| Matter of 1300 Franklin Ave. Members, LLC v Board of Trustees ofInc. Vil. of Garden City |
| 2009 NY Slip Op 04243 [62 AD3d 1004] |
| May 26, 2009 |
| Appellate Division, Second Department |
| In the Matter of 1300 Franklin Avenue Members, LLC,Respondent, v Board of Trustees of Incorporated Village of Garden City et al.,Appellants. (Matter No. 1.) In the Matter of LT Propco, LLC, Respondent, v Board of Trusteesof Incorporated Village of Garden City et al., Appellants. (Matter No.2.) |
—[*1] Koeppel Martone & Leistman, LLP, Mineola, N.Y. (Donald F. Leistman of counsel), forrespondents.
In related hybrid proceedings pursuant to CPLR article 78 to review two determinations ofthe Board of Trustees of the Incorporated Village of Garden City, each dated March 7, 2007,which imposed tax levies in the sums of $458,854.54 upon 1300 Franklin Avenue Members,LLC, and $457,564.55 upon LT Propco, LLC, respectively, and related actions for judgmentsdeclaring that the special assessments underlying the tax levies are null and void, the Board ofTrustees of Incorporated Village of Garden City and the Incorporated Village of Garden Cityappeal from an order and judgment (one paper) of the Supreme Court, Nassau County (Spinola,J.), entered February 20, 2008, which, in effect, denied those branches of their respectivemotions which were to dismiss the petitions, in effect, converted those branches of theirrespective motions which were to dismiss the complaints into motions for summary judgmentdismissing the complaints and thereupon denied those branches of the converted motions, andgranted the petitions.
Ordered that the order and judgment is modified, on the law, (1) by deleting the provisionthereof granting the petitions, and (2) by adding a provision thereto dismissing, as unnecessary,the causes of action declaring that the special assessments underlying the tax levies are null andvoid; as so modified, the order and judgment is affirmed, without costs or disbursements, and thematter is remitted to the Supreme Court, Nassau County, for further proceedings in accordanceherewith.
The petitioners/plaintiffs in both of the instant hybrid proceedings and actions (hereinafterthe petitioners) are commercial property owners challenging special benefit assessment taxlevies imposed upon their properties by the Board of Trustees of Incorporated Village of GardenCity (hereinafter together [*2]with the Incorporated Village ofGarden City, the Village) on the ground that the methodology used by the Village to determinethe assessment was arbitrary, irrational, and in violation of Village Law § 22-2200 (2),which requires that such assessments be "just and equitable."
The challenged assessment was charged to property owners in a specified commercialdistrict deemed by the Village to have been benefitted by the Village's purchase of two parcels ofreal property to enlarge a municipal parking field (hereinafter Field 10). The methodologyunderlying the assessment was based on the maximum permissible floor area ratio (hereinafterFAR) of the properties, apparently without regard to their actual FAR, their proximity to Field10, or whether the properties were, prior to the parking field improvements, already incompliance with the Village Building Zoning Ordinance (hereinafter BZO) parking spacerequirements. The petitioners, who concede that their properties received some benefit, albeitindirectly, from the improvement of Field 10, contend that the Village's apportionmentmethodology was arbitrary and capricious since the assessments against their propertiescomprise 36% of the total assessment, even though their properties are situated approximately1,200 feet from Field 10, could never expand to the maximum permissible FAR, and are alreadyin compliance with the Village's parking space requirements. After the petitioners commencedthe hybrid proceedings and actions, inter alia, challenging the assessments imposed upon theirproperties, the Village moved to dismiss both petitions/complaints, purportedly on the groundthat "substantial evidence" submitted at a public hearing supported the assessments upon thepetitioners' properties. The Supreme Court, in effect, denied those branches of the Village'smotions which were to dismiss the petitions, in effect, converted those branches of the Village'smotions which were to dismiss the complaints into motions for summary judgment dismissingthe complaints, denied those branches of the Village's motions, and granted the petitions. TheVillage appeals and we modify.
On a pre-answer motion pursuant to CPLR 7804 (f) to dismiss a petition upon objections inpoint of law, only the petition may be considered, and all of its allegations are deemed to be true(see Matter of Bloodgood v Town ofHuntington, 58 AD3d 619, 621 [2009]; Matter of Long Is. Contractors' Assn. v Town of Riverhead, 17 AD3d590, 594 [2005]; Matter of Zaidins v Hashmall, 288 AD2d 316 [2001]; Matter ofDe Paoli v Board of Educ., Somers Cent. School Dist., 92 AD2d 894 [1983]). No additionalfacts alleged in support of the motion may be considered (see Matter of Mattioli v Casscles,50 AD2d 1013 [1975]). Since those branches of the Village's motions which were to dismissthe petitions did not seek dismissal based upon an objection in point of law, but instead soughtrelief on the merits, the Supreme Court properly, in effect, denied those branches of the motions.
CPLR article 78 proceedings are summary in nature (see CPLR 409 [b]; Matterof Lakeshore Nursing Home v Axelrod, 181 AD2d 333, 340 [1992]) and, thus, a motion forsummary judgment addressed to the merits of the petition is unnecessary. Accordingly, theSupreme Court properly addressed the merits of the petition without the need to convert thosebranches of the Village's motions which were to dismiss the petitions into motions for summaryjudgment dismissing the petitions. Nonetheless, where, as here, there are facts in dispute thatmust be resolved before a reviewing court may properly determine the outcome of theproceeding under the applicable standard of review, a hearing must be conducted forthwith bythe Supreme Court to resolve those factual issues (see CPLR 7804 [h]; 409 [a], [b];Matter of Akey v Town of Plattsburgh, 300 AD2d 871, 872-873 [2002]).
Moreover, since the issues of law in dispute here are limited to whether the determinationsimposing the assessments were affected by error of law, arbitrary and capricious, an abuse ofdiscretion, or irrational, they are subject to review only pursuant to CPLR article 78 (seeCPLR 7803 [3]; Matter of Castrollv Incorporated Vil. of Head of Harbor, 2 AD3d 443 [2003]; Matter of GardenHomes Woodlands Co. v Town of Beekman, 275 AD2d 370 [2000]; cf. Cloverleaf Realty of N.Y., Inc. v Townof Wawayanda, 43 AD3d 419, 420 [2007]; Matter of Pokoik v Incorporated Vil. ofOcean Beach, 143 AD2d 1021, 1022 [1988]), thus rendering unnecessary the causes ofaction for a judgment declaring that the special assessments are null and void (see Matter of Kogel v Zoning Bd. ofAppeals of Town of Huntington, 58 AD3d 630 [2009]; see also Matter of RiverheadTavern v New York State Liq. Auth., 61 AD3d 877 [2009]).
Contrary to the Village's contention, the "substantial evidence" standard (CPLR 7803 [4])[*3]is not applicable, as the challenged determinations did notarise from a quasi-judicial hearing required by law. Rather, as noted above, the proper standardof review is whether the discretionary determinations to impose the challenged assessments wereaffected by error of law, arbitrary and capricious, an abuse of discretion, or irrational (seeCPLR 7803 [3]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 ofTowns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974]; Matter of Zupa v Board of Trustees ofTown of Southold, 54 AD3d 957 [2008]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 770[2005]).
Under the Real Property Tax Law, the term "special assessment" is defined, in pertinent part,as "a charge imposed upon benefited real property in proportion to the benefit receivedby such property to defray the cost" (RPTL 102 [15] [emphasis added]). "When the cost ofany such local improvements has been determined the board shall apportion and assessthe part of the expense to be raised by local assessments upon the lands in such assessmentdistrict, according to frontage, area, or otherwise, as the board may determine during theproceedings to be just and equitable" (Village Law § 22-2200 [2] [emphasisadded]). Further, "special assessments are presumed to be valid, regular and legal and. . . the burden of rebutting the presumption falls upon the landowner, who mustshow that the properties assessed were not in fact benefited" (Matter of Pokoik vIncorporated Vil. of Ocean Beach, 143 AD2d 1021, 1022 [1988]; see Matter of Donohuev Dutchess County Legislature, 277 AD2d 377 [2000]; Matter of New York StateDormitory Auth. v Board of Trustees of Hyde Park Fire & Water Dist., 206 AD2d 483[1994], affd 86 NY2d 72 [1995]). "[A] determination by a board with respect to theamount of benefit conferred on properties by improvements involves the exercise of thelegislative power which will not be interfered with unless it is shown to be so arbitrary orpalpably unjust as to amount to a confiscation of property" (Matter of New York StateDormitory Auth. v Board of Trustees of Hyde Park Fire & Water Dist., 206 AD2d at 484;see Matter of Pokoik v Incorporated Vil. of Ocean Beach, 143 AD2d at 1022).
In opposition to the petition, the Village argued that its methodology, which apportioned theassessment based on the maximum permissible FAR of each property it deemed benefitted by theimprovements to Field 10, complied with Village Law § 22-2200 (2). That provisionspecifically and broadly authorizes a village board of trustees to apportion an assessment basedupon, inter alia, the relevant "area" (Village Law § 22-2200 [2]). Moreover, the Villagecontended that it assessed all properties within the relevant Franklin Avenue commercial districtwithout regard to proximity to Field 10 on the rational presumption that increased parking in oneparking field will alleviate the demands on all other parking fields in the district (see Matterof Palmer v Town of Kirkwood, 288 AD2d 540 [2001]; Sheldon v Town of Highlands,153 AD2d 733, 737 [1989]; Matter of Scarsdale Chateaux RTN v Steyer, 53 AD2d672, 673 [1976], affd 41 NY2d 1043 [1977]).
The petitioners, however, raised triable issues of fact (see CPLR 409 [b]; 7804 [h])as to the precise methodology employed by the Village, which was based on the maximumpermissible FAR, rather than the actual FAR. The administrative record before us is notsufficiently developed to permit us to ascertain whether and to what extent the Villageconsidered if the properties could practically be built to their maximum permissible FARs, orwhether certain assessed properties required the Field 10 improvements to comply with the BZOparking space requirements. In addition, the 1997 Business Planning Coalition Report(hereinafter the 1997 report), submitted by the petitioners, support their contention that theimprovements to Field 10 primarily benefitted the properties directly adjacent to Field 10, ratherthan their properties:
"Parking Field 10-1000 to 1050 Franklin Avenue. Construction of the office buildings at1010 and 1050 Franklin Avenue included limited private parking for 46 vehicles but did notinclude a simultaneous expansion of the 199-vehicle capacity of Parking Field 10. This reducedthe availability of parking from 3.8 spaces/1000 SF to 1.7 spaces/1000 SF of office and retailspace for the block partially occupied by these buildings (west of Franklin Avenue between 10thand 11th Street[s]). The Village resolutions approving the issuance of permits for both buildingsanticipated that adequate parking would be available over time. . . .
[*4]"A ratio of 1.7 spaces/1000 SF is only 39% of thecommercially competitive and Village Code requirement of 4.2 spaces/1000 SF. No otherparking field in the Village has less than 50% of the Village Code [BZO] requirement.According to Cushman & Wakefield, a leading commercial real estate brokerage firm activein the Garden City market, the office space above the Astoria Federal Savings Bank at 1000Franklin Avenue is not commercially viable because of the lack of parking and the ground floortenant at 1050 Franklin Avenue is moving across Franklin to 1055 Franklin because of the grateravailability of parking in Parking Field 9E . . .
"3. Parking Field 10-Capacity Improvement. As previously mentioned, the construction ofthe office buildings at 1010 and 1050 Franklin Avenue was not accompanied by an expansion ofParking Field 10, which serves these buildings and others in the block between 10th and 11thStreets west of Franklin. Current parking supply on this block, a total of 245 spaces consisting of199 public spaces and 46 private spaces, produces a supply of only 1.7 spaces/1000 SF of officeand retail space, compared with the commercially competitive and [BZO] ratio of 4.2spaces/1000 SF. This results in a shortage of 383 spaces at full occupancy. Clearly, this blockdoes not have a commercial viable supply of parking, which is the primary reason for the 25%vacancy rate in this block.
"The 383 space shortfall cannot be supplied by the adjacent Parking Fields 11 and 9W.Parking Field 11 [which is adjacent to the petitioners' properties] is not a competitive source ofsupply because it is hazardous for both pedestrians and vehicles to cross 11th Street fromParking Field 10.
"Although some parking is currently available in Parking Field 9W across 10th Street, it is aresult of vacancies in the buildings abutting the field, and this parking is well over 500' away andnot easily visible from 1050 Franklin. Parking is also available in Parking Field 9E acrossFranklin Avenue, but it is more than 500' away across a very busy roadway and not visible"(emphasis added).
As a remedy for this parking shortfall, the 1997 report recommended that the Village acquireparcels located at 116 Eleventh Street and 115 Tenth Street to expand the parking available atField 10, which is precisely what the Village did, leading to the challenged assessments. The1997 report raised a triable issue of fact as to whether the improvements to Field 10 directlybenefit the properties immediately adjacent to Field 10, particularly 1010 and 1050 FranklinAvenue, neither of which complied with the BZO parking space requirements prior to theexpansion of Field 10. Nevertheless, the Village's apportionment methodology assesses thosetwo properties at values of only $94,214.72 (for 43,240 sq. ft.) and $126,374.97 (for 56,000 sq.ft.), respectively, which together comprise only 8.69% of the $2,539,866.75 total assessmentimposed against all of the property owners in the district.
We therefore remit the matter to the Supreme Court, Nassau County, for a hearing to resolvethese disputed factual issues after the Village serves answers to the petitions, and a newdetermination thereafter on the petitions, which shall address whether the challengedassessments were affected by error or law, arbitrary and capricious, an abuse of discretion, inviolation of Village Law § 22-2200, or so excessive as to be tantamount to an impropertaking of private property (cf. Matter of New York State Dormitory Auth. v Board ofTrustees of Hyde Park Fire & Water Dist., 206 AD2d 483 [1994]). Rivera, J.P., Dillon,Belen and Hall, JJ., concur.