Gordon v. Marrone

• Decision Date: 27 March 1991
• Citation: 573 N.Y.S.2d 105,151 Misc.2d 164
• Parties: , 21 Envtl. L. Rep. 21,071 Application of Allan S. GORDON, Petitioner, For a Judgment Pursuant to Article 78 of the C.P.L.R., v. Anna Maria MARRONE, as Tax Assessor of the Town of North Castle, County of Westchester, State of New York and the Nature Conservancy, Respondents.
• Court: New York Supreme Court

Page 105

573 N.Y.S.2d 105

151 Misc.2d 164, 21 Envtl. L. Rep. 21,071

Application of Allan S. GORDON, Petitioner For a Judgment Pursuant to Article 78 of the C.P.L.R., v. Anna Maria MARRONE, as Tax Assessor of the Town of North Castle, County of Westchester, State of New York and the Nature Conservancy, Respondents.

Supreme Court, Westchester County.

March 27, 1991.

Mark B. Borteck, New York City, for petitioner.

Stephens, Buderwitz & Baroni, White Plains, for respondent Anna M. Marrone.

Sive, Paget & Riesel, P.C., New York City, for respondent The Nature Conservancy.

NICHOLAS COLABELLA, Justice.

In a proceeding pursuant to CPLR article 78, petitioner seeks to annul a determination by respondent Marrone ("Assessor") granting The Nature Conservancy ("Conservancy") an exemption from real estate taxes imposed by the Town of North Castle for real property known as the Gibb House parcel.

The Gibb House parcel consists of approximately 4 acres located across from the 569 acre Mianus River Gorge Wildlife Refuge and Botanical Preserve ("Preserve")--a nature preserve located in the Towns of North Castle, Bedford and Pound Ridge. The Gibb House parcel and the Preserve are owned by the Conservancy and managed by a local organization known as the Mianus Gorge Preserve, Inc. Both corporations are not-for-profit tax exempt corporations dedicated to the preservation of the natural environment.

Petitioner challenges the exemption for the Gibb House parcel on the basis that it is not reasonably incidental to the purposes of the Preserve in that it is used and occupied by the Executive Director, primarily and principally, as a private residence for her and her family. As support for petitioner's position, he alleges: (1) the Preserve is open only eight months a year and only during regular business hours; (2) the Preserve has no need for a caretaker or groundkeeper to live on or near the premises; (3) no caretaker functions are performed by the Executive Director.

The Conservancy concedes that the Executive Director and her family reside at Gibb House, but argues that Gibb House is incidental to the operation of the Preserve. It alleges Gibb House functions as the Preserve's administrative center containing its files, records, archives, and provides conference and workshop facilities. In addition, the Conservancy alleges Gibb House provides housing necessary to maintain a full-time steward of the Preserve. The site itself is considered to be integral to this purpose in that it provides a watch-post over the Preserve's entrance.

The Conservancy contests petitioner's standing to maintain this proceeding, and asserts that petitioner's motivation is suspect, alleging that petitioner, who is a developer, not a resident of the Town, is attempting to retaliate for (1) the Conservancy's participation in SEQRA proceedings, in which it opposed petitioner's plans to subdivide a 36 acre parcel of undeveloped property across Mianus River Road from the Preserve's trail entrance, and (2) the Conservancy's intervention in two CPLR Article 78 proceedings brought by petitioner against the Town of Bedford Planning Board related to the subdivision. The Conservancy characterizes the within suit as what has come to be known as a "Strategic Lawsuit Against Public Participation" or "SLAPP" suit. SLAPP suits are retaliatory lawsuits designed to stifle expression.

The Assessor argues similarly that the Conservancy's description of the use of Gibb House provides a rational basis for tax exempt status, and questions petitioner's motivation in contesting the exemption. Both respondents seek an award of costs and expenses in the defense of this proceeding.

I

The Court first considers the issue of petitioner's standing to contest the exemption for the Gibb House parcel. Petitioner contends standing is afforded by Dudley v. Kerwick, 52 N.Y.2d 542, 439 N.Y.S.2d 305, 421 N.E.2d 797, which petitioner interprets as holding that a taxpayer may challenge an exemption as resulting in a disproportionately unfair and inequitable increase in real estate taxes payable by petitioner and the other Town property owners. The holding in Dudley actually appears significantly narrower in scope.

The issue posed in Dudley was whether "individual taxpayers may, by way of an article 78 proceeding, challenge wholesale religious exemptions from taxation granted to other property owners" (emphasis added, id. at 547, 439 N.Y.S.2d 305, 421 N.E.2d 797). The Court answered in the affirmative:

"When an assessor grants exemption from taxation in wholesale fashion indicating that he has arrogated this legislative power to himself, he cannot cloak himself with protection surrounding individual discretionary decisions, and relief by way of an article 78 proceeding will lie."

(emphasis added, id. at 551, 439 N.Y.S.2d 305, 421 N.E.2d 797).

In so holding, the Court of Appeals disapproved the blanket exclusion of taxpayer standing in an earlier Court of Appeals case, Van Deventer v. Long Island City, 139 N.Y. 133, 138, 34 N.E. 774, but only to the extent Van Deventer was inconsistent with the result reached in Dudley (id. at 551, 439 N.Y.S.2d 305, 421 N.E.2d 797). Judge Gabrielli, who dissented in Dudley, found the majority holding at the least required allegations in the pleadings which "accuse the assessor of virtually ignoring statutory guidelines" (id. at 556, 439 N.Y.S.2d 305, 421 N.E.2d 797). More recently, in Matter of New York State Association of Tobacco and Candy Distributors, Inc., v. New York State Tax Appeals Tribunal, 159 A.D.2d 132, 136, 559 N.Y.S.2d 592, the Appellate Division, Third Department, rejected an interpretation of Dudley similar to petitioner's. (Matter of Campbell Oil Co. Inc. v. Chu, 127 Misc.2d 281, 283, 485 N.Y.S.2d 948).

The facts at bar are clearly distinguishable from Dudley in that there are no allegations of either a "wholesale" exemption or an arrogation of power by the Assessor. The Petition, in essence, charges nothing more than an erroneous individual determination based on the Assessor's purported failure to investigate the actual use of the Gibb House parcel. Strikingly absent is any specific factual basis by which to find petitioner is aggrieved. The apparent benefit to petitioner, in terms of his tax bill, of returning the approximately 4 acre parcel to the tax roll is virtually nonexistent. The Court, therefore, finds petitioner lacks standing.

II

Even assuming, however, petitioner had standing, the scope of judicial review of a municipality's taxing authority is limited. A Court may not interfere unless the action complained of is arbitrary and capricious (Economic Opportunity Commission of Nassau County Inc. v. Village of Hempstead, 148 A.D.2d 570, 539 N.Y.S.2d 39; Church of Scientology of New York v. Tax Commission of the City of New York, 120 A.D.2d 376, 501 N.Y.S.2d 863; Holy Spirit Assn. for the Unification of World Christianity v. Tax Commission of the City of New York, 62 A.D.2d 188, 404 N.Y.S.2d 93). Where a municipality seeks to withdraw a previously granted tax exemption, the municipality bears the burden of proving that the real property is subject to taxation (New York Botanical Garden v. Assessors of the Town of Washington, 80 A.D.2d 170, 438 N.Y.S.2d 580, aff'd. 55 N.Y.2d 328, 449 N.Y.S.2d 467, 434 N.E.2d 703). By extension, where a taxpayer seeks to have a tax exemption withdrawn by the municipality, the taxpayer bears the burden. "In view of the public interest against frequent second-guessing of assessment decisions, the burden the petitioners must carry in this case is not slight" (Matter of Dudley, supra 52 N.Y.2d at 552, 439 N.Y.S.2d 305, 421 N.E.2d 797).

The proof required in a special proceeding is similar to a motion for summary judgment in that the parties are obligated to submit their proofs with their pleadings "showing such evidentiary facts as shall entitle (them) to a trial of any issue of fact" [CPLR § 7804(e) ]. Here, petitioner's allegations as to the use of Gibb House, which are made on information and belief, amount to nothing more than conjecture and are insufficient to rebut the Conservancy's described use of Gibb House which is based on statements by persons having direct and personal knowledge such as the Executive Director (see, Gagnon v. Board of Education of the Manhasset Union Free School District, 119 A.D.2d 674, 500 N.Y.S.2d 801; Matter of 22 Park Place Cooperative, Inc. v. Board of Assessors of the County of Nassau, 102 A.D.2d 893, 893-894, 476 N.Y.S.2d 935).

The use of the premises described in a Memorandum by the Executive Director to the Assessor in support of the exemption provided a rational basis for her to conclude Gibb House was primarily used for purposes integral and necessary to the operation of the Preserve. To the extent petitio...