Temple Beth Sholom, Inc. of Roslyn, NY v Nassau County Dept. of Assessment

[*1] Temple Beth Sholom, Inc. of Roslyn, NY v Nassau County Dept. of Assessment 2001 NY Slip Op 50147(U) Decided on November 26, 2001 Supreme Court, Nassau County Parga, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 26, 2001
Supreme Court, Nassau County

TEMPLE BETH SHOLOM, INC. OF ROSLYN, NEW YORK, Petitioner, for an Order pursuant to Article 78 of the Civil Practice Law and Rules,

against

THE NASSAU COUNTY DEPARTMENT OF ASSESSMENT, BUREAU OF EXEMPTIONS, and THE COUNTY OF NASSAU, Respondents.



011661/01

Anthony L. Parga, J.

Upon the foregoing papers, the application by the petitioner for an order pursuant to CPLR 7803(3), annulling and vacating the April 3, 2001, determination by the respondents on the grounds that said determination was arbitrary and capricious and an abuse of discretion, is granted.

The petitioner is a synagogue affiliated with the Conservative branch of Judaism. It seeks, on behalf of its purported 5000 congregants, to have the residence it purchased in

2000 for its assistant rabbi declared as tax exempt pursuant to Real Property Tax [*2]Law §§420-a(1)(a) and 462. On February 20, 2001, the petitioner filed with respondent Department of Assessment the requisite boiler-plate form and application for when the property in question is "used as [the] residence of officiating clergy." The form, prepared by the New York State Board of Real Property Services, asks whether the officiating clergy has had formal training and been formally ordained, and whether the premises is being used for purposes other than as a residence. Although it does not ask for a description of the officiating clergy's duties, the petitioner furnished the Department of Assessment with a list of the assistant rabbi's "synagogue duties: conducts secondary services on Sabbath and all holidays; teaches Sisterhood and Men's Club classes during the year; supervises youth groups; conducts weddings, funerals and baby namings when Rabbi is not available; visits homes after a death of family members; visits members in hospitals." The application for a tax exemption was denied after "a careful review of all the facts and circumstances" in a one sentence paragraph on April 3, 2001, "due to the fact that the applicant does not meet all the requirements of Real Property Tax Law 420 and/or 462."

Real Property Tax Law §420-a(1)(a) provides that "[r]eal property owned by a corporation or association organized or conducted exclusively for religious, charitable, . . . educational, or moral or mental improvement of men, women or children purposes, or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes . . . . shall be exempt from taxation . . ." Real Property Tax Law §462 applies exclusively to religious institutions and states in relevant part that "[i]n addition to the

exemption provided in section four hundred twenty-a of this article, property owned by a religious corporation while actually used by the officiating clergy thereof for residential

purposes shall be exempt from taxation."

On June 12, 2001, the petitioner asked the Department of Assessment to reconsider its denial. Included in the request was an affidavit from the assistant rabbi, who clarified his duties. The rabbi averred that he was contractually required by the petitioner, in his position as an ordained rabbi and the assistant to the senior rabbi, to devote himself full-time to the needs of the petitioner and its one thousand family members, and to take an active role in all religious services and rites that occurred at the synagogue. He further averred that a basic tenet of his religion required that he walk to the synagogue on the Sabbath, which is the main reason the petitioner provided him with a residence within walking distance [*3]of the synagogue. The rabbi maintained that he performed scholarly research at his residence on behalf of the petitioner and would also conduct synagogue meetings there. The rabbi claimed he had the freedom to preach on any topic he deemed appropriate. He contended that he was also required by the petitioner to teach at its high school and supervise its educational and youth programs.

The Department of Assessment, through its attorney, adhered to its original denial of the petitioner's application for a tax exemption on the assistant rabbi's residence. In a letter to petitioner's attorney dated June 20, 2001, a deputy county attorney stated in a conclusory manner that the Department of Assessment believed that the petitioner's assistant rabbi was not an "officiating clergymen", as required by Real Property Tax Law §462, and that his duties were "more limited than those performed by the clergymen of [the petitioner] who have received a real property tax exemption under RPTL §462." However, although the respondents' attorney conceded that "[t]he statutory use of the plural 'clergymen' indicates a legislative intention that a religious organization be entitled to as many exemptions as it

as 'officiating clergymen,'" he did not specify the basis upon which the Department of Assessment concluded that the petitioner's assistant rabbi did not officiate at religious services and ceremonies, even if arguendo his duties were "more limited."

There are very few officially reported cases involving the application of Real Property Tax Law §§420-a and 462 to religious institutions, perhaps because it is obvious to most local municipalities that the statutory purpose of allowing religious institutions a property tax exemption on the residences of their "officiating clergymen" is rooted in the long standing public policy in New York that religious institutions are "beneficial to the public [and] necessary to the advancement of civilization . . . . and the promotion of the welfare of society" (People ex rel. Watchtower Bible & Tract Socy. v. Haring, 8 NY2d 350, 357). In 1992, in the Matter of Yeshivath Shearith Hapletah v. Assessor of Town of Fallsburg, 79 NY2d 244, 252, the Court of Appeals held that religious institutions can seek such a tax exemption based upon either or both statutory provisions, and have them applied to the same property. Although the facts of that case did not present the Court with an opportunity to fully discuss a "462 exemption," it did analyze and interpret a "420-a exemption." "The test of entitlement to tax exemption under the 'used exclusively' clause of the statute is whether the particular use is 'reasonably incidental' to the [primary or] major purpose of the [*4][religious institution] (citation omitted)" (Matter of Yeshivath Shearith Hapletah v. Assessor of Town of Fallsburg, 79 NY2d 244, 250).

Here, the petitioner clearly met its burden of proof and established its right to an exemption "of the rabbi's living quarters" under both §462 (see, Congregation Beth Mayer

v. Board of Assessors of Town of Ramapo, 70 AD2d 926), and §420-a of the Real Property Tax Law (see, Matter of Yeshivath Shearith Hapletah v. Assessor of Town of Fallsburg,

supra at 250-251). A hearing is not necessary as the respondents failed to raise a triable issue of fact and submit any evidentiary proof refuting the petitioner's assertion that its assistant rabbi officiated during religious services and ceremonies at petitioner's synagogue. Furthermore, the petitioner has met the test of entitlement to a tax exemption under RPTL 420-a(1)(a) since the use by the assistant rabbi of the housing facility provided by the petitioner is "necessary and reasonably incidental" to the primary purposes of the petitioner: providing a sanctuary of worship for the performance of the ceremonies and rituals of the Conservative branch of Judaism, and teaching the laws and doctrines of that faith (Matter of Yeshivath Shearith Hapletah v. Assessor of Town of Fallsburg, supra). The assistant rabbi is employed full-time by the petitioner and is required to be present and available on and off petitioner's premises during mornings, afternoons and evenings for petitioner's 1000 families. Thus, the use of the residence by the assistant rabbi serves the religious purpose for which the petitioner was organized, and is consequently tax exempt.

Accordingly, the petition for an order pursuant to Article 78 of the CPLR, annulling and vacating the April 3, 2001, determination by the respondents, is granted in its entirety.

The branch of the petition for an order awarding the petitioner costs and disbursements is

also granted. The respondents are directed to (1) remove the subject premises, 201 Parkside Drive, Roslyn, New York, Section 7, Block 322, Lot 11, from the taxable assessment roll and (2) refund any taxes paid by the petitioner on the subject premises for tax year 2001.

The foregoing constitutes the decision, order and judgment of this Court.

Dated: November 26, 2001

Anthony L. Parga, J.S.C. [*5]

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