TOVA LUTZ: I APOLOGIZE, GOOD AFTERNOON TOVA LUTZ OF LUTZ LAW FIRM AS CO-COUNSEL ON BEHALF
OF PETITIONER CHRISTIAN MISSION JOHN 3:16. STRAK STRAK CHRIS TOES J STRACCO DAY PIT ME
CO-COUNSEL FOR POSITION IN OTHER WORDS PLAINTIFF CHRISTIAN MISSION JOHN THROW:16.
KENNETH A. PORRO: CHIEF JUSTICE RABNER: MEES RUN MUTE YOURSELF. POUR POUR
HELLO KEN PORRO ON BEHALF OF THE CITY OF PASSAIC LAW FIRM OF CHASE AND LAMB PER WHAT MAL
LOON AND CAPPUZZO, THANK YOU. CHIEF JUSTICE RABNER: WELCOME IF, YUR NOT
SPEAK EVERYONE CAN UNMUTE THEMSELVES MS. LUTZ REMINE THE CORE TO BEGIN WITH HOW YOU'RE
DIVIDING THE ARGUE MANY. TOVA LUTZ: THANK YOU CHIEF JUSTICE RABNER MAY IT PLEASE
THE COURT UNINTERRUPTED 5 MINUTES REASON RESERVE CONCLUDING 5 MINUTES FOR REBUTTAL.
CHIEF JUSTICE RABNER: WE'LL HAVE YOU BACK PERHAPS LESS THAN 5 MINUTES BUT WOEL HAVE
YOU BACK FOR REMIND YOU HOW YOU'RE DIVIDERING UP THE ARMTH. TOVA LUTZ:
YES, YOUR HONOR. I'M GOIG HANDLE 1 PEEFTS ARGUE MANY, THE STORAGE PIECE AND THEN MY
CO-COUNSEL MR. STRAKS COMPANY IS GOING TO HANDLE THE REST OF THE ARGUMENT (STRACCO).
TOVA LUTZ: 1ST I'D LIKE T THANK THE ORT THE STAFF FOR MAKING A SESSION LIKE THESE
POSSIBLE UNDER THE CIRCUMSTANCES. I ALSO MUST THANKING MY COKOUN TELL MR. STRACCO AND
DAY PITNEY FOR ALL THEIR HELP HERE, THIS CASE IS ABOUT THE MEAN OF R 5443.CONDITION AND
ITS MRIK TO CHRIS THEN MISSION A R CHIFRN DOMINICAN COMMUNITY WHO PURCHASED AN ADJACENT
EMPTY WOULD YOU REMEMBER HOUSE TO ACCOMMODATE ITS GROWING, NAILING TO EXTEND THAT EX
CEMENT PROPERTY TAX EXCEPTION SHUN TO CHRIS INCHIS MISSION TORE 2013 TAGS YEAR IN 5 WAYS. 1ST
UPTS THE FIRST AMENTD MENT, IT IS UNCONSTITUTIONAL FOR A TAX ASSESSOR OR THE
COURTS TO AM LIGHTS THE QUANTUM OR RELIGIOUS 2ND AND SYSTEM LARLY, UNDER THE NIRS AMENDMENT
IT IS UNCONSTITUTIONAL TO ADD AN OPEN GENERAL PUBLIC ACCESS REQUIREMENT TO PROPERTIES
OWNED BY RELIGIOUS ORGANIZATION. 3RD, CHRISTIAN MISSION WAS EN TEELTED TO A TAX EXEMPTION
BECAUSE THE PROPERTY WAS YUFD FOR STORAGE AT ALL TIMES, INCLUDING THE OCTOBER 1, 2012,
VAL YOU WAGS DATE. 4, CHRISTIAN MISSION WAS ENTITLED TO A TAX EX SEMGS SHUN BECAUSE IT
MAINTAINED A CONTINUED EXEMPT CHARACTER CONSISTENT WITH ITS ADJACENT EXEMPT CHURCH
HOUSE. 5TH AND FINALLY THE EXEMPTION STATUTE DOES NOT REQUIRE COMPLIANCE WITH THE LOCAL
ZONING OR BUILDING CONSTRUCTION ORDINANCES. THE HEART OF THE MATTER BEFORE
THIS COURT IS WHETHER WE ARE TO OR DAN MUNICIPAL ASSESSOR OR EVEN AS SKOL LOWER THEE LOECH
JENS BY REQUIRING THEM TO ROW VIEW VARIOUS FORMS OF ROW LICH JIS PAPER MILL PLAYHOUSE
WE DON'T WANT TAX BUR YOKS DRAM THA CRITIC SAME MRIKS HERE FO REJICH LUS JUICE. WE DON'T
WANT TAX ASSESSOR TO BECOME THEE LOECH JENS. JUS FOR BETTER OR WORSE THIS CASE HAS BECOME
MY CONSTANT COMPANION FOR THE BET PAST OF THE LAST HALF DECADE AND INEVITABLY WHENEVER
I WOULD THING ABOUT THE DATES THE FAK FRN THE LEGAL ISSUES CONCERNED AN OLD HIM WOULD
ALWAYS DIE YEEN IN A IT MEANS IT WOULD HAVE BEEN ENOUGH AND THIS CASE FOR ME HAS BECOME
IT WOULD HAVE BEEN ENOUGH CASE S IF CHRISTIAN MISSION WAS MERELY RENOVATING THE BUILDING
NEXT TO ITS EXISTING SMALL CHUMP HOUSE THAT WOULD HAVE BEEN ENOUGH. JOEB HAINES. IF
THE CHURCH WAS JUST STORG ITS MROPT IN THE BUILDING, THAT WOULD HAVE BEEN ENOUGH, HAM
BERG V PRESS BY TARE. IF THE CHUMP HAD JUST HELD THOSE MORNING RELIGIOUS KOUN COUNSELING
TORT REVEREND RENT AND THAT COULDN'T GRE BLENTS ARCHDIOCESE OF NEWARK AND FINALLY, AS
FULL COMMUNE IN SOMETIME AROUND SENT SF TWOFRN 12 OCTOBER 1 ASSESSING DATE EVEN WITHOUT
A CERTIFICATE OF OCCUPANCY, THAT WOULD HAVE BEEN ENOUGH. OAK KNOLL CERTAINLY WHEN WE
REEG THE TOTALITY OF CIRCUMSTANCES HERE, SUM GREAT THAN ITS PARTS IT'S CLEAR THAT THE
LOWER COURTS ERRED IN DENYING THE EX SEM SHUP S TURPING NOW JUST TO THE STORAGE PIECE
OF ARGUE MANY, THE RECORD EVIDENCE FROM REFERRED JOY SON IS QUOTE ALL TIME THE BASTER
WAS YUFD FOR STORAGE OF CHURCH ITEMS THIS MEANS THAT FROM THE TIME CHRISTIAN MISSION
PURCHASED THE PROPERTY IN 2009 TO THE DATE THAT NOVEMBER 2017 CERTIFICATION, CERTAINLY
BY THE OCTOBER 1ST ASSESSING DATE THE BUILDING WAS USED TO STORAGE. DISNIGHT ANY PERCEIVED
AM BY GU RTS IN THE REFERRED JOYCE SIP 0 STATEMENT DOES NOT MEAN THAT STOFR RIDGE WAS
THERE FROM 2019 TO 2011 AND SOMEHOW STOPPED BEING USED FOR STORAGE IN 2012 AS THE APPELLATE
ERRONEOUSLY FOUP THE TAX COURT MADE NO FINDING OF THE FACT ON THIS ISSUE. BECAUSE THIS
WAS A MOTION FOR SUM ROW JUDGMENT THE COURT CONSIDERS THE MOTION DE NOVO AND IS NOT BOUN
BY THE FACT WUM FINDING OF THE TAX COURT ORT APPELLATE DIVISION. NOTE THAT TRIAL COURT
AND THE APPELLATE DIVISION ERRED BY FAILING TO RECOGNIZE THE PROPERTY WAS AT ALL TIMES
FOR STORAGE OF THE CHURCH ITEMS THE COURT WAS OBLIGATED TO CONSIDER THE FACTS IN A LIGHT
MOST FAVORABLE TO KRIGS CHEN MISSION AS A FACED THE CROSS-MOTION TORE SUMMARY JUDGMENT
ROW V GUARDIAN LIEFR THE JOYCE OF REFRND FIN MULLY OF MATERIAL FACT. WHICH SHOULD HAVE
ALLOWED CHRISTIAN MISSION TO SURVIVE IS THE SUMMARY JUDGMENT PROCEEDING. THIS COURT MUST
SIMILAR FIND ON PT ISSUE OF STR RIDGE EAT ITEMS WERE STORED AT THE PROPERTY AT ALL TIMES
OR AT LEAST THERE'S A GENUINE ISSUE OF MATERIAL FACT ON THIS STORAGE ISSUE. SUBSTANCE
OF I WOULD URGE THE CORE TO BE GUIDED BY ITS NEW JERSEY CASE ON THE SUBJECT FINDING THAT
STORAGE IN AND OF TEFL IS HAVEN'T BLEE NECESSARY FOR THE CHURCH'S RELIGIOUS PURCHASE THERE
BY SATISFYING THE USE REQUIREMENTS. I WOULD ALSO NOTE THAT STORAGE WAS ENTIRELY
COMPASS ABL WITH THE PRIOR OWNER OF THE WAREHOUSE'S USE OF PROPERTY THAT OF A
WAREHOUSE AND WENT TRIGGER ANY CO ISSUE. BUT MR. STRACCO WILL HANDLE THAT ISSUE IN GREATER
DETAIL DURING HIS ARGUE MANY. AND ON THAT NOTE IF THERE ARE NO QUESTIONS,
FROM THE JUS TS IS I WOULD YOUR HONOR T THE FLOOR OVER TO MR. STRACCO. CHIEF
JUSTICE RABNER: I'D LIKE TO ASK YOU A LITTLE BIT ABOUT THE CERTIFICATION. PARAGRAPHS
6, 7 AND 8 ALL SPECIFICALLY ADDRESS WHAT WAS TAKING PLACE IN 2012, KORNTSING INTO
THANKSGIVING OF 2012 IN PARAGRAPH 7. PARAGRAPH 5, I KNOW YOU READ ONE SENTENCE
FROM IT IN THE MIDDLE OF THE PARAGRAPH, BUT IT'S PLAINLY, IF YOU LOOK AT THE FIRST SENTENCE
TALKING ABOUT 2009 THREW 2011. THERE'S A TYPO THERE BUT IT'S 2011. WHERE DOES IT SAY
THFRTS' TALKING ABOUT STORAGE IN 2012, SPIFSHLG WHEN YOU CONTRAST IT WITH OTHER PARAGRAPHS
THAT DO TALK ABOUT 2012? TOVA LUTZ: SO IT DOESN'T SPECIFICALLY SAY THAT
IT'S TALK ABOUT STORAGE FOR 2012 BUT IT DOESN'T SAY THAT IT'S NOT EITHER. THE BEGINNING
OF THE PARAGRAPH DOES MENTION 2011, THEN THE SENTENCE STARTS WITH AT ALL TIMES AND THEN
THE NEXT SENTENCE WITHIN THAT PARAGRAPH SAYS STARTS TO TALK TO YOU 2012. SO WHILE IT
MAY BE A BIT AMBIGUOUS AND A BIT CLUMSY, TAKING THAT, EACH SENTENCE IN AND OF ITSELF WHICH
I THINK THAT IS REASONABLE READING AS THE SENTENCES DO START WITH DIFFERENT TIME LINES,
THAT TIME LOIN AP MRIS TO THAT SENTENCE. CHIEF JUSTICE RABNER: ISN'T IT,
WHY ISN'T IT SENSIBLE TO READ IN CONTEXT THAT AT ALL TIMES REFERS TO THE TIME REFERENCED
IN THE PARAGRAPH IN WHICH THE SENTENCE APPEARS? TOVA LUTZ: BECAUSE THE
VERY NEXT SENTENCE TALKS ABOUT 2012 SO THAT WITHIN THE. CHIEF JUSTICE
RABNER: JANUARY. WHAT PART OF 2012 SDIT SPEAK TO YOU IN HTO IN THE NEXT SENTENCE.
TOVA LUTZ: JANUARY OF 2012. CHIEF JUSTICE RABNER: AND THE KEY DATE IS
OCTOBER FISHES, CORRECT? TOVA LUTZ: CORRECT. CHIEF JUSTICE RABNER:
SO I DON'T IS HE ANYTHING IN PARAGRAPH 5 THAT TAKES YOU BEYOND THE TIME FRAME OF 2009,
POTENTIALLY INTO JANUARY OF 2012. ? TOVA LUTZ: I DON'T AND I DON'T SEE
ANYTHING THAT DOES NOT. AND THIS, THE PARAGRAPH, THOUGH TIP CLOE PARAGRAPHS MAYBE CRAFTED
IN SUCH A WAY THAT THE NIRS SENTENCE MAY APPLY TO THE ROW MAIN DER OF THE PARAGRAPH,
THIS PARAGRAPH IS DETAILING DIFFERENT FACTS AT A VARIOUS KRON UNTIL POINTS FRP IT'S A BIT
DISJOINTED SOY THAT ONE STEVENS WOULD APPLY TO ONE TIME LINE, ONE SENTENCE WOULD AP EMPLOY
TO TWOJ FEFL MUCH THIS SENTENCE SAYS AT ALL TIMES. JUSTICE ALBIN: IS IT
YOUR POSITION THAT'S A DISPUTED ISSUE OF FACT, THE SUM RYE JUDGMENT LEVEL YOU SHOULD GET
THE MOST FAVOR AB INFERENCES? AND THAT'S THE INFERENCE YOU'RE DRAWING? FROM IT.
TOVA LUTZ: AT A MINIMUM. I ALSO, I ALSO BELIEVE THAT THE CERTIFICATION COULD STAND
ON ITS OWN 2 FEET BASED ON THE CASE LAW THAT STORAGE OF CHURCH ITEMS IS ENOUGH AND THERE'S
ENOUGH HERE, BUT ABSOLUTELY. JUSTICE ALBIN: I'M STAUG K BOUTS ISSUE THAT
THE CHIEF JUSTICE HAS RACED, I'M NOT TALKING ABOUT THE REMAINDER OF IT. THE QUESTION
IS WHETHER OR NOT THE STORAGE CONTINUED INTO 2012. CHEF JUSTICE HAS SAID PARAGRAPH 5
IS ONLY REFERRING 09 TO '11 AND YUR JURY SAYING THE SENTENCE ABOUT THE SENTENCE ABOUT
STORAGE SHOULD NOT BE CONSTRAINED TO THAT PARAGRAPH. ARE YOU SAYING THAT IS A DISPUTED
ISSUE OF FACT? TOVA LUTZ: Y YES. I MEAN WE DIDN'T REALIZE IT WAS EVEN
A DISPUTED ISSUE OF ACT;. CHIEF JUSTICE RABNER: GO AHEAD, MS.
TOVA LUTZ: LUTZ WE DIDN'T REEL LIE IT WAS A DISPUTED ISSUE OF FACT UNTIL WITH APPLIED
TO OUR SUM ROW JUDGMENT MOTION. SO, YEAH. THE SHORT ANSWER IS YES, JUSTICE
CHIEF JUSTICE RABNER: OTHER QUESTIONS ANYONE? MR. STRACCO: THANK YOU MS. LUTZ.
ONE OF THE MOTHERS, MOST CONCERNING ASPECTS ABOUT THE ABOVE COURT'S DECISIONS
ARE THE CONCLUSIONS THAT THE QUANTUM OF RELIGIOUS SERVICES DIDN'T CONSTITUTE A RELIGIOUS
SERVICE PURSUANT TO THE STATUTE THAT MS. LUTZ DESCRIBED. THE TAX COURT REFERRED
TO THE USE EASE, AND NOT BEING FORMAL (INAUDIBLE), BOTH COURTS IGNORED (INAUDIBLE) THAT
IS AS OF OCTOBER 1, 2012, THE CONVERSION OF THE PROPERTY WAS SUBSTANTIALLY -- IT WAS
ACTIVE (INAUDIBLE) ROOEJS M RELIGIOUS SERVICES BEGAN SOMETIME IN SEPTEMBER OF 2012 JIM.
TAENLDED BY CONSTRUCTION AND OTHER CONGREGANTS AND SPOUSES AND THE SERVICES MIRRORED REGULAR
SERVICES PERFORMED AT CHURCH. THE PASTOR ALSO COUNSELLED CONGREGANTS AT THE PROPERTY.
THE APPROACH TAKEN BY THE APPELLATE DIVISION, THE TAX COURT HERE IS CONTRARY
TO TAX COURT AETS PRIOR JURISPRUDENCE ROMAN CATHOLIC ARCH DIOCESE WHICH WAS AFFIRMED.
BASICALLY THEY CAN'T INQUIRE AS TO THE QUANTUM OF THE USE AND THAT ANALYSIS IS FURTHER
DESCRIBED -- DISCUSSED IN THE APPELLATE DIVISION'S DECISION IN APRIL, VERSUS GAR WOOD
BORROW. AS A MATTER OF FACT THE TAX COURT RELATIVELY RECENTLY IN 2015 DETERMINED
THAT THERE WAS NO REQUIREMENT AS TO WHAT SERVE VITS ES ARE REQUIRED FOR, BOROUGH OF HAM
BURG VERSUS PRERS TEAR YAN OF NEW TON SO THE QUESTION THEN ARISES (INAUDIBLE), PURSUANT
TO THE RELIEF. LET'S PUT IT IN CONTENT. FOR EXAMPLE, THE STATE OF EMERGENCY
WAS DECLARED IN NEW JERSEY MOST IF NOT ALL HOUSES OF WORSHIP OF THE THREE MOST PREDOM
INANT HOUSES OF, CHRISTIAN CHURCHES DURING MOST OF LENT, HOLY WEEK EAST STER AND MOSQUES
DURING RAM MAD DAN. ARE ALL THESE SHUT TERD HOUSES OF WORSHIP NOW NOT BEING USED AND
THERE ARE USE RS LOSE THEIR EXEMPTED STATUS. IF THEY LIVE STREAM IF THERE WERE
NO VIEW TO THE EXCEPTIONS OF ACCIDENT. (INAUDIBLE), CHRISTIAN MISSION MET
THIS REQUIREMENT FOR THE REASONS PREVIOUSLY DISCUSSED. CHIEF JUSTICE RABNER:
MR. STRACCO, CAN I ASK YOU A QUESTION HERE? MR. STRACCO: YES. THE
COURT: TO SATISFY THE STAT TUTD, YOU HAVE TO DEMONSTRATE ACTUAL USE FOR A TAX-EXEMPT
PURPOSE, OF COURSE. THIS PROPERTY COULDN'T BE USED FOR ANYTHING WHILE IT WAS IN THE MIDST
OF ITS CONSTRUCTION. HOW DO YOU GET AROUND THAT? MR. STRACCO:
WE WOULD RESPECTFULLY ARGUE THAT IT CAN BE USED AND THE ARGUMENT IS THAT THE -- SEVERAL
CASES, THE FIRST BEING THE SOCIETY OF THE HOLY CHILD JESUS VERSUS CITY OF SUMMIT. THERE IS
CASH BASH CHOE CASE, THE CASH BASH CHOE SDWIGS OONDZ NEWARK VERSUS BLOCK 322 ALL DISCUSSED
IN THE PETITION ALL AIM ADD AT THE BAR RANT TOE CASE A DECISION, ALL BASICALLY SAY THAT
THE C OF O WHICH I THINK IS WHAT YOUR HONOR IS ALLUDING TO DOESN'T GOVERN THE ISSUE OF
USE. THE STATUTE SAYS USE AN THAT'S WHAT THE APPELLATE DIVISION IN SOCIETY OF HOLY CHILD
SAID. THE APPELLATE DIVISION SAID LISTEN, WE GET IT, THEY WERE OPERATING IN NONE CONFORMANCE
WITH THE ZONING AT THE TIME BUT THE TAX STAT SHEETS AND THE MUNICIPAL ORDINANCES AREN'T
TO BE READ IN PARA MATERIA. THE NEW JERSEY CONSTITUTION SAYS RELIGIONS ARE ENTITLED
TO AN EXEMPTION AND THEREFORE, THERE ARE SEVERAL DECISIONS FROM OUR SISTER STATES THAT
MAKE THAT DISTINCTION. THE COURT: COULD YOU HELP ME UNDERSTAND YOUR READING
OF THE BREATH OF THIS CONCEPT COULD THE CHURCH TOMORROW GO IDENTITY AND BY A COMMERCIAL
PIECE OF PROPERTY AND GUT IT AND BEGIN RENOVATION WORK, TURN IT INTO A CONSTRUCTION SITE
BUT HOLD RELIGIOUS SERVICES OR BETTER STILL, HOLD RELIGIOUS CLASSROOM SERVICES FOR STUDENTS
IN THE MIDST OF THAT CONSTRUCTION AND STILL GET AN EXEMPTION? STAK STAK I. MR.
STRACCO: I WOULD ARGUE YES AND HERE IS WHY BECAUSE AS I SAID THE TAX STATUTES AND THE
MUNICIPAL ORDINANCES ARE NOT TO BE READ IN PARA MATERIA. CHIEF JUSTICE RABNER:
AREN'T YOU THEN ENCOURAGING UNSAFE USES OF PROPERTIES IF YOUR ANSWER IS THAT YOU COULD
RUN A SCHOOL IN THE MIDST OF A CONSTRUCTION SITE? MR. STRACCO: WELL, LET'S
PUT IT THIS WAY, FIRST OF ALL, I AM TALKING ABOUT THE RELIGIOUS EXEMPTION, THERE IS A
SEPARATE EXEMPTION FOR EDUCATIONAL INSTITUTIONS. CHIEF JUSTICE RABNER: I
AM TALKING ABOUT A RELIGIOUS EDUCATIONAL PROGRAM THERE. GO AHEAD.
MR. STRACCO: THE STATE AN THE CITY OR ANY MUNICIPALITY HAS OTHER AVENUES AT ITS DISPOSE
STAL TO PROHIBIT UNAUTHORIZED USE OF FACILITIES UNDERSTAND CONSTRUCTION AND THEY CAN ISSUE
CEASE AND DESIST ORDERS, THEY COULD HIT THEM WITH ZONING VIOLATIONS. THEY COULD DO ANY
NUMBER OF ENFORCEMENT MEASURES THAT THE MUNICIPALITY CAN USE BUT THE FACT OF THE
MATTER IS THAT THOSE ENFORCEMENT MEASURES DON'T APPLY TO A TAX EXEMPTION AND, YOU KNOW,
I THINK THAT YOUR HONOR IS TAKING IT SOMEWHAT OF AN EXTREME POSITION WHICH I UNDERSTAND
BUT I THINK THAT MOST OF THE CASES AREN'T GOING TO FALL -- GET THAT EXTREME AND IN SOCIETY
OF HOLY CHILD THE PROPERTY WAS A ZONING VIOLATION AND THE PROPERTY WAS BEING USED IN CONFLICT
WITH THE ZONING LAWS AND ULTIMATELY THEY WENT IN AND OBTAINED A VARIANCE, BUT THE COURT
SAID, LISTEN, YOU HAVE THE ABILITY TO GO IN AND HIT THEM WITH A CEASE AND DESIST ORDER
YOU HAVE THE ABILITY TO GO IN THERE AND HITD THEM WITH A ZONING VIOLATION. YOU DIDN'T
DO IT. JUSTICE ALBIN: MR. STRACCO. MR. STRACCO: YES.
JUSTICE ALBIN: DO YOU ACCEPT THE LEGAL PREMISE OF WHAT APPEARS TO BE MOST OF THE TAX COURT
CASES AND OTHER CASES THAT ACTUALLY ACTUAL USE IS ANTITHETICAL TO A BUILDING THAT IS IN
CONSTRUCTION? MR. STRACCO: WELL, ACTUALLY -- OOL AL FOR A RELIGIOUS
INSTITUTION SO THAT WHEN -- YOU KNOW, THE WALLS AN THE FOUNDATION AND THE BEAMS OF THE
CHURCH ARE GOING UP FOR PURPOSES OF OUR TAX EXEMPTION STATUTE, 54, 43.6 THE ACTUAL USE
IS AT TEE THET KAL TO CONSTRUCTION, DO YOU ACCEPT THAT LEGAL PREMISE AN FORGET ABOUT THERE
BEING SERVICES, PEOPLE BEING BLESSED AND OTHER TYPES OF THINGS. GO AHEAD.
MR. STRACCO: I WOULD STATE THAT THE ACTUAL USE OF A BUILDING THAT'S ALREADY
CONSTRUCTED, WHICH IS THE CASE THAT WE HAD HERE QUALIFIES UNDER THE STATUTE. THAT IS
OUR ACTUAL PREDICATE HERE. NOW, YOU KNOW, THE SCENARIO COULD BE SOMEBODY IS PUTTING A
FOUNDATION IN, DOES THAT QUALIFY AND THEY HOLD A BLESSING AT THE PROPERTY. YOU KNOW,
I PREFER TO GIVE THE RELIGIOUS ORGANIZATION THE BENEFIT OF THE DOUBT IN THAT SITUATION.
JUSTICE ALBIN: I WAS THINKING OF THIS EXAMPLE THE CHURCH HAS A PARKING LOT.
ASSUME THAT THE CONSTRUCTION WAS GOING UP ON THE PARKING LOT WHICH WAS ALREADY TAX-EXEMPT.
MR. STRACCO: UH-HUH. JUSTICE ALBIN: WOULD THE BUILDING NOT
BE TAX-EXEMPT AS IT WAS BEING CONSTRUCTED BECAUSE IT WASN'T ACTUALLY BEING USED AS, LET'S
SAY, AN EXTENSION OF THE CHURCH? MR. STRACCO: THAT GOES TO ANOTHER ONE OF
OUR ARGUMENTS, WHICH IS THE CONTINUING USE ARGUMENT UNDERSTAND THE JOEB HAINS VERSUS
TOWNSHIP OF BLOOM FIELD CASE WHERE THERE WAS A -- AN EXEMPT FACILITY NOT A RELIGIOUS USE
BUT AND EXEMPT USE AND AN ADDITION WAS CONSTRUCTED OR AN ADDITIONAL FACILITY WAS
CONSTRUCTED ON PREVIOUSLY EXEMPT PROPERTY AN THE TAX COURT FASHIONED WHAT IS CALLED A
CONTINUING EXEMPT USE EX ACCEPT SHUN SO THAT IF YOU'RE BUILDING THE THING AND IT'S ON EXEMPT
PROPERTY, YOU KNOW, IT'S GOING TO BE EXEMPT SO WHY IS IT TAXED AND IT IS NOT, IT'S
CONTINUING EXEMPT USE. THAT KIND OF ALSO PLACE INTO THE PAPER MILL PLAY HOUSE CASE.
CHIEF JUSTICE RABNER: BEFORE YOU GET TO PAPER MILL, THE FACTS HERE ARE THIS WAS
A COMMERCIAL ENTERPRISE THAT THE CHURCH PURCHASED IN 2009. IT DIDN'T HAVE A PRIOR TAX
EMT PURPOSE, CORRECT? MR. STRACCO: THAT IS CORRECT. CHIEF JUSTICE
RABNER: DOES THAT CHANGE THE ANALYSIS AT ALL. MR. STRACCO: I WOULD SAY IT
DOESN'T BECAUSE NOW YOU'RE BACK TO SOCIETY OF HOLY CHILD. SOCIETY OF HOLY CHILD WAS ZONED
AS A RESIDENCE, WAS THEN USED FOR EDUCATIONAL PURPOSE WHICH WAS NOT IN CONFORMANCE WITH
THE ZONE AND IT, THEREFORE, WAS AN IMPROPER USE. THE APPELLATE DIVISION THERE I THINK
RIGHTLY DETERMINED THAT THE TOWN COULD HAVE SHUT THEM DOWN AT ANY POINT AND THEY DECIDED
NOT TO SO THEY JUST REVOKED THEIR TAX EXEMPTION AND THAT'S NOT THE WAY TO DO IT.
THE COURT: SO ARE WE INCENTIVE ADVISING INAPPROPRIATE USES OF PROPERTY IN A WAY THAT
POSES A DANGER? WOI AGREE THAT THERE IS A DIFFERENCE BETWEEN A ZONING VIOLATION
AND USING A BUILDING THAT IS AN ONGOING CONSTRUCTION SITE WHICH POSES HAZARDS?
MR. STRACCO: NO, NOT NECESSARILY, YOUR HONOR, I DON'T THINK THERE IS A DISTINCTION
BECAUSE YOU CAN HAVE SOMEONE WHO IS USING A -- ATTEMPTS TO USE A COMMERCIAL BUILDING FOR
RESIDENTIAL PURPOSE -- WHERE A RESIDENTIAL SHL PURM IS NOT PERMITTED AND THAT I THINK
POSES A LOT OF THE SAME ISSUES SO I DON'T BELIEVE SO. JUSTICE ALBIN: IS
PART OF YOUR ARGUMENT THAT EVEN THOUGH YOU HADN'T RECEIVED TAX-EXEMPT STATUS, THE PROPERTY
WAS BEING USED FOR NEVERTHELESS A TAX-EXEMPT PURPOSE FROM 2009 TO 2011 AS STORAGE, STORING
RELIGIOUS ITEMS AND THEREFORE, WHEN THE CONSTRUCTION WAS GOING UP, YOU WERE ALMOST
CONSTRUCTIVELY IN THE SAME POSITION AS THE JOB HAINS CASE EVEN THOUGH THERE HADN'T BEEN
PREVIOUS RECOGNITION THAT IT WAS A TAX-EXEMPT PIECE OF PROPERTY IT CONSTRUCTIVELY WAS
BECAUSE OF THE USE TO WHICH IT HAD BEEN PUT IN THOSE PREVIOUS YEARS. GO AHEAD.
MR. STRACCO: YES. JUSTICE LA VECCHIA: IS IT POSSIBLE, MR.
STRACCO THAT WE SHOULD BE LOOKING AT THOSE PRIOR YEARS IN EVALUATING THE TAX-EXEMPT STATUS
AS OF OCTOBER 2012 WITHOUT BEING BOUND BY WHAT MIGHT HAVE BEEN AN ERRONEOUS DETERMINATION
BY THE TOWN DURING THOSE EARLIER YEARS. YOU POINT TO THOSE EARLIER ACTIVITIES OF STORAGE,
SOME EDUCATIONAL PROGRAMS, EVEN SOME PRAYER SERVICES THAT WERE BEING DONE BEFORE THE
RENOVATION STARTED TO SHOW THAT THIS PROPERTY OWNED BY THE CHURCH SINCE 2009 NEVER WAS
BEING USED FOR AN IMPERMISSIBLE PURPOSE BY THIS RELIGIOUS ENTITY SUCH THAT IT WOULD HAVE BEEN
CARVED OUT, CORRECT? IT WAS ALWAYS BEING USED FOR PURPOSES OF THE ORGANIZATION
AND THE ORGANIZATION'S PURPOSE IS RELIGIOUS. IT'S GOT A RELIGIOUS -- THAT'S THE WORK
OF THE ASSOCIATION SO COMING BACK TO MY -- WHERE I STARTED FROM, ARE WE BOUND BY THE FACT
THAT THE TOWN NEVER GAVE AN EXEMPTION DURING THOSE EARLIER YEARS WHEN MORE THAN STORAGE,
BUT ADDITIONAL RELIGIOUS ACTIVITY WAS GOING ON BEFORE THE RENOVATION STARTED?
MR. STRACCO: NO, I DON'T THINK YOU'RE BOUND AT ALL BECAUSE THIS HAPPENS ALL THE TIME IN
THE CONTEXT OF EXEMPTIONS WHERE THEY DON'T FILE THEIR EXEMPTION APPLICATION ON TIME, THE
PROPERTY IS USED FOR THE EXEMPT PURPOSE BUT IT DOESN'T OBTAIN THE EXEMPTION OR MAYBE THE
OWNER DOESN'T KNOW BILLION THE EXEMPTION. IT HAPPENS IN A FARMLAND ASSESSMENT CONTEXT.
THEY'VE BEEN FARMING THE PROPERTY FOR YEARS THEY JUST NEVER APPLIED FOR FARMING ASSESSMENT.
JUSTICE LA VECCHIA: WELL, THIS IS A LITTLE DIFFERENT BECAUSE THEY DID APPLY
AN THEY WERE DENIED AND THEY DID AN APPEAL, DOES THAT CHANGE THE EQUATION. MR.
STRACCO: I DON'T THINK SO BECAUSE THE PETITIONER CLEARLY THOUGHT THEY WERE USING IT FOR
AN EXEMPT PURPOSE AND CLEARLY THEY WERE STORING ITEMS THERE AND FRANKLY I DON'T THINK
STORING ITEMS -- IF YOU WANT TO TAKE THE EXTREME ARGUMENT ON C OF O ISSUE THAT IT'S DANGEROUS
TO HOLD RELIGIOUS SERVICES IN A PROPERTY THAT DOESN'T HAVE A C OF O ARGUABLY OR ALLEGEDLY.
JUSTICE LA VECCHIA: IT WAS MORE THAN STORAGE BECAUSE THERE WERE EDUCATIONAL
PROGRAMS GOING ON DURING THOSE EARLIER YEARS AND OTHER ACTIVITIES THAT WERE ACKNOWLEDGED
BY THE TAX COURT SO NORMALLY WHEN A PORTION OF PROPERTY IS UNDER RENOVATION AND MAY NOT
BE ABLE TO BE USED, THE ORGANIZATION DOESN'T LOSE IT'S TAX-EXEMPT STATUS DURING THE PERIOD
OF RENOVATION. I THINK THAT DISTINGUISHES IT FROM THE NEW CONSTRUCTION SITUATION THE
THAT JUSTICE ALBIN WAS INQUIRING ABOUT WHERE THERE WAS NO PRIOR USE TO BUILD ON, IF YOU
WILL. MR. STRACCO: I AGREE. I THINK IT'S A VERY -- IT'S AN IMPORTANT
DISTINCTION. CHIEF JUSTICE RABNER: FLESH OUT YOUR UNDERSTANDING OF THE SO-CALLED
EXTREME POSITION, YOUR CHURCH BUYS A PIECE OF PROPERTY TOMORROW, BEGINS CONSTRUCTION,
GUTS THE INTERIOR BUT OTHERWISE DOES WHAT, YOU KNOW, HAS THE 20 MINUTE PRAYER SERVICE
IN THIS MORNING FOR THE SMALL CONSTRUCTION CREW AN OTHERS, TAX-EXEMPT? MR.
STRACCO: I SAY TAX-EXEMPT, BUT I THINK OUR SITUATION HERE IS MUCH MORE COMPELLING
BECAUSE WE HAVE A FACILITY THAT IS ADJACENT TO A PREEXISTING CHURCH THAT HAS BEEN USED
SINCE THE 1960S THAT WAS USED FOR RELIGIOUS PURPOSES AT THE VERY LEAST FOR STORAGE, IF
NOT MUCH, MUCH MORE SO I -- LET'S PUT IT THIS WAY, I CAN SEE THE ARGUMENT, WHICH IS THE
GRACE PEACE FELLOWSHIP CASE THAT YOU'RE BUILDING SOMETHING FROM THE GROUND UP, YOU'RE
REALLY NOT ENTITLED TO ANY EXEMPTION, I PERSONALLY THINK THE STATUTE SAYS USE SO AS
SOON AS YOU START USING IT IS THE STATE GOING TO COME IN AND SAY, YOU KNOW -- LET'S TAKE
A MOSQUE CONTEXT. HOLDING A PRAYER -- PRAYERS AT THE MOSQUE SITE DURING CONSTRUCTION
IS NOT ENOUGH. I PERSONALLY THINK IT'S ENOUGH, BUT OUR CASE I THINK IS MUCH STRONGER
THAN THAT. OUR CASE IS EQUIVALENT TO A JOB HAINS. OUR CASE IS EQUIVALENT TO A SOCIETY
OF HOLY CHILD. AND IF YOU READ THE -- WHAT REALLY SEEMS TO BE REPEATING AUTHORITY IN
OUR STATE, I MEAN, IF YOU LOOK AT PAR RANT TOE WHICH DEALS WITH ADDED ASSESSMENTS THE
COURT SAID C OF O ISN'T A GUIDING INDICIA AS TO WHEN A PROPERTY CAN BE ASSESSED FOR ADDED
ASSESSMENT PURPOSES. NARCOTIC VERSUS BLOCK 22 SAID THE LACK OF A CERTIFICATE
OF OCCUPANCY IS NOT A BRIGHT LINE RULE REQUIRING A DENIAL OF A TAX EXEMPTION. KASH
BASH SHOW SAID A VIOLATION OF THE BUILDING CODE WAS NOT THE APPROPRIATE BASIS TO DENY
TAX BLANK. SO WE'VE GOT HOLY CHILD, KASH, NARCOTIC VERSUS BLANK 322 ALL IN
THE TAX. BASICALLY STATING WHAT THE TAX COURT IS INCONSISTENT WITH PRIOR
LAW. JUSTICE ALBIN: IF THE CHURCH HAD TO BE -- THE EXISTING CHURCH HAD TO BE
COMPLETELY GUTTED AND REBUILT FROM THE FOUNDATION UP DURING THAT PERIOD, WOULD IT HAVE
TAX-EXEMPT STATUS? MR. STRACCO: IF THE CHURCH HAD TO BE COMPLETELY GUTTED
AND BUILT FROM THE GROUND UP I WOULD SAY -- JUSTICE ALBIN: LET'S SAY IT
SUFFERED A FIRE AND WAS COMPLETELY DEVASTATED AND HAD TO BE RECONSTRUCTED, DURING THE
RECONSTRUCTION PERIOD WOULD IT HAVE TAX-EXEMPT STATUS. MR. STRACCO: UNDER
THE PAPER MILL PLAY HOUSE CASE I THINK IT WOULD. JUSTICE LA VECCHIA: WHAT
IF THE BASEMENT DEVELOPED A MOLD PROBLEM THAT REQUIRED REMEDIATION SUCH THAT THE PROPERTY
COULD NOT BE USED FOR ACTIVITIES DURING THE PERIOD OF REMEDIATION YOU WOULDN'T LOSE
TAX-EXEMPT STATUS, WOULD YOU, DURING THAT PERIOD WHEN ACCESS WAS NOT PERMISSIBLE OR NOT
WISE FROM A HEALTH POINT OF VIEW? MR. STRACCO: I THINK UNDERSTAND THE PAPER
MILL PLAY HOUSE CASE YOU WOULDN'T BECAUSE PAPER MILL PLAY HOUSE SAYS YOU DIDN'T LOSE AN
EXEMPTION BECAUSE OF A FIRE I WOULD ASSUME IF YOU HAD SOME OTHER KIND OF DISASTER OR UNFORESEEN
ACT OF GOD, NO PUN INTENDED, YOU WOULD CONTINUE WITH THAT EXEMPTION UNTIL THAT HAD BEEN:
JUSTICE LA VECCHIA: IT'S NOT A BLANK QUESTION BECAUSE OFTEN IN CHURCHES
OR OTHER RELIGIOUS ORGANIZATIONS BAMENTS ARE USED FOR MEETING AREAS, BEREAVEMENT GROUPS,
SCOUT MEETINGS AND IF THERE WAS A PROBLEM WITH A CERTAIN PORTION OF THE BUILDING THE THAT
COULD NOT BE USED FOR HEALTH PURPOSES YOU START APPORTIONING A PORTION OF THAT PART OF THE
PROPERTY FROM THE EXEMPTION BECAUSE IT CAN'T BE USED -- I'VE NEVER SEEN A PUBLIC ACCESS
REQUIREMENT IMPOSED IN SUCH A CIRCUMSTANCE, HAVE YOU? IS THERE ANYTHING IN
THE LAW THAT WOULD SUPPORT A DEMAND THAT PUBLIC ACCESS DEFINES THE EXEMPTION?
MR. STRACCO: MY ANSWER TO YOU IS NO. I BELIEVE THAT THAT IS PART OF THE PAPER MILL PLAY
HOUSE CASE. AS TO THE PUBLIC USE ISSUE, BOTH THE P APPELLATE DIVISION AND THE TAX COURT
SAID RELIGIOUS SERVICES WERE NOT AVAILABLE TO THE PUBLIC AS OF THE ASSESSING DATE AND
THEY BOTH APPLIED -- THEY BOTH USED THAT AS ANOTHER BASIS FOR EXEMPTION AND AS AM MEESH
EE INDICATED IN THEIR BRIEF AND I DON'T NEED TO GO INTO DETAIL ON IT THERE IS REALLY NO
PUBLIC ACCESS REQUIREMENT. THIS COURT IN BLANK DIES ES VERSUS HOE HOE CUSS SAID THAT
THE QUID PRO QUO IN JUSTIFYING, ISN'T PREDICATED ON PUBLIC ACCESS RATHER IT IS TO FACILITATE
THE CONTRIBUTION OF THE EXEMPT FACILITY FOR PUBLIC GOOD. SO THE IDEA THAT
THE FACILITY IS A BENEFIT TO THE PUBLIC DOESN'T MEAN PUBLIC ACCESS. IT'S NOT A -- THAT IS
A MISREADING OF -- IN MY RESPECTFUL OPINION THE CASE LAW. ANOTHER REASON WHY THE APPELLATE
DIVISION AND THE TAX COURT (INAUDIBLE) JUSTIFICATIONS FOR DENYING EXEMPTION.
JUSTICE SOLOMON: ARE YOU RELYING IN PART AND ASKING US TO RELY ON THE USES OF PROPERTY
BETWEEN 2009 AND 2012 EARLY 2012? ARE YOU ASKING US TO CONSIDER, AT LEAST THAT'S A QUESTION OF FACT THAT NEEDED TO BE EXPLORED BY THE TAX COURT? MR.
OF THE ASSESSING DHAT, OCTOBER 1, 2012, THE PROPERTY WAS BEING USED FOR LEGITIMATE
RELIGIOUS PURPOSES. JUSTICE SOLOMON: WE'VE BEEN DISCUSSING AND MAKING THE
ARGUMENT ABOUT JUST BECAUSE CONSTRUCTION IS GOING ON AND THERE IS NO C OF O AND THE PROPERTY
MAY EVEN BE UNSAFE DOESN'T PRECLUDE YOUR RIGHT TO THE EXEMPTION BECAUSE IT WAS BEING UTILIZED
FOR RELIGIOUS PURPOSES EVEN BEFORE THAT EVEN THOUGH YOU WERE DENIED AN EXEMPTION IT WAS
BEING USED FOR RELIGIOUS PURPGS COMING BACK KINDS OF TO WHAT JUSTICE LA VECCHIA WAS SAYING
THAT THAT IS PERTINENT, ARE YOU ARGUING IT SOUNDS LIKE YOU ARE, THAT THAT WOULD BE PERTINENT
IN DETERMINING THAT THIS TAX EXEMPTION FOR 2012 SHOULD EXIST EVEN IF DURING THE PERIOD
OF CONSTRUCTION WITHOUT A C O YOU HAD LIMITED RELIGIOUS USE? MR. STRACCO:
MY ANSWER IS YES, BUT THE FACT OF THE MATTER IS HERE IS THAT AT THE R ASBESTOS AS OF
THE ASSESSING DATE THE PROPERTY WAS CLEARLY BEING USED FOR STORAGE AND RELIGIOUS SERVICES
AND THE ASSESSING DATE WAS NOT TERRIBLY TOO FAR OFF FROM WHEN ULTIMATELY -- I THINK
ADDITIONALLY A T C O WAS GRANTED AL. JUSTICE SOLOMON: COMING BACK TO THE
CHIEF EASE QUESTION DOESN'T THAT SET US UP TO A PROBLEM, DOESN'T THAT CREATE A PROBLEM
IF WE SAY THAT EVEN UNDER CONSTRUCTION, EVEN THOUGH IT'S A CONSTRUCTION SITE, YOU CAN
GET YOUR EXEMPTION, EVEN THOUGH YOU NEVER GOT IT BEFORE BECAUSE YOU'RE DOING SOME -- SOMEWHAT
LIMITED ACTIVITY, YOU STOPPED THE CLASSES, YOU'RE HAVING PERIODIC SERVING ADVICE SERVICES
FOR CERTAIN -- A LIMITED NUMBER OF PEOPLE AND I GUESS THINGS ARE BEING STORED THERE ALTHOUGH
I DIDN'T READ THE RECORD AS BEING THAT COMPLETE AS TO THAT I HAD SOME QUESTIONS ABOUT
WHAT WAS BEING STORED THERE AND WHEN, BUT ARE WE ENCOURAGING USE, RELIGIOUS USE AND THEREFORE
AN EXEMPTION AT TIMES WHEN THESE PROPERTIES ARE REALLY UNSAFE AND NOT INTENDED TO BE USED
FOR THOSE PURPOSES. MR. STRACCO: ONCE AGAIN I THINK MY ANSWER IS THE SAME,
THAT THE STATE, THE MUNICIPALITY, THE CITY HAS OTHER AVENUES AT ITS DISPOSAL TO TAKE CARE
OF THOSE ISSUES, CEASE AND DESIST ORDERS, ZONING VIOLATIONS, CONSTRUCTION CODE VIOLATIONS
AND THERE'S A WHOLE LEVEL OF ENFORCEMENT. JUSTICE SOLOMON: I AM JUST SAYING
IS YOUR CASE STRONGER IF WE CONSIDER AND THE TAX COURT CONSIDER THE RELIGIOUS USES TO
WHICH THIS PROPERTY WAS PUT BETWEEN 2009 AND 2012? MR. STRACCO: I SUPPOSE
IT'S STRONGER BECAUSE IT INDICATES THAT IT WAS GOING INTO THE ADVERSE POSSESSION, IT WAS
A SORT OF OPEN AN NOTORIOUS AND IT MAKES IT MUCH MORE OBVIOUS AND NOTHING THAT WOULD GO
-- JUSTICE SOLOMON: EVIDENCE OF RELIGIOUS PURPOSE AND RELIGIOUS USE IN 2012
THAT'S ALL I AM SUGGESTING, NOTHING MORE, NOT ADVERSE POSSESSION. I KIND OF GLEANED SOME
OF THAT FROM WHAT JUSTICE LA VECCHIA WAS ASKING AND I AM TRYING TO CLARIFY WHETHER YOU'RE
RELYING ON THAT IN ANY WAY? MR. STRACCO: I THINK IT HELPS. IS IT DETERMIN
ATIVE, I WOULD SAY NO BECAUSE THE FACTS ARE EXTREMELY STRONG THAT THE PROPERTY WAS USED
THROUGHOUT 2012 AT AND AS OF THE ASSESSING DATE FOR RELIGIOUS PURPOSES. HOWEVER THE FACT
OF THE MATTER IS IF YOU LOOK AT SOCIETY OF THE HOLY CHILD IT HAD BEEN USED AS AN EXEMPT
ENTITY, AS AN EXEMPT BUILDING FOR A LONG TIME BEFORE THE EXEMPTION WAS REVOKED SO HERE
IT WAS USED FOR EXEMPT PUMPS FOR A VERY LONG TIME PRIOR TO THE EXEMPTION APPLICATION FOR
2013 SO IN THAT RESPECT, YOUR HONOR, I THINK THAT IT -- I THINK THAT IT'S HELPFUL, BUT
I WOULDN'T SAY IT'S DETERMINATIVE. JUSTICE LA VECCHIA: LET ME FOLLOW UP
IF I CAN MR. STRACCO SINCE I STARTED SOME OF THIS QUESTIONING TO BEGIN WITH. I AM ASKING
ABOUT THIS EARLIER PERIOD BECAUSE I AM TRYING TO SEE THE FOREST AND NOT GET LOST BY FOCUSING
ON INDIVIDUAL TREES. THIS IS A NONE PROFIT RELIGIOUS ORGANIZATION FOR THE PURPOSES
RECOGNIZED UNDER THE TAX-EXEMPT STATUTE. IT PURCHASES THIS ADJACENT PROPERTY ON WHICH
IT HAS A WAREHOUSE. IT'S NOT USED FOR ANY IMPERMISSIBLE HOR NONRELIGIOUS PURPOSE AFTER
IT ACQUIRES THE PROPERTY, INCLUDING THE WAREHOUSE AND, IN FACT, I ASKED YOU THE QUESTIONS
ABOUT THE EARLIER USE TO HIGHLIGHT WHAT I BELIEVE TO BE TRUE, WHICH WAS THAT SINCE THEY HAD
COME INTO POSSESSION OF THAT WAREHOUSE THEY USED IT FOR RELIGIOUS ACTIVITIES, USES IN
FURTHERANCE CHT PURPOSE OF THIS RELIGIOUS ORGANIZATION SO IT SEEMS TO BE HITTING ALL
THE RIGHT NOTES FOR THE OVERALL PURPOSE AS TO WHY ONE WOULD GRANT A TAX EXEMPTION TO THIS
BUILDING OWNED BY THE RELIGIOUS ORGANIZATION AND BEING USED FOR, IF ANYTHING, ONLY PERMISSIBLE
PURPOSES, USES, FURTHERING THE RELIGIOUS INTENT OF THE ORGANIZATION. SO WHEN I ASKED
YOU ABOUT THE EARLIER TIME, IT WAS TO PROBE THAT BIGGER PICTURE. MY MOST IMPORTANT QUESTION
TO YOU IS: ARE WE BOUND BY THE FACT THAT DURING THAT EARLIER PERIOD THEY HAD BEEN DENIED
AND DID NOT APPEAL A TAX-EXEMPT REQUEST OF THE TOWN? ARE WE BOUNDS BY THE
TOWN'S DETERMINATION AND MUST WE IGNORE ALL OF THAT EARLIER USE? MR. STRACCO:
NO. AS I SAID PREVIOUSLY, YOU DON'T IGNORE THAT PREVIOUS USE. I THINK THAT YOUR HONOR'S
STATEMENT IS CORRECT IN TERMS OF ANALYSIS. YOU WOULDN'T IGNORE IT. THERE ARE MANY REASONS
WHY THEY MIGHT NOT APPEAL IT. THEY MIGHT NOT APPEAL IT BECAUSE THEY MAYBE DIDN'T HAVE
THE MONEY TO APPEAL I THEY MAYBE DIDN'T HAVE THE FINANCIAL WHEREWITHAL TO APPEAL IT.
THEY MAYBE NOT HAVE BEEN COUNSELLED TO APPEAL IT. I DON'T THINK BY NOT APPEALING YOU
HAVE WAIVED -- YOU CAN BASICALLY SAY OH, WE WEREN'T EXEMPT. I DON'T KNOW OF ANY LAW THAT
SAYS IT DOESN'T CONSTITUTE A WAIVER, BUT I DON'T THINK IT CONSTITUTES A WAIVER IF THAT IS
YOUR HONOR'S QUESTION. JUSTICE LA VECCHIA: IT'S PARTIALLY THAT AND IT'S
ALSO PARTIALLY FOR ME IN THINKING ABOUT THIS PROBLEM HELPS TO SET UP THE SIGNIFICANCE
OF THE EXISTENCE OR NOT OF A C OF O DURING A RENOVATION PERIOD AND HOW MUCH THAT CAN BE
CONTROLLING. YOU'VE POINTED TO EXAMPLES WHERE PREVIOUSLY ON PROPERTY THAT WAS BEING
USED THEY DIDN'T HAVE A C O AND YOU RESPONDED. I UNDERSTAND YOUR POSITION ON THAT. THIS IS
A LITTLE DIFFERENT. THERE IS NO CASES ON ALL FOURS WITH THIS WHEN YOU LOOK AT ALL THE
INDIVIDUAL FACTS GOING ON IN THIS CASE. MR. STRACCO: NO, I AGREE THAT THIS
CASE IS SEEMINGLY A HYBRID BETWEEN MANY OF THE CASES THAT WE HAVE AND FACTUAL PREDICATES
THAT WE HAVE IN REPORTED DECISIONS IN NEW JERSEY RANGING FROM GRACE AN PEACE FELLOWSHIP
WHICH I PERSONALLY THINK IS -- WAS AN UNCONSTITUTIONAL RESULT, THERE THERE WAS AN
INQUIRY AS TO QUANTUM OF RELIGIOUS USE ALL THE WAY TO SOCIETY OF HOLY CHILD, KASH, AND
NARCOTIC AND THEN OF COURSE WE HAVE CASES FROM THE OTHER STATES WHERE THEY COME TO SIMILAR
DECISIONS IN CONNECTION WITH THE FACT THAT ZONING CONSTRUCTION CODES SHOULD NOT BE READ
IN PARA MATERIA (INAUDIBLE) AND WE CITED THOSE IN OUR PETITION. JUST ONE OTHER
THOUGHT I WOULD LIKE TO SAY BEFORE I CONCLUDE -- CHIEF JUSTICE RABNER: BEFORE
YOU GET THERE, I WILL LET YOU COME BACK TO IT, TAKE QUANTUM OF USE, TAKE THAT ISSUE OFF
THE TABLE IN THIS WAY, ASSUME THAT TOMORROW THE CHURCH BUYS ANOTHER COMMERCIAL BUILDING
ANOTHER COMMERCIAL WAREHOUSE AND DECIDES THAT IT WILL RUN SERVICES FIVE HOURS A DAY EVEN
THOUGH IT'S A CONSTRUCTION SITE AN THEY ARE GUTTING AND COMPLETELY RENOVATING AND IT IS
CERTAINLY NOT A PLACE THAT WOULD HAVE A C OF O THAT SHOULD BE USED IN THAT FASHION,
TAX-EXEMPT? MR. STRACCO: I SAY YES BECAUSE THE STATUTE SAYS USED. IF PRESUMABLY
THEY ARE GOING IN FOR CONSTRUCTION PERMITS THE CITY CAN COME IN AND SAY YOU'VE GOT TO
STOP YOUR USE DURING THE CONSTRUCTION. THE COURT: I'M TROUBLED THAT, YOU KNOW,
IT'S ONE THING TO SAY THIS IS A CONTINUING USE WITH A PERIOD OF TIME FOR RENOVATION WORK
WHETHER IT'S A MOLD DEE BASEMENT OR RENOVATIONS THAT ARE REQUIRED FOR ANY NUMBER OF REASONS
AND SAYING WE CAN START FROM SCRATCH, YOU KNOW, IGNORE SAFETY ISSUES, IGNORE DROF KRCHT
C RF O ISSUES AN GET SOMETHING THAT WE KNOW IS CONTRARY TO WHAT IS REQUIRED BECAUSE THEY
HAD THE ABILITY TO STOP US THE BREATH OF YOUR ARGUMENT CONCERNS ME IS THERE A NARROWING
PRINCIPLE THAT YOU CAN ADVANCE MR. STRACCO. MR. STRACCO: YES AND THE NARROWING
PRINCIPLE IS MORE AKIN TO THE JOB HAINS AN SOCIETY OF HOLY CHILD CASES AND THE PAPER
MILL PLAY HOUSE CASE WHERE YOU HAVE A -- AN ADJOINING PROPERTY (INAUDIBLE) AND YOU'RE
GOING TO RETROFIT THAT TO COMPLY WITH EXEMPT USE AND THAT, TO ME IS -- TO ANSWER YOUR HONOR'S
QUESTION IS SORT OF THE MIDDLE GROUND. IT IS NOT THE EXTREME ANSWER THAT I GAVE EARLIER
WHERE I SAID YOU KNOW, YOU PUT IN A FOUNDATION AND YOU BRING EVERYBODY IN AND THEN PRAY
YOU GET AN EXEMPTION, I SAID THAT WOULD BE EXEMPT THAT'S MY OPINION, BUT THIS CASE, I
THINK IS A -- I THINK THE JUSTICE ES ARE CORRECT, THIS IS NOT A CASE THAT WE'VE SEEN FACTS
LIKE THIS BEFORE AND IT'S MORE AKIN TO SOME OF THE OTHER CASES WE HAVE, INCLUDING THE
BAR RANT TOE CASE WHICH IS AN ADDED ASSESSMENT CASE WHICH IS TO ASSESS A PARTIALLY
CONSTRUCTED STRUCTURE SO I THINK YOU WOULD HAVE A -- (INAUDIBLE). JUSTICE ALBIN:
YOU'RE TELLING US YOUR STRONGEST ARGUMENT IS THAT THE PROPERTY WAS A PREVIOUS EXISTING
RELIGIOUS USE OVER A NUMBER OF YEARS AND THEN YOU DECIDED TO CONSTRUCT A CHURCH ADJOINING
THE ONE THAT'S ALREADY ON THE OTHER PROPERTY AND YOU ASK US TO LOOK AT JOB HAINS?
MR. STRACCO: I WOULD SAY THAT IS ONE OF MY STRONGEST ARGUMENTS AN THE OTHER STRONG
ARGUMENT IS THE THAT IT IS ADJACENT PROPERTY TO AN EXEMPT PROPERTY THAT WAS USED ON THE
ASSESSMENT DATE FOR AN EXEMPT USE SO... CHIEF JUSTICE RABNER: AND THE FLIP
SIDE OF THE QUESTION YOU WERE ASKED EARLIER, YOU ARE ASKING US TO IGNORE THE TOWN'S
DETERMINATION THAT THIS WAS NOT TAX-EXEMPT PROPERTY WHICH WENT UNCHALLENGED?
MR. STRACCO: I AM NOT ASKING YOU TO IGNORE IT. I AM ASKING YOU TO -- THAT THE PROPERTY,
THE CHURCH DID NOT WAIVE AN ARGUMENT IN THIS CASE THAT T IT WAS BEING USED FOR RELIGIOUS
PURPOSES. IT CERTAINLY WAIVED THE RIGHT TO SEEK LEGAL READDRESS ON THAT ISSUE FOR PRIOR
TAX YEARS BECAUSE IT CAN'T BECAUSE YOU HAVE STATUTORY DEADLINES, YOU HAVE TO FILE YOUR
APPEAL BY APRIL 1ST OR YOU FOREVER OR MAY BE (INAUDIBLE). JUSTICE ALBIN:
THERE WAS ALSO A NEW REQUEST FOR AN EXEMPTION BEFORE THE TAX COURT. YOU WERE PRESENTING
ALL THE EVIDENCE AVAILABLE TO YOU OVER PAST YEARS WHY YOU WERE ENTITLED TO EXEMPTION DURING
THAT EXEMPTION YEAR, CORRECT? MR. STRACCO: YES. THE CERTIFICATION SPEAKS
FOR ITSELF. IT TALKS ABOUT FROM 2009 THROUGH -- CHIEF JUSTICE RABNER: LET
MELY PHRASE MY QUESTION THEN YOU'RE ASKING US TO GIVE NO WEIGHT TO THE DETERMINATION THAT
THE CITY MADE FOR THE PRIOR YEARS? MR. STRACCO: YES, I'M EEL NOT -- I AM
ASKING YOU GIVE NO WEIGHT TO IT BECAUSE THE CITY -- FOR PURPOSES OF THIS CASE, IF WE WERE
TALKING ABOUT THE APPEAL FOR THOSE YEARS, BECAUSE EACH YEAR STANDS ON ITS OWN SO IF WE
WERE IN 2009 AND THEY DIDN'T APPEAL IT AND WE FILED A LATE APPEAL AND -- YOU KNOW, IT
WOULD BE WHERE YOU DIDN'T FILE AN APPEAL YOU'RE DONE. JUSTICE ALBIN: IF
THIS HAD ACTUALLY GONE A STEP OR TWO FURTHER AND A COURT, THE TAX COURT HAD MADE AN ACTUAL
FACTUAL FINDING THAT THE WAREHOUSE HAD NOT BEEN USED FOR RELIGIOUS PURPOSES FROM 2009
TO 2011 THEN YOU WOULD BE COLLATERALLIES STOPPED, BUT THAT DIDN'T HAPPEN, RIGHT?
MR. STRACCO: NO, IT DIDN'T HAPPEN, BUT AS I SAID BEFORE I THINK THESE FACTS ARE HELPFUL,
I DON'T THINK THEY ARE DETERMINATIVE BUT THEY ARE HELPFUL IN THE CONTEXT OF THE JOB HAINS
AN PAPER MILL PLAY HOUSE CONSTRUCT BUT OUR ARGUMENT IS AS OF THE ASSESSMENT DATE THE
PROPERTY WAS USED FOR ITS EXEMPT -- FOR A RELIGIOUS USE WHICH MAKES IT EXEMPT FOR A
VARIETY OF REASONS. CHIEF JUSTICE RABNER: AND YOUR FAILURE TO GET A C OF
O IS REALLY A RED HERRING ISN'T IT IT HAS NOTHING TO DO WITH TAX EXEMPTION IF THE TOWN
WANTS TO COME IN AND COMPLAIN ABOUT THE C O AN SOMEHOW THE FAILURE TO GET THE C OF O AN
SOMEHOW TRY TO RECTIFY THAT THROUGH FINDSING THE CHURCH THAT'S A COMPLETELY DIFFERENT
ISSUE CLOP THIS IS JUSTICE TIM POEN. MR. STRACCO: CORRECT, OUR ARGUMENT
IS THAT THE STATUTE IS NOT TO BE READ IN PARA MATERIA AND WE CITED CASE LAW FROM AT LEAST
THREE OTHER SISTER STATES WHERE THEY'VE COME TO THE SAME CONCLUSION. CHIEF
JUSTICE RABNER: YOU HAD ONE OTHER POINT YOU WANTED TO MAKE THAT I INTERRUPTED.
MR. STRACCO: YES, I AM SORRY YOUR HONOR. LASTLY, ONE CONCERN, OF COURSE
THAT I WOULD RESPECTFULLY SUBMIT THAT ANY TAXPAYER WOULD HAVE IS THAT THE -- A
MUNICIPALITY COULD, I AM NOT SAYING WOULD, BUT COULD USE THE C OF O DOCTRINE TO AVOID GIVING
A C OF O TO CREATE A TAXABLE EVENT WHEN NO OTHER TAXABLE EVENT WOULD BE THERE. AND WHILE
I AM NOT SUGGESTING THAT AN ASSESSOR DID THAT OR THE TOWN, THE CITY DID THAT HERE AND
I AM NOT SUGGESTING THAT IT'S EVEN WIDESPREAD BUT THIS COURT RECOGNIZED IN F M C STORES
VERSUS MORE RIS PLAINS THAT MUNICIPALITIES HAVE TO SOMETIMES TURN CORNERS AND SOMETIMES
THEY DON'T. IT CONCERNS ME IF THERE IS A BRIGHT LIGHT RULE IF YOU DON'T GET A TAX EXEMPTION
UNLESS YOU HAVE A C OF O THAT SOME TOWNS MAY USE THAT CONSTRUCT TO AVOID GRANTSING TAX
EXEMPTIONS IN PURSUIT OF TAX DOLLARS. CHIEF JUSTICE RABNER: SO NO ONE HAS
SUGGESTED -- OUR CASE LAW DOESN'T SUGGEST THAT THE ABSENCE OF A C OF O IS A BRIGHT LINE
RULE, WOULD YOU ALSO AGREE THAT CHURCHES, RELIGIOUS ENTITIES SHOULD NOT PLACE PARISH IN
HERS IN DANGER BY HOSTING RELIGIOUS SERVICES IN A FACILITY THAT PRESENTS A DANGER BECAUSE
IT'S AN ONGOING CONSTRUCTION SITE BECAUSE OF THE NATURE OF THE CONSTRUCTION? MR.
STRACCO: I WOULD SAY THEY SHOULD JUST LIKE MANY OF THE -- MANY IF NOT ALL OF THE RELIGIOUS
INSTITUTIONS HAVE VOLUNTARILY CLOSED THEIR DOORS DUE TO THE COVID-19 PAND. CHIEF
JUSTICE RABNER: I DON'T SEE HOW THAT AFFECTS TAX STATUS AT ALL AND THAT'S THE CONCERN
THAT THE C OF O RAISES HERE. MR. STRACCO: I WOULD SAY THAT A CHURCH IF
IT WANTED TO PROTECT ITS PARISH IN HERS MAY PRECLUDE THEM FROM LARGE SCALE ACTIVITIES
DURING CONSTRUCTION BUT MANY OF -- A LOT OF THE CONSTRUCTION OF THESE FACILITIES AS IS
THE CASE WITH VOLUNTEERS BY, WHO ARE CONGREGANTS THEY WENT ABOUT THEIR BUSINESS AND THEY
CONDUCTED SERVICES AND PRAYER SESSIONS DURING THE PROCESS OF CONSTRUCTION ( ( AND SOMEBODY
HAS GOT TO DO THE CONSTRUCTION AND IF THEY PRAY DURING THE CONSTRUCTION AND THEY HAVE
SERVICES DURING THE CONSTRUCTION I DON'T SEE THAT AS A DETRIMENT TOWARDS A TAX EXEMPTION,
THAT, TO ME, EVIDENCES USE UNDER THE STATUTE AND THEREFORE MILITATES IN FAVOR OF AN EX
EMPTION. UNDER YOUR HONOR'S HYPOTHETICAL PERHAPS A PARISH SHOULD NOT HAVE EVERYONE, THE
ENTIRE CONGREGATION THERE. JUSTICE FERNANDEZ-VINA: COUNSEL, THERE ARE
NUMEROUS REASONS WHY KROFS ARE NOT PROVIDED MANY OF THEM HAVE TO DO WITH NOT SAFETY OF THE
STRUCTURAL BUILDING BUT RATHER PERHAPS IT DOESN'T HAVE SUFFICIENT LIGHT SWITCHES OR THERE IS
SOME LACK OF FACILITY IN THE BARMS, THEY HAVEN'T BEEN KEKDZ YET BUT THEY DON'T HAVE TO
DEAL WITH SAFETY THERE ARE A LOT OF ROENLS WHERE KROFS ARE NOT PROVIDED WHICH HAVE NOTHING
DO DO WITH INSTRUCTED RAL INTEGRITY OR PEOPLE IN THE BUILDING. MR. STRACCO:
THAT'S CORRECT. JUSTICE SOLOMON: I THOUGHT THAT THE APPELLATE DIVISION,
ONE CHT DECISIONS REGARDING THIS THE PUBLIC USE IN THE CONTEXT OF ALL THE THINGS WE HAVE
TALKED ABOUT, BUT WHEN THEY WERE TALKING ABOUT PUBLIC USE THEY WERE NOT TALKING ABOUT
OPEN TO THE GENERAL PUBLIC NECESSARILY ALTHOUGH MANY CHURCHES ARE BUT THEY WERE TUBINGING
ABOUT USE BY FOR EXAMPLE, THE CONGREGATION AS A WHOLE THAT FOR THE YEAR, THE PERTINENT
YEAR OF -- AS OF OCTOBER 2012 WHEN THE C O WOULD HAVE HAD TO HAVE BEEN ISSUED AND THE
TAX-EXEMPT SHUN WAS DETERMINED THAT NOBODY OTHER THAN THE LIMITED NUMBER OF MEMBERS WHO WERE
CONSTRUCTION WORKERS WERE PARTICIPATING IN ANY SERVICES GIVEN AT THE CHURCH AND I THOUGHT
THAT WAS WHERE IT CAME INTO THEIR CONCERN WAS EXPRESSED THE APPELLATE DIVISION, NOT PUBLIC
USE, USE BY THE GENERAL PUBLIC, BUT NOT EVEN USE BY THE CONGREGATION, USE BY THIS LIMITED
MEMBERSHIP THAT IS ACTUALLY ENGAGED IN CONSTRUCTION AND THAT WAS WHY THEY DIDN'T
CONSIDER IT FOR AN EXEMPTION. IS THAT RIGHT, THALGS WHAT THEY RELIED ON AND
IS THAT A CORRECT HOLDING? MR. STRACCO: I THINK THAT'S WHAT THEY RELIED
ON. I DON'T THINK IT'S A CORRECT HOLDING. THE RECEIVE RENDZ CERTIFICATION INDICATES
THAT THEY HAD REGULAR SERVICES FROM SEPTEMBER 2012 AND THEN THEY HAD A FORMAL THANKSGIVING
SERVICE, BUT THIS APPELLATE DIVISION'S DECISION IN THAT REGARD IS COMPLELTLY IN CONTRAST
WITH THE ARCH DIOCESE CASE, THE TAX COURT AND THE GOODWILL HOMES KALS WHERE THEY BASICALLY
SAY YOU CAN'T DEVELOP INTO WHAT THE RELIGIOUS USE IS IF -- THERE ARE A LOT OF RELIGIONS
THAT DON'T HAVE NECESSARILY SERVICES LIKE CERTAIN INSTITUTIONAL RELIGIOUS, RELIGIONS
SO MY VIEW IS IF THEY HAD A PRAYER SERVICE AND IT WAS LIMITED TO CONSTRUCTION WORKERS,
WHICH IT WASN'T HERE, FRANKLY, THERE WERE OTHER CONGREGANTS THAT'S A USE, THAT'S A SUFFICIENT
USE AND I THINK THAT THE APPELLATE DIVISION DID THINK IT HAD TO BE AVAILABLE TO THE PUBLIC.
I DON'T THINK THEY WERE (INAUDIBLE), WHAT THEY SHOULD HAVE MEANT IS PUBLIC BENEFIT WHICH IS
WHAT THIS COURT HAS SAID IT MEANS. THEY SAID AVAILABLE TO THE PUBLIC AND I THINK YOU HAVE
TO TAKE THEM AT THEIR WORD AND I THINK THAT'S WRONG. CHIEF JUSTICE RABNER:
I WANT TO GO BACK TO YOUR ANSWER TO JUST FERN VOOEN'S QUESTION WHICH I THINK IS
ILLUMINATING MY QUESTION IS ARE THERE SHADES OF GRAY WITH RESPECT TO THE CERTAIN OF OCCUPANCY
ISSUE OR IS SIT UTTERLY LIRLT R IRRELEVANT AS YOU'RE CONCERNED FOR EXAMPLE IF YOU DON'T
HAVE A C OF O FOR SOME OF THE REASONS YOU WERE OFFERED, THE FINISHING HAS NOT BEEN
COMPLETED, A LIGHT SWITCH HAS NOT BEEN SUFFICIENTLY COMPLETED, THAT ARGUABLY GIVES
YOU A STRONGER CASE I WOULD THINK TO SAY OKAY, WE HELD RELIGIOUS SERVICES IT WAS ACTUALLY
USED NONETHELESS IGNORE THE FACT THAT THERE WAS NO C OF O. ON THE OPPOSITE
END OF THE SPECTRUM THERE ARE ACTIVE CONSTRUCTION SITES THAT POSE A DANGER DO YOU VIEW
THEM ALL THE SAME IN TERMS OF ELIGIBILITY FOR A TAX EXEMPTION? MR. STRACCO:
WELL, I DO, BUT THAT'S BESIDE THE POINT. I THINK THAT THIS PROPERTY WAS SUBSTANTIALLY
COMPLETE BY THE OCTOBER 1 DEADLINE AND THERE WERE HOVLY TWO TYPES OF CFO, THERE IS A T
C O AN THEN THERE IS A C OF O AN SOME TEMPORARY C OF O USHLLY ALLOWS YOU TO MOVE IN AND
PUT FURNITURE IN AND DO THINGS AN THEN THE C OF O ALLOWS YOU TO DO OTHER THINGS, THERE
COULD BE TECHNICAL VIOLATIONS, ANYTHING FROM A FAILURE TO PAY ESCROW ON APPROVAL, WHICH IS
WHY I DON'T THINK THAT THE STATUTE SHOULD BE READ IN PARA MATERIA BECAUSE THEN WHAT YOU
ENDS UP RELATING IN IS THAT THE TAX COURT BECOMES A MINI COURT AS TO MUNICIPAL VIOLATIONS
AND YOU COULD GET -- THEN YOU GO DOWN THE SLIPPERY SLOPE, WELL, WHAT HAPPENS IF THE
PROPERTY HAS AN A DA LEVERAGE IS THE TAX COURT GOING TO ADD JUD DATE A TAX EXEMPTION BASED
ON AN A DA VIOLATION, WHAT HAPPENS IF THERE ARE TECHNICAL VIOLATIONS WITH REGARD TO OTHER
THINGS, ARE THEY GOING TO BE -- YOU KNOW, THEY DIDN'T REPLACE THE LIGHTS THEY WERE SUPPOSED
TO UNDER NEW REGULATIONS OR WHAT HAVE YOU OR -- YOU KNOW, YOU'RE ON A SLIPPERY SLOPE EITHER
YOUR EXEMPT OR YOU'RE NOT EXEMPT. IF THE TOWN WANTS TO HIT THEM WITH VIOLATIONS FOR OTHER
STUFF, THEY ARE MORE THAN WELCOME TO. THE COURT: ANYTHING YOU WOULD LIKE
TO ADD? MR. STRACCO: NOW, THANK YOU, YOUR HONOR, I THINK I'VE COVERED
EVERYTHING, THAUFRPG KENNETH A. PORRO: MAY IT PLEASE THE COURT, I BELIEVE
THE PAPERS FILED WITH THE COURT WERE MRIT TEE THOROUGH. WE HAVE A LENGTHY TRIAL OPINION
BY JUDGE NOVEMBER VIN, 22 SOME PAGES, WE HAVE A FREE PANEL APPELLATE DIVISION WELL WRITTEN.
SO I'D LIKE TO TOE CAN YOU SAY REALLY ON TWO AREAS. NUMBER 1 THAT THE STAE OF PASSAIC
DID EVERYTHING RIGHT. THIS THE POSTER CHILD FOR HOW TO HANDLE THE TAX EXEMPT PROPERTY.
AND NUMBER TWO, THE CONSEQUENCES OF WHAT THE APPELLANT IS ASKING US TO DO IS JUST TOO
OVERREACHING. SO LET ME FIRST GO TO THE CITY OF PASSAIC DID EVERYTHING RIGHT. IT'S A
POINT TO REMEMBER THAT OUR TAX SYSTEM WORKS. YOU GET A BITE AT THE APPLE EACH AND EVERY
YEAR AND THE CASE LAW IS VERY GOOD THAT SAYS THAT IT'S A STRICT OBLIGATION UPON THE APPLICANT
BECAUSE WE'RE LOSING THE PAYMENT TO OUR POLICE DEPARTMENT, THE FIRE DEPARTMENT, AMBULANCE
SQUADS THAT ARE SO NEEDED BY THE MUNICIPALITY NUT THE QUID PRO QUO IS THAT WE'RE ESTABLISHING
SOME TYPE OF PUBLIC PURPOSE, PUBLIC USE AND NEW JERSEY STATUTE IS ALSO VERY GOOD. OEFRT
YEARS IT HAS PERMITTED PORTIONS OF THE PROPERTY TO BE TAX EXEMPT BY OTHER PORTIONS NOT.
SO WE ARE EVOLVING IN A VERY FAIR AND FUNDAMENTAL AREA. AND IF YOU LOOK
AT PAGES 7 OF THE TRIAL COURT TALKS ABOUT UNDISPUTED FACT, THE APPELLATE DIVISION PAGE
11 UNDISPUTED FACT, I'M NOT NOT GOEK TO SPEND A LOT OF TO MY ON THAT BECAUSE I HEARD THE
COURT'S QUESTIONS. I'M GOING TO FOCUS ONTS CONSEQUENCE, I'M GEG TO FOCUS ON THIS
PROPERTY OWNER RESPECTFULLY DIDN'T FOLLOW THE RULES AND WHEN THEY FINALLY DID FOLLOW THE
RULES IN 2013, THEY WERE GRABTSED THE EXEMPTION IN THE TAX YEAR 2014. JUSTICE
SOLOMON: YOU YOU'VE THE WOSHDZ PUBLIC PURPOSE OR PUBLIC USE. DID YOU MEAN PURPOSE USE
OR DID YOU MEAN BENEFIT? KENNETH A. PORRO: YOUR HONOR, I'M LOOKING AT THE
STATUTE THAT SAYS ACTUAL USE. SO WHAT WAS GOING ON AT THIS PROPERTY ACTUALLY, THERE WAS
NOTHING GOING ON EXCEPT FOR THE. JUSTICE SOLOMON: THE HOLE HO WHOLE THEORY
BEHIND THE EXCEPTION SHUN IS NOT PUBLIC ACCESS OR PUBLIC YUSHGS IT'S PUBLIC BENEFIT.
SO WHETHER OR NOT TO THE PUBLIC IS IRRELEVANT, ISN'T IT? KEN CAN'T I WOULD SAY GOING
TO THE STATUTORY ACTUAL USE THAT OPEN TO THE PUBLIC GOES MATERIALLY, MATERIALLY TO IS IT
ACTUALLY BEING USED FOR THAT FUNCTION. AND IF I COULD JUST QUICKLY, THE ARGUMENT THAT
APPELLANT IS SAYING THAT THE PROPERTY WAS YUFD FOR STORAGE IN THE BASEMENT. IF YOU LOOK
AT THE PROPERTY RECORD CARD WHICH WAS EXHIBIT, APPELLATE'S EXHIBIT 36, WE'RE TALKING ABOUT
A 6,767-SQUARE FOOT COMMERCIAL BUILDING. AGAIN THE GOT, 6 THOUSAND 7 HUNDRED AND 67 SQUARE
FEET. THE APPLICANT IS SAYING WE STORED ITEMS IN THE BASEMENT OF THIS COMMERCIAL LOCATION
ACROSS FROM OUR EXISTING PROPERTY. RESPECTFULLY, THAT CAN'T BE ENOUGH TO VEST THE PROPERTY
WITH TAX EXEMPTION BECAUSE ON EACH AND EVERY YEAR THE APPLICANT COULD HAVE SOLD THE PROPERTY,
ON EACH AND EVERY 84 THE APPLICANT COULD HAVE DONE SOMETHING DIFFERENT ASSOCIATED. SO
THE TAX ASSESSOR GETS THE EXEMPTION FORM, GOS OUT, INSPECTS THE PROPERTY, THE TAX A
ASSESSOR IS AN OFFICER OF THE COURT -- I'M SORRY, OR THE STATE, EVEN THOUGH THE CITY OF
PASSAIC PACE THE ASSESSOR, THE ASSESSOR HAS SPECIAL TRAIN ON THESE DEALINGS AND IF THE
ASSESSOR GETS ET WRONG OUR MECHANISM THE PARTY EACH AND EVERY YEAR TO GO TO THE COULDN'T
TEE TAX BOARD IF THEY WANT OR THE STATE DAKS ATAX BOARD -- JUSTICE ALBIN:
BUT WE'RE AT 2012 AND WHERE THE IS IT WRITTEN THAT WHEN THEY'RE SEEKING EXEMPTION IN
2012 THEY CANNOT PRESENT EVIDENCE AS THEY HAVE, PARTICULARLY IN PARAGRAPH 5 OF THE REFERENT
REFERRED'S CERTIFICATION 2009, 2011 THAT WAREHOUSE WAS YUFD FOR THE STORAGE OF
RELIGIOUS ITEMS AND AS JUSTICE LAVECCHIA POISONED OUT WAS YUD FOR ALL SORTS OF OTHER RE
LIGIOUS ACTIVITIES? WHERE DOES IT, WHERE IS IT WRITTEN THAT THEY CANNOT INTRODUCE THAT
EVIDENCE TO SHOW THAT THERE WAS A CONTINUOUS USE OF THIS PROPERTY FOR RELIGIOUS PURPOSES,
FROM 2009 UP THROUGH 2012 WITH THIS INTERIM PERIOD OF CONSTRUCTION? KENNETH
A. PORRO: YOUR HONOR, I BELIEVE THAT THE COLLATERAL ESTOPPEL RES JUTD KAD TODAY GOES
THERE. HOWEVER THE COURT. JUSTICE ALBIN: STOP THERE. STOP TLCHLT YOU SAID
COLLATERAL ESTOPPEL. TELL ME THOUSAND THAT POSSIBLY WORK WHS THERE'S BEEN NO JUDICIAL
FINDING? KENNETH A. PORRO: BECAUSE THE NEW JERSEY STATUTE ON TAX ASSESSING,
THE CONSTITUTION, UNIFORMITY, WITH EACH AND EVERY 84 IS SEPARATELY AND DISTINCTEDLY LOOK
THE A THAT'S HOW WE SET OUR BUDGETS, THAT'S HOW WE. JUSTICE ALBIN: THEY'RE
NOT LOOKING FOR EXEMPTIONS IN 2009, 2011, THEY'RE LOOKING FOR AN EXEMPTION IN 2012 AND
THEY'RE INTRO DOUFG EVIDENCE FROM 2009 THROUGH TO SHOW THAT THEY'RE ENTITLED TO THIS 2012
EXEMPTION, THEY'RE NOT LOOKING FOR EXEMPTION ISN'T THE OTHER YEARS, THAT'S GONE. WHY
ARE THEY USING THAT EVIDENCE MRIER TO 2012 TWOR THE, FOR THE 2012 EX IS EM SHUN?
KENNETH A. PORRO: YOUR HONOR, THEY DID USE THAT EVIDENCE AND THE COURT AK CEMENTED THAT
EVIDENCE IN THE MOST FAVORABLE LIGHT AND WITH THE STRICT INTERPRETATION, THEY FAILED BECAUSE
WE DO NOT SEE IN THE RECORD PHOTOS OF 2009, '11, '12, SHOWING STORAGE OF ITEMS, WE HAVE
A BOLD STATEMENT THAT SAYS WE STORED ITEMS, IT'S TO THE, IT'S TOO LOOSE, YOUR HONOR.
THERE'S NOT ENOUGH THERE. IF THEY DID IN FACT DO IT, GET IT RIGHT, T THEY DID IN FACT
COME IN WITH PHOTOS OF THE BASEMENT, PHOTOS OF THE OPERATION AND MORE PORNLY, LET'S GO
BOCK TO BASIC, OUR SYSTEM WORKS. WE HAVE THE UNIFORM CONSTRUCTION CODE, THE MUNICIPAL
LAND USE ACT AND EXEMPTION ACT, THEY ALL COME TOGETHER. SO. SO IF I KOSHGS
YOU WERE, IF YOU WERE REPRESENTING A PARTY WHO BUYS THIS PRORNGS ETS A A COMMERCIAL
PROPERTY, WHAT'S THE FIRST THING YOU DO? YOU GET YOUR CLIENT A CERTIFICATE OF OCCUPANCY
FOR THAT PROPERTY. NOW, FOR GOOD OR BAD, THIS PROPERTY OWNER DECIDED NOT DO THAT. IF
THEY WOULD HAVE DONE THAT AND FOLLOWED A CUSTOMARY AND STANDARD PROCEDURE IN REAL
STATE, THEY WOULD HAVE HAD A SERT KIT OF OBJECTION PN SEE IN THEIR NAME, THE IP SPEKT TORE
COULD HAVE COME OUT IN TWON NIP, 2010 AND THEY MAY HAVE WON THEIR CASE, THOSE FACTS ARE
NOT HERE. WHAT WE HAVE IS A COMMERCIAL ESTABLISH ND BUILDING THAT WAS NEVER VESTED, NEVER
ACCOMPLISH THE TAX EXEMPTION BEYOND A SURVEY, AN AFFIDAVIT BY A PASTOR MAKING REFERENCE
TO WE STORED SOME ITEMS THERE. IT'S TOO LOOSE OF A STANDARD TO SAY THAT THIS IS ENOUGH.
WHAT WE DO IS A THE CANDID STATEMENT OF PASTOR, IN ORDER TO COMPLETE THE
TRANSITION TO A FORMAL CHURCH, HE ACKNOWLEDGES IT WAS SOMETHING LOOSER OR EN FORMAL, TO
A FORMAL CHURCH THE PREMISE UNDERWENT SIGNIFICANT RENOVATION DURING 2012, COMMENCING ON
JANUARY, 2012. I MEAN, YOU WERE, TO ME I WITHIN THE CASE ON THAT.
JUSTICE ALBIN: BUT YOU CAN'T PICK AND CHOOSE YOUR FACTS FOR SUMMARY JUDGMENT PURPOSES. .
WE'RE SUPPOSED TO BE LOOKING AT CERTIFICATION IN THE LIGHT MOST FAVORABLE TO THE CHURCH.
AND IF THERE ARE ANY FACTUAL ISSUES TO DISPUTE, THEN THEY SHOULD BE HEARING, A JUDGE SHOULD
MAKE FINDINGS OF FACT, NO? KENNETH A. PORRO: I WOULD SAY IF THERE'S ANY
WEAKNESS IN MY CASE, IT WOULD LOOK TO A REMAND AS TO THOSE QUESTIONS ON THE YEARS, I DON'T
BELIEVE THE A A REVERSAL, HOWEVER I BELIEVE BOTH THE TRIAL COURT, THE APPELLATE COURT AND
THE TAX ASSESSOR LOOKED TO NEW JERSEY STATUTE 544-3.6 AND SPECIFICALLY MAKES REFERENCE
TO THE ACTUALLY USED, THAT LANGUAGE IS GREAT. WHEN YOU WENT TO THE PROPERTY AS OF OCTOBER
1ST, 2012, THE TAX 842013, WHAT WAS ACTUALLY OCCURRING ON THE PROPERTY? WHAT WAS ACTUALLY
OCCURRING THERE WAS NO CERTIFICATE OF OCCUPANCY EVER, MAJOR SUBSTANTIAL CONSTRUCTION AN
ARGUE MANY, YOU, IN THE PAST WE HAD SOME BOOKS IN THE BASEMENT AND, AN ARGUMENT WHEN IT WAS
RAINING OUT, THE KIDS RATHER THAN INTO THE WAREHOUSE, IT'S JUST NOT ENOUGH, YOU ARE, AND
I'LL SEGUE TO THE CONSEQUENCES OF THE APPELLATE'S POSITION. THEY ARE LOOSHGING FOR TWO
TOO SUBJECTIVE OF A STAND DAR MENT THE MUNICIPAL PAT HAS IT TOUGH ENOUGH AS IT IS BALANCING
THE UNIFORM CONSTRUCTION CODE, MUNICIPAL LAND USE ACT REASON RELIGIOUS EXCEPTION SHUN
COMING TOGETHER. IF YOU NOW SAY TO THEM THAT THIS SUBJECTIVE STANDARD IS THAT WE'RE TAX
EXEMPT AND WROER NOT FOR PROFIT AND WE ACTUALLY ARE USING THEY SAY BECAUSE WE'RE NOT
FOLLOWING ANY OF THE OTHER LAWS BY WAY OF UNIFORM CONSTRUCTION CODE, THAT CAN'T BE THE
PURPOSE. THERE IS NO QUID PRO QUO. I BELIEVE ONE OF THE JUSTICES POINTED OUT THAT THE
APPELLATE COURT ONLY THE CONSTRUCTION WORKERS FROM THE CHURCH WERE ABLE TO HAVE ACCESS.
THE CONGREGATION WAS NOT ABLE TO, THE PUBLIC USE, THE PUBLIC MEETING WAS NOT VEST, WAS
NOT CREATOR. NOW, THE MORE INTERESTING ISSUE TO ME BECOMES IF A BUILDING
IS TAX EXEMPT AND A FIRE OCCURS, I BELIEVE THE YOUN FORM CONSTRUCTION CODE AND OUR CASE
LAW ADDRESSES THAT, AS LONG AS THE PROPERTY DOES NOT ABANDONED, AS LONG AS THERE IS REASONABLE
EFFORTS TO REBUILD THE RELIGIOUS ENTITY, I BELIEVE THEY WOULD CONTINUE THE EXEMPTION,
WE DON'T HAVE THOSE FACTS HERE IN ANY WAY, SHAPE OR FORM. WE HAVE A COMMERCIAL BUILDING
THAT WAS TAKEN OFF THE TAX RATABLES UNDER THE EXPECTATION OR INAT THE PRESENT TIME MUCH
HAVING SOME TYPE OF FACILITY THAT WAS NOT RENOVATED OR CREATED UNTIL THE TAX YEAR 2013,
WITH THE TEBLG RAER C OF O, GHEN THE CITY OF PASSAIC DID EVERYTHING RIGHT. AS SOON AS
WE COULD B WE GAVE NEM A TEMPORARY CO IN APRIL OF 2013, IN JULY OF 2013 THE FINAL C OF
OF O AND WHAT HAPPENED, YOUR HONOR, WE DID EVERYTHING RIGHT IN 2014 THE PROPERTY WENT
ACROSS THE Ts, DOTS THE EYES AND THEY WERE GRANTED TAX SEX SEM SHUN S.
JUSTICE LAVECCHIA: MR. PORRO I HAVE A QUESTION. YOU USED AGAIN THE PUBLIC ACCESS REFERENCE
FL YOUR LAST RESPONSE. SUPPOSED AND I KNOW THIS CHANGES THE FACTS A LITTLE BIT, BUT SUPPOSE
THE ADJACENT PROPERTY WAS BEING RENOVATED, WAS BEING USED FOR ADMINISTRATIVE OFFICES FOR
THE CHURCH. I MEAN PUBLIC ACCESS WOULD NOT NECESSARILY WEIGH INTO THE EQUATION, WOULD
IT, I MEAN YOU SEEM TO BE EQUATE AGO NEED FOR THERE TO BE WORSHIP OCCURRING ON THE PREMISES
IN ORDER FOR IT TO SATISFY THE STATUTE. BUT I DON'T THINK THAT THAT'S THE WAY THE STATUTE
READS, DOES IT? KENNETH A. PORRO: I WOULD GROW WITH YOU, THAT IS NOT THE
CONTROLLING FACTOR PT BUT USING YOUR SKAK PEL, IF IN FACT CHRISTIAN MISSION WOULD HAVE
DONE IT RIGHT, IF THEY WOULD HAVE COME IN AND SAID WE PURCHASED THIS PROPERTY IN 2009,
WE'RE GOING TO HAVE ADMINISTRATIVE OFFICES HERE, WORRY GOING TO STORE ITEMS HEESHG THE
INSPECTOR COMES OUT, A FORM IS FILLED OUT AND THE ACTUAL USE IS MEMORIALIZED AND VEFRTED.
THAT IS NOT WHAT HAPPENED. JUSTICE LAVECCHIA: I ASK THE QUESTION BECAUSE
I WANT TO GET OFF THE TABLE THE NOTION THAT PUBLIC ACCESS IS REL VEPT TO THIS EQUATION,
IN THE ANALYSIS. KENNETH A. PORRO: YOU KNOW WHAT, YOUR HONOR, I BELIEVE
FROM THE MUNICIPALITY IT'S EASY TO STAY THE CERTIFICATE OF OCCUPANCY IS A TRIGGER DATE,
NO ONE ARGUES WITH THAT, PUBLIC ABSCESS, YOU SIGH ON THE BULLETIN BORE THE CHURCH IS OPEN
AT THIS HOURS OR THE FUNCTIONS. PUBLIC, IT'S AN EASY OBJECTIVE FORL LA THAT MUNICIPALITIES,
SO WE YOUS THAT TERM FOR THE MUNICIPALITY BECAUSE WE DO TURN ON SQUARE CORNERS, THE F
M C CASE, WE DO YOUS TROO USE UNION FOERM EMPTY AND WHAT THE APPELLANTS IS ASKING US HERE
IS TO GO TOO FAR. YOU CAN'T LET THE INTENT OF THE APPLICANT BE CONTROLLING. YOU CAN'T
LET THE APPLICANT SAY, WELL, WE HAVE ONE OR 2 PEOPLE ON A 7,000-SQUARE FOOT PROPERTY THAT,
WE'RE EN TEEFLTSED TO THE EX SEMENTD SHUN AND THEY MAYBE, BUT EEJ YOU HAVE TO YOUS AN
OBJECTIVE REVOW OF IT THAT IF YOU'VE GOT 7600 SQUARE FEET AND YOU'RE STORING FIVE BOXES
IN THE BASEMENT, I DON'T THINK THE PIRP OF THE EXEMPTION IS SFOR RELIGIOUS USE FRP THE
PURN OF THIS WAREHOUSE WAS NOT TO STORE OI TEMENTS, TO GET THE HE WILL EX SEM SHUP THEY
HAVE TO PROVE THAT RELIGIOUS USE OH KIR AT THIS PROP, NOT STORAGE OF BOXES.
JUSTICE ALBIN: IF YOU ACCEPT THE CERTIFICATION ON ITS FACE WHICH I THINK WE HAVE TO, FOR
PURPOSES OF THIS. KENNETH A. PORRO: I WILL. JUSTICE ALBIN:
PARAGRAPH 5 SEEMS TO INDICATE THAT THERE'S CONTINUOUS RERELIGIOUS USE FROM 2009 TO 2011,
AM I WRONG ABOUT THAT? KENNETH A. PORRO: YUR RIGHT IN THE SELF-SERVING
STATEMENT IS THERE. LET'S ASSUME IT IS CORRECT, A THOUSAND PERCENT AND I POL JIS TO SAY
IT'S SELF SEARCHING. THE STATEMENT IS THERE BUT IT'S KRON TRAER, YOU WERE, TO OUR BASIS
OF TAX ASSESS PHASES OF TOX TAX ASSESSMENT R RS OBLTH 1ST, WHAT THE CONDITION OF THE PROPERTY
ON OCTOBER 1ST, THE PRIOR YEARS MAY BE INFORMATIVE IF THE APPLICANT IS ARGUING
GRANDFATHERED YOUS WHICH I GUESS THEY'RE TROYING TO SAY THAT, BUT IF THIS WAS A LAN USE
MATTER, THE BOARD OF ADJUSTMENT WOULD HAVE A HEARING TO SAY IS THIS A PREEXISTING,
NONCONFORMING YOUS. THAT'S NOT WHAT WE HAVE HERE. WE HAVE A MROPT THAT SAYS I STORED
I FEMS THERE AND WHEN IT RAINED THE KIDS WENT IN THERE, SO 365 DAYS WE HAVE A DE MINIMIS
USE WITHOUT A C MUCH OF, WITHOUT THE PRO K T OF PUBLIC HEALTH, SAFER TEEN WELFARE, THEY'VE
GHON TOO FAR, THERE MAYBE A POINT WERE PARTICULAR FACTS THAT THE APPELLANT IS RIGHT, THIS
NOT THE CASE, THIS, WHAT TOWNS SHOULD DO. CHIEF JUSTICE RABNER: MR. PORRO
CASE LAW SUGGEST AGO LACK OF A CASE LAW IS NOT A BROIT LINE BAR YOU HEARD MR. STRACCO'S
POSITION ON LACK OF A CO, HOW SHOULD THE COURT CONSIDER THAT? KEN CAN'T I WOULD SAY
THAT THIS KASHGS FACT SPECIFIC THAT. KENNETH A. PORRO: COMMERCIAL WAREHOUSE
PROPERTY, THAT THE BEST INDICATION UNDER THESE FACTS IS WHEN THE PROPERTY RECEIVED THE
TEMPORARY C OF O, AND IT'S IMPORTANT TO REALIZE THAT ALL THE CASES THAT WERE CITED BEFORE,
IF THE COVENTRY WHERE THE 91S WERE NONES, HERE WE HAVE A BEVERAGE DISTRIBUTION CENTER
THAT COULD HAVE BEEN SOLD THE NEXT DAY TO AM SON 0 A EVEN NOW IT STILL IS AN OPEN CIVIC
AREA. SO THE PROBLEM IS THAT EACH AND EVERY RO, THE PROBLEM WITH THE MRAPTS POSITION
OCTOBER 1ST PRETAX 84 THE PROPERTY WAS PAR GRAPHS, THE CONDITION, ACTUAL STATUTORY
ACTUAL USE WAS PARAGRAPH 6. WAS NOT PARAGRAPH 5, AND IF YOU WANT TO SAY THAT WE SHOULD
GIVE A HEARING AS TO PARAGRAPH 95, WAS IT VESTED, SHAME ON THE APPLICANT. THE APPLICANT
COULD HAVE FILED AN APPEAL TO THE COUNTY TAX BOARD FOR THEIR REVIEW DURING THOSE BOARDS
ORT TAX COURT, THEIR SIGH LINS AS TO BE TAKEN AGAINST THEM. THEY ACKNOWLEDGE THAT THE
ACTUAL USE WAS NOT ENOUGH TO MEET THE STACH TORE REQUIREMENT. THEY MADE THAT DECISION.
STRICT INTERPRETATION, THEY KNEW THEY A TOUGH ROAD, THEY DID NOT FILE AN APPEAL, COLLATERAL
ESTOPPEL AS TO THIS YEAR MAYBE, BUT ABSOLUTELY RES JUDICATA THAT THOSE FACTS CANNOT BE
FWOUPD A CONTINUE USE. THANK YOU YOUR HONORS, I THINK I HAVE BEEN PASSIONATE ENOUGH OINT
ARE SO THANK YOU. CHIEF JUSTICE RABNER: MS. LUTZ, YOU GIT TO GO BACK TO THE
HIM AND DECIDE THAT WE'VE HAD ENOUGH. TOVA LUTZ: LUTZ SORRY, THANK YOU.
MR. STRACCO DO YOU WANT TO HANDLE THE REBUTTAL? STRAK STRAK FITS PLEASES THE COURT AND
THANK YOU MS. LUTZ. MY ONLY COMMENT IS AND THEY SAY GOES BACK TO A QUESTION STRASHG STRAK
A STRAK STRAK A NUMBER. CHRISTOPHER J. STRACCO: AND THIS ANTICIPATELY AN
ISSUE THAT'S BEEN DISCUSSED SIGNAL AND CANTLY HERE IS THE USE BETWEEN 2009 AND THEN 2012,
AND I HAD PREVIOUSLY INDICATED ON OCCASION DURING THIS ARMTH IT'S A VERY HELPFUL FACT
AND THE REASON IT'S A HELPFUL FACT IT'S REALLY DISTINGUISHES THIS CASE FROM THE GRACE
AND PIECE AND FELLOWSHIP CASE WHICH WAS A GROUND UP BILL AND THIS IT NEVADA HAD BEEN USED
BEFORE AND THIS PROPERTY DESPITE THE FACT THAT IT HAD BEEN USED BEFORE AND DENIED AN EGS
SEM SHUN WAS BEING USED. AND SILL LAR TO THE PROPERTY IN JOEB HAINES, SIMILAR
TO THE PROPERTY IN OAK NOIL AND HOLY CHILD AND SLARM TO THE PROPERTY IN PAPER PER MILLION.
THAT'S PAPER MILL. THAT'S ALL I HAVE. THANK YOU,