| Matter of Synergy, LLC v Kibler |
| 2015 NY Slip Op 00038 [124 AD3d 1261] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of Synergy, LLC, et al., Appellants, vSusan Kibler, Assessor, Town of Covington, et al., Respondents, and Wyoming CentralSchool District, Intervenor-Respondent. (Appeal No. 1.) |
Bond, Schoeneck & King, PLLC, Rochester (Karl S. Essler of counsel), forpetitioners-appellants.
Dimatteo Law Office, Warsaw (David M. Roach of counsel), forrespondents-respondents.
Harris Beach PLLC, Pittsford (J. Ryan White of counsel), forIntervenor-respondent.
Susan G. Rosenthal, New York State Department of Agriculture and Markets,Albany (John F. Rusnica of counsel), for Commissioner of the New York StateDepartment of Agriculture and Markets, amicus curiae.
Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd,A.J.), entered June 24, 2013 in a proceeding pursuant to RPTL article 7. The judgmentdenied the petition.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Petitioners own and operate a facility that generates electricity frombiogas produced by the anaerobic digestion of livestock manure. The manure used by thefacility is obtained from a dairy farm owned and operated by petitioners, and theelectricity produced by the facility is used for the operation of the dairy farm and is soldto the electrical grid. Petitioners commenced this proceeding pursuant to RPTL article 7seeking, inter alia, review of respondents' determination that petitioners were not entitledto a tax exemption for the facility pursuant to RPTL 483-a (former [1]), the version ofthe statute in effect at the time the petition was filed. After Supreme Court denied thepetition, petitioners moved pursuant to CPLR 2211 (d) and (e) for leave to renew andreargue the petition. The court denied the motion.
In appeal No. 1, petitioners appeal from the judgment that denied the petition. Inappeal No. 2, petitioners appeal from an order that denied their motion for leave to renewand reargue the petition. We note at the outset with respect to appeal No. 2 that theappeal from the order therein must be dismissed to the extent that Supreme Court deniedleave to reargue (see Empire Ins. Co. v Food City, 167 AD2d 983, 984 [1990]).We further note that a motion for leave to renew pursuant to CPLR 2221 is not theproper procedural vehicle to address a final judgment, but we conclude that petitioners'motion to renew should be treated as a motion pursuant to CPLR 5015 to vacate thejudgment in the interest of justice (see Maddux v Schur, 53 AD3d 738, 739 [2008]; seegenerally Ruben v American & Foreign Ins. Co., 185 AD2d 63, 67[1992]).
[*2] In appeal No. 1, petitionerscontend that the facility is entitled to a tax exemption pursuant to RPTL 483-a (former[1]) because it is a "manure storage and handling" facility as contemplated by that statute.We reject that contention. Inasmuch as petitioners' contention involves "a question ofstatutory interpretation, we turn first to the plain language of the statute[ ] as the bestevidence of legislative intent" (Matter of Malta Town Ctr. I, Ltd. v Town of Malta Bd. ofAssessment Review, 3 NY3d 563, 568 [2004]). The former version of thestatute provided that "[s]tructures permanently affixed to agricultural land for thepurpose of preserving and storing forage in edible condition, farm feed grain storagebins, commodity sheds, manure storage and handling facilities, and bulk milk tanks andcoolers used to hold milk awaiting shipment to market shall be exempt from taxation,special ad valorem levies and special assessments" (RPTL 483-a [former (1)]). Weconclude that the anaerobic digester facility is not a "manure storage and handling"facility as contemplated by RPTL 483-a (former [1]) because the facility is not usedsimply to store and handle manure. Petitioners' facility uses an anaerobic digester toproduce biogas from the manure, which is then used to generate electricity, and thestatute does not provide a tax exemption for an anaerobic digester or an electricalgenerator. Notably, another provision of RPTL article 4 defines the term "farm wastegenerating equipment" as "equipment that generates electric energy from biogasproduced by the anaerobic digestion of agricultural waste" (RPTL 487 [1] [e]), but suchequipment was not included among the enumerated structures in RPTL 483-a (former[1]). Furthermore, "words employed in a statute are construed in connection with, andtheir meaning ascertained by reference to the words and phrases with which they areassociated" (McKinney's Cons Laws of NY, Book 1, Statutes § 239 [a]),and the plain language of RPTL 483-a (former [1]) establishes that the tax exemption isapplicable to structures used for the storage of agricultural materials, and not to structuresused for the generation of energy.
In appeal No. 2, petitioners contend that the facility is entitled to a tax exemptionpursuant to an amendment to RPTL 483-a that was adopted by the Legislature after thepetition was filed (see L 2013, ch 272, § 1). Contrary to petitioners'contention, the amendment to RPTL 483-a cannot be applied retroactively because theLegislature explicitly stated that the amendment "shall apply to taxable status datesoccurring on or after such effective date," i.e., July 31, 2013 (L 2013, ch 272,§ 3). Present—Smith, J.P., Peradotto, Valentino, Whalen andDeJoseph, JJ. [Prior Case History: 2013 NY Slip Op 31308(U).]