Preview
FILED: LIVINGSTON COUNTY CLERK 08/28/2019 03:00 PM INDEX NO. 000758-2019
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 08/28/2019
Mary F. Strickland , County Clerk
Livingston County Government Center
6 Court Street, Room 201
fl A ÏÏ Geneseo, New York 14454
182' ~
(585) 243-7010 Fax (585) 243-7928
Livingston County Clerk Recording Page
Received From: Return To:
ANDREW MICHAEL DEAN ANDREW MICHAEL DEAN
Document Type: CIVIL ACTION - MISC Document Desc: AFFIDAVIT OR
AFFIRMATION IN SUPPORT
Plaintiff Defendant
Finger Lakes Soaring Club, Inc. Town of North Dansville
Holley Smalt, Assessor, Town of North
Dansville
Town of North Dansville Board of
Assessment Review
Recorded Information:
State of New York
Index #: 000758-2019
County of Livingston
EFiling through NYSCEF
Livingston County Clerk
This sheet constitutesthe Clerk's endoreement réquired by section 319 of the Real Property Law ofthe State ofNew York
AKB
Do Not
1 ofDetach
6
Index
INDEX #
NO.: 000758-2019
000758-2019
FILED: LIVINGSTON COUNTY CLERK 08/28/2019 03:00 PM
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 08/28/2019
STATE OF NEW YORK
SUPREME COURT COUNTY OF LIVINGSTON
FINGER LAKES SOARING CLUB, INC.,
PETITIONER, ATTORNEY AFFIRMATION IN
SUPPORT OF VERIFIED PETITION FOR
JUDGMENT PURSUANT TO
TOWN OF NORTH DANSVILLE; HOLLEY SMALT, CPLR ARTICLE 78
ASSESSOR, TOWN OF NORTH DANSVILLE; AND THE
TOWN OF NORTH DANSVILLE BOARD OF ASSESSMENT INDEX NUMBER:
REVIEW,
RESPONDENTS.
Andrew M. Dean, Esq., affirms under penalty of perjury:
1. I am an attorney duly admitted to practice law in the State of New York and an
associate of Harter Secrest & Emery LLP, attorneys for petitioner Finger Lakes Soaring Club,
Inc. ("FLSC"). As such, I am fully familiar with the facts and history of this proceeding.
2. I submit this affidavit in support of FLSC's Verified Petition for Judgment
("Petition,"
Pursuant to CPLR Article 78 or "Pet.") and to accompany the Affidavit of James
Martin in Support of the Petition ("Martin Aff.") and the Memorandum of Law in Support of the
Petition ("Memorandum of Law").
3. FLSC brought this proceeding to challenge the Town of North Dansville's (the
"Town"), its assessor Holley Smalt's (the "Assessor"), and its Board of Assessment Review's
"Board,"
(the and collectively, "Respondents") failure to recognize as fully exempt from
assessment and taxation FLSC's small structure located at the Dansville Municipal Airport and
identified by Section Block Lot# 189.18-2-31.3 (the "Structure").
4. FLSC is an organized and conducted exclusively for educational and charitable
purposes and uses the Structure exclusively for such purposes. Consequently, the Structure is
wholly exempt from taxation pursuant to Section 420-a of the Real Property Tax Law ("RPTL"),
and Respondents are without jurisdiction to assess it.
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5. As set forth more fully in the Petition and FLSC's Certification of Incorporation
annexed thereto as Exhibit 2, FLSC is a 70-year-old organization dedicated to providing
education and promoting interest in motorless flight and allied sciences. FLSC is recognized by
the Internal Revenue Service as a tax-exempt organization under Section 501 (c) (3) of the
Internal Revenue Code. A copy of FLSC's 501 (c) (3) letter is annexed to the Petition as
Exhibit 1.
6. FLSC leases it airport facilities from the Town pursuant to a lease agreement
annexed to the Petition as Exhibit 3. The Structure was built in 1992 and houses FLSC's
administrative offices, one meeting room, one room dedicated to a computerized flight simulator,
and one classroom.
7. FLSC uses the Structure exclusively for educational and charitable activities. As
set forth more fully in the Martin Affidavit, FLSC's principle use of the Structure is to educate
students to become glider pilots through a curriculum prescribed by the Federal Aviation
Administration and identical to that offered at the United States Air Force Academy. (Martin
Aff. ¶¶ 11, 14-17.) This curriculum is administered on a regular schedule by FLSC's cadre of
certified flight instructors, and is supplemented by practical training in the Structure on FLSC's
computerized flight simulator. (1d ¶¶ 10, 13, 15, 19.) In addition, FLSC uses the Structure to
promote public education in flight by: offering a comprehensive "Junior Membership Program";
hosting open houses, field trips, lectures and briefings; and staging outreach events at local
schools, and community organization. (Id ¶¶ 20-23.) Importantly-and as shown in FLSC's
bylaws annexed to the Petition as Exhibit 5-although FLSC charges certain of its members fees
and dues, all revenue earned by FLSC goes to its operations and no profit enures to FLSC's
officers, board members, members, or instructors. (Id ¶¶ 3, 24.)
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8. Respondents have not assessed the Structure since at least 2013, the earliest year
for which they make the Town's Final Assessment Rolls electronically available. Excerpts from
the Final Assessment Rolls for tax years 2013-2018 are annexed to the Petition as Exhibit 6.
9. Applications for recognition of a real property exemption were due on the taxable
status date, March 1, 2019. Because the Structure had not been assessed in previous years-and
because the Assessor never indicated that she planned to assess the Structure-FLSC was unable
to file an application for recognition of real property exemption by the taxable status date.
10. On or about April 24, 2019, the Assessor completed the 2019 Tentative
Assessment Roll. As in previous years, the Assessor did not list the Structure for tentative
assessment. An excerpt from the 2019 Tentative Assessment Roll is annexed to the Petition as
Exhibit 7.
11. For unknown reasons, in May 2019, the Assessor sent FLSC notice that the
Structure was tentatively assessed at a value of $35,000 for the 2019 tax year. A copy of the
notice is annexed to the Petition as Exhibit 8.
12. On June 4, 2019, FLSC submitted to the Board a letter and attachments
(collectively, the "Grievance") challenging the tentative assessment of the Structure on the basis
that the Structure was wholly exempt pursuant to RPTL § 420-a. A copy of the Grievance is
annexed to the Petition as Exhibit 9.
13. On June 4, 2019, the Board rendered a Notice of Determination of Board of
Assessment Review (the "Board Denial") rejecting the Grievance without explanation. A copy
of the Board Denial is annexed to the Petition as Exhibit 10.
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FILED: LIVINGSTON COUNTY CLERK 08/28/2019 03:00 PM
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 08/28/2019
14. On or about July 1, 2019, the Assessor completed the 2019 Final Assessment
Roll. The Assessor assessed the Structure at a value of $35,000. An excerpt from the 2019 Final
Assessment Roll is annexed to the Petition as Exhibit 11.
15. FLSC commenced this proceeding to challenge as without jurisdiction
Respondents'
failure to recognize the Structure as wholly exempt from taxation pursuant to
RPTL § 420-a.
16. As set forth more fully in the Memorandum of Law, the Structure is wholly
exempt from assessment and taxation pursuant to RPTL § 420-a because: (a) FLSC is organized
or conducted exclusively for educational and charitable purposes; (b) FLSC uses the Structure
exclusively for educational and charitable purposes; (c) no profit enures to the benefit of FLSC's
officers, board members, members, or instructors; and (d) FLSC is not used as a guise for
profitmaking operations. *
17. Indeed, FLSC's situation is akin to that of the petitioner in Matter of EAA Ch. 486
v. Assessor of Town of Volney, in which Appellate Division, Fourth Department, determined that
the petitioner-a chapter of the "Experimental Aircraft Association"-was entitled to a total
exemption for its airplane hangar located in the Town of Volney and used for educational
purposes. See 306 AD2d 901 (4th Dept 2003).
18. As established in the Memorandum of Law, there are no barriers to the instant
proceeding. The proceeding is timely because it was brought within four months of
Respondents'
issuance of the 2019 Final Assessment Roll. Moreover, FLSC's failure to timely
file an RPTL § 420-a exemption application is no bar to a judicial recognition of a § 420-a
exemption because such exemptions are mandated by statute. See Kahal Bnei Emunim &
Talmud Torah Bnei Simon Israel v. Town of Fallsburg, 78 NY2d 194, 202-203 (1991). Finally,
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CPLR Article 78 is the appropriate vehicle for relief because the Petition alleges that the
Structure is wholly exempt from taxation and that Respondents are without jurisdiction to assess
it. See id
19. Based on the foregoing, and as set forth more fully in the Verified Petition,
Memorandum of Law, and Martin Affidavit, I submit that FLSC is entitled to judgment: (a)
adjudging that the Structure is wholly exempt from taxation and that Respondents lack
jurisdiction to assess the Structure; (b) annulling and vacating the Board Denial; (c) striking the
assessment of the Structure from the 2019 Final Assessment Roll; and (d) granting to FLSC its
attorneys'
fees and expenses of this proceeding and such other and further relief as the Court
deems just and proper.
Dated: August 28, 2019
ndrew M. DfÉn, Esq.
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Preview
FILED: LIVINGSTON COUNTY CLERK 08/28/2019 03:00 PM INDEX NO. 000758-2019 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 08/28/2019 Mary F. Strickland , County Clerk Livingston County Government Center 6 Court Street, Room 201 fl A ÏÏ Geneseo, New York 14454 182' ~ (585) 243-7010 Fax (585) 243-7928 Livingston County Clerk Recording Page Received From: Return To: ANDREW MICHAEL DEAN ANDREW MICHAEL DEAN Document Type: CIVIL ACTION - MISC Document Desc: AFFIDAVIT OR AFFIRMATION IN SUPPORT Plaintiff Defendant Finger Lakes Soaring Club, Inc. Town of North Dansville Holley Smalt, Assessor, Town of North Dansville Town of North Dansville Board of Assessment Review Recorded Information: State of New York Index #: 000758-2019 County of Livingston EFiling through NYSCEF Livingston County Clerk This sheet constitutesthe Clerk's endoreement réquired by section 319 of the Real Property Law ofthe State ofNew York AKB Do Not 1 ofDetach 6 Index INDEX # NO.: 000758-2019 000758-2019 FILED: LIVINGSTON COUNTY CLERK 08/28/2019 03:00 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 08/28/2019 STATE OF NEW YORK SUPREME COURT COUNTY OF LIVINGSTON FINGER LAKES SOARING CLUB, INC., PETITIONER, ATTORNEY AFFIRMATION IN SUPPORT OF VERIFIED PETITION FOR JUDGMENT PURSUANT TO TOWN OF NORTH DANSVILLE; HOLLEY SMALT, CPLR ARTICLE 78 ASSESSOR, TOWN OF NORTH DANSVILLE; AND THE TOWN OF NORTH DANSVILLE BOARD OF ASSESSMENT INDEX NUMBER: REVIEW, RESPONDENTS. Andrew M. Dean, Esq., affirms under penalty of perjury: 1. I am an attorney duly admitted to practice law in the State of New York and an associate of Harter Secrest & Emery LLP, attorneys for petitioner Finger Lakes Soaring Club, Inc. ("FLSC"). As such, I am fully familiar with the facts and history of this proceeding. 2. I submit this affidavit in support of FLSC's Verified Petition for Judgment ("Petition," Pursuant to CPLR Article 78 or "Pet.") and to accompany the Affidavit of James Martin in Support of the Petition ("Martin Aff.") and the Memorandum of Law in Support of the Petition ("Memorandum of Law"). 3. FLSC brought this proceeding to challenge the Town of North Dansville's (the "Town"), its assessor Holley Smalt's (the "Assessor"), and its Board of Assessment Review's "Board," (the and collectively, "Respondents") failure to recognize as fully exempt from assessment and taxation FLSC's small structure located at the Dansville Municipal Airport and identified by Section Block Lot# 189.18-2-31.3 (the "Structure"). 4. FLSC is an organized and conducted exclusively for educational and charitable purposes and uses the Structure exclusively for such purposes. Consequently, the Structure is wholly exempt from taxation pursuant to Section 420-a of the Real Property Tax Law ("RPTL"), and Respondents are without jurisdiction to assess it. 8006430_1 2 of 6 Index NO. INDEX #: 000758-2019 000758-2019 FILED: LIVINGSTON COUNTY CLERK 08/28/2019 03:00 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 08/28/2019 5. As set forth more fully in the Petition and FLSC's Certification of Incorporation annexed thereto as Exhibit 2, FLSC is a 70-year-old organization dedicated to providing education and promoting interest in motorless flight and allied sciences. FLSC is recognized by the Internal Revenue Service as a tax-exempt organization under Section 501 (c) (3) of the Internal Revenue Code. A copy of FLSC's 501 (c) (3) letter is annexed to the Petition as Exhibit 1. 6. FLSC leases it airport facilities from the Town pursuant to a lease agreement annexed to the Petition as Exhibit 3. The Structure was built in 1992 and houses FLSC's administrative offices, one meeting room, one room dedicated to a computerized flight simulator, and one classroom. 7. FLSC uses the Structure exclusively for educational and charitable activities. As set forth more fully in the Martin Affidavit, FLSC's principle use of the Structure is to educate students to become glider pilots through a curriculum prescribed by the Federal Aviation Administration and identical to that offered at the United States Air Force Academy. (Martin Aff. ¶¶ 11, 14-17.) This curriculum is administered on a regular schedule by FLSC's cadre of certified flight instructors, and is supplemented by practical training in the Structure on FLSC's computerized flight simulator. (1d ¶¶ 10, 13, 15, 19.) In addition, FLSC uses the Structure to promote public education in flight by: offering a comprehensive "Junior Membership Program"; hosting open houses, field trips, lectures and briefings; and staging outreach events at local schools, and community organization. (Id ¶¶ 20-23.) Importantly-and as shown in FLSC's bylaws annexed to the Petition as Exhibit 5-although FLSC charges certain of its members fees and dues, all revenue earned by FLSC goes to its operations and no profit enures to FLSC's officers, board members, members, or instructors. (Id ¶¶ 3, 24.) 2 8006430_1 3 of 6 Index NO. INDEX #: 000758-2019 000758-2019 FILED: LIVINGSTON COUNTY CLERK 08/28/2019 03:00 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 08/28/2019 8. Respondents have not assessed the Structure since at least 2013, the earliest year for which they make the Town's Final Assessment Rolls electronically available. Excerpts from the Final Assessment Rolls for tax years 2013-2018 are annexed to the Petition as Exhibit 6. 9. Applications for recognition of a real property exemption were due on the taxable status date, March 1, 2019. Because the Structure had not been assessed in previous years-and because the Assessor never indicated that she planned to assess the Structure-FLSC was unable to file an application for recognition of real property exemption by the taxable status date. 10. On or about April 24, 2019, the Assessor completed the 2019 Tentative Assessment Roll. As in previous years, the Assessor did not list the Structure for tentative assessment. An excerpt from the 2019 Tentative Assessment Roll is annexed to the Petition as Exhibit 7. 11. For unknown reasons, in May 2019, the Assessor sent FLSC notice that the Structure was tentatively assessed at a value of $35,000 for the 2019 tax year. A copy of the notice is annexed to the Petition as Exhibit 8. 12. On June 4, 2019, FLSC submitted to the Board a letter and attachments (collectively, the "Grievance") challenging the tentative assessment of the Structure on the basis that the Structure was wholly exempt pursuant to RPTL § 420-a. A copy of the Grievance is annexed to the Petition as Exhibit 9. 13. On June 4, 2019, the Board rendered a Notice of Determination of Board of Assessment Review (the "Board Denial") rejecting the Grievance without explanation. A copy of the Board Denial is annexed to the Petition as Exhibit 10. 3 8006430_1 4 of 6 INDEX #: Index NO.000758-2019 000758-2019 FILED: LIVINGSTON COUNTY CLERK 08/28/2019 03:00 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 08/28/2019 14. On or about July 1, 2019, the Assessor completed the 2019 Final Assessment Roll. The Assessor assessed the Structure at a value of $35,000. An excerpt from the 2019 Final Assessment Roll is annexed to the Petition as Exhibit 11. 15. FLSC commenced this proceeding to challenge as without jurisdiction Respondents' failure to recognize the Structure as wholly exempt from taxation pursuant to RPTL § 420-a. 16. As set forth more fully in the Memorandum of Law, the Structure is wholly exempt from assessment and taxation pursuant to RPTL § 420-a because: (a) FLSC is organized or conducted exclusively for educational and charitable purposes; (b) FLSC uses the Structure exclusively for educational and charitable purposes; (c) no profit enures to the benefit of FLSC's officers, board members, members, or instructors; and (d) FLSC is not used as a guise for profitmaking operations. * 17. Indeed, FLSC's situation is akin to that of the petitioner in Matter of EAA Ch. 486 v. Assessor of Town of Volney, in which Appellate Division, Fourth Department, determined that the petitioner-a chapter of the "Experimental Aircraft Association"-was entitled to a total exemption for its airplane hangar located in the Town of Volney and used for educational purposes. See 306 AD2d 901 (4th Dept 2003). 18. As established in the Memorandum of Law, there are no barriers to the instant proceeding. The proceeding is timely because it was brought within four months of Respondents' issuance of the 2019 Final Assessment Roll. Moreover, FLSC's failure to timely file an RPTL § 420-a exemption application is no bar to a judicial recognition of a § 420-a exemption because such exemptions are mandated by statute. See Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v. Town of Fallsburg, 78 NY2d 194, 202-203 (1991). Finally, 4 8006430_1 5 of 6 Index NO. INDEX #: 000758-2019 000758-2019 FILED: LIVINGSTON COUNTY CLERK 08/28/2019 03:00 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 08/28/2019 CPLR Article 78 is the appropriate vehicle for relief because the Petition alleges that the Structure is wholly exempt from taxation and that Respondents are without jurisdiction to assess it. See id 19. Based on the foregoing, and as set forth more fully in the Verified Petition, Memorandum of Law, and Martin Affidavit, I submit that FLSC is entitled to judgment: (a) adjudging that the Structure is wholly exempt from taxation and that Respondents lack jurisdiction to assess the Structure; (b) annulling and vacating the Board Denial; (c) striking the assessment of the Structure from the 2019 Final Assessment Roll; and (d) granting to FLSC its attorneys' fees and expenses of this proceeding and such other and further relief as the Court deems just and proper. Dated: August 28, 2019 ndrew M. DfÉn, Esq. 5 8006430 1 6 of 6