Timothy R. Ray, Suzanne M. Ray, George A. Kovaka, Victoria Y. Kovaka, Aurora Park Health Care Center, Inc., and Orchard Glen Residences and Carriage Homes, L.L.C., Petitioners/Plaintiffs-Appellants, v. TOWN BOARD OF TOWN OF AURORA (2000)

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 A.D.2d 286, 698 N.Y.S.2d 291;  Fallica v. Town of Brookhaven, 69 A.D.2d 579, 419 N.Y.S.2d 102, mod. on other grounds 52 N.Y.2d 794, 436 N.Y.S.2d 707, 417 N.E.2d 1248;  Matter of Dubbs v. Board of Assessment Review, 46 A.D.2d 651, 359 N.Y.S.2d 815;  see also, People ex rel. Hoesterey, 210 App.Div. 196, 199-201, 205 N.Y.S. 897, revd. on other grounds 239 N.Y. 626, 147 N.E. 223).  “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, 698 N.Y.S.2d 291).   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 N.Y.2d 542, 551, 439 N.Y.S.2d 305, 421 N.E.2d 797, rearg. denied 54 N.Y.2d 626, 442 N.Y.S.2d 503, 425 N.E.2d 891).   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.

Judgment unanimously reversed on the law with costs, motion denied and petition/complaint reinstated.

MEMORANDUM: