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Pettersen v. Town of Fort Ann

December 11, 2008

ROBERT PETTERSEN, SUSAN PETTERSEN, DANIEL HAYES, ELLIE HAYES, CHARLES S. ALLEN, CYNTHIA L. ALLEN, CHARLES REINEMANN, DIANE REINEMANN, GREGOR ANTHONY FOWLER, JOANNE TERESA FOWLER, WILLIAM S. HOMA, JUDITH A. HOMA, JOSEPH M. FOGARTY, CYNTHIA FOGARTY, DONALD MCDONALD, MARY LOU MCDONALD, JOHN CALOGERO, EUGENE J. CONNELL, SHARRON A. CONNELL, PAUL DRANOW, DELLA DRANOW, DIANE MARIE LAZAR, LASZLO LAZAR, COLLEEN M.. AVELLINO, JOHN A. AVELLINO, TERRENCE M. O'NEILL, BARBARA J. O'NEILL, MAURIZIO H. MIGLIARINO, SHEILA A. MIGLIARINO, HELEN NETTLETON, THOMAS HARRISON, ELAINE HARRISON, MARY BRUMMAGYN, ANNE SALE, JAMES CAPRON, MARIANNE CAPRON, WILLIAM ALTHENN AND GEORGIANNE ALTHENN, PETITIONERS
v.
THE TOWN OF FORT ANN, THE TOWN BOARD OF THE TOWN OF FORT ANN, GAYLE A. HALL, DUANE A. BURCH, HAROLD R. FULLER, INEZ A. MATTISON, AND BRUCE K. WHITNEY, EACH BEING A MEMBER OF THE TOWN BOARD OF THE TOWN OF FORT ANN AND CHRISTINE LATHAM, THE TOWN OF FORT ANN ASSESSOR, RESPONDENTS



The opinion of the court was delivered by: David B. Krogmann, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Petitioners have commenced this Article 78 proceeding to challenge the comprehensive assessment of parcels of the Pilot Knob and Hadlock Pond areas located in the Town of Fort Ann. The petitioners allege the respondents engaged in selective reassessment to the extent that the assessments relating to the above neighborhoods were separately reassessed for 2005 while the remainder of the Town was assessed by a different process known as "trending", resulting in disproportionately higher assessments for the referenced areas of the Town. It is alleged the resulting assessments for the Town do not result in a uniform percentage of value as required by Real Property Tax Law Section 305(2). (See Averbach v. Bd of Assessors, 176 AD2d 1151.) The Court has previously issued orders relative to deposing the assessor and a representative of the assessment service used and the extent of the inquiry for such depositions.

Respondents now move for dismissal pursuant to CPLR 3211(a)(10), 1001, 1003 and 7804(f) grounded, inter alia, on the failure to name and serve the school districts which serve the above areas, the Lake George Central School District and the Fort Ann Central School District, as well as the County of Washington. The moving affirmation urges "...in an Article 78 proceeding related to real property tax assessment, the school district and the County are necessary parties, since they would both be adversely affected if petitioners succeed, as they collect tax revenues utilizing the municipality's assessment roll and would be obliged to make refunds to petitioners".

As referenced by the movant, the instant proceeding was initiated under CPLR Article 78. This Court's decision and order in this matter of February 2, 2006 observed the following, which is worth repeating:

"Whereas, [u]nder RPTL article 7, the concern is with the assessment imposed and not the manner in which the assessment was determined' (Pleasant Va. v Real Prop. Bd, 253 AD2d 8, 13 [2nd Dept. 1999] [quoting Consolidated Edison Co. v. State Bd. Of Equalization & Assessment, 12 Misc 2d 422, 423]); under Article 78, the concern lies with the constitutionality of the Assessor's methodology (see Krugman v. Board of Assessors of Village of Atlantic Beach, 141 AD2d 175 [2nd Dept. 1988]). Thus, the latter concern inevitably requires inquiry as to what an assessor did or did not do and whether such action or inaction was rational or, to the contrary, arbitrary and capricious." Also, see Adams v. Welch, 188 AD2d 784.

Indeed, Real Property Tax Law Article 7 describes a purely statutory proceeding and requires, for any assessment challenged under that article, that copies of the petition be mailed to the school district(s) and county treasurer (RPTL 708(3)), (as well as a village clerk where a village is involved). The statute further provides that the school district may serve an answer or a notice of appearance and thereby "become a party in the proceeding" (RPTL 712(2-a)). Importantly, RPTL 726 provides specific statutory instruction for the refund of taxes paid based upon an assessment which is found to be excessive. RPTL 226(1)( c) makes the final order correcting or striking an assessment applicable to a school district "binding on such school district", and this is so regardless of whether the school district chooses to become a party.

The process of preparing, finalizing and verifying of the final assessment roll is totally within the realm of the municipality's assessor. The preparation does not involve a school district or county personnel (see RPTL 500-516)*fn1. The instant proceeding, brought as it is under the auspices of Article 78 of the CPLR alleges an unlawful act or process on the part of the assessor for the Town of Fort Ann. It is brought upon a theory, common law based, that the assessor used a professional appraisal service (here, Maxwell Appraisal Services) to selectively re-assess only the lake-front parcels during an ostensible town-wide re-assessment for the 2005 tax roll. Petitioners claim that such "selective reassessment" is violative of RPTL 305 and of Article XVI of the New York State Constitution.

"Where the challenge is based upon the method employed in the assessment of several properties rather than the over evaluation or under evaluation of specific properties, a taxpayer may forego the statutory certiorari procedure and mount a collateral attack on the taxing authority's action through either a declaratory judgment action or a proceeding pursuant to CPLR article 78". Board of Managers of Greens of North Hills v. Board of Assessors, 202 AD2d 417, 419. Also see Matter of Krugman v. Board of Assessors, 141 AD2d 175; Matter of Dudley v. Kerwick, 52 NY2d 542.

Of particular note is that the petitioners' wherefore clause seeks an order and judgment:

1.Declaring that the respondents have employed unlawful and illegal methods of reassessing real property in the Town of Fort Ann;.

2.Declaring that the 2005 tax roll was unlawfully and illegally prepared using methodology that violates the statutory and constitutional rights of the petitioners and of all persons similarly situated who own lake-front property in the Town of Fort Ann;

3.Declaring that the respondents have unlawfully, illegally and selectively reassessed all lake-front property in the Town of Fort Ann, specifically including the real property of the petitioners herein;

4.Preliminarily and permanently restraining and enjoining respondents from using, in any way the tentative and/or final assessment roll for 2005 for the levying or collection of town, county school and other real property taxes; and enjoining respondents from taking action ...


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