Knickerbocker Village, Inc. v. Boyland

McNally, J. This is a tax certiorari proceeding to review the assessments on premises known as Knickerbocker Village, 10-40 Monroe Street, situated at Catherine, Monroe, Market and Cherry Streets, Borough of Manhattan, for the tax years 1958-59 and 1959-60. The premises are improved with a limited dividend housing project comprising 1,593 apartments with a total of 6,031 rooms, 24 stores and one office. The project was completed on December 1, 1934 at a total cost of $9,481,069.31, of which approximately $6,232,000 represents the cost of the improvement. The project occupies two city blocks which were merged in 1934 to form the present plot. It is irregular in shape with an east to west frontage of approximately 636', a north to south depth of 376', and a total ground area of 220,000 square feet, or roughly five acres. The original monthly rental per room, including electricity, of $12.50 has been increased from time to time and in May, 1958 it became $18.545. Petitioner was organized September 5, 1933 pursuant to the Public Housing Law (L. 1939, ch. 808). The statute expresses [225] the public policy to correct insanitary and substandard housing conditions and towards that end to provide public and private funds at low interest rates for the acquisition of land, the gradual demolition of substandard housing and the construction of new housing conforming with proper standards of sanitation at a cost which will enable monthly rentals within the capacity of persons of low income. Article 9 (§§ 169-193) of the statute provides for housing companies such as the petitioner. A housing company may not acquire real property except on certification from the State Commissioner of Housing of its necessity for the public purpose defined in the statute; its right to dispose of real property is limited as to grantee and amount. Its rentals are limited as to amount and subject to approval by the Commissioner; its operation and financial transactions require similar approval. On dissolution, any surplus remaining after retirement of stock, in the event the housing company has received municipal tax exemption, is payable to the municipality. In the event of foreclosure, the judicial sale is limited to a housing company, unless the court finds interest on the bonds cannot be earned under the restrictions imposed by the statute, in which event the property is to be sold free of all statutory restrictions. The statutory restrictions also do not apply to a Government first mortgage or a first mortgage held by one under supervision of the Insurance or Banking Department, and in these circumstances a purchaser would take the property free from the restrictions. For the first 20 years of its operation petitioner paid New York City taxes on its land but was exempt from taxes on its buildings. The exempt status of its buildings terminated prior to and they were restored to the tax rolls for the fiscal year 1956-57. The tax years at issue in this proceeding are 1958-59 and 1959-60, in each of which years the land and improvements were assessed at $7,600,000 of which $1,700,000 is land value. There is evidence in the record of 58 sales of comparable parcels between 1953 and 1959 at prices averaging 135% of the assessed valuations. There is also evidence that for the two fiscal years the reproduction costs, less depreciation, would have exceeded $10,000,000. Petitioner’s expert projected rentals assuming a conventional rental project under rent control and arrived at a gross rental of $1,608,000, estimated expenses of $952,500, and tentative net rent of $655,500 before allowance for vacancies. He made an allowance for vacancies of 10% of the gross rentals, or $160,800, and arrived at a net rent of $494,700, which he capitalized at 8% [226] indicating a value of about $6,180,000. There is no data supporting the vacancy allowance. Since real property assessments are made annually, it is more appropriate that the factors supporting a deduction for vacancies materialize before they are given effect. (Matter of City of New York [Maxwell], 15 A D 2d 153, 162-163.) If to the net estimated rental of $655,500, without giving effect to any vacancy factor, there is applied the 8% capitalization rate contended for by the petitioner, the resulting value is $8,193,750, which is in excess of the assessments. Respondents’ expert projected a rent roll assuming no rent control which introduced a greater likelihood of vacancies estimated by him at 2%%. If to the tentative rental estimated by petitioner’s expert there is applied a vacancy factor of 2%%, the net income is reduced to a”bout $615,300, and this sum capitalized at 8% also supports a valuation in excess of the assessed values. Capitalization at the rate of 8% applied to net rents subject to rent control as projected by petitioner’s expert with the vacancy factor eliminated or reduced to 2%% results in a valuation substantially less than the uncontradicted reproduction cost less depreciation estimated to be in excess of $10,000,000. The reproduction cost less depreciation represents the maximum assessment absent special circumstances. (Matter of 860 Fifth Ave. Corp. v. Tax Comm. of City of N. Y., 8 N Y 2d 29, 30.) Petitioner’s principal contention rests on the provisions of the Public Housing Law (§ 179, subd. 2) limiting the sale of the property. The statute is as follows: “ § 179. Limitations. “ No housing company shall: “ 2. Sell, transfer or assign any real property (a) except to a municipality wherein a project is to be located, for public purposes only and upon such terms and conditions, with or without compensation, as the commissioner may approve, or except to another housing company formed under this chapter, and (b) without first having obtained the consent of the commissioner, and (c) except for a price not in excess of the cost of the said property less any amounts paid in amortization of the mortgage indebtedness and the retirement or redemption of stock, plus so much of the limited dividends on the stock of the said housing company from date of issue as shall have been unpaid, and accrued interest on the mortgage indebtedness and income debenture certificates.” [227] Petitioner computes the statutory maximum selling price as of January 25, 1958 at $6,329,238, and as of January 25, 1959 at $6,193,238. Petitioner argues further that the amounts paid to retire debenture certificates serve to reduce the statutory sales price on the respective dates to $5,550,838 and $5,396,038. In regard to the last contention it need only be observed that subdivision 2 of section 179 does not mandate a deduction for retired debentures in arriving at the maximum sales price. Section 306 of the Real Property Tax Law provides: “ All real property in each assessing unit shall be assessed at the full value thereof.” Petitioner equates the statutory maximum sales price of its real property with the section 306 ‘1 full value ’ ’ and maintains it may not exceed the maximum statutory sales price. A necessary corollary is that the permissible assessed value of petitioner’s real property is subject to variation inversely to its profits. This follows because as petitioner’s profits increase more can be applied to amortization and stock redemption with a consequent lowering of the statutory maximum sales price; conversely, if there are no profits, amortization and redemption are precluded and a higher statutory maximum sales price results. Stated differently, the base for the imposition of the tax is enlarged as the petitioner’s capacity to amortize and redeem is reduced. Implicit also in petitioner’s claim is that the statutory maximum sales price effects a progressively increased tax exemption as the total of mortgage amortiaztion and stock redemption increases. Petitioner suggests its real property is subject to certain statutory restrictions and burdens, akin to easements, adversely affecting its market price, citing People ex rel. Poor v. Wells (139 App. Div. 83, affd. 200 N. Y. 518) and Matter of Crane-Berkley Corp. v. Lavis (238 App. Div. 124). An easement lessens the value of the servient estate and enlarges the value of the dominant estate. The assessment on the former is reduced and the assessment on the latter increased by the value of the easement. (Tax Lien Co. v. Schultze, 213 N. Y. 9; People ex rel. Poor v. Wells, supra.) It has not been held, however, that restrictions personal to the owner and which do not attach to or run with the land need be given effect in the assessment. The statutory sales price limitation operates against and is personal to housing companies like the petitioner; it is not effective if a foreclosure sale free of such restriction be directed by the court as provided in subdivision 1 of section 191 of the Public Housing Law, or if the sale results from a foreclosure by a mortgagee subject to supervision of the Insurance or Banking [228] Department as provided in subdivision 2 of the same section. The personal nature of the disabilities relied on serve to demonstrate they are not in the category of easements required to be carved from the real property in the process of assessment. The statute (Real Property Tax Law, § 306) requires “ real property * * * shall be assessed at the full value thereof ”. The Administrative Code of the City of New York (§ 158-1.0, subd. b) provides: “ The assessed valuation of each such parcel shall be set down * * * in two columns. In the first column shall be stated * * * the sum for which such parcel would sell under ordinary circumstances if wholly unimproved; and in the second column, the sum for which such parcel would sell under ordinary circumstances with the improvements, if any thereon.” It is to be noted the pertinent statutes have to do with the assessment of land and improvements without reference to the identity, nature or extent of the ownership thereof. What is to be assessed is the whole of the property and the full value thereof regardless of restrictions personal to the owner. The resulting tax is on the real property; its consequence falls upon the owner whose personal disabilities and restraints neither lessen nor increase the amount. (Paddell v. City of New York, 50 Misc. 422, 424-425, affd. 114 App. Div. 911, affd. 187 N. Y. 552, affd. 211 U. S. 446.) The restrictions upon its sale of the real property result solely from petitioner’s ownership. The restrictions were voluntarily assumed and to a large extent induced by the advantage of a 20-year exemption in respect of the improvement. The cost of the improvement, $6,232,000, which is greater than the assessments attributable to it, reflects the petitioner’s evaluation of the tax exemption. The evidence is that the reproduction value is in excess of the original cost. The higher costs of reproduction since the erection of the improvement indicate that no adjustment of petitioner’s evaluation of the tax benefit is indicated by reason of the intervening lapse of time. Time in this instance has greatly favored petitioner. Moreover, petitioner’s view implies a continuing and progressively increasing exemption which will not in the circumstances be indulged. (Matter of Young v. Bragalini, 3 N Y 2d 602; People v. Brooklyn Garden Apts., 283 N. Y. 373.) This is particularly so where, as here, petitioner has been the beneficiary of a specific 20-year exemption by virtue of the improvement which is the subject of the assessments. On this record the order should be affirmed, with costs to respondents.