STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA


 

NIAGARA MOHAWK POWER CORPORATION,


Petitioner,


-vs- Index #H-09963


CITY OF DUNKIRK ASSESSOR;

CITY OF DUNKIRK BOARD OF

ASSESSMENT REVIEW AND THE

CITY OF DUNKIRK, CHAUTAUQUA

COUNTY, NEW YORK,


Respondents.


 



HELM, SHAPIRO, ANITO &

MCCALE, P.C.

(Mark D. Lansing, Esq.

of Counsel) for Petitioner



HANCOCK & ESTABROOK, LLP

(John R. Varney, Esq. of

Counsel) for Respondent


DECISION and ORDER



GERACE, J.


Niagara Mohawk Power Corporation (NIMO) states in its petition at page 14:

"Petitioner's total claimed assessment(s)

and the amount of the claimed exemption(s)

in this proceeding are as follows:


TAX ID NO. CLAIMED ASSESSMENT EXEMPTION AMOUNT


5-1-1 $40,386,736.00 $458,304.00

The exemption issue involves a claim by NIMO of $458,304.

It is alleged by NIMO that some of the exemptions (through questionable 1994 improvements) were approved and granted by the City in the past. If so, the 1991 and 1992 assessments of $69,672,740 would have resulted after allowing for the exemptions. Presumably, the 1993 assessment of $195,975,000 may carry forward such exemption was were granted.

Although the claimed exemptions of $458,304 may be somewhat overstated, the Court accepts the premise that a valid claim exists that the exemptions were not taken into account in the 1994 assessment. The Court hereby directs that the 1994 assessment be tentatively reduced by the $458,000 claimed, pending ultimate resolution of the question by trial or otherwise.

The questions to be resolved in the 1994 assessment appeal are largely the same questions pending before the Appellate Division in NIMO's appeals.

Regarding the problems confronting the City in the 1994 assessment:

a) The City has undertaken reevaluation of all of the taxable property as suggested by this Court in its 1993 previous opinion, and raised by NIMO's objections;

b) The City has requested SBEA to separately provide an advisory appraisal of NIMO's property;

c) The City has no other reliable assessment data than its contested 1993 appraisal, which may be ratified or revised as a result of the information from (a) and (b).

The Court elects to defer any determination of the present petition and the motions, including the constitutional issues, until the decision of the Appellate Division in NIMO's appeals, or, completion of the Citywide reevaluation plus the SBEA advisory appraisal, whichever occurs first.

The City is hereby granted forty-five (45) days after its receipt of the decision of the Appellate Division and/or the completion of the Citywide valuation, in which to review, amend or confirm its 1993 and 1994 assessments, and, NIMO is to have forty-five (45) days to respond to the decision of the City.

Upon receipt of the decision of the City and the response of NIMO, the Court will decide the motions stayed by this Order.

Without a favorable Appellate Division or a valuation based on the City's reevaluation, petitioner presents no grounds for rolling back the 1994 assessment where the petitioner has not forwarded any acceptable basis for considering its claim as to what its assessment should be. It has not met the threshold requirement for an Article 7 appeal.

The City is directed to reduce its 1994 assessment by the $458,000 claimed as exempt property, pending the trial on other ............. of this case.

Mark Lansing, Esq. set out the exemptions NIMO claims entitled to in the 1994 assessment. John Varney, Esq. does not appear to dispute the entitlements but claims the City is entitled to receive and review the details of costs in support of the exemptions and he indicates the City's willingness to enter into discussions with NIMO and receive proof with a view to granting the exemptions.

NIMO claims entitlement to the following exemptions for 1994 to be charged against and reduce the assessment of $195,975,000 (T. p.52) The claimed exemptions are as follows:


Wastewater (T. p. 53) $16,752,000

485-B (T. p. 54) l,181,500

Air pollution control

Unit 2 (T. p. 54) 6,346,500

Air pollution control

Unit 3 (T. p. 55 10,171,500

 

$34,451,500


Allowing these extensions will reduce the 1994 assessment, to $161,523,500.

$195,975,000

- 34,451,500

 

$161,523,500

On the basis of the foregoing Lansing agreed that NIMO would withdraw any claim to exemption for air pollution controls for Units 1 and 4 in the 1994 assessment. I doubt this is a substantive concession because the improvements were made after the 1994 tax date - but will figure in 1995.

According to the recent work from attorney Varney, exemption entitlement discussions are said to be in progress. I don't know if you have had any confirmation of this from attorney Lansing - but if you were to grant all of Lansing's claim, (and it appears to have Varney's reluctant knit picking agreement) it would reduce the 1994 assessment to $161,523,500. This is the principal purpose of NIMO's Article 7 appeal.

Under the circumstances the discovery argument would then appear to be moot and a fishing expedition to find a basis to reargue your prior decision (now on appeal).

NIMO did not submit any new appraisal basis for contesting the 1994 assessment; they have relied upon the appraisal which has been ruled invalid and for which their 1993 appeal was dismissed. The City has undertaken a total appraisal and has requested the State Board to furnish an appraisal of NIMO's property. By statute the State Board is mandated to provide an appraisal requested involving a public utility.

A roll-back of the 1994 assessment may lead to an appeal on behalf of the City bringing both parties in contention before the Appellate Division.