Keyspan Gas E. Corp. v Supervisor of Town of N. Hempstead
Annotate this CaseDecided on December 7, 2009
Supreme Court, Nassau County
Keyspan Gas East Corporation d/b/a KEYSPAN ENERGY DELIVERY LONG ISLAND, Plaintiff,
against
Supervisor of Town of North Hempstead, TOWN OF NORTH HEMPSTEAD, NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN, and HERRICKS GARBAGE DISTRICT, ROSLYN GARBAGE DISTRICT, PORT WASHINGTON GARBAGE DISTRICT, CARLE PLACE GARBAGE DISTRICT, GLENWOOD GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, NEW HYDE PARK/GARDEN CITY PARK/FLORAL PARK CENTRE GARBAGE DISTRICT, TOWN BOARD OF THE TOWN OF NORTH HEMPSTEAD, AS COMMISSIONERS OF NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN and HERRICKS GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, and NEW HYDE PARK/GARDEN CITY PARK/FLORAL PARK CENTRE GARBAGE DISTRICT, BOARDS OF COMMISSIONERS AND COMMISSIONERS OF NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN, and HERRICKS GARBAGE DISTRICT, ROSLYN GARBAGE DISTRICT, PORT WASHINGTON GARBAGE DISTRICT, CARLE PLACE GARBAGE DISTRICT, GLENWOOD GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, and NEW HYDE PARK/GARDEN CITY PARK/ FLORAL PARK CENTRE GARBAGE DISTRICT, RECEIVER OF TAXES OF THE TOWN OF NORTH HEMPSTEAD, and CONTROLLER OF THE TOWN OF NORTH HEMPSTEAD, Defendants.
Keyspan Gas East Corporation d/b/a KEYSPAN ENERGY DELIVERY LONG ISLAND, Plaintiff,
against
Supervisor of Town of North Hempstead, TOWN OF NORTH HEMPSTEAD, NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN, and HERRICKS GARBAGE DISTRICT, ROSLYN GARBAGE DISTRICT, PORT WASHINGTON GARBAGE DISTRICT, CARLE PLACE GARBAGE DISTRICT, GLENWOOD GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, NEW HYDE PARK/GARDEN CITY PARK/FLORAL PARK CENTRE GARBAGE DISTRICT, TOWN BOARD OF THE TOWN OF NORTH HEMPSTEAD, AS COMMISSIONERS OF NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN and HERRICKS GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, and NEW HYDE PARK/GARDEN CITY PARK/FLORAL PARK CENTRE GARBAGE DISTRICT, BOARDS OF COMMISSIONERS AND COMMISSIONERS OF NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN, and HERRICKS GARBAGE DISTRICT, ROSLYN GARBAGE DISTRICT, PORT WASHINGTON GARBAGE DISTRICT, CARLE PLACE GARBAGE DISTRICT, GLENWOOD GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, and NEW HYDE PARK/GARDEN CITY PARK/ FLORAL PARK CENTRE GARBAGE DISTRICT, RECEIVER OF TAXES OF THE TOWN OF NORTH HEMPSTEAD, and CONTROLLER OF THE TOWN OF NORTH HEMPSTEAD, Defendants.
Keyspan Gas East Corporation d/b/a KEYSPAN ENERGY DELIVERY LONG ISLAND, Plaintiff,
against
Supervisor of Town of North Hempstead, TOWN OF NORTH HEMPSTEAD, NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN, and HERRICKS GARBAGE DISTRICT, ROSLYN GARBAGE DISTRICT, PORT WASHINGTON GARBAGE DISTRICT, CARLE PLACE GARBAGE DISTRICT, GLENWOOD GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, NEW HYDE PARK/GARDEN CITY PARK/FLORAL PARK CENTRE GARBAGE DISTRICT, TOWN BOARD OF THE TOWN OF NORTH HEMPSTEAD, AS COMMISSIONERS OF NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN and HERRICKS GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, and NEW HYDE PARK/GARDEN CITY PARK/FLORAL PARK CENTRE GARBAGE DISTRICT, BOARDS OF COMMISSIONERS AND COMMISSIONERS OF NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN, and HERRICKS GARBAGE DISTRICT, ROSLYN GARBAGE DISTRICT, PORT WASHINGTON GARBAGE DISTRICT, CARLE PLACE GARBAGE DISTRICT, GLENWOOD GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, and NEW HYDE PARK/GARDEN CITY PARK/ FLORAL PARK CENTRE GARBAGE DISTRICT, RECEIVER OF TAXES OF THE TOWN OF NORTH HEMPSTEAD, and CONTROLLER OF THE TOWN OF NORTH HEMPSTEAD, Defendants.
Keyspan Gas East Corporation d/b/a KEYSPAN ENERGY DELIVERY LONG ISLAND, Plaintiff,
against
Supervisor of Town of North Hempstead, TOWN OF NORTH HEMPSTEAD, NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN, and HERRICKS GARBAGE DISTRICT, ROSLYN GARBAGE DISTRICT, PORT WASHINGTON GARBAGE DISTRICT, CARLE PLACE GARBAGE DISTRICT, GLENWOOD GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, NEW HYDE PARK/GARDEN CITY PARK/FLORAL PARK CENTRE GARBAGE DISTRICT, TOWN BOARD OF THE TOWN OF NORTH HEMPSTEAD, AS COMMISSIONERS OF NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN and HERRICKS GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, and NEW HYDE PARK/GARDEN CITY PARK/FLORAL PARK CENTRE GARBAGE DISTRICT, BOARDS OF COMMISSIONERS AND COMMISSIONERS OF NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN, and HERRICKS GARBAGE DISTRICT, ROSLYN GARBAGE DISTRICT, PORT WASHINGTON GARBAGE DISTRICT, CARLE PLACE GARBAGE DISTRICT, GLENWOOD GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, and NEW HYDE PARK/GARDEN CITY PARK/ FLORAL PARK CENTRE GARBAGE DISTRICT, RECEIVER OF TAXES OF THE TOWN OF NORTH HEMPSTEAD, and CONTROLLER OF THE TOWN OF NORTH HEMPSTEAD, Defendants.
Keyspan Gas East Corporation d/b/a KEYSPAN ENERGY DELIVERY LONG ISLAND, Plaintiff,
against
Supervisor of Town of North Hempstead, TOWN OF NORTH HEMPSTEAD, NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN, and HERRICKS GARBAGE DISTRICT, ROSLYN GARBAGE DISTRICT, PORT WASHINGTON GARBAGE DISTRICT, CARLE PLACE GARBAGE DISTRICT, GLENWOOD GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, NEW HYDE PARK/GARDEN CITY PARK/FLORAL PARK CENTRE GARBAGE DISTRICT, TOWN BOARD OF THE TOWN OF NORTH HEMPSTEAD, AS COMMISSIONERS OF NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN and HERRICKS GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, and NEW HYDE PARK/GARDEN CITY PARK/FLORAL PARK CENTRE GARBAGE DISTRICT, BOARDS OF COMMISSIONERS AND COMMISSIONERS OF NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN, and HERRICKS GARBAGE DISTRICT, ROSLYN GARBAGE DISTRICT, PORT WASHINGTON GARBAGE DISTRICT, CARLE PLACE GARBAGE DISTRICT, GLENWOOD GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, and NEW HYDE PARK/GARDEN CITY PARK/ FLORAL PARK CENTRE GARBAGE DISTRICT, RECEIVER OF TAXES OF THE TOWN OF NORTH HEMPSTEAD, and CONTROLLER OF THE TOWN OF NORTH HEMPSTEAD, Defendants.
Keyspan Gas East Corporation d/b/a KEYSPAN ENERGY DELIVERY LONG ISLAND, Plaintiff,
against
Supervisor of Town of North Hempstead, TOWN OF NORTH HEMPSTEAD, NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN, and HERRICKS GARBAGE DISTRICT, ROSLYN GARBAGE DISTRICT, PORT WASHINGTON GARBAGE DISTRICT, CARLE PLACE GARBAGE DISTRICT, GLENWOOD GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, NEW HYDE PARK/GARDEN CITY PARK/FLORAL PARK CENTRE GARBAGE DISTRICT, TOWN BOARD OF THE TOWN OF NORTH HEMPSTEAD, AS COMMISSIONERS OF NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN and HERRICKS GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, and NEW HYDE PARK/GARDEN CITY PARK/FLORAL PARK CENTRE GARBAGE DISTRICT, BOARDS OF COMMISSIONERS AND COMMISSIONERS OF NEW CASSEL GARBAGE DISTRICT, ALBERTSON, SEARINGTOWN, and HERRICKS GARBAGE DISTRICT, ROSLYN GARBAGE DISTRICT, PORT WASHINGTON GARBAGE DISTRICT, CARLE PLACE GARBAGE DISTRICT, GLENWOOD GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, and NEW HYDE PARK/GARDEN CITY PARK/ FLORAL PARK CENTRE GARBAGE DISTRICT, RECEIVER OF TAXES OF THE TOWN OF NORTH HEMPSTEAD, and CONTROLLER OF THE TOWN OF NORTH HEMPSTEAD, Defendants.
7269/02
Cullen and Dykman LLP - Attorneys for Plaintiff
Jaspan Schlesinger LLP - Attorneys for Defendants
Thomas Feinman, J.
The plaintiff, Keyspan Gas Corporation d/b/a Keyspan Energy Delivery Long Island, (hereinafter referred to as "Keyspan"), moves for (1) an order pursuant to CPLR §602(a) joining the above entitled actions so that they may be tried as one, (2) an order pursuant to CPLR §3212 [*2]granting plaintiff summary judgment (i) declaring that the defendants' imposition of special ad valorem levies for garbage and refuse collection and disposal services on plaintiff's mass properties located within the various garbage districts of the Town of North Hempstead illegal, inequitable, unconstitutional and void; (ii) enjoining the continued imposition of such levies upon plaintiff's mass properties; and (iii) ordering a refund of One Million Three Hundred Fifty-Two Thousand One Hundred Sixty-Five and 61/100 Dollars, ($1,352,165.61), to Keyspan for the 1996 through 2007 tax years with interest from the dates of payment; and (3) such other and further relief as this Court may deem just and proper. The plaintiff submits a Memorandum of Law in support of motion for joinder and summary judgment.
The defendants cross-motion for an order dismissing plaintiff's action pursuant to CPLR
§3211(a)(10), on the ground that the court should not proceed in the absence of a person
who should be a party, or, in the alternative, an order, pursuant to CPLR §1001, directing
plaintiff to join the following parties as defendants: the County of Nassau, the Nassau County
Board of Assessment Review, the Assessment Review Commission of the County of Nassau,
and the Assessor of the County of Nassau. The defendants submit a Memorandum of Law in
opposition to plaintiff's motion for summary judgment and in support of the defendants'
cross-motion to dismiss or joinder. The plaintiff submits an affirmation in reply and in
opposition to the defendants' cross-motion. The plaintiff also submits a reply Memorandum of
Law in support of its motion for joinder and summary judgment and in opposition to the
defendants' cross-motion for dismissal or joinder. The defendants submit a reply affirmation in
support of the defendants' cross-motion.
BACKGROUND
Keyspan acquired the gas transmission and distribution proper previously owned by the Long Island Lighting Company, ("LILCO"), and the Long Island Power Authority, ("LIPA"), in a 1998 transaction. Keyspan provides that it owns "mass property" throughout the Town of North Hempstead, County of Nassau, State of New York, which is used in supplying natural gas to public and private consumers in the Town of North Hempstead. Keyspan's "mass property" consists of "public utility property" and "special franchise property". Keyspan's "public utility property" consists of gas transmission and distribution facilities, namely gas mains and services, located upon, above and under private property owned in fee by others. Keyspan's "special franchise property" includes gas transmission and distribution facilities, also namely gas mains and services, located upon, above and under public property and public rights of way. Keyspan provides that the only difference between Keyspan's public utility property and special franchise property is the location of the property.
The defendants' garbage services include any and all types of garbage and/or refuse services that the defendants are lawfully permitted to provide, including, but not limited to, garbage and refuse collection and disposal services, (hereinafter referred to as "garbage services"). Keyspan maintains that its mass property does not produce garbage or refuse and therefore, neither requires nor receives any garbage or refuse collection or disposal services from [*3]the defendants. Keyspan provides that its mass property is unmanned, contains no offices, bathrooms, or any structure capable of human adaptation. Keyspan submits that it does not "own" the land, over or under, which its mass property, as it is either owned by a municipality, (the special franchise property), or a private fee owner, (the public utility property). The property owned by the private fee owner is separate and apart from Keyspan's mass property, and is not party of the instant actions.
The Town has imposed "special ad valorem levies" on Keyspan's mass property located throughout the Town for garbage services each year, from 2002 through 2007. The plaintiff initiated Action 1, Action 2, Action 3, Action 4, Action 5, and Action 6, on or before April 30th of each year, challenging the imposition of the special ad valorem levies for garbage services on its mass property for the 2002 through 2007 tax years. The actions include a cause of action against the defendants for moneys had and received, and therefore, Keyspan requests a refund for all special ad valorem levies paid to the defendants for garbage services during the six years prior to the date of the commencement of these action. Each of the actions are brought by Keyspan naming the same defendants, seeking a refund of special ad valorem levies for each year. Each action involves the same legal issue, to wit, whether a special ad valorem levies may be imposed upon property which Keyspan maintains receives absolutely no benefit from the garbage services for which the levies are imposed.
A garbage district may impose "special ad valorem levies" in order to defray the costs of the
district. (NY Real Property Tax Law §102(16); NY Town Law §198(9)(a)). A "special
ad valorem levy" is defined as a "charge imposed upon benefited real property in the
same manner and at the same time as taxes for municipal purposes to defray the cost, including
operation and maintenance, of a special district improvement or service, but not including the
charge imposed by or on behalf of a city or village". (Real Property Tax Law, (RPTL
§102(14) emphasis added). A special ad valorem levy can only be imposed upon
"benefited" property. New York
Telephone Co. v. Town of Oyster Bay, 4 NY3d 387).
MOTION FOR JOINDER
That branch
of plaintiff's motion for an order pursuant to CPLR §602(a) joining the above entitled
actions is unopposed and is hereby granted. Actions 1 through 6 involve the same parties and a
common question of law.
DISCUSSION
The plaintiff contends that its mass properties receives absolutely no benefit from garbage services and therefore, the special ad valorem levies imposed by the defendants should not have been imposed. The Court of Appeals in New York Telephone Company v. Town of Oyster Bay, 4 NY3d 387, found that the telephone company's "mass property", such as telephone lines, wires, cables and poles, "did not constitute "benefited" property upon which [the] town could impose [*4]special ad valorem levy for garbage collection; company's property could not produce or require collection of garbage, and thus could not receive no direct benefit from that service". The Court of Appeals in Applebaum v. Town of Oyster Bay, 81 NY2d 733 held that "[a]n ad valorem tax levy imposed by a municipality on real property for garbage collection services is invalid where the property owners in question do not receive the benefit of that service". In order "for real property to be benefited', it must be capable of receiving the service funded by the special ad valorem levy". (New York Telephone Company v. Town of Oyster Bay, supra).
Plaintiff's predecessor, LILCO, challenged the special ad valorem levies imposed upon properties owned by LILCO, now owned by Keyspan The Second Department in LILCO v. Town of North Hempstead, 233 AD2d 300, affirmed the refund awarded by the lower court, held that the "public utility's gas and electronic transmission and distribution facilities located on its fee-owned rights of land, easements on private property, easements on special franchise property, which did not generate any solid refuse, were not taxable as benefited properties". The plaintiff has demonstrated that the property at issue in the LILCO, supra, action is identical to Keyspan's mass property, albeit, the only difference is that the property in the LILCO, supra, action also included, in addition to the "mass property" in the instant action, electric transmission and distribution facilities. The Second Department held, simply, that LILCO's mass properties "do not generate any solid refuse. Therefore, these are not benefited properties as defined by Real Property Tax Law §102(14) and cannot be the subject of taxes imposed by the [Town] ..." (LILCO v. Town of North Hempstead, supra).
Contrary to the defendants' assertion, the Court of Appeals decision on Niagara Mohawk Power Corp. v. Town of Watertown, 6 NY3d 744, does not invalidate the holdings by the Court of Appeals in LILCO v. Town of North Hempstead, supra, or New York Telephone v. Town of Oyster Bay, supra. The Court of Appeals in Niagara Mohawk Power Corp. (NIMO), supra, held that NIMO's facilities benefited from the Town's water district which maintains a system of mains, pipes and hydrants available for purposes of firefighting. The Court found the record inadequate to determine whether NIMO's property actually benefited from the sewer district's services and with respect to sewer district levies. (Niagara Mohawk Power v. Town of Watertown, supra). As to NIMO's action pertaining to garbage district levies, the Court concluded that the properties at issue "are distinguishable from the telephone wires and poles and other fixtures and appurtenances that were the concern of the Court of Appeals in New York Tel. Co. The Court in Niagara Mohawk Power Corp., supra, held that here, in contrast to the situation in New York Tel Co., there is a sufficient theoretical potential for the properties to be developed in a manner that will result in the generation of garbage, thereby warranting taxation of the properties as part of the special garbage district". (Id.) In the case at bar, Keyspan does not own the land on, over or under which it mass property is located, and Keyspan has established that there is no theoretical potential for plaintiff's property to be developed in a manner that will result in the generation of garbage. In any event, the opposition papers have not articulated what, if any benefit, direct or indirect, could be attributed to Keyspan's mass properties. The defendants' submission that Keyspan's special franchise property is "safeguarded" by the road maintenance performed by the Town, and the Town's maintenance of [*5]catch basins and sump pumps is not persuasive. Any such purported benefit is not provided by the defendant garbage districts, and moreover, such separate levies are already imposed upon Keyspan's mass property, of which Keyspan is not challenging in the instant actions.
More importantly, the defendants have raised the aforesaid argument before the Court in New York Tele. Co. v. Town of North Hempstead, supra, and the court rejected such argument. There, the court found that the "Niagara Mohawk" case upon which the Town relied upon did not constitute a change in law, and was distinguishable in that Niagara Mohawk itself owned the actual land which potentially benefited from municipal refuse services. (Id.)
The defendants' argument that six out of the nine defendant districts are not governed by
Article 12 of the Town Law, and that Nassau County defendants are necessary parties to this
action is unavailing. The defendants' have advanced this argument in New York Telephone v.
Hempstead, (Index No. 12177/98 Short Form Order dated June 22, 2009), and in New
York Telephone v. Supervisor of North Hempstead, (Index No. 12192/98 Short Form Order
dated November 20, 2008), and such argument was rejected.
CONCLUSION
In light of the foregoing, the plaintiff's motion for summary judgment is granted and the defendants' cross-motion for dismissal and/or joinder is denied.
The plaintiff's motion for summary judgment is granted whereby the imposition of special ad valorem levies for garbage and refuse collection on the plaintiff's mass properties in the Town of Hempstead is illegal and void; the defendants are hereby enjoined from the continued imposition of such levies on the plaintiff's mass properties, and plaintiff is hereby granted judgment in the amount One Million Three Hundred Fifty-Two Thousand One Hundred Sixty-Five and 61/100 Dollars, ($1,352,165.61), with interest from the date of payment.
The plaintiff shall settle judgment with notice to the defendants.
ENTER:
________________________________
J.S.C.
Dated: December 7, 2009
[*6]
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