Fetzer v. Town Board of Aurora

—Judgment unanimously reversed on the law with costs, motion denied and petition/complaint reinstated. Memorandum: This combined CPLR article 78 proceeding and declaratory judgment action was commenced by, among others, appellants (petitioners/plaintiffs), who are four individuals who reside in the Town of Aurora (Town), and two entities that own nursing homes/retirement communities, one situated within the Town and one in an adjoining town. The proceeding challenges the determination of respondent/defendant Town Assessor granting a tax exemption under RPTL 420-a and 420-b with regard to property within the Town owned by respondent/ defendant Presbyterian Homes of Western New York, Inc. (Homes) on which Homes is constructing a retirement community/transitional care facility and, eventually, a skilled nursing facility. The proceeding also challenges the action of respondent/defendant Town Board of the Town of Aurora (Town Board) in entering into a PILOT (Payments in Lieu of Taxes) agreement with Homes. The appeal is from a judgment granting the motion of respondents/defendants for summary judgment dismissing the petition/complaint in its entirety, presumably on the ground that petitioners/plaintiffs lack standing to challenge the granting of a real property tax exemption to another taxpayer. Taxpayers in a community have standing to challenge a determination that a property within the community’s borders is exempted from the tax rolls (see, Matter of Colella v Board of Assessors, 266 AD2d 286; Fallica v Town of Brookhaven, 69 AD2d 579, mod on other grounds 52 NY2d 794; Matter of Dubhs 805 v Board of Assessment Review, 46 AD2d 651; see also, People ex rel. Hoesterey, 210 App Div 196, 199-201, revd on other grounds 239 NY 626). “The decrease in the tax base that occurs when a property is improperly exempted from taxation has been found to constitute a cognizable injury to such taxpayers” (Matter of Colella v Board of Assessors, supra, at 287). Such a result is consistent with the “more recent trend of liberalizing the ability of taxpayers to challenge governmental action” (Matter of Dudley v Kerwick, 52 NY2d 542, 551, rearg denied 54 NY2d 626). Thus, the court erred when it concluded that petitioners/ plaintiffs did not have standing to challenge the tax exemption granted to Homes. Therefore, the judgment is reversed, respondents/defendants’ motion is denied and the petition/ complaint is reinstated. (Appeal from Judgment of Supreme Court, Erie County, Mintz, J. — CPLR art 78.) Present — Green, A. P. J., Pine, Pigott, Jr., and Scudder, JJ.