the public has been informed about the need for a fire truck. Some Petition signers also attended the meeting (Megan Jones, Jason Litowitz, Sandra Leichner). They also did not comment on the ordinance or on the Committee’s lack of explanation about the fire truck.
Fire Truck – 3: More Than The Committee Can Handle.
During the Committee’s discussions about the dissolution of the Fire District, several residents commented that if Fire Services were merged into the Township, public discussion about fire safety and services would decrease because, even if it wanted to, the Committee lacked the time. It has too many other issues on its agenda. The vote on this bond ordinance illustrates this concern. The Fire Chief was absent. No members of Tabernacle Fire Company #1, who attended the meeting, spoke at the hearing. There was no discussion about how fires are fought in Tabernacle, or why we need to invest in this truck or how this all relates to the Township’s centralized emergency management plan.
Fire protection is essential to our well being. So far, since the dissolution of the Fire District, the Township has shown that it does not serve the public as well as the Fire District did.
The New, New Public Comment Procedure.
TTJ readers may remember that at the January 2, 2015 meeting, the Committee mandated a new procedure for public comment. The new approach places public comment before Committee Reports. Mayor Brown said that the Committee would write down residents’ questions and that they would be answered when the Committee, staff or professionals give their reports. TTJ extensively discussed the problems with the new approach in the January 22, 2015 Post.
At the meeting, residents Ray McCarty and Kathy Burger also raised concerns. Mr. McCarty commented on the lost efficiency of the new approach when he said:
I’m a little disappointed that you moved this section of public comment up because sometimes when the various professionals give their reports there may be a question there that’s interesting to follow up with and by the time the next meeting rolls around we’ll all forget what that would be.
Kathy Burger echoed his remarks:
I have to say I’m with Mr. McCarty on this; little disappointed that you guys moved the public comment, 90% of my questions when I come up here is usually driven by what is said; so I’ll gladly hold them till two weeks from now, but it will nice to get them out in one meeting (Recording, February 9, 2015).
Mr. Lange’s report on Brooks v. Tabernacle (see above) is an example of erroneous statements which could not be addressed at the time they were made.
Another shortcoming of the new approach is that public questions were not answered by the Committee, staff or professionals. Possibly this was because they did not want to answer them or because they forgot to write them down. It was clear that the Committee and staff were not up to the task of recording the questions for future response.
Here are five unanswered questions by the Committee, staff or professionals.
1. LOSAP. I asked the Committee if it approved Township Attorney Peter Lange’s request to explore whether it is possible to extend LOSAP to the CERT without going to referendum. At the January 2, 2015 meeting, he said that he would explore the idea with DCA. But it was unclear that the Committee gave him approval to do this.
2. LOSAP. I asked Mr. Lange why he thinks that the Township might be able to expand LOSAP without a referendum.
3. Absence of Fire Chief Dave Smith. The Committee was asked why it did not ask Chief Smith to be at the meeting.
4. Budget transfers. Mrs. Burger asked why the Committee has a budget appropriation for “Recreation OE” (Other Expenses) when there is no recreation department.
5. Fire-related expenses. Mrs. Burger asked what line item the Committee is charging the $16,000 in fire-related bills to.
The Refund For CD Copies.
Jason Litowitz thanked the Committee for its refund of the overcharge for copies of two CD’s that he purchased. His appreciation was misplaced. The Open Public Records Act and my discovery of the Township’s overcharge through an OPRA request led to his refund.
The Government Records Council (GRC).
Mr. Litowitz also commented on OPRA complaints that have been filed against the Township and suggested that residents should be required to first file them with the Government Records Council instead. Committee members, for obvious reasons, supported this idea. He said:
For those who do not know, the GRC tends to be a much faster and much less expensive process; so just given the number of OPRA suits whether they’re responsible suits….
…I would encourage you guys to consider reaching out to Connors, Rumpf and Gove [legislators] to see if you can get them to support a change in the law that would require OPRA lawsuits to go through the GRC first, at least that way the complainants could perhaps have a litmus test on whether they’re likely to win or not [emphasis added] (Recording, February 9, 2015).
Mr. Litowitz is mistaken about the GRC.
The GRC isn’t faster. It can take 12 to 18 months to decide a complaint. A Superior Court case can be decided in six to nine weeks from start to finish. As I said in the August 22, 2014 Post, I don’t think most citizens would find an 18-month process satisfactory. And if all disputed records requests were required to go to the GRC, its process would take even longer. Filing a complaint in the GRC is not an adequate recourse.
The GRC process is not less expensive. There will be briefs, correspondence and other communications with the GRC staff and time spent on attending at least one GRC hearing. As a GRC case drags on, the Township Attorney will want to keep the Committee informed. These inquiries and reports don’t come for free. The complainant’s attorney will also incur billable hours. And if the GRC rules against the Township, the complainants legal fees would still be shifted to the Township, just as they would be in Superior Court.
The GRC is not a “litmus test.” GRC decisions don’t set precedent; judges don’t consider them in their deliberations. Besides, by the time the GRC ruled, a requestor who then wanted to pursue the case in Superior Court would have to file another OPRA request.
It is ironic that the Township, which chose to litigate rather than mediate its dispute with the Medford Farms Volunteer Fire Company, wants to eliminate the option of a judicial remedy for OPRA disputes.
The Spirit Of Kumbaya Clears The Path To Centralized Emergency Services.
Administrator Doug Cramer reported that there is now a high level of cooperation between the Tabernacle Fire Company #1 and the Tabernacle Rescue Squad. Mayor Brown previously said that the goal is to have emergency service providers working together. Now that we seem to be meeting that goal, the Committee has overcome another obstacle in its drive to contract with the Tabernacle Rescue Squad and centralize Tabernacle’s emergency services.
The next Township meeting will be held February 23, 2015 at 8 pm at town hall.