Town of Mount Kisco v. State Board of Equalization & Assessment

OPINION OF THE COURT Weiss, J. Pursuant to section 122.61 of the Westchester County Charter, each year the county’s Tax Commission adopts the latest State Board of Equalization and Assessment (SBEA) schedule of equalization rates to establish the equalization rate for the towns and cities of Westchester County for purposes of apportioning county taxes. Here, the Tax Commission adopted and utilized the SBEA 1980 advisory schedule of equalization rates as the county 1980 equalization rate schedule in finalizing their 1981 real property assessments.1 It appears that the 1980 SBEA advisory rates were based substantially on the 1979 final State equalization rates, as adjusted to reflect changes in assessment levels. This 1979 final rate was established on the basis of the SBEA’s 1976 market value survey of various properties. Claiming that the 1980 county tentative equalization rate schedule was inequitable and unjust, and that the SBEA methodology in appraising certain condominium units in the Town of Mount Kisco was not as required by law (Real Property Law, § 339-y), petitioners made timely complaints to the SBEA (Real Property Tax Law, § 816). Prior to a hearing, the SBEA issued its final 1980 State equalization rate schedule in August, 1981. This schedule incorporated reduced valuations for 14 properties in petitioners’ municipalities which were used in the 1976 SBEA property survey and the final 1979 State equalization rate schedule. During a two-day hearing before the SBEA, [464] petitioners argued that the reduced valuation reflected in the final 1980 State rates should be adopted in the county’s 1980 equalization rate schedule. The hearing officer agreed, but further determined that petitioners waived their challenge to other specific property valuations and methodology used in preparing the 1980 State advisory rates by failing to challenge the very same property valuations and methodology as utilized in the 1979 State equalization rate proceeding.2 The SBEA confirmed the findings of fact made by the hearing officer but determined that the 1980 county equalization rates adopted by the Westchester County Tax Commission for apportionment of 1981 county taxes was fair and equitable. The SBEA agreed that petitioners were estopped from challenging the use of certain valuations in determining the 1980 county equalization rates. This CPLR article 78 proceeding was commenced by petitioners, in which the Town of Scarsdale was granted permission to intervene, and was transferred to this court. The SBEA’s determination should be confirmed. In reviewing county equalization rates, the SBEA is required to “determine whether such equalization is fair and equitable and if not, what corrections should be made” (Real Property Tax Law, § 818, subd 1). The SBEA is entitled to consider all available evidence relevant to'the rates under review, without restriction (Matter of Town of Bedford v State Bd. of Equalization & Assessment, 70 AD2d 213, 217-218, mot for lv to app den 48 NY2d 610). Accordingly, when the SBEA incorporated the 1980 valuation changes made to the 1976 market value survey into the final 1980 State rates, a similar change could have been made in the 1980 county rates. That such evidence was not available when the county adopted the 1980 State advisory rates is not controlling (70 AD2d, at p 218). This is not to suggest, however, that the SBEA erred in deciding not to incorporate these valuation changes into the 1980 county rate schedule. Here, the record indicates that the adoption of the reduced valuation appraisals would have changed the apportionment of taxes by plus 2.06% in the Town of Pound Ridge and minus 1.52% in the Town of Mount Kisco, with [465] all other municipalities within that range. This change would effect an over-all reapportionment of only about .0015% of the total county tax, which the SBEA concluded was too minimal to render the 1980 county equalization rates inequitable. In our view, the record contains substantial evidence to support this conclusion and thus this court must confirm the SBEA’s determination (see Matter of Town of Smithtown v Moore, 11 NY2d 238, 247; Matter of Gerber v State Bd. of Equalization & Assessment, 71 AD2d 951, mot for lv to app den 48 NY2d 608). Petitioners further contend that the SBEA erred as to certain valuations and methodology upon which both the 1980 State advisory rates and the 1979 State final equalization rates were based. As noted above, these rates are reflected in the 1980 county equalization rate schedule. The SBEA determined that since petitioners failed to exhaust their administrative and judicial remedies in relation to the final 1979 State rates, they were estopped from pursuing this challenge in the instant proceeding. We agree. Neither party controverts petitioners’ right to seek review of the 1980 county equalization rates pursuant to section 816 of the Real Property Tax Law. The difficulty herein is whether the property valuations underlying the 1979 final State rate may also be challenged. It is undisputed that petitioners could have sought review by the SBEA of the 1979 State equalization rate schedule (see Real Property Tax Law, §§ 816, 830, 1200-1218; 9 NYCRR subpart 186-11).3 Such a review would have afforded scrutiny of the valuations and methodology employed in the 1976 market survey, which petitioners presently contend was erroneous. By not challenging the 1979 final State equalization rate schedule, petitioners implicitly accepted and relied upon that schedule in assessing and collecting its taxes during 1980. Having so acted, petitioners should not now be allowed to assert that the 1979 ratios were incorrect. While we recognize that the absence of a prior administrative or judicial determination of the issues pre [466] eludes the application of the doctrine of collateral estoppel (Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11, 21), a nonetheless equally effective estoppel resulted from petitioners’ aforesaid actions (Central Buffalo Project Corp. v City of Buffalo, 74 AD2d 336, affd 52 NY2d 986). We therefore conclude that the SBEA determination which held that petitioners were estopped from challenging certain property valuations underlying the 1979 final State equalization rates was entirely correct. The determination should be confirmed, and the petition dismissed, without costs. Footnotes [1] While the advisory rate schedule is preliminary and its use not specifically authorized by the Real Property Tax Law, adoption of the State advisory equalization rate schedule for purposes of establishing county equalization rate schedules has been judicially sanctioned (see Morabito v Westchester County Bd. of Legislators, 73 AD2d 665). [2] Although the Town of Mount Kisco filed a complaint in relation to the tentative State equalization rate filed in 1979, it only complained as to the valuation of one of the parcels and it did not pursue this complaint to the courts. [3] Section 760 of the Real Property Tax Law, which provided for administrative and judicial review of final determinations of the SBEA relating to county and State equalization rates, has been repealed (L 1982, ch 714, § 25, eff Jan. 1, 1983). The substance of that section was transferred to articles 8 and 12 of the Real Property Tax Law.