Lehigh Portland Cement Co. v. Assessor of Town of Catskill

• Decision Date: 01 July 1999
• Citation: 693 N.Y.S.2d 671
• Parties: In the Matter of LEHIGH PORTLAND CEMENT COMPANY, Appellant, v. ASSESSOR OF the TOWN OF CATSKILL et al., Respondents. (And Four Other Related Proceedings.)
• Court: New York Supreme Court — Appellate Division

Page 671

693 N.Y.S.2d 671

In the Matter of LEHIGH PORTLAND CEMENT COMPANY, Appellant, v. ASSESSOR OF the TOWN OF CATSKILL et al., Respondents (And Four Other Related Proceedings.)

Supreme Court, Appellate Division, Third Department, New York.

July 1, 1999.

Jerrold F. Janata & Associates (Bruce J. Stavitsky of counsel), New City, for appellant.

Cusick, Hacker & Murphy (David Murphy of counsel), Latham, for respondents.

Before: CARDONA, P.J., MIKOLL, CREW III, YESAWICH JR. and GRAFFEO, JJ.

MIKOLL, J.

Appeal from a judgment of the Supreme Court (Williams, J.H.O.), entered June 17, 1998 in Greene County, which dismissed petitioner's applications, in five proceedings pursuant to RPTL article 7, to reduce the real property tax assessments on certain parcels owned by petitioner.

Petitioner commenced five tax certiorari proceedings, subsequently consolidated for trial, challenging the assessments on its Cementon and Alsen plants in the Town of Catskill, Greene County, for the tax years 1992-1993 through 1996-1997. At the close of evidence, Supreme Court granted respondents' motion to strike petitioner's expert appraisal reports and dismissed the petitions, as petitioner had not met its burden of establishing that the assessments were erroneous. Petitioner appeals.

The properties in question are improved as cement production and importation facilities. Petitioner purchased the Cementon plant in 1982 for approximately $11,634,000, of which $6,832,000 was allocated to plant and equipment. It thereafter invested approximately $40,000,000 in the facility, where cement was produced until 1994, when petitioner chose to cease production and focus solely on its import terminal operations. The Alsen facility, constructed in the 1920s, had been inactive as a production plant since 1982, but its dock and extensive Hudson River frontage was used by petitioner in its import operations. For the tax years in question, the Cementon facility was assessed at $14,629,700, and the Alsen facility at $4,195,000, including land.

Central to petitioner's challenge to these assessments was its contention that because neither facility was being used for cement production, those structures specifically related to the production function had no value. Petitioner sought to validate this contention by utilizing the reproduction cost new less depreciation (hereinafter RCNLD) method of valuation. Under this method, the land value component is established separately, usually with reference to comparable sales of like property; here, the parties stipulated to vacant land values. The present-day cost of reproducing the property's improvements is separately calculated, from which is subtracted the percentage of physical depreciation or functional obsolescence attributable to the existing structures as of the valuation date. The RCNLD value is the sum of the land value and depreciated value of the improvements (see, Matter of City of Troy v. Kusala, 227 A.D.2d 736, 737-738 n. 2, 642 N.Y.S.2d 717; Matter of Long Is. Light. Co. v. Assessor for Town of Brookhaven, 202 A.D.2d 32, 38, 616 N.Y.S.2d 375, lv. denied 85 N.Y.2d 809, 628 N.Y.S.2d 52, 651 N.E.2d 920).

Critical to petitioner's application of the RCNLD method was its use of a business enterprise valuation method to determine the appropriate depreciation component of the RCNLD equation. Essentially, petitioner's appraisers concluded that those structures and improvements which were specifically used for cement production were functionally obsolete and hence had no value because, in the context of a business enterprise valuation, they could not be used to profitably produce cement. Supreme Court rejected petitioner's appraisals principally because they were premised upon use of the business enterprise valuation, which the court found to be an improper vehicle for establishing market value. The court also found, however, that the appraisals' purported inclusion of the RCNLD methodology was "patently incomplete" and was tainted by numerous, substantial errors and omissions in calculating the reproduction cost in the RCNLD formula.

The determinative question presented is whether Supreme Court properly rejected petitioner's expert appraisal reports and their underlying methodology. Petitioner argues that the court's wholesale rejection of its appraisals was error because the business enterprise valuation method was not utilized at all with respect to the Alsen plant or the Cementon plant for the tax years 1995-1997, and was properly used to determine the degree of functional and economic obsolescence for the Cementon plant for the years 1992-1995.

Significantly, petitioner on this appeal challenges only Supreme Court's rejection of its use of the business enterprise valuation method; it does not address the court's finding of numerous errors and omissions fatal to its purported use of the RCNLD method. Since a party's failure to raise an issue in its appellate brief is tantamount to abandonment or waiver of the issue (see, Gibeault v. Home Ins. Co., 221 A.D.2d 826, 827 n. 2, 633 N.Y.S.2d 678; Transamerica Commercial Fin. Corp. v. Matthews of Scotia, 178 A.D.2d 691, 692 n. 1, 576 N.Y.S.2d 939), we affirm solely upon Supreme Court's amply supported findings that petitioner's appraisal did not include numerous permanent assessable structures required to be included in a RCNLD calculation and without which petitioner's appraisal was incomplete as a matter of law (see, Matter of Blue Circle v. Schermerhorn, 235 A.D.2d 771, 773, 652 N.Y.S.2d 817; Matter of General Motors Corp. Cent. Foundry Div. v. Assessor of Town of Massena, 146 A.D.2d 851, 853, 536 N.Y.S.2d 256, lv. denied 74...