New Jersey Turnpike Authority v. Elizabeth City

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TAX COURT OF NEW JERSEY
Joshua D. Novin Washington & Court Streets, 1st Floor
Judge P.O. Box 910
Morristown, New Jersey 07963
Tel: (973) 656-3931 Fax: (973) 656-4305
NOT FOR PUBLICATION WITHOUT THE APPROVAL
OF THE TAX COURT COMMITTEE ON OPINIONS
February 10, 2017
John F. Casey, Esq.
Chiesa Shahinian & Giantomasi, P.C.
One Boland Drive
West Orange, New Jersey 07052
Robert D. Blau, Esq.
Blau & Blau
223 Mountain Avenue
Springfield, New Jersey 07081
Re: New Jersey Turnpike Authority v. Elizabeth City
Docket Nos. 004383-2014 & 013888-2015
Dear Mr. Casey and Mr. Blau:
This constitutes the court's opinion on plaintiff’s motion for summary judgment, seeking
entry of an order declaring a parcel of plaintiff’s property exempt from local property taxation.
These appeals challenge the local property tax assessments imposed by the City of
Elizabeth (“defendant”) on a parcel of real property owned by the New Jersey Turnpike
Authority (“plaintiff”), and improved with a monopole cellular communications tower. For the
reasons stated more fully below, the court concludes that the record before the court does not
support granting a local property tax exemption for plaintiff’s property. Accordingly, the court
denies plaintiff’s motion for summary judgment.
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I. Findings of Fact and Procedural History
Pursuant to R. 1:7-4, the court makes the following findings of fact and conclusions of
law based on the briefs, Statement and Counter Statement of Undisputed Facts, and the
Certifications of Maura K. Tully, Jose Dios, and Enrico Emma.1
Plaintiff is the fee simple owner of the real property commonly known as “R Schiller St,”
designated as Block 1, Lot 1010.A on defendant’s municipal tax map (the “subject property”).2
The subject property consists of a New Jersey Turnpike Authority maintenance yard with a
monopole cellular communication tower and related equipment (the “cell tower”). According to
plaintiff, the cell tower was erected by a predecessor of AT&T, is owned by plaintiff and is leased
back to AT&T. The subject property was exempt from local property taxation for several years,
however, in or about 2013, defendant’s tax assessor apparently determined that the cell tower was
no longer entitled to local property tax exemption because it was leased to a private, for-profit
entity.
Plaintiff filed Complaints with the Tax Court on March 19, 2014 (“2014 Complaint”), and
August 20, 2015 (“2015 Complaint”), challenging the 2014 and 2015 tax year assessments on the
subject property. Plaintiff’s 2014 Complaint was filed under the Correction of Errors statute,
N.J.S.A. 54:51A-7, charging that the 2013 tax year local property tax assessment for the subject
property contained a “typographical error, an error in transposition or a mistake in the tax
1 Plaintiff’s Notice of Motion for Summary Judgment, Certification of Maura K. Tully, Statement of Undisputed Facts
and brief relate only to docket numbers 004383-2014 and 013888-2015. Although plaintiff subsequently submitted
to the court the Certification of Jose Dios in support of the motions for summary judgment, the Certification wrongly
identifies docket number 012218-2016. The court has nonetheless considered the Certification of Jose Dios in support
of plaintiff’s motions for summary judgment with respect to docket numbers 004383-2014 and 013888-2015. As no
Notice of Motion, Statement of Undisputed Facts or legal brief was filed by plaintiff under docket number 012218-
2016, as required under R. 4:46-2(a), this letter opinion does not address that matter.
2 Plaintiff’s Statement of Undisputed Facts, legal brief and Certification of Maura K. Tully inaccurately identify the
Property as Block 2, Lot 1010.A.
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assessment.” The 2014 Complaint further alleges that the cell tower is “exempt from real property
taxation” as a New Jersey Turnpike Authority “Turnpike project” and “communication facility”
under “N.J.T.A [sic] 27:23-4.” Plaintiff’s 2015 Complaint “contests the [2015] assessments [on
the subject property] on the ground that the assessments are in excess of the true or assessable
value of the property.”
On March 2, 2016, plaintiff moved under R. 4:46-2, seeking entry of an Order granting
summary judgment declaring the cell tower, a “communication facility” and “highway project”
within the meaning of N.J.S.A. 27:23-4 and, therefore, exempt from local property taxation under
N.J.S.A. 27:23-12.
In support of its motions for summary judgment, plaintiff argues that the “primary purpose”
of the subject property is to “function as one of the Authority’s maintenance yards, which function
is essential to the operations of the Authority. . .” Plaintiff contends that it “has the right to use”
the cell tower for “its own purposes and in furtherance of an essential Authority function.” Plaintiff
submits that, under a Master Lease Agreement dated August 20, 1991 (the “Lease”), AT&T is
solely responsible for maintaining and operating the cell tower.3 However, as part of the
consideration provided under the Lease, plaintiff is afforded “the right to use [the cell tower] as
part of its operations.” Thus, plaintiff maintains that the cell tower constitutes a “communication
facility” and therefore, is exempt from local property taxation pursuant to N.J.S.A. 27:23-12.
Defendant does not dispute that plaintiff owns the subject property and cell tower.
However, defendant characterizes the “genesis” of the Lease as AT&T’s “desire to construct,
install, operate and maintain radio transmitting and receiving equipment in connection with its
cellular telephone business. . .” Although defendant acknowledges that the Lease expresses
3 Although both plaintiff and defendant recite in their briefs select content from portions of the Lease, a copy of the
Lease was not furnished to the court.
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plaintiff’s “desire to improve services available to the traveling public,” defendant asserts that the
cell tower was primarily erected, functions, and operates for the provision of cellular telephone
service to AT&T’s private customers. As evidence of this objective, defendant emphasizes that
plaintiff assigned AT&T the following rights and obligations under the Lease: (1) sole and
exclusive use of “all equipment and improvements. . . including but not limited to the towers,
associated antennas, the modular equipment building, transmission and power lines, telephone
lines, and all other radio transmitting and receiving equipment”; (2) the opportunity to void
plaintiff’s right to use and install equipment on the cell tower if such equipment interferes with
AT&T’s operations; (3) the right to allow third parties to install equipment on the cell tower and
to collect rent from those third parties; (4) the obligation to pay plaintiff 15% of any rent paid
AT&T for the sublet of space on the cell tower; (5) the right to access the real property at all times
for ordinary operation and maintenance activities; (6) the obligation to perform all repairs
necessary to keep the cell tower in good condition; (7) the obligation to arrange for a separately
metered electrical supply and to pay all charges for electricity and other utilities for the cell tower;
(8) the obligation to construct and maintain a fence around the cell tower; and (9) the obligation to
pay all real estate taxes assessed against the subject property arising from improvements
constructed by AT&T. Moreover, defendant argues that plaintiff does not “use[] the [cell] tower”
and therefore, it does not serve the essential government functions for which plaintiff was created,
and thus, should not be exempt from taxation.
Defendant further disputes plaintiff’s assertion that the 2013 year local property tax
assessment for the subject property was the result of any typographical error, error in transposing
or mistake for which the Correction of Errors statute, N.J.S.A. 54:51A-7, is applicable.
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On May 3, 2016, the court heard oral argument on plaintiff’s motions for summary
judgment. During oral argument, defendant highlighted that the record was devoid of any evidence
from plaintiff and/or plaintiff’s representatives that plaintiff makes use of the cell tower or that the
cell tower is integral to plaintiff’s performance of essential governmental functions. Accordingly,
following oral argument, the court afforded the parties the opportunity to submit supplemental
briefs and certifications addressing plaintiff’s actual use of the cell tower and how it furthers
plaintiff’s performance of essential government functions.
After several adjournments, on September 21, 2016, plaintiff submitted to the court the
Certification of Jose Dios, plaintiff’s Deputy Chief Information Officer, dated September 20, 2016.
Mr. Dios’s Certification states that plaintiff is “currently involved in several capital improvement
projects,” including a “new District Facility” and an “Authority truck wash and trailer facility”
located in Elizabeth. Although no “network connection” currently exists between the “new
District Facility” and “truck wash and trailer facility,” according to Mr. Dios, a “fiber line is
proposed to be run from the District Office” to the cell tower to enable communications with the
truck wash facility.
II. Conclusions of Law
A. Summary Judgment
R. 4:46-2 instructs that summary judgment should 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.
In Brill v. Guardian Life Insurance Co. of Am., 142 N.J. 520, 536 (1995) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202,
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214 (1986)), our Supreme Court adopted the federal approach to resolving motions for summary
judgment, in which “the essence of the inquiry [is] whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” In conducting this inquiry, the trial court must engage in a “kind of
weighing that involves a type of evaluation, analysis and sifting of evidential materials.” Ibid. The
standard established by our Supreme Court in Brill is as follows:
when deciding a motion for summary judgment under R. 4:46-2, the
determination whether there exists a genuine issue with respect to a
material fact challenged requires the motion judge to consider
whether the competent evidential material presented, when viewed
in the light most favorable to the non-moving party in consideration
of the applicable evidentiary standard, are sufficient to permit a
rational fact finder to resolve the alleged disputed issue in favor of
the non-moving party.
[Id. at 536.]
Considering all of the material evidence before it with which to determine if there is a genuine
issue of material fact, the court must view most favorably those items presented to it by the party
opposing the motion and all doubts are to be resolved against the movant. Ruvolo v. American
Casualty Co., 39 N.J. 490, 491 (1963). Thus, denial of summary judgment is appropriate when
the evidence presented by the non-moving party is of such a quality and quantity that reasonable
minds could return a finding favorable to the party opposing the motion. Id. at 540. However,
summary judgment may not be denied simply because the non-movant demonstrates the existence
of a disputed fact. Id. at 540-41. “By its plain language, R. 4:46-2 dictates that a court should deny
a summary judgment motion only where a party opposing the motion has come forward with
evidence that creates a ‘genuine issue as to any material fact challenged.’” Id. at 529. When the
party opposing the motion merely presents “facts which are immaterial or of an insubstantial
nature, a mere scintilla, fanciful, frivolous, gauzy or merely suspicious,” then an otherwise
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meritorious application for summary judgment should not be defeated. Judson v. Peoples Bank
and Trust Co., 17 N.J. 67, 75 (1954). Hence, “when the evidence is so one-sided that one party
must prevail as a matter of law. . . the trial court should not hesitate to grant summary judgment.”
Brill, supra, 142 N.J. at 540 (quoting Anderson, supra, 477 U.S. at 252, 106 S. Ct. at 2512, 91 L.
E.d. 2d at 214).
In consideration of the above standards, the court concludes that summary judgment in
these matters is not appropriate based upon the record before the court.
B. Tax Exemption
It is well-settled that unless expressly exempted by our Legislature, “[a]ll property real
and personal. . . shall be subject to taxation annually. . .” N.J.S.A. 54:4-1. Our Legislature’s
authority to grant tax exemptions is expressly limited by our State’s Constitution of 1947, which
provides, in part, that “[e]xemption from taxation may be granted only by general laws.” N.J.
Const., art. VIII, § 1, para. 2. In considering the grant of a tax exemption, our Legislature “must
base tax exemptions on the property’s use, not the owner’s identity.” Township of Holmdel v.
New Jersey Highway Authority, 190 N.J. 74, 87 (2007). Tax exemption statutes, which are “based
on the personal status of the owner rather than on the use to which the property is put, run afoul
of” our State’s Constitutional mandate that all property be “assessed for taxation under general
laws and by uniform rules.” New Jersey Turnpike Auth. v. Township of Washington, 16 N.J. 38,
44-45 (1954).
The court’s “interpretation of statutory tax exemption [provisions is] governed by
principles of general statutory construction.” Township of Holmdel, supra, 190 N.J. at 87 (citing
Walter Reade, Inc. v. Dennis, 36 N.J. 435, 440 (1962)). Thus, tax exemptions “in favor of
nongovernmental owners are strictly construed,” and should not be expanded beyond the clear
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intent of our Legislature. Ibid. Conversely, local property “tax immunities for governmental
authorities should be liberally construed because they facilitate the provision of public services.”
Township of Holmdel, supra, 190 N.J. at 88 (citing Walter Reade, Inc., supra, 36 N.J. at 440).
This philosophy is derived from the rationale that “[i]t would be strange for the Legislature to
enable the Authority to choose among several modes of rendering [a] public service and then
encumber the choice with tax consequences.” Ibid.
By design, “property employed primarily for a public use does not lose immunity because
[an] agency incidentally derives some private business income from it.” Moonachie v. Port of
New York Authority, 38 N.J. 414, 427 (1962). Our courts have “recognized that private lease
agreements do not automatically forfeit an agency's tax immunity.” Township of Holmdel, supra,
190 N.J. at 88-89. When “a government property or facility is leased to a private entity and the
private entity operates the property or facility in accordance with the agency's statutory purpose,
the tax immunity may still apply.” Ibid. Nonetheless, “a tax exemption based upon a statute
specifying a particular public use is clearly lost when the use to which the property is put is foreign
to the prescribed use and the revenue motive in adopting the use is the primary or exclusive one.”
Moonachie, supra, 38 N.J. at 427.
Here, plaintiff charges that the cell tower is effectively, per se, exempt from local property
taxation because plaintiff owns it, the cell tower is a “communication facility” under N.J.S.A.
27:23-4, and it is located within a “maintenance yard” serving “function[s] essential to the
operations of the Authority. . .” As a consequence, plaintiff asserts, “the overall property [is]
exempt from taxation.” Moreover, because plaintiff “has the right to use [the cell tower]. . . for
its own purposes and in furtherance of an essential Authority function[s],” plaintiff maintains that
the subject property is exempt from local property taxation.
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Conversely, defendant maintains that plaintiff has failed to demonstrate that it employs
the cell tower in any manner in the maintenance, function, improvement, management or
operation of the Authority. Moreover, defendant argues that plaintiff has not offered any evidence
that the cell tower furnishes a vital public service that has been statutorily entrusted to plaintiff.
Instead, defendant contends that operation and maintenance of the cell tower benefits only
AT&T’s private clients and subscribers.
C. New Jersey Turnpike Authority
In order to evaluate whether the cell tower at issue is actually being used by plaintiff and/or
advances plaintiff’s mandate to provide essential public services, it is necessary to briefly review
the statutory provisions which resulted in the formation of the New Jersey Turnpike Authority.
The New Jersey Turnpike Authority was established by the New Jersey Turnpike Authority
Act of 1948 (L. 1948, c. 454) for the purpose of constructing “a turnpike across a portion of the
State of New Jersey from [the] New York State line to the Delaware River at Lower Penns Neck
Township, Salem County.” Newark v. New Jersey Turnpike Authority, 12 N.J. Super. 523, 526
(Ch. Div. 1951). In composing the statute, our Legislature sought to “facilitate vehicular traffic,”
“remove the present handicaps and hazards on the congested highways,” and provide for the
“construction of modern express highways embodying every known safety device. . .” N.J.S.A.
27:23-1.
To fulfill these laudable goals, plaintiff was empowered “to acquire, construct, maintain,
improve, manage, repair and operate transportation projects. . .” in such locations as it shall
determine are necessary, in its discretion. Ibid. The statutory scheme defines a “transportation
project” as:
. . .in addition to highway projects, any other transportation facilities
or activities determined necessary or appropriate by the authority in
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its discretion to fulfill the purposes of the authority, and the costs
associated therewith.
[N.J.S.A. 27:23-4.]
Moreover, N.J.S.A. 27:23-4 defines the term “highway project” as:
. . . the acquisition, operation, improvement, management, repair,
construction, . . . and maintenance of the New Jersey Turnpike. . .
including the demolition and removal of toll houses and toll barriers,
and of. . . any other highway or feeder road at the locations and
between the termini as may hereafter be established by the authority
or by law and acquired or constructed under the provisions of this
act by the authority, and shall include but not be limited to all
bridges, parking facilities, public highways, feeder roads, tunnels,
overpasses, underpasses, interchanges, traffic circles, grade
separations, entrance and exit plazas, approaches, toll houses,
service areas, stations and facilities, communications facilities,
administration, storage and other buildings and facilities, and other
structures directly or indirectly related to a transportation project,
intersecting highways and bridges and feeder roads which the
authority may deem necessary, desirable, or convenient in its
discretion for the operation, maintenance or management, either
directly or indirectly, of a transportation project, and includes any
planning, design or other preparation work necessary for the
execution of any highway project, and adjoining park or recreational
areas and facilities, directly or indirectly related to the use of a
transportation project as the authority shall find to be necessary and
desirable, and the costs associated therewith.
[N.J.S.A. 27:23-4 (emphasis added).]
In support of its motions, plaintiff highlights that the term “communication facilities” is
specifically identified in the definition of a “highway project.” Subsequently, plaintiff charges
that a “transportation project,” by definition, includes a “highway project,” according the cell
tower local property tax exemption under N.J.S.A. 27:23-12.
Under N.J.S.A. 27:23-12,
[t]he exercise of the powers granted by this act will be in all respects
for the benefit of the people of the State, for the increase of their
commerce and prosperity, and for the improvement of their health
and living conditions, and as the operation and maintenance of
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transportation projects and other property by the Authority will
constitute the performance of essential governmental functions, the
Authority shall not be required to pay any taxes or assessments upon
any transportation project or any property acquired or used by the
Authority under the provisions of this act or upon the income
therefrom, and any transportation project and any property acquired
or used by the Authority under the provisions of this act. . . shall be
exempt from taxation. The Legislature reaffirms that all existing
facilities and property, and their operations, and management, of the
authority and of the New Jersey Highway Authority, as transferred
to the authority, are deemed public and essential governmental
functions and are exempt from local taxes or assessments.
[N.J.S.A. 27:23-12 (emphasis added).]
In interpreting the statutory language under N.J.S.A. 27:23-12, our Supreme Court has
concluded that the phrase, “property acquired or used by the Authority under the provisions of
this act” must be construed “in the conjunctive” in light of the constitutional principles requiring
that all property be assessed uniformly for taxation. New Jersey Turnpike Auth. v. Washington
Twp., supra, 16 N.J. at 45. See also New Jersey Turnpike Authority v. Monroe Twp., 29 N.J. Tax
55, 64 (Tax 2016). “Any other construction [of the statutory language]. . . would destroy the tax
exemption of the Turnpike Authority. . .” and would be at odds with the core principles of our
State Constitution’s Uniformity Clause which requires all real property be assessed under uniform
rules and according to the same standard of value. New Jersey Turnpike Auth. v. Washington
Twp., supra, 16 N.J. at 45. Thus, a local property “tax exemption must be based on the property’s
use and the property must, in fact, be put to that use.” Township of Holmdel, supra, 190 N.J. at
87. When the property which benefits from the tax exemption does not fall “‘within the scope’
of the agency’s statutory purpose,” the tax exemption must be denied. Township of Holmdel,
supra, 190 N.J. at 88 (quoting Moonachie, supra, 38 N.J. at 427). Were this court to conclude, as
plaintiff requests, that the cell tower is exempt from taxation because it is a “communications
facility,” and thus, a “transportation project,” without examination into the use of the cell tower,
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or how the cell tower furthers plaintiff’s statutory mandate, would amount to conferring a local
property tax exemption based on plaintiff’s status and would offend our State’s Constitution.
Thus, a necessary predicate for exemption from local property taxation under N.J.S.A.
27:23-12, is that the property be used: (1) “in furtherance of the agency’s statutory mandate”;
Township of Holmdel, supra, 190 N.J. at 89, or (2) “used for such [agency’s] purposes, or held
with the present design to devote it within a reasonable length of time to such use.” New Jersey
Turnpike Auth. v. Washington Twp., supra, 16 N.J. at 45. A property which is “not now in the
public use or presently intended for public use is taxable even when owned by bodies having a
right to tax exemption with respect to property used for an appropriate purpose.” Id. at 44.
1. Communications Facilities
The court observes that N.J.S.A. 27:23-4 offers no clear definition of the term
“communication facilities.” Defendant implores the court to take a restrictive view of the statutory
scheme, arguing that the plaintiff’s primary purpose is transportation and not communication, and
that “[cellular] telephone communication was not even invented when the Turnpike was
authorized.” However, this argument flows contrary to the broad powers afforded by our
Legislature to the New Jersey Turnpike Authority to “acquire, construct, maintain, improve,
manage, repair and operate transportation projects. . . at such locations as shall be established by
the authority in its discretion or by law. . .” N.J.S.A. 27:23-1. The court recognizes that in 1948,
when the New Jersey Turnpike Authority was formed, cellular communication as we now know it
did not exist, however, other modes of wired and wireless communication did exist, including
telephones, manual telephone switchboards, two-way radios, radio antenna with attached
transmitters and receivers, and radiofax receivers. Thus, it is likely that our Legislature viewed
communications facilities as buildings or structures that provide a means or medium of
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communication, which thereby “facilitate vehicular traffic” and “remove the present handicaps
and hazards on the congested highways.” N.J.S.A. 27:23-1.
Moreover, in enacting the New Jersey Turnpike Authority Act, our Legislature declared
that its goals were “to provide for the. . . construction of modern express highways embodying
every known safety device. . .” N.J.S.A. 27:23-1. Thus, our Legislature envisioned not only
plaintiff’s construction of an expansive highway and roadway system, but use of modern and
innovative technology to operate, maintain and provide safe passage to those who traveled along
its roadways. In the sixty-nine years that have elapsed since enacting the New Jersey Turnpike
Authority Act, our society has become increasingly technologically driven, demanding access to
wireless communication devices, such as mobile phones, pagers, global positioning system devices
(GPS), and computers. The exchange of information in this manner is accomplished by the
transmission and receipt of radio waves in the form of oscillating electric and magnetic fields along
a network of towers, or cellular communication. Thus, although the specific use of portable
wireless communication devices could not have been contemplated by the Legislature when the
New Jersey Turnpike Authority was created, under the broad spectrum of the statutory language,
the court concludes that a monopole or cellular tower is a “communication facility[y]” under
N.J.S.A. 27:23-4.
2. Use
The use of property to further an agency’s purposes or statutory directives does not require
the agency engage in direct, day-to-day, tangible and physical operation of that property. Use can
also encompass passive or indirect conduct by the agency, or by a private entity on behalf of the
agency, which furthers the agency’s purposes or statutory mandate to furnish essential public
services. See Walter Reade, Inc., supra, 36 N.J. at 440 (concluding that the New Jersey Highway
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Authority was “expressly authorized to operate its facilities either directly or through
arrangements with others”); New Jersey Turnpike Authority v. Monroe Twp., supra, 29 N.J. Tax
at 67 (concluding that the “acquisition of land by the Turnpike for mitigation of environmentally
sensitive areas impacted by a turnpike construction is also part of a transportation project”);
Moonachie, supra, 38 N.J. at 429 (concluding that possession of a tract of land by the Port
Authority of New York to serve as a sound barrier around the Teterboro Airport complex was
exempt from local property taxation because it was for a purpose consistent with its statutorily
described public function).
Here, based upon the submissions of the parties, the court concludes that plaintiff did not
make actual use of the cell tower for New Jersey Turnpike purposes during the tax years at issue.
The Certification of Maura K. Tully, submitted in support of plaintiff’s motions for summary
judgment, asserts only that “the Authority has the right to use” the cell tower, but fails to recite
that plaintiff actually made use of the cell tower or affixed communications equipment to the cell
tower in connection with its day-to-day operations. Moreover, the Certification of Jose Dios,
submitted by plaintiff following oral argument, further fails to provide any evidence of plaintiff’s
actual use of the cell tower during the tax years at issue. To the contrary, the Certification of Jose
Dios acknowledges that plaintiff does not make use of the cell tower, offering only that “a fiber
line is proposed to be run from the District Office to the existing monopole. . .” (emphasis added).
Neither the Certification of Maura K. Tully, nor the Certification of Jose Dios, presents the court
with any evidence that plaintiff made actual use of the cell tower in its New Jersey Turnpike
operations.
However, this does not end the court’s inquiry; the court must also examine whether the
cell tower and Lease between plaintiff and AT&T furthers plaintiff’s statutory mandate to perform
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essential government functions. When a public agency leases property owned by it for “a purpose
foreign to its statutorily described public function, it engages in competition for tenants with
private owners who may be pursuing the same objective” and will suffer loss of its local property
tax exemption. Moonachie, supra, 88 N.J. at 424. Conversely, when “a government property or
facility is leased to a private entity and the private entity operates the property or facility in
accordance with the agency's statutory purpose, the tax immunity may still apply.” Township of
Holmdel, supra, 190 N.J. at 88-89. Thus, the locus of the court’s inquiry is whether AT&T’s
perpetuation and maintenance of the cell tower and associated cellular transmission equipment
represents a private enterprise’s delivery of commercial services to its customers or furthers
plaintiff’s statutory purposes to provide essential public services. Stated differently, the inquiry is
whether a reasonable nexus exists between plaintiff’s statutory purpose to provide essential public
services and the cell tower and cellular communication devices which were affixed thereto.
Our Supreme Court has observed that:
In today's world, prompt and reliable information is essential to the
public welfare. Evidencing the need for such information is the
proliferation of wireless communications instruments such as
mobile phones, which rely on antennas for the transmission of
signals. For successful transmission, the antennas often are placed
on tall structures such as buildings, towers, or, as here, monopoles.
[Smart Smr v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J.
309, 315 (1998).]
In reaching this conclusion, the Court observed that under The Telecommunications Act
of 1996, Congress authorized the Federal Communications Commission (the “Commission”) to
license carriers to provide wireless telecommunications services. 47 U.S.C.A. § 301. Pursuant to
this authorization, no person is permitted to “use or operate any apparatus for the transmission of.
. . communications or signals by radio [in the United States or any territory thereof], except under
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and in accordance with this Act and with a license. . . granted under the provisions of this Act.”
Ibid. The Commission, in taking action to “manage the spectrum to be made available for use by
the private mobile services,” is required to consider whether such actions will: “(1) promote the
safety of life and property; (2) improve the efficiency of spectrum use. . . ; (3) encourage
competition and provide services to the largest feasible number of users; or (4) increase
interservice sharing opportunities between private mobile services and other services.” 47
U.S.C.A. § 332.
Our Legislature, in enacting the New Jersey Turnpike Authority Act, intended for plaintiff
to develop, create, operate and maintain an expansive highway and roadway system within New
Jersey, employing available modern technology, thereby affording safe passage to all who
travelled on its roadways. N.J.S.A. 27:23-1. Moreover, our Supreme Court has recognized that in
today's world, access to wireless communication has become essential to interests of public
welfare, assistance, and safety. Thus, the apparatuses, media, and instruments which are
responsible for the transmission of those cellular communication signals may promote and foster
the safety and well-being of the travelers on those roadways.
Here, defendant argues that the cell tower should not enjoy exemption from local property
taxation because it was “primarily erected, operated, and maintained for the provision of cellular
telephone service to AT&T’s private customers.” However, defendant’s argument fails to
recognize that the cell tower may serve a dual purpose. Although a cell tower or cellular
communications tower may serve a distinct commercial purpose, for the customers who pay a fee
to use the carrier’s equipment, it is nonetheless possible for a cellular communications tower to
simultaneously promote safety of life and property. That plaintiff may realize some financial or
pecuniary gain from entering into the lease with AT&T does not inevitably result in the “forfeit[ure
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of] an agency’s tax immunity.” Walter Reade Inc., supra, 36 N.J. at 441. The focus of the inquiry
turns on “whether the property is utilized in furtherance of the agency’s statutory mandate.”
Township of Holmdel, supra, 190 N.J. at 88-89.
Unfortunately, the record before the court fails to disclose how many other cellular
communications facilities serve plaintiff’s roadways or where those cellular communication
apparatuses are located. Further, the record is devoid of any evidence that the cell tower at issue
in these matters serves any portion of the New Jersey Turnpike roadway, or is in some way
essential or instrumental to plaintiff furnishing safe passage or travel along portions of the New
Jersey Turnpike. The absence of this relevant and probative information raises concern about
whether the cell tower is simply advancing AT&T’s private business plan or is furthering
plaintiff’s statutory mandate to furnish essential public services.
Thus, a genuine issue of material fact exists in this matter, namely, whether plaintiff leased
the cell tower to AT&T in an effort to “improve services available to the traveling public” and
promote the safety and well-being of travelers who utilized plaintiff’s roadways, or whether, as
defendant maintains, the cell tower was primarily erected, operated, and maintained to provide
cellular telephone service to AT&T’s private customers in the Union County vicinity.
III. Conclusion
The record before the court does not support entry of an order declaring the subject property
exempt from local property taxation. Accordingly, the court denies plaintiff’s motions for
summary judgment.
An order reflecting this opinion will be simultaneously entered herewith.
Very truly yours,
Hon. Joshua D. Novin, J.T.C.
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