Matter of Cooney Realty Co. v Assessor of the Town of Greenburgh
Annotate this CaseDecided on August 20, 2008
Supreme Court, Westchester County
In the Matter of the Application of Cooney Realty Co., Petitioner,
against
The Assessor of the Town of Greenburgh, THE BOARD OF ASSESSMENT REVIEW OF THE TOWN OF GREENBURGH, AND THE TOWN OF GREENBURGH, Respondents.
In the Matter of the Application of WESTCHESTER INDUSTRIES, INC., Petitioner, -against -
against
THE ASSESSOR OF THE TOWN OF GREENBURGH, THE BOARD OF ASSESSMENT REVIEW OF THE TOWN OF GREENBURGH, AND THE TOWN OF GREENBURGH,Respondents. Index Nos. 16266/01, 16267/01, 17687/02, 17688/02 For a Review of Tax Article 7 of the Real Property Tax Law.
In the Application of FERRY LANDING, LLC and WESTCHESTER INDUSTRIES, INC., Petitioner, - against -
against
THE ASSESSOR OF THE TOWN OF GREENBURGH, THE BOARD OF ASSESSMENT REVIEW OF THE TOWN OF GREENBURGH, AND THE TOWN OF GREENBURGH, Respondents. For a Review of Tax Article 7 of the Real Property Tax Law.
In the Matter of the Application of COONEY REALTY CO., Petitioner, - against -
against
THE ASSESSOR OF THE VILLAGE OF TARRYTOWN, THE BOARD OF ASSESSMENT REVIEW OF THE VILLAGE OF TARRYTOWN, AND THE VILLAGE OF TARRYTOWN, Respondents. For a Review of Tax Article 7 of the Real Property Tax Law.
In the Matter of the Application of WESTCHESTER INDUSTRIES, INC., Petitioner, -against -
against
THE ASSESSOR OF THE VILLAGE OF TARRYTOWN, THE BOARD OF ASSESSMENT REVIEW OF THE VILLAGE OF TARRYTOWN, AND VILLAGE OF TARRYTOWN, Respondents. For a Review of Tax Assessment under Article 7 of the Real Property Tax Law.
In the Matter of the Application of FERRY LANDING, LLC and WESTCHESTER INDUSTRIES, INC., Petitioners, -against -
against
THE ASSESSOR OF THE VILLAGE OF TARRYTOWN, THE BOARD OF ASSESSMENT REVIEW OF THE VILLAGE OF TARRYTOWN, AND VILLAGE OF TARRYTOWN, Respondents. For a Review of Tax Assessment under Article 7 of the Real Property Tax Law
In the Matter of the Application of FERRY LANDING, LLC, Petitioners, -against -
against
THE ASSESSOR OF THE VILLAGE OF TARRYTOWN, THE BOARD OF ASSESSMENT REVIEW OF THE VILLAGE OF TARRYTOWN, AND VILLAGE OF TARRYTOWN, Respondents.
16264/01
Joseph Albert, Esq.
Albert & Albert
Attorney for Petitioner Cooney Realty Co., Ferry Landing LLC and Westchester Industries, Inc.
100 White Plains Road
Tarrytown, New York 10591
Paul B. Bergins, Esq.
Attorney for Town of Greenburgh
Six Chester Avenue
White Plains, New York 10601
Peter Carparelli, Esq.
Attorney for Town of Greenburgh
177 Hillside Avenue
Greenburgh, NY 10607
Jeffrey S. Shumejda, Esq.
Attorney for Village of Tarrytown
47 Beekman Avenue
Sleepy Hollow, New York 10591
John F. Burkhardt, Esq.
Attorney for Tarrytown School District
445 Hamilton Avenue, Suite 1500
White Plains, New York 10601
JOHN R. LaCAVA, J.
The trial of this Tax Certiorari Real Property Tax Law (RPTL) [*2]Article 7 proceeding, challenging the valuation by the Village of
Tarrytown and Town of Greenburgh of the real property owned by Cooney Realty, Co, Ferry
Landing LLC, and Westchester Industries (collectively Ferry or Petitioner), took place before the
Hon. Thomas A. Dickerson on eighteen dates [FN1] in 2006, and in addition the following post-trial
papers numbered 1 to 8 were considered in connection with the trial of this matter [FN2]:
PAPERSNUMBERED
PETITIONERS' POST TRIAL MEMORANDUM OF LAW1
PETITIONERS' PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW2
POST TRIAL MEMORANDUM OF RESPONDENT GREENBURGH3
RESPONDENTS GREENBURGH'S PROPOSED FINDINGS OF FACT
AND CONCLUSIONS OF LAW4
TARRYTOWN'S MEMORANDUM OF LAW5
PETITIONERS' POST MEMORANDUM OF LAW-REBUTTAL6
RESPONDENT'S GREENBURGH REPLY MEMORANDUM7
REPLY MEMORANDUM OF LAW8
Based upon the credible evidence adduced at the trial, and upon consideration of the arguments of respective counsel and the post trial submissions, the Court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
The subject property consists of seven tax lots located within the Town of Greenburgh and the Village of Tarrytown, New York. The seven lots are contiguous, cover approximately 13 acres, and are known as Tax Map ID Nos. Vol. 1, Sheet 1, Parcels P13, P14, P21, P22, P23, P24 and P24A. All the lots are located within the Waterfront General Business District ("WGBD") of the Town of Greenburgh and the Village of Tarrytown; this zoning designation was changed from ID-Industrial to WGBD in 1998. [*3]
Proceedings were filed in assessment years 2001-2005 against both the Town of Greenburgh and the Village of Tarrytown. The prior owners, Cooney Realty Company (which owned lots P13, P24, and P24A) and Westchester Industries, Inc. (which owned P14, P21, P22 and P23), commenced these proceedings in 2001 and 2002; the current owners, Ferry Landings, LLC, then purchased the Cooney Realty lots, and received the Westchester Industries lots through a stock sale transfer, both in 2002, and have since commenced the remaining proceedings.
In 2003, Ferry submitted a formal site plan application to the Village of Tarrytown,
proposing a mixed-use development of townhouses, loft residences, and commercial office
space. In 2004, the Village of Tarrytown amended Local Law No. 1-2004 (the zoning ordinance)
to accommodate this type of proposed development on the subject property. In 2005, the
environmental review of the proposed development proceeded to a FEIS (Final Environmental
Impact Statement).
The Individual Tax
Lots
Lot P13 comprises approximately 2.16+ acres of
land with frontage on Railroad Avenue and Division Street. The tax lot is subject to an easement
that benefits lots P22, P24 and P24A. The parcel was improved with a macadam surface, and
utilized for many years as a parking lot [FN3]. In 2004, a building permit was obtained to
construct a 14,633+ square foot building that is joined to an existing structure on
adjoining, unrelated lots; this building/extension was then donated to the Village of Tarrytown by
petitioner, and the use by the Village continues today. On the eastern section of the land is a
depreciated, dilapidated building which is over 100 years old.
Lot P14 comprises approximately .62+ acre of land and access is
only available over the adjoining lot P13. Like the latter lot, this parcel was also improved with a
macadam surface, and has been utilized as a parking lot throughout the valuation period.
P21 is approximately 5.34+ acres of land with frontage on Lower
Main Street to the north and the bank of the Hudson River to the west. The tax lot is subject to a
surface right-of-way benefiting P23, which abuts P21. The site contains the
dilapidated remains of six buildings formerly used in conjunction with an [*4]asphalt plant operated on adjoining lot P23. There is also a
blacktop driveway extending from West Main Street to the New York Waterways dock on the
Hudson River. Portions of the lot are located in a designated 100-year and 500-year floodplain.
P22 is approximately 1.37+ acres of land with a surface right-of-way
over abutting P13 to Division Street. In 1970, a part one- and two-story building was constructed
and has been used to provide office space and as a warehouse with drive in bay trucking access
and loading docks. There are also blacktop-parking areas to the east and north of the building.
The lot is located in a Zone C area of minimal flooding.
P23 comprises approximately 1.93+ acres of land and benefits, as set
forth above, from a surface right-of-way extending over abutting P21 to the south. The
lot abuts the Hudson River to the west. The site contains moveable equipment and machinery
formerly used in the operation of the asphalt plant. Portions of the lot are also located in a
designated 100-year and 500-year floodplain, and the parcel is contaminated with coal tar,
although partial remediation of this condition was effected during the valuation period.
P24 comprises approximately 1.46+ acres of land and benefits from a
surface right-of-way extending over P13 to the east. The lot abuts the Hudson River on
the west. Portions of the lot too are located in a designated 100-year and 500-year floodplain.
P24 is also improved by a one-story garage and office building which was constructed
about 1971. The overall quality of this building is fair or average.
P24A is approximately .17+ acre of land which benefits from a
right-of-way which extends from the southern side of Division Street. This lot is located in Zone
C areas of minimal flooding, and contains a one-story garage building build around 1965 and
added-to in 1977. The building is currently subject to a long-term lease to the Tarrytown Union
Free School District, and the overall quality of the building is average.
THE TESTIMONY
Petitioner's Appraisal Values and
Arguments
Tax Lot P13
For all of the tax years at issue, petitioner's appraiser used both the sales comparison approach (as if the land was vacant) and the income capitalization approach (utilizing the parking lease). [*5]Zoning clearly allowed vehicular storage until 1998. In that year the zoning designation was changed, and vehicle storage was no longer permitted, however, since the prior use was demonstrably continuous, without any evidence of enforcement by respondent, it is evident that parking was a pre-existing non-conforming use. In October 2004 construction of a building on the site was completed, and the Tarrytown Department of Public Works took up residence therein.
Petitioner's income capitalization approach relied, for the period 2001-2003, on rents actually
paid by tenants leasing either lots P13 or P14. Expenses were estimated, and a capitalization rate
derived from the Korpacz Real Estate Investor Survey. The appraiser concluded the following
values:
June 1, 2001 - $860,000
June 1, 2002 - $860,000
June 1, 2003 - $895,000
June 1, 2004 - $1,121,250
Petitioner's sales comparison approach used six comparable sales for the 2001-2003 tax years.
Comparable Land Sale No. 1 compromising approximately 2.76 acres is located on Marbledale Road in the Village of Tuckahoe, Town of Eastchester, New York. It was purchased in November 1999 for $1,100,000, or $398,984 per acre. Notably, hillside property comprises some 40,000 square feet of this site.
Comparable Land Sale No. 2 includes approximately 1.61 acres (encumbered by a roughly 10,600 square foot permanent easement). It is located on Ashburton Avenue in the City of Yonkers, and was purchased in December 2001 for $530,000 or $329,193 per acre.
Comparable Land Sale No. 3, a 2.26 acres parcel on Edison Avenue in the City of Mount Vernon, was purchased in July 2000 for $1,500,000 or $662,544 per acre. It is subject to an agreement by the buyer to both clean the property and indemnify buyer from any claims arising from contamination.
Comparable Land Sale No. 4, measuring approximately 2.65 acres is located partially on South Terrace Avenue in the City of Mount Vernon and partly in Bronx County. It was purchased in October 2000 for a price of $2,000,000 or $754,148 per acre. Notably, the site is accessed via an easement over several neighboring properties.
Comparable Land Sale No. 5, a parcel of approximately 0.62 [*6]acres located on Lafayette Avenue in White Plains, was purchased in August 2004 for $650,000 or $1,048,667 per acre.
Comparable Land Sale No. 6 is a 2.951 acre parcel (of which 1.93 acres is upland and roughly 1.02 acres are underwater) situated on Fernbrook, Yerks and Pier Streets in the City of Yonkers. It was purchased in November 1997 for $800,000 or $1,271,095 per acre. The appraiser adjusted the unit price to $413,864 per acre for the uplands areas.
Generally, petitioner's appraiser noted that land prices have increased by roughly 5% per year between 2000 and the valuation date. Other adjustments included size differences; encumbrance for right-of-way easements; site building depreciation; clean-up and indemnification costs; and flood zone location. The range in adjusted sales prices per acre extended from $240,722 to $584,465, with the appraiser placing somewhat more weight on Comparable Sale 1 than on the other comparable properties. Applying the data, a Greenburgh valuation of $400,000 per acre was selected as appropriate for the subject parcel, which the appraiser then reduced by 2.5% for the Tarrytown taxable status date.
The valuations for Tax Lot 13 using the comparable sales approach are as follows:
Tax Years 2001-2003
Sales Values:GreenburghTarrytown
June 1,2001$865,000$845,000
37407$885,000$865,000
37772$900,000$880,000
Tax Years 2004-2005
The appraiser used five comparable leases, deriving a June 1, 2004 value of $75 per
square foot, and a June 1, 2005 value of $76.50 per square foot, or
Income Values:
June 1, 2004 - $1,055,000
June 1, 2005 - $1,075,000
Weighing the 2004-20055 values equally, he determined
Final Values (Greenburgh and Tarrytown):
June 1, 2004 - $1,100,000
June 1, 2005 - $1,100,000
[*7]Tax Lot
P14
For tax years 2003-2005, the petitioner's appraiser used both the
sales comparison and income capitalization methods. He acknowledged the physical
improvements on the parcel, noting that, like Tax Lot 13, zoning permitted parking prior to 1998,
and that, since that use continued, it was a pre-existing non-conforming use.
Sales Comparison
Approach
For 2001 to 2003, the appraiser also used the same six
comparable sales as for parcel P13. He then made several adjustments, including for size, access,
location within a flood zone, and arrived at a range of adjusted sales prices per square foot of
between $8.11 to $19.45, with $13 per square foot as the most appropriate value for the subject
parcel, which was then reduced by 2.5% for the Tarrytown tax dates.
Income Capitalization Approach
The appraiser employed rents actually paid by tenants who leased
either lots P13 or P14, while expenses were estimated and a capitalization rate derived the
following values for both Greenburgh and Tarrytown:
January/June 1, 2003 - $385,000
January/June 1, 2004 - $385,000
January/June 1, 2005 - $385,000
Weighing the sales over the income values, that yielded final values of:
Sales Value:GreenburghTarrytown
37772$385,000$375,000
38138$405,000$395,000
38503$425,000$415,000
Tax Lot P21
Petitioner's
appraiser argued that the current "improvements", including the foundations on the parcels, offer
no contributory value to the parcels. He also noted that demolition costs are roughly equivalent to
the salvage value of the parcels.
[*8]Sales Comparison Approach
For all of the tax years form 2001 to 2005, the
appraiser again used the same six comparable sales as for the above parcels. He then adjusted for,
inter alia, size, the lack or minimal nature of easement encumbrances, and the non-flood
zone status of the parcel, and found a range in adjusted sales prices per acre from $256,770 to
$642,911. Equally emphasizing all comparables, as with the prior two parcels, he then arrived at
a value of $450,000 per acre for the subject parcel.
Sales values:
Sales Value: Greenburgh Tarrytown
June 1, 2001 $2,400,000
June 1, 2002 $2,525,000
June 1, 2003 $2,650,000 $2,585,000
June 1, 2004 $2,775,000 $2,707,000
June 1, 2005 $2,925,000 $2,850,000
Tax Lot P22
This parcel is
improved by a light industrial building. For all of the tax years at issue, petitioner's appraiser
utilized both the sales comparison and income capitalization methods.
Sales Comparison Approach
Petitioner's appraiser utilized five comparable sales for the tax
years at issue, yielding adjusted sales value per square foot of: $58.99; $61.38; $65.13; $57.61;
$61.76, and a rent per square foot of building area of:
June 1, 2001 - $60.00
June 1, 2002 - $61.25
June 1, 2003 - $62.50
June 1, 2004 - $63.75
June 1, 2005 - $65.00
This yielded a Market Value (reduced 1% for the January taxable status dates of
Tarrytown, based on his estimate of 2% per year increases), as follows:
[*9]
Sales Value: Greenburgh Tarrytown
June 1, 2001 $1,600,000 $1,585,000
June 1, 2002 $1,600,000 $1,585,000
June 1, 2003 $1,700,000 $1,685,000
June 1, 2004 $1,700,000 $1,685,000
June 1, 2005 $1,700,000 $1,685,000
Income Capitalization Approach
The appraiser used rental data from the subject itself, as well as six market rental comparables.
Comparable Rental No. 1, an Industrial/Warehouse/Office building of 13,167 square feet, had an actual rent of $9.50 per square foot. Comparable Rental No. 2, a similar structure of 7,770 square feet, had an actual Rent of $10.04 per square foot. Comparable Rental No. 3, another similar property of 4,270 square feet, had an actual rent of $9.84 per square foot.
Comparable Rental No. 4, another Industrial/Warehouse/Office
building with a size of 2,021 square feet, had an actual rent of $8.91 per square foot.
Comparable Rental No. 5, a Warehouse/Office structure consisting of 3,065 square feet, had an
actual Rent of $11.21 per square foot. Comparable Rental No. 6, an Industrial/Warehouse/Office
property measuring 2,800 square feet, had an actual Rent of $10.00 per square foot.
His final adjusted square foot rental amounts were $9.12; 9.32; $9.98; $8.51; $10.58; and $9.47 for all the Comparables.
Since the area of the subject was estimated at 19,346 square feet, comprised mostly of
warehouse and light manufacturing space, the proper rent per square foot, as calculated by the
appraiser, with an emphasis on comparable No. 3, was:
2001 - $9.50
2002 - $9.60
2003 - $9.70
2004 - $9.80
2005 - $9.90
Since he determined that the second story area (totaling 7,322 square feet) was worth
approximately 20% less in each year, he calculated market values for that portion of the premises
at:
[*10]
2001 - $7.60
2002 - $7.70
2003 - $7.75
2004 - $7.85
2005 - $7.90
He then calculated the vacancy rate to be 10% for 2001-2002, and 15% for 2003-2005, with
management expenses of 3% and reserves of 5%. The appraiser then used a non-institutional
capitalization rate, believing that the property is not investment grade property. This yielded
values, for both Greenburgh and Tarrytown, of:
June 1, 2001 - $1,500,000
June 1, 2002 - $1,500,000
June 1, 2003 - $1,500,000
June 1, 2004 - $1,500,000
June 1, 2005 - $1,600,000
Finally, relying primarily upon the income capitalization method for his final value estimate,
he concluded the following:
Market Values Greenburgh/Tarrytown:
2001 - $1,500,000
2002 - $1,500,000
2003 - $1,500,000
2004 - $1,500,000
2005 - $1,600,000
Tax Lot P23
This parcel has minimal improvements, as well as non-assessable personal property related to the asphalt plant operation. The sales approach used by the appraiser was as if the land were vacant. Notably, while tax years 2001 to 2005 were at issue for the town, only 2003 to 2005 were at issue for the village.
For these tax years, the same six comparable sales were used as for parcels P13, P14, and P
21. The appraiser adjusted for, among other things, size, access, a permanent easement, and flood
zone status. The range of adjusted sales prices per acre is from $328,987 to $759,804. He equally
emphasized on all comparables, and calculated $500,000 per acre as being most appropriate for
the subject parcel. With land prices increasing an average of about 5% per year, and considering
a reduction of 2.5% for the Tarrytown tax date, the Market Value yielded is as follows:
[*11]
Sales Value: Greenburgh Tarrytown
37042 $1,065,000
37407 $1,120,000
37772 $1,175,000 $1,145,000
38138 $1,225,000 $1,195,000
38503 $1,300,000 $1,270,000
Tax Lots P24 and P24A
These two parcels
are improved by two separate light industrial buildings, with a combined total area of
approximately 16,270 square feet. Lot P24 contained roughly 75% of the total improvements,
while Lot P24A contained the remaining 25%. For all of the tax years involved, petitioner's
appraiser employed both the sales comparison and income capitalization methods. Due to the
configuration of the lots (tax lot P24A is virtually enclosed by tax lot P24), and the unlikelihood
that hey would be sold to separate owners, petitioner determined that the lots should be treated as
a single property.
Sales Comparison Approach
Over the period in question, five comparable sales were used.
Estimated rent per square foot of building area was:
June 1, 2001 - $60.00
June 1, 2002 - $62.50
June 1, 2003 - $65.00
June 1, 2004 - $67.50
June 1, 2005 - $70.25
Total Sales Market Value, both parcels:
June 1, 2001 - $1,000,000
June 1, 2002 - $1,100,000
June 1, 2003 - $1,100,000
June 1, 2004 - $1,100,000
June 1, 2005 - $1,200,000
Sales Market Value for lot 24, with the 2.5% reduction for the Tarrytown tax date, is:
June 1, 2001$750,000$742,500
June 1, 2002$825,000$817,500
[*12]
June 1, 2003$825,000$817,500
June 1, 2004$825,000$817,500
June 1, 2005$900,000$892,500
Sales Market Value for lot 24A:
Sales Value: Greenburgh Tarrytown
June 1, 2001 $250,000 $247,500
June 1, 2002 $275,000 $272,500
June 1, 2003 $275,000 $272,500
June 1, 2004 $275,000 $272,500
June 1, 2005 $300,000 $297,500
Income Capitalization
Approach
The appraiser noted that there were two separate sources of income for the two lots. Lot
P24A was leased to the Union Free School District of the Tarrytowns during all of the years at
issue, while Lot P24 contained office space that was leased for $9,100, and received $14,000 a
year from New York Waterways for the use of a ferry slip.
He then calculated Potential Gross Income to be:
2001 - $165,550
2002 - $181,237
2003 - $182,924
2004 - $184,611
2005 - $186,298
and the vacancy rate to be 10% for 2001 and 2002, and 15% for 2003 through 2005.
He then estimated the expenses at 3% for management, and 5% for reserves. Here too, he utilized
a non-institutional capitalization rate, believing that the property was not investment grade
property.
This yielded a Total Market Value of:
June 1, 2001 - $1,000,000
June 1, 2002 - $1,100,000
June 1, 2003 - $1,100,000
June 1, 2004 - $1,100,000
June 1, 2005 - $1,200,000
[*13]
which includes an Income Market Value (for
both Greenburgh and Tarrytown)for lot 24 of:
June 1, 2001 - $750,000
June 1, 2002 - $825,000
June 1, 2003 - $825,000
June 1, 2004 - $825,000
June 1, 2005 - $900,000
and an Income Market Value (for both Greenburgh and Tarrytown)for lot 24A of:
June 1, 2001 - $250,000
June 1, 2002 - $275,000
June 1, 2003 - $275,000
June 1, 2004 - $275,000
June 1, 2005 - $300,000
Weighting for the Income method, he determined these to be his final value
conclusions for the two parcels.
Respondent Greenburgh's Appraisal Generally
Respondent Greenburgh structured the parcels into a large combined property, "under improved with three industrial and office or garage buildings." The Town's appraiser first utilized comparable land sales for all seven of the tax lots, asserting that the "land is appraised as though vacant and available for development to its highest and best use " Standards Rule 1-3(b). Looking at the property as whole, with the value in the land, any structures are to be considered transitional uses, utilizing only small areas of the overall site, he argued. Therefore, the Town's appraiser used the sales comparisons as though the land was "substantially" vacant with interim uses. The respondents define interim as "to help pay taxes while property is pending entitlements." (T738).
Petitioner strongly objected to Greenburgh's appraiser's combined assessment analysis,
wherein the appraiser considered that the subject parcels, being under common beneficial
ownership, lessen the potential value reduction due to access problems and different sized/shaped
configurations of parcels. The petitioner notes that the appraiser valued the assembled lots as if
they had good configuration, access from two streets, and area along river. Additionally, the
petitioner also objected to the lack of information in the appraiser's report on the uses on the land,
the appraiser failing to mention the parking uses on P13 and P14, the building on P13 that was
donated, or the buildings on P21 and P23.
Greenburgh's Sales Method and Comparables
Land Sale No.1, located in the City of Yonkers, consists of 65,830 + square feet (1.51 + acres) of land with frontage on the Saw Mill River and with access frontage. It was partially utilized as a junkyard and/or as an auto wrecker site, is zoned industrial, and had an unadjusted sale price of $15.19 per square feet in 1999.
Land Sale No.2, referred to as Ichabod's Landing, is located in the Town of Mt. Pleasant, and comprises 146,970+ square feet (3.374 acres, with 1.83 acres underwater). The parcel, located on the Hudson River and sold without approvals, is zoned riverfront district and had an unadjusted sale price in 2002 of $16.09.
Comparable Land Sale No. 3 is located in the City of New Rochelle and is 36,590 + square feet or .84 + acres. At the time of the sale, the parcel was improved by a five room dwelling and a garage building with 3,200 square feet office or apartment space overhead. The building was given a depreciated value of $25 per square foot, which equates to $80,000 of contributory value. Two other sheds added no value to the parcel. It is zoned manufacturing. The unadjusted sale price in 2000 was $21.04.
Land Sale No.4 is 117,612 + square feet or 2.7 acres of land in the City of Yonkers. The land was vacant at the time of the sale. It is zoned industrial. The unadjusted sale price for 2000 was $13.26.
Land Sale No.5 is 120,222 + square feet or 2.76 acres, including approximately 95,800 + square feet in the City of Mt Vernon and 24,422 + square feet in the Bronx. It is partially paved and was used for parking and outdoor storage. It is zoned industrial in Mt. Vernon and manufacturing in the Bronx. The unadjusted sale price was $16.64 in 2000.
Land Sale No.6 is located in the City of Mt. Vernon and is approximately 19,270 square feet. The parcel is 2-6 feet below the grade of the adjacent streets. It is zoned landscaped industrial. In 2001, the unadjusted sale price was $24.65.
Respondent's Land Sale no.7 is located in the City of Yonkers and is approximately 70,400 square feet or 1.62 acres. It is zoned industrial. The property was part of a park and subject to a permanent easement in favor of the MTA. The sale price does not include the charitable gift of $110,000 by seller to buyer. In 2001, the unadjusted sale price was $17.52.
Land Sale No.8 is located in the City of New Rochelle and is [*14]approximately 10,019 square feet or .23 acres. It was used for parking and outdoor storage. It is zoned light industrial. The unadjusted sale price in 2002 was $30.65.
Respondent's Land Sale No.9 is located in Long Island City (Queens) and is 731,500 + square feet or 16.79+ acres. It is zoned "MI-4". It was considered vacant and has frontage on the East River. In 2003, the unadjusted sale price was $22.87.
Land Sale No.10 is located in the City of New Rochelle. The property is a vacant parcel of land composed of four contiguous lots and one other parcel across the street. The contiguous lots are approximately 9,584 square feet. The parcel across the street is approximately 2,614 square feet. It is zoned light industrial. In 2003, the unadjusted sale price was $37.30.
Land Sale No.11 is in the City of Yonkers and was vacant land utilized for outdoor storage. It is 43,560+ square feet or 1+ acre of upland, and 40,075+ square feet of land underwater. It is zoned as industrial. The unadjusted sale price was $26.40 in 2003.
Respondent's final Land Sale, No. 12, is located in Manhattan and is approximately 86,738
square feet and 1.99 acres. It is a paved lot utilized for parking and zoned "M1-1". In 2004, the
unadjusted sale price was $36.32.
Greenburgh's Sales Adjustments
Respondents used a 7.5% per annum adjustment for the
difference in market conditions between the date of the sale and the date of valuation, and for
location, topography, configuration and utility. An additional value of $250,000 was included in
the valuation for the P24 building, due to the large size of the site, and the relatively small and
low cost improvements thereon. This amounted to a value of $20 per square foot.
Income Approach for P22 and P24A
Respondents also made use of the Income Capitalization Method to
value parcels P22 and P24A. First, the respondent estimated the potential gross income of the
property and then estimated the expenses to be deducted from the annual income to arrive at an
estimated Net Operating Income (NOI). The final step involved selecting the interest and
capitalization rates, in order to convert the income into value.
Greenburgh's Lease Comparables[*15]
Greenburgh used nine comparable leases to calculate market rent.
As Comparable Lease No. 1, respondent used a lease of Lot 24A (see below), consisting of a 4,270+ square foot free standing garage or shop space in a one story concrete building on a 7,500+ square foot lot. The lease to the Tarrytown Unified School District commenced in 1997 for five years. A five-year renewal option was thereafter exercised extending the lease through 2007. The rents ranged from $10.33 in the first year at issue to $11.41 in the final assessment year.
Comparable Lease No.2, located in the Town of Greenburgh, involves a building which is a one and part two story open storage structure with a two story office section and 14,728 square feet, of which 3,200 square feet is finished office space. Rent for the 2001 to 2004 period was $9.78 per square foot, rising to $10.76 per square foot in 2005.
Comparable Lease No.3 is also located in the Town of Greenburgh and and is approximately 8,400 square feet of space on the first floor of a two story storage/wholesale building. Rent was set at $9.00 per square foot in 2001 through 2003, and thereafter rose to $9.43 per square foot.
Comparable Lease No. 4 is located in the Village of Elmsford and involves approximately 1,908 square feet of space located on the first floor of a two story industrial and office building constructed in 1989. Rents from Sato Auto Repair from 2001 to 2003 were $12.58 per square foot.
Comparable Lease No. 5, also located in the Town of Greenburgh, includes approximately 8,400 square feet, which consists of the entire second floor in a two story storage/wholesale building (see comparable Lease No. 3 above). Rents in 2001, 2002, and 2003 were $66,000, $69,000 (or $8.21 per square foot) and $72,000 per year, respectively.
Comparable Lease No. 6 is located in the City of Peekskill. The tenant leases 2,300 square feet of space, consisting of third floor office space of approximately 1,200 square feet, storage and warehouse space of approximately 768 square feet, and a garage area of approximately 332 square feet. The rents, from lessee Hudson Valley Heating, ranged from $9.65 per square foot in 2002 to $11.22 per square foot in 2005.
Comparable Lease No. 7, located in the Village of Pleasantville, involves approximately 3,353 square feet. From 2002 [*16]through 2005, the tenant, Premier Business Machines, rented one story office/ warehouse space in a two story building, at the rate of $13.30 per square foot.
Comparable Lease No. 8, located in the Village of Pleasantville, involves approximately 2,200 square feet of first floor office/warehouse space, plus the third and fourth floors of the building (10,800 square feet of leasable space). Total area includes 13,000 square feet. Annual rental for the tenant, Akadine Press, is $131,172 based on rent of $10.09 per square foot in 2002, with rent increases annually according to the CPI.
Comparable Lease No. 9, rented to Hillside Food Outreach, Inc., is located in the same building as Lease No. 8 in the Village of Pleasantville. It includes approximately 5.500 square feet of second floor warehouse space in a one and part four story industrial building. The annual rent in 2003 was $64,620, based on $11.75 per square foot, with rent increases annually by the CPI rising to $12.10 in 2005.
Finally, Comparable Lease No. 10, also involves the same building as Leases No. 8 and 9 in
the Village of Pleasantville. The tenant, RDI Warehouse, rented approximately 12,000 square
feet of first floor warehouse space. The lease commenced in November 2003, with an annual rent
of $120,000 based on rent of $10 per square foot, and with the rent increasing annually by 3%.
Greenburgh's Lease Adjustments
Adjustments were made for some of the properties for location,
condition, layout, quality of finish and appointments, and expense handling under some of the
leases.
Greenburgh Market Values [FN4]:
200120022003
P13 Sales Comp 1880000 2110000 2,950,000
P14 Sales Comp - - 610000
P21 Sales Comp 4180000 4760000 6860000
P22 Income 1670000 1840000
2450000
[*17] Sales Comp 1250000 1400000 1570000
P23 Sales Comp 1770000 1980000 2740000
P24 Sales Comp 1580000 1740000 2310000
P24A Income Sales Comp 330,000 170,000 350,000 180,000
370,000 200,000
20042005
P13 Sales Comp 2650000 2950000
P14 Sales Comp 690000 780000
P21 Sales Comp 6100000 6860000
P22 Income
Sales Comp 2,180,000 1,740,000 2,450,000
1,940,000
P23 Sales Comp 2460000 2740000
P24 Sales Comp 2110000 2310000
P24A Income
Sales Comp 400000230000 440,000 250,000
Respondent Tarrytown's Appraisal
Generally
Sales Comparison Approach P13, P14, P21, P23 and P24
Respondent Village of Tarrytown used only the Sales Comparison to value lots P13, P14, P21, P23 and P24, their appraiser asserting that Income Approach has application only to P22 and P24A. The same seven comparable sales are also offered for all the lots, with the valuation date for the Village being January 1.
The appraiser asserts that the only value to be considered for P13 and P14 is the value of the
land, since any income from the parking improvements on those parcels is an illegal use under its
WGBD zoning. The P13 building, constructed in 2004, generated no income during the years at
issue because the temporary Certificate of Occupancy was issued after the last taxable status date
under review. Thus, the appraiser attributed no value to any of the improvements listed for these
lots.
[*18]The Sale Comparables
Comparable Land Sale No. 1 is located in the Village of Sleepy Hollow and Town of Mount Pleasant and is referred to as Ichabod's Landing. It contains approximately 5.208 acres, with approximately 1.834 acres of underwater land, and is zoned Riverfront District.
Land Sale No. 2 is located in the Village of Tarrytown and Town of Greenburgh, measures approximately 28,840 square feet, and is zoned Waterfront General Business District.
Comparable Land Sale No. 3 is located in the Village of Tarrytown and the Town of Greenburgh; it comprises approximately 33,505 square feet or .77+ acres, with remediation costs of approximately $361,000, and is zoned Neighborhood Shopping.
Comparable Land Sale No. 4 is located in the Village of Dobbs Ferry and the Town of Greenburgh, and entails approximately 69,880 square feet or 1.607+ acres. Site improvements include a one-story 10,940+ square foot office/laboratory building erected in 1962; it is zoned Business.
Land Sale No. 5 is located in the City of Yonkers and encompasses approximately 62,996 square feet or 1.446+ acres. The zoning is Planned Executive Park.
Land Sale No. 6 is located in the Village of Dobbs Ferry and the Town of Greenburgh, is improved with a 10,000+ square foot abandoned automobile sales/service building, and contains approximately 51,400 square feet or 1.18+ acres.
Comparable Land Sale no. 7 is located in the City of White Plains. It embodies
approximately 95,935 square feet (2.202 acres) and zoned Restricted Business.
Adjustments
The appraiser
adjusted some sales significantly for time, for utility/frontage, and for size. Comparable Sale No.
7, which measures 95,935 square feet (2.202 acres), compared to the instant property's
measurements of approximately 93,787 square feet or 2.16+ acres, requires no size adjustment. It
was, however, given a significant, -40% adjustment for location.
[*19]Income Approach and Sales Comparison Approach P22 and
P24A
Respondent Tarrytown relied on the Income Approach to value
P22 and P24A. The Sales Comparison Approach was also used to establish the value
of the subject land.
The Sales Comparison Approach
In valuing P22 and P24A, respondents appraiser employed the
same identical three Comparable Sales No. 1, 2 and 3 as were utilized for the Village's Sales
Comparables analysis of parcels P13, P14, P21, P23, and P24, above. Respondent's appraiser
used various time adjustments in his calculation, ranging from 40% to 26.6%; size adjustments
ranging from 20% to 10%; and utility/frontage adjustments.
Tarrytown Market Values [FN5]:
200120022003
P13 Sales Comp 1735000
1875000 2065000
P14 Sales Comp - - 490000
P21 Sales Comp - - 4420000
P22 Income
Sales Comp 1.80000e+13 1.94000e+13 2.00000e+13
P23 Sales Comp - - 1850000
P24
Sales Comp 1200000
1300000 1400000P24A Income Sales Comp
3.50000e+11 3.75000e+11 3.95000e+11
20042005
P13 Sales Comp 2230000
2390000
P14 Sales Comp 520000 560000
P21 Sales Comp 4770000 5115000
[*20]P22 Income
Sales Comp 20450001250000 21600001310000
P23 Sales Comp 2000000 2145000
P24 Sales Comp 1510000 1620000
P24A Income
Sales Comp 420,000
175,000 440,000 185,000
The Income
Approach
P22
The subject building was utilized for many
years, in conjunction with the operation of Westchester Industries, Inc. Upon cessation of the
business of this entity, portions of the building were rented to third parties; some of these tenants
had no leases, while some vacated within a short period of time.
While these occupancies provide some indication of market rental value, the appraiser chose instead to rely primarily on comparable lease data.
Comparable Lease No. 1, involving property located on the northeast side of Executive Boulevard in the Town of Greenburgh, included approximately 23,750 square feet of warehouse and light industrial/office space. That lease was for a term of 3 years and 11 months, with a rent was $196,250 per annum, or $8.26 per square foot as of February 2000.
Comparable Lease No. 2, also located in the Town of Greenburgh, involved 46,465+ square
feet of warehouse and light industrial/ office space. The lease term was eight years, starting
January 2001. For years 1 to 5, the rental was $406,570 per annum, and for years 6 to 8, the
rental was $418,200 per annum. The rental per square foot was $8.75 as of January 2001; the
lessee, The Wine Enthusiast, Inc., was responsible for all utilities and a pro rata share of the real
estate taxes.
Comparable Lease No. 3, also located in the Town of Greenburgh, ran for a term of 5
years 4 months, beginning July 2000. The rental was $427,500 per annum or $9.50 per square
foot. The lessor was responsible for the base year taxes and the lessee for increases in taxes and
utilities. The area leased by J.S. Sales Company, Inc., comprises 45,000+ square feet of office
space.
The appraiser estimated net operating income to range from [*21]$211,550 to $243,800 per year. Applying his derived
capitalization rate, the following rounded values were yielded:
January 1, 2001$1,800,000
January 1, 2002$1,940,000
January 1, 2003$2,000,000
January 1, 2004$2,045,000
January 1, 2005$2,160,000
P24A
This property,
starting December 1, 1997, was subject to a lease of the entire premises to the Tarrytown Union
Free School District. The respondent's appraiser employed the actual contract rental, with rates,
from 1997 to 2005 (the last of three option years) per square foot of $9.76; $9.76; $10.00;
$10.25; $10.51; $10.77; $11.04; and $11.32.
The appraiser estimated net operating income to range from $41,320 to $49,650 per year.
Applying his derived capitalization rate, the following rounded values were yielded:
January 1, 2001$350,000
January 1, 2002$375,000
January 1, 2003$395,000
January 1, 2004$420,000
January 1, 2005$440,000
CONCLUSIONS OF
LAW
THE PRESUMPTION OF VALIDITY
The Respondents argue that the Petitioner's valuation evidence
failed to rebut the presumption of validity of the assessments in that the Petitioner's Appraisal
was not based upon standard and accepted appraisal techniques and, therefore, did not meet the
substantial evidence standard. A party seeking to overturn an assessment must first overcome this
presumption of validity through the submission of substantial evidence See e.g.,
Matter of FMC Corp. [Peroxygen Chems. Div.] v. Unmack, 92 NY2d 179, 187 (1998)] "In
the context of tax assessment cases, the substantial evidence' standard merely requires that
petitioner demonstrate the existence of a valid and credible dispute regarding valuation. The
ultimate strength, credibility and persuasiveness are not germane during [*22]this threshold inquiry...a court should simply determine whether
the documentary and testimonial evidence proffered by petitioner is based on sound theory and
objective data' "; see also Matter of Niagara Mohawk Power Corp. v Assessor of the Town of
Geddes, 92 NY2d 192, 196, (1998) ("In the context of a proceeding to challenge a tax
assessment, substantial evidence proof requires a detailed, competent appraisal based on
standard, accepted appraisal techniques and prepared by a qualified appraiser"); 22 N.Y.C.R.R.
202.59(g)(2)(appraisal reports utilized in tax assessment review proceedings "shall contain a
statement of the method of appraisal relied on and the conclusions as to value reached by the
expert, together with the facts, figures and calculations by which the conclusions were reached")]
A VALID DISPUTE EXISTS
This Court finds that the Petitioner has submitted substantial
evidence based upon " sound theory and objective data " consisting of an Appraisal and the
testimony of Appraiser William Beckmann and has demonstrated the existence of a valid dispute
concerning the propriety of the assessments.
THE CEILING AND THE FLOOR
Petitioner's challenges to the assessments on the subject parcels
embrace all parcels for all of the affected years, except as follows:
Greenburgh -Not P14: tax years 2001, 2002, 2003
Tarrytown -Not P14, P21, and P23: tax years 2001 and 2002.
This Court finds that the Ceiling, based on the actual assessments set by the Respondent
Village's and Town's respective Assessors, and the corresponding market values, based on the
appropriate equalization rates [FN6], is as follows:
Ceiling Tarrytown
[*23]
2001
2002Equalization Rate 5.97% 5.42% Market Value Market Value P13 $1,735,000 $1,875,000 P14 - - P21 - - P22 $1,800,000 $1,940,000 P23 - - P24 $1,200,000 $1,300,000 P24A $350,000 $375,000
2003Eq Rate.4.29% Market Value P13 $2,065,000 P14 $490,000 P21 $4,420,000 P22 $2,000,000 P23 $1,850,000 P24 $1,400,000 P24A $395,000
2004
2005Equalization Rate
4.02% 3.52%
Market Value Market Value
P13 $2,230,000 $2,390,000
P14 $520,000 $560,000
P21 $4,770,000 $5,115,000
P22 $2,045,000 $2,160,000
P23 $2,000,000 $2,145,000
P24 $1,510,000 $1,620,000
P24A $420,000 $440,000
Ceiling Greenburgh
2001
2002Equalization Rate 5.65% 4.52%
Market Value Market Value P13 $1,880,000 2110000 P14 - - P21 4180000 4760000 P22 1670000 1840000 P23 1770000 1980000 P24 1580000 1740000 [*24]P24A 440000 460000
2003Eq Rate4.18% P13 2950000 P14 610000 P21 5400000 P22 1990000 P23 2210000 P24 2310000 P24A 590000
2004
2005Equalization Rate
3.64% 3.37%
Market Value Market Value
P13 2650000 2950000
P14 690000 780000
P21 6100000 6860000
P22 2180000 2450000
P23 2460000 2740000
P24 2110000 2310000
P24A 520000 590000
This Court also finds that the Floor, based on the petitioner's appraisal and the
appraiser's trial testimony, and the corresponding market values, based on the conceded
equalization rates, is as follows:
Floor Tarrytown
2001
2002Equalization Rate 5.97% 5.42% Market Value Market Value P13 $845,000 865,000 P14 - - P21 - - P22 1500000 1,500,000 P23 - - P24 750,000 825,000 P24A 250,000 275,000
2003Eq Rate4.29% Market Value P13 880000 P14 375000 P21 2585000 [*25]P22 1500000 P23 1145000 P24 825000 P24A 275000
2004
2005Equalization Rate
4.02% 3.52%
Market Value Market Value
P13 1,100,000 1,100,000
P14 395,000 415,000
P21 2,705,000 2,850,000
P22 1,500,000 1,600,000
P23 1,195,000 1,275,000
P24 825,000 900000
P24A 275,000 300,000
Floor Greenburgh
2001
2002Equalization Rate 5.65% 4.52% Market Value Market Value P13 865000 885000 P14 350000 370000 P21 2400000 2252000 P22 1500000 1500000 P23 1065000 1120000 P24 750000 825000 P24A 250000 275000
2003Eq Rate 4.18% P13 900000 P14 385,000 P21 2,650,000 P22 1500000 P23 1,175,000 P24 825,000 P24A 275,000
2004
2005Equalization Rate 3.64% 3.37% Market Value Market Value P13 1100000
1100000 P14 405000 425000 P21 2775000 2925000 P22 1500000 1600000 P23 1225000 1300000 [*26]P24 825000 900000 P24A 275000 300000
PETITIONER'S BURDEN OF
PROOF
Having met its initial burden, the Petitioner must prove, through a preponderance of the evidence, that the assessments are excessive. As indicated above, Court has considered and evaluated the weight and credibility of the evidence, the arguments of respective counsel, and the submissions of the parties to determine whether the Petitioner has proven that the assessments are excessive.
ANALYSIS OF
VALUATION METHODOLOGIES
Both parties concur that, as two of the subject parcels, P21 and P23, are unimproved property, the proper method of valuation as to those parcels is the Sales Comparison method. The Court also notes that the petitioner has appraised all of the remaining properties not only by the Sales Comparison Method, but also by the Income Capitalization method. The respondents, on the other hand, have only employed the Income Capitalization method for P22 and P24A.
As an initial matter, the Court is compelled to reject respondents' appraiser's methodology insofar as they generally reject the Income Capitalization method for properties clearly earning income, and thereby decline to appraise several of the parcels "as is", namely, in their current, income producing condition and use. Respondent Greenburgh, for example, generally states that the parcels are "appraised as though vacant and available for development to their highest and best use."RPTL § 302 (1) provides:
The taxable status of real property in cities and towns shall be determined annually according
to its condition and ownership as of [the applicable taxable status date]
while RPTL § 1400 similarly provides:
Date of taxable status. Real property shall be assessed for village purposes according to its condition and ownership as of [the applicable taxable status date.]
As petitioner properly points out, in Adult Home at Erie Station v. City of Middletown, 801 N.Y.S.2d 776[Supreme Court, Orange County, Dickerson, J., 2005], this Court recognized that [*27]said "condition and ownership" relates to the specific use being made of the property by the petitioner on the relevant taxable status date. See also Volume 10 Opinions of Counsel SBRPS No 45, p 3:
for purposes of real property tax assessments, property must be valued based upon its current use, not its highest and best use, except in the case of vacant land which is idle and put to no use whatsoever. In such latter case, the property may be valued on the basis of its highest and best use.
All parties recognize the existence of the latter exception; respondents, however, urge the Court to find the presence of such circumstances, "vacant land which is idle and put to no use whatsoever", here, justifying an across-the-board use of a highest and best use valuation for all of the parcels.
Respondents rely primarily on Weingarten v. Town of Ossining, 85 AD2d 697, 698 [emphasis added] (2nd Dept. 1981), which indeed held that "zoning and reasonable development potential of unimproved land may be taken into account in determining the market value of property on taxable status dates." Respondents also cite to Dresser-Rand v. Assessor, Town of Erwin et al., 227 AD2d 890 (4th Dept. 1996), which held that a parcel which contains buildings which had deteriorated to the extent "that they reached their maximum useful life and are not marketable" may be valued as if vacant, with a per acre premium for the interim use the deteriorated buildings were then being put to. In order to argue the applicability of Weingarten and Dresser-Rand to the subject parcels, respondents describe the parcels variously as "interim" uses (Greenburgh's appraiser, generally); the income generated from parking as "interim income" (P13 and 14); the parcels as containing "unused buildings" (P21); and as "functionally vacant", of "little use", and "generating no income"(P24).
The Court notes, however, that these, in general, are factually inaccurate assertions. To be sure, P21 and P23 do contain the dilapidated remains of structures or equipment formerly, although not during the tax years at issue, in use. But P13 and 14 were used for parking for at least several years before the first of the taxable status dates, and six or more before the last; such use can hardly therefore be termed "interim." P13 is also subject to a further use, commencing in 2004 (i.e. for the last two of the tax years), namely a newly-constructed 14,633 square foot building, which was joined to a similar structure on an adjacent lot, utilized by respondent Village. P22 contains both a rented bay garage and outside parking. P24 was improved by a one-story garage and office building, both of which were rented during [*28]the relevant tax years. And P24A was also the site of a contemporary garage, rented to respondent Village's School District. Excepting P21 and P23, none of the parcels were either truly "unimproved" land (per Weingarten), or contained buildings which had deteriorated to the extent that they reached their maximum useful life and are not marketable (per Dresser-Rand). To that extent, then, the Court concludes that it is improper to value P13, P14, P22, P24, and P24A, as if vacant, and, as such, according to their highest and best use, and rejects respondents' appraisals to the extent that they so valued those parcels.
The Court also notes respondents' frequent citation to the fact that the zoning of the subject parcels was changed in 1998 to facilitate residential and other development as has been contemplated by petitioners; to the status of approvals for that development; and to the fact that Weingarten, as quoted above, held that zoning and reasonable development potential may be considered in the valuation of unimproved land. Even if it were demonstrated that the parcels were entirely unimproved, however, and despite the change in zoning, it has been conclusively established in this case that initial approval for development of the subject parcels (acceptance of the Final Environmental Impact Statement from the Village) occurred only after the period at issue, namely on December 21, 2005, which is over six months (and, in the case of the Village, nearly one year) after the 2005 (and last) taxable status date. Additionally, even when one considers Weingarten, and weighs the instant conducive zoning for the parcels, there otherwise exists an absence of proof before the Court of reasonable development potential, at least to the extent of treating the subject improved parcels as if instead they were unimproved. (See Baj v Asessor, Town of Goshen, Supreme Court, Orange County, LaCava, J. 2008; NYLJ, July 1, 2008, p. 27, col.3.)
In addition, in regards to the methodologies employed by the parties, the Court notes that, in employing the sales method, petitioner's appraiser elected to make significant adjustments for the effect of access and encumbrances (easements) on the subject parcels. The Court recognizes, however, that as a matter of law, where a property burdened by an easement is joined in ownership with a property benefitted by the same easement, the easement is either extinguished or, as relates to easements by necessity, at the very least suspended during the term of joint ownership. (See Simone v. Heidelberg, 9 NY3d 107 [2007]; Stilbell Realty Corp. v. Cullen, 43 AD2d 966, 967 [2nd Dept 1974]. To be sure, some access and encumbrance issues will remain, as the uses of the parcels have not changed by their unification. Nevertheless, the Court elects to modify petitioner's appraiser's extensive adjustments in this area based on the reduced effect of the unification of the parcels [*29]under one owner (reducing -30% adjustments to -15%, and -25% and -20% adjustments to -10%.)
As set forth above, while respondents did utilize the income method to value only P22 and P24A, petitioner used the method to value each parcel except P21 and P23. The Court has examined the methodologies generally employed by both petitioners and respondents, and found them both to be mostly sound, except as regards several points noted herein. For example, regarding capitalization rates employed by the parties, and having given due consideration to the arguments advanced by all three parties, the Court concludes that petitioner's chosen base cap rates are too high, while respondent's are too low. Petitioner, for example, notes that the parcels themselves may arguably not be institutional grade, but neglects to note that the petitioner's status as a likely sound borrower would undoubtably influence the proper market rate applied to the parcels. In addition, the Court finds that respondent Tarrytown's use of the same rate for all 5 years insufficiently reflects movements in the market during the time period at issue . Thus, the Court concludes that the proper rates to be utilized in relation to the instant parcels are:
20019.5%
20029.25%
20039.0%
20049.0%
20058.75%
Finally, the Court also concludes that, as properly argued by respondent Tarrytown, in employing the sales method, the properties most accurately reflective of the proper values for each of the parcels, due to their proximity to the subject, as well as other similar characteristics, are Tarrytown's Sales Comparables 1, 2, and 3, namely 45 River Street, Sleepy Hollow (Ichabod's Landing); 184 Main Street, Tarrytown (184 Main); and South Broadway and White Plains Road, Tarrytown (South Broadway), and most particularly, of the three, Ichabod's Landing. However, the Court also concludes that, in the case of those properties, petitioner's appraiser's calculation of 5% as the average market price increase during the years at issue is more appropriate and reflective of the market than the larger market increases utilized by respondents' appraisers. The Court thus determines that proper valuation by comparable sales includes an average of petitioner's comparables, adjusted as indicated above, with the above-mentioned comparables offered by one or both respondents, again adjusted as set forth above.
VALUATION [*30]
Parcel 13
As set forth previously, this parcel was used only for parking during tax years 2001 to 2003, and then, in 2004 and 2005, was improved by a light industrial building. Petitioner valued this parcel by both the sales and income methods, weighting the former more heavily for the period 2001 to 2003, but weighting them equally for 2004 and 2005. Based on the income-producing nature of this property throughout the tax years at issue, the Court credits the use of both techniques for those tax years, and credits the weighting by petitioner of the sales and income methods equally in the latter two years.
The Court adopts the adjusted sales price per acre used by petitioner for the six comparable sales, namely $428,908; $320,963; $692,911; $779,286; $882,392; and $444,904. The Court further accepts petitioner's adjustments, except for the encumbrances, which are modified as set forth above. This yields final adjusted sales prices of:
ComparablePrice $/acrePrice $/sq. foot [FN7]
145035310.34
22728196.26
360629719.92
470135716.1
567061815.4
63781688.68
To these adjusted prices the Court, as also set forth above, elects to add Tarrytown's Sales Comparables 1, 2, and 3, for the purpose of averaging them. As set forth above, it is the Court's conclusion that respondent Tarrytown's time adjustment should be 5% and not 8%; the Court also concludes that Tarrytown's size adjustment for Comp 1 is far too high at + 15%, and should instead be + 5%. Adjusted + 2.5% for Greenburgh's tax status date, this yields adjusted prices per square foot of $18.13; $14.31; and $18.47 for these parcels, respectively. [*31]
Averaging all of these newly adjusted sales prices, the Court concludes that a proper valuation for P13 for tax year 2001 is $ 13.49 per square foot for Greenburgh, and $ 13.15 per square foot for Tarrytown. Based on the square footage of P13, and an increase in market value of 5% per year, this yields valuation figures for the taxable status dates as follows:
Sales MV $GreenburghTarrytown
200112651871233557
200213284461295235
200313948691359997
200414646121427996
200515378431499396
As set forth above, and as reflective of the rental income generated by the light industrial improvement added to the parcel in 2004, petitioner additionally used the income method to value this parcel for 2004 and 2005. The Court concludes that petitioner's methodology is sound, except as set forth above with regard to the capitalization rates utilized for 2004 and 2005. Employment of the rates found proper by the Court for those years (9.0% and 8.75%) yield overall (tax weighted) cap rates of 11.75% for each year. In light of the identical Net Operating Income found by the petitioner for those two years, $220,000, market values yielded under the income method equals $1,872,340 for both 2004 and 2005. Weighting both methods equally, that provides final market values for P13 as follows:
Final MV $GreenburghTarrytown
200112651871233557
200213284461295235
200313948691359997
200416684761650168
200517050921685868
[*32]
Parcel 14
The Court's analysis for this parcel is substantially similar to that for P13. This parcel was used exclusively for parking during the tax years at issue. Petitioner valued this parcel by both the sales and income methods, weighting the former more heavily for the period. Based on the income-producing nature of this property throughout the tax years at issue, the Court credits the use of both techniques for those tax years, and credits the weighting by petitioner of the sales method over the income method.
The Court adopts the adjusted sales price per acre used by petitioner for the six comparable sales, namely $428,908; $320,963; $692,911; $779,286; $882,392; and $444,904. The Court further accepts petitioner's adjustments, except for access, which the Court concludes, regarding comparable property No. 4, should be "Average", rather than "Below Average". Accordingly, the Court discounts 5% "Below Average" adjustment. This yields final adjusted sales prices of:
CompPrice $/acPrice $/sf
158974913.54
23785728.69
372879816.73
483773319.23
589121520.46
649022911.25
To these adjusted prices the Court, as previously, adds Tarrytown's Sales Comparables 1, 2, and 3, for the purpose of averaging them. As set forth above, it is the Court's conclusion that respondent Tarrytown's time adjustment should be 5% per year and not 8%; the Court also concludes that Tarrytown's size adjustment for Comp 1 is far too high at +25%, and should instead be + 15%. Adjusted + 2.5% for Greenburgh's tax status date, this yields adjusted prices per square foot of $16.49; $16.45; and $19.73, respectively.
Averaging all of these newly adjusted sales prices, the Court concludes that a proper valuation for P14 for tax year 2001 is $ 15.84 per square foot for Greenburgh, and $ 15.44 per square foot for Tarrytown. Based on the square footage of P14, and an increase in market value of 5% per year, this yields valuation figures for [*33]the taxable status dates as follows:
Sales MV $GreenburghTarrytown
2001--
2002--
2003-463220
2004498852486381
2005523794510700
As set forth above, and as reflective of the rental income generated by the parking at the parcel, petitioner additionally used the income method to value this parcel. The Court concludes that petitioner's methodology is sound, including the capitalization rates utilized for the period at issue. Direct capitalization of the Net Operating Income from the parcel yields market values, under the income method, of $370,000 for 2001, 2002, and 2003, and $385,000 for both 2004 and 2005. Weighting the sales method predominantly as petitioner did, the Court finds final market values for P14 as follows:
Final MV $GreenburghTarrytown
2001--
2002--
2003-463220
2004498852486381
2005523794510700
Parcel 21
Unlike most of the other parcels at issue, Petitioner and Respondents agreed generally on the proper methodology to be employed in valuing this parcel. Since the property was in essence unimproved, the parties concur that it should be valued as if vacant, and thus according to highest and best use. To that end, the parties also exclusively employed the sales comparison method.
The Court adopts the adjusted sales price per acre used by petitioner for the six comparable sales, namely $428,908; $320,963; $692,911; $779,286; $882,392; and $444,904. The Court further [*34]accepts petitioner's adjustments, except for the encumbrances, which, as set forth above, have only a present minimal effect due to the current joint ownership of the parcels, and thus should not exceed -10%. This yields final adjusted sales prices of:
CompPrice $/acPrice $/sf
150396711.57
22728196.26
362362014.32
472084016.55
5 65297014.99
63892918.94
To these adjusted prices the Court here again adds Tarrytown's Sales Comparables 1, 2, and 3, for the purpose of averaging them. As set forth above, it is the Court's conclusion that respondent Tarrytown's time adjustment should be 5% per year and not 8%; adjusted + 2.5% for Greenburgh's tax status date, this yields adjusted prices per square foot of $18.14; $14.50; and $18.07, respectively.
Averaging all of these newly adjusted sales prices, the Court concludes that a proper valuation for P21 for tax year 2001 is $13.70 per square foot for Greenburgh, and $13.36 per square foot for Tarrytown. Based on the square footage of P21, and an increase in market value of 5% per year, this yields valuation figures for the taxable status dates as follows:
Final MV $GreenburghTarrytown
20013184154-
20023343362-
200335105303423407
200436860563594577
200538703593774306
Parcel 22 [*35]
The Court's analysis for this parcel is similar to that for P13 and P14. This parcel was improved by a one- and part two-story building containing approximately 26,668 square feet. During the tax years at issue, the property was leased to various tenants, with the second floor utilized as office space and the bulk of the first floor used as a warehouse space with drive in bay trucking access and loading docks. Petitioner valued this parcel by both the sales and income methods, weighting the latter more heavily for the period. Based on the income-producing nature of this property throughout the tax years at issue, the Court credits the use of both techniques for those tax years, and credits the weighting by petitioner of the income method over the sales method.
The Court adopts the adjusted sales price per square foot used by petitioner for the five comparable sales (notably, different comps than those used for parcels P13, P14, and P21), namely $ 65.54; $68.20; $74.84; $67.78; and $60.26. The Court further accepts petitioner's adjustments, except for access, which the Court concludes should be characterized, for the subject, as "Average", rather than "Below Average", and thus the Court discounts the -5% adjustment therefore. This yields final adjusted sales prices of:
CompPrice $/sf
162.26
264.79
359.87
461.00
564.78
Averaging these five [FN8] newly adjusted sales prices, the Court concludes that a proper valuation for P22 for tax year 2001 is $ 65.54 per square foot for Greenburgh, and $ 60.98 per square foot [*36]for Tarrytown. Based on the square footage of the improved portion of P22, and an increase in market value of 5% per year, this yields valuation figures for the taxable status dates as follows:
Sales MV $GreenburghTarrytown
200116678171626215
200217512081707525
200318387681792902
200419307061882547
200520272421976674
As set forth above, and as reflective of the rental income generated by the light industrial improvement on the parcel, the parties additionally used the income method to value this parcel. The Court concludes that, while all of the income capitalization methodologies appear sound [FN9], and in fact have generated Net Operating Income figures within at most a 25% divergence, the use by petitioner of both the actual rents derived from marketing of the premises on the parcel, and the 6 comparable leases, makes its figures more accurate. Employment, then, of the rates found proper by the Court for these years (9.5%; 9.25%; 9.0%; 9.0% and 8.75%) yield overall (tax weighted) cap rates of 12.75% and 12.5% for 2001 and 2002, respectively, and 11.75% for each remaining year. The Court therefore concludes, upon capitalizing the net income calculated by petitioner, that the following income method values are most appropriate:
Income MV $Greenburgh/Tarrytown [FN10]
20011,568,627
20021,600,000
20031,617,021
20041,617,021
20051,702,128
The Court accepts the conclusions of all parties that, as relates to Parcel 22, the Income Method best reflects proper market value. Accordingly, and weighting for that method, final market values for P22 are as follows:
Final MV $Greenburgh/Tarrytown
20011,568,627
20021,600,000
20031,617,021
20041,617,021
20051,702,128
Parcel 23
As with Parcel 21, petitioner and respondents agreed generally that since the property was essentially unimproved, it should be valued as if vacant, and thus according to highest and best use. Both parties utilized only the sales comparison method to derive value for this parcel.
The Court adopts the adjusted sales price per acre used by petitioner for the six comparable sales, namely $428,908; $320,963; $692,911; $779,286; $882,392; and $444,904. The Court further accepts petitioner's adjustments, except for any adjustment for "access." As set forth above, access to the instant property is "Average", and thus the comparables, which have similarly average access, need not be adjusted at all. This yields final adjusted sales prices of:
CompPrice $/acPrice $/sf
154684812.55
23450357.92
365826515.11
472084017.44
578532918.03
643781410.05
To these adjusted prices the Court again adds Tarrytown's Sales Comparables 1, 2, and 3, for the purpose of averaging them. As set forth above, it is the Court's conclusion that respondent Tarrytown's time adjustment should be 5% per year and not 8%, and [*37]that the size adjustment for Comp # 1 should be + 5%, not + 15%. Adjusted + 2.5% for Greenburgh's tax status date, this yields adjusted prices per square foot of $18.13; $16.45; and $21.39, respectively.
Averaging all of these newly adjusted sales prices, the Court concludes that a proper valuation for P23 for tax year 2001 is $15.23 per square foot for Greenburgh, and $14.85 per square foot for Tarrytown. Based on the square footage of P23, and an increase in market value of 5% per year, this yields valuation figures for the taxable status dates as follows:
Final MV $GreenburghTarrytown
20011283097-
20021347252-
200314146141379319
200414853451448285
200515596121520699
Parcels 24 and 24A
Parcel 24 was improved by a one-story garage and office building, while P24A contains a one-story garage structure. The Court's analysis for these parcels is similar to that for parcel 22. Petitioner treated both properties together, since they were formerly joined as one (they were separated for leasing purposes at the then-owner's request), and, since P24 essentially surrounds P24A, it would be unlikely for P24A to be sold separately from P24. Petitioner valued both parcels by both the sales and income methods, while respondents, treating the properties separate, valued P24 solely by the sales comparison method, but, like petitioner, valued P24A by both methods.
Petitioner weighted the income method more heavily in his analysis, as did the respondents for P24A. Based on the income-producing nature of these parcels throughout the tax years at issue, the Court credits the use of both techniques for those tax years, and credits the weighting by the parties of the income method over the sales method.
The Court adopts the adjusted sales price per square foot used by petitioner for the five
comparable sales (again, different comps [*38]than those used for
parcels P13, P14, P21, and P23), namely $ 65.54; $68.20; $74.84; $67.78; and $60.26. The Court
further accepts petitioner's adjustments, except for access, which the Court concludes should be
characterized, for the subject, as "Average", rather than "Below Average", and thus the Court
discounts the -5% adjustment therefore. This yields final adjusted sales prices of:
CompPrice $/sf
163.9
266.5
363.61
464.39
5 66.29
Averaging, as with P22, these five newly adjusted sales prices, the Court concludes that a proper valuation for P24 and P24A for tax year 2001 is $64.94 per square foot for Greenburgh, and $63.32 per square foot for Tarrytown. Based on the square footage of the improved portion of P24 and P24A, and an increase in market value of 5% per year, this yields valuation figures for the taxable status dates as follows:
Sales MV $GreenburghTarrytown
P24 and P24A
200110955381068208
200211503151121619
200312078301177700
200412682221236585
200513316331298414
The Court accepts petitioner's conclusion that the improved portion of P24 is approximately 12,600 square feet, or approximately 75% of the improved portion of both parcels, while the improved portion of P24A is approximately 4,270 square feet, or approximately 25% of the total improved area. This yields the following sales comparison market values for each parcel: [*39]
Sales MV $GreenburghTarrytown
P24
2001821654801156
2002862736841214
2003905873883274
2004951167927438
2005998725973810
and
Sales MV $GreenburghTarrytown
P24A
2001273885267052
2002287579280405
2003301958294425
2004317056309146
2005332908324603
Due to the rental income generated by the improvements on the parcels, petitioner
additionally used the income method to value both parcels, as did respondents for P24A. The
Court concludes, upon analysis of the several methodologies, that the use by petitioner of both
the actual rents derived from marketing of the premises on the parcels, and the numerous
comparable leases for each of the two parcels, constitutes the most sound methodology and
renders its figures more accurate. Employment, then, of the rates found proper by the Court for
these years (9.5%; 9.25%; 9.0%; 9.0% and 8.75%) yield overall (tax weighted) cap rates of
12.75% and 12.5% for 2001 and 2002, respectively, and 11.75% for each remaining year. The
Court therefore concludes, upon capitalizing the net income figures calculated by petitioner, that
the following income method values are most appropriate:
Greenburgh/Tarrytown[*40]
Income Market
Value in Dollars (MV $)
P24 and P24A
20011058824
20021200000
20031234043
20041234043
20051276596
Application again of the distribution accepted previously (75% P24, 25% P24A)
yields the following income values for the two parcels:
Greenburgh/Tarrytown
MV $
P24
2001794118
2002900000
2003925532
2004925532
2005957447
Greenburgh/Tarrytown
MV $
P24A
2001264706
2002300000
2003308511
2004308511
2005319149
[*41]
The Court accepts the conclusions of all parties that, as
relates to these parcels, the Income Method best reflects proper market value. Accordingly, and
weighting for that method, final market values for P24 and P24A are as follows:
Greenburgh/Tarrytown
Final MV $
P24
2001794118
2002900000
2003925532
2004925532
2005957447
Greenburgh/Tarrytown
Final MV $
P24A
2001264706
2002300000
2003308511
2004308511
2005319149
FINAL MARKET VALUES
These calculations result in final values of:
Parcel 13
Final MV $GreenburghTarrytown
[*42]200112651871233557
200213284461295235
200313948691359997
200416684761650168
200517050921685868
Parcel 14
Final MV $GreenburghTarrytown
2001--
2002--
2003-463220
2004498852486381
2005523794510700
Parcel 21
Final MV $GreenburghTarrytown
20013184154-
20023343362-
200335105303423407
200436860563594577
200538703593774306
Parcel 22
Final MV $Greenburgh/Tarrytown
20011568627
20021600000
20031617021
[*43]20041617021
20051702128
Parcel 23
Final MV $GreenburghTarrytown
20011283097-
20021347252-
200314146141379319
200414853451448285
200515596121520699
Parcels 24 and 24A
Final MV $Greenburgh/Tarrytown
P24
2001794118
2002900000
2003925532
2004925532
2005957447
Final MV $Greenburgh/Tarrytown
P24A
2001264706
2002300000
2003308511
2004308511
2005319149
which values are well within the range of testimony. (See Rose v. [*44]State, 24 N.Y2d 80 [1969].)
Final Value, Assessment, and Refund
The indicated assessments, based on these assessed values, are:
Greenburgh
Indicated Assessed Values
Parcel 13
Final MV $GreenburghEq Rate [FN11]IndicatedAV $
2001 12651875.65%71483
2002 13284464.52%60046
2003 13948694.18%58306
2004 16684763.64%60733
2005 17050923.37%57462
Parcel 14
Final MV $GreenburghEq RateIndicated
AV $
2001--
[*45]2002--
2003--
2004 4988523.64%18158
2005 5237943.37%17652
Parcel 21
Final MV $GreenburghEq RateIndicated
AV $
2001 31841545.65% 179905
2002 33433624.52% 151120
2003 35105304.18% 146740
2004 36860563.64% 134172
2005 38703593.37% 130431
Parcel 22
Final MV $GreenburghEq RateIndicated
AV $
2001 15686275.65% 88627
2002 16000004.52% 72320
2003 16170214.18% 67591
2004 16170213.64% 58860
2005 17021283.37% 57362
Parcel 23
Final MV $GreenburghEq RateIndicated
AV $
[*46]2001
12830975.65% 72495
2002 13472524.52% 60896
2003 14146144.18% 59131
2004 14853453.64% 54067
2005 15596123.37% 52559
Parcels 24 and 24A
Final MV $GreenburghEq RateIndicated
AV $
P24
2001 7941185.65% 44868
2002 9000004.52% 40680
2003 9255324.18% 38687
2004 9255323.64% 33689
2005 9574473.37% 32266
Final MV $GreenburghEq RateIndicated
AV $
P24A
2001 2647065.65% 14956
2002 3000004.52% 13560
2003 3085114.18% 12895
2004 3085113.64% 11230
2005 3191493.37% 10755
Greenburgh Assessed Values and Assessments
Parcel 13
IndicatedAssessmentOver/Under Assessment [*47]
AV $
2001 7148359400Under
2002 6004659400Under
2003 58306594001094
2004 6073359400Under
2005 57462594001938
Parcel 14
2001---
2002---
2003---
2004 1815817200Under
2005 1765217200Under
Parcel 21
2001 17990524600066095
2002 15112024600094880
2003 14674024600099260
2004 134172246000111828
2005 130431246000115569
Parcel 22
20018862717775088523
200272320177750105430
200367591 177750110159
200458860177750118890
200557362177750120388
[*48]
Parcel 23
2001724959780025305
2002608969780036904
2003591319780038669
2004540679780040733
2005525599780045241
Parcels 24 and 24A
P24
2001448688530040432
2002406808530044620
2003386878530046613
2004336898530051611
2005322668530053034
P24A
200114956218006844
200213560218008240
200312895218008905
2004112302180010570
2005107552180011045
Tarrytown Indicated Assessed Values
Parcel 13 [*49]
Final MV $TarrytownEq
Rate [FN12]IndicatedAV $
2001 12335575.97%73643
2002 12952355.42%70202
2003 13599974.29%58344
2004 16501684.02%66337
2005 16858683.52%59343
Parcel 14
2001---
2002---
2003 4632204.29%19872
2004 4863814.02%19553
2005 5107003.52%17977
Parcel 21
2001---
2002---
2003 34234074.29% 146864
2004 35945774.02% 144502
2005 37743063.52% 132856
Parcel 22
2001 15686275.97% 93647
2002 16000005.42%68640
2003 16170214.29%69370
2004 16170214.02%65004
[*50]2005
17021283.52%59914
Parcel 23
2001---
2002---
2003 13793194.29%59173
2004 14482854.02%58221
2005 15206993.52%53529
Parcels 24 and 24A
P24
2001 7941185.97% 47409
2002 9000005.42%48780
2003 9255324.29%39705
2004 9255324.02%37206
2005 9574473.52%33702
P24A
2001 2647065.97%15803
2002 3000005.42%16260
2003 3085114.29%13235
2004 3085114.02%12402
2005 3191493.52%11234
Tarrytown Assessed Values and
Assessments
Indicated
AV$AssessmentOver/Under Assessment
Parcel 13
[*51]2001
7364370350Under
2002 7020270350148
2003 583447035012006
2004 66337703504013
2005 593437035011007
Parcel 14
2001---
2002---
200319872242504378
200419553242504697
200517977242506273
Parcel 21
2001---
2002---
2003146864 130000Under
2004144502 130000Under
2005132856 130000Under
Parcel 22
200193647 12510031464
200268640 12510056460
200369370 12510055730
200465004 12510060096
200559914 12510065186
Parcel 23
[*52]2001---
2002---
2003591737955020377
2004582217955021329
2005535297955047350
Parcels 24 and 24A
P24
2001474096780020391
2002487806780019020
2003397056780028095
2004372066780030594
2005337026780034098
P24A
200115803206504847
200216260206504390
200313235206507415
200412402206508248
200511234206509416
This would result in a reduction in assessed value, for each of the municipalities, for each of the tax years and tax refunds, where payments were already based on such Town and Village assessments, as follows:
Greenburgh
Assessment YearTown AssessmentInd. Assessment
Reduction
Parcel 13
[*53]200159400-
200259400-
2003594001094
200459400-
2005594001938
Parcel 14
2001--
2002--
2003--
200417200-
200517200-
Parcel 21
200124600066095
200224600094880
200324600099260
2004246000111828
2005246000115569
Parcel 22
200117775088523
2002177750105430
2003177750110159
2004177750118890
2005177750120388
Parcel 23
[*54]20019780025305
20029780036904
20039780038669
20049780040733
20059780045241
Parcels 24 and 24A
P24
20018530040432
20028530044620
20038530046613
20048530051611
20058530053034
P24A
2001218006844
2002218008240
2003218008905
20042180010570
20052180011045
Tarrytown
Assessment YearVillage
AssessmentInd. Assessment
Reduction
Parcel 13
200170350-
200270350148
[*55]20037035012006
2004703504013
20057035011007
Parcel 14
2001--
2002--
2003242504378
2004242504697
2005242506273
Parcel 21
2001--
2002--
2003130000-
2004130000-
2005130000-
Parcel 22
200112510031464
200212510056460
200312510055730
200412510060096
200512510065186
Parcel 23
2001--
2002--
20037955020377
[*56]20047955021329
20057955047350
Parcels 24 and 24A
P24
20016780020391
20026780019020
20036780028095
20046780030594
20056780034098
P24A
2001206504847
2002206504390
2003206507415
2004206508248
2005206509416
CONCLUSION
The Petitions, with costs [ R.P.T.L. §722[1] ], are sustained to the extent indicated above, the assessment rolls are to be corrected accordingly, and any overpayments of taxes are to be refunded with interest.
The foregoing constitutes the Opinion, Decision, and Order of the Court.
Settle Judgement on notice.
Dated: White Plains, New York
August, 2008 [*57]
_______________________________HON. JOHN
R. LaCAVA, J.S.C.
Footnotes
Footnote 1:By stipulation entered into
between the parties on the record on April 19, 2007, the parties agreed to have this Court rule on
the instant matter, notwithstanding that the matter was tried before Justice Dickerson on the
following dates: January 17, 18, 19, 20, and 23; March 20, 21 and 24; April 17, 19 and 21; May
10; July 5; August 1 and 2, and September 25, 26, and 27 2006.
Footnote 2:The Court acknowledges the
assistance of Jessica L. Gush, summer intern and third year student at Pace University School of
Law, and Andrew Berman, summer intern and second year student at Cardozo School of Law, in
the preparation of this Decision and Order.
Footnote 3:As set forth in greater detail
below, while the WGBD zoning precludes parking on this parcel and on parcel P14, the
use, dating from at least the early 1990s, was a pre-existing non-conforming use.
Footnote 4:Note that, for parcels 22 and
24A, where Greenburgh used both methods, the value selected is in bold.
Footnote 5:Note that, for parcels 22 and
24A, for which the Village used both methods, the derived value is in bold face.
Footnote 6:Neither party employed
equalization rates in calculating the equalized market values for the respective tax years; rather,
they simply noted the assessments for those years. The Court is cognizant of the fact that, for the
taxable status dates in the years at issue, the equalization rates in effect were those of the
immediately previous tax year (i.e., the 2000 rate was in effect on both the Town and Village
taxable status dates in 2001). Consequently, the Court has employed those previous equalization
rates in calculating equalized market values for the tax status dates and the years in question.
Footnote 7:The Court elects to use both
price per acre and price per square foot since respondents both employ the latter.
Footnote 8:To the adjusted prices presented
by petitioner, the Court has heretofore added Tarrytown's Sales Comparables 1, 2, and 3, for the
purpose of averaging them. In both of their appraisals, however, respondents chose to derive
sales comparison method values for this parcel (and P24A also) by valuing the land as a whole
(i.e., all 59,632 square feet, not just the 26,668 square feet of the improvements), and to derive a
separate income capitalization value for the improvements. Further, Tarrytown Comp #1 has no
improvements, Comp # 2 has only dilapidated improvements, while Comp # 3 has new, but
minimal improvements. Thus, the Court is unable to utilize Tarrytown's Comps in arriving at an
average sales price for this parcel.
Footnote 9:In particular, the Court concludes
that, while generally sound, respondent Greenburgh has likely overstated estimated income by as
much as 20%, and, that respondent Tarrytown has utilized a vacancy and collection loss figure
which is considerably overstated as well.
Footnote 10:The Court adopts petitioner's
conclusion that, based on conditions in the market during this period, the derived income
capitalization market value is the same for both respondents.
Footnote 11:Prior to trial, the parties
stipulated to the equalization rates in the two municipalities in the tax years at issue.
Footnote 12:Prior to trial, the parties
stipulated to the equalization rates in the two municipalities in the tax years at issue.
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