STATE OF NEW YORK SUPREME COURT

COUNTY OF CHAUTAUQUA

_______________________________________________________

In the Matter of the Application for a Review

Under Article 7 of the Real Property Tax Law

of the Assessments by ROBERT G. DART,

Petitioner,

Index No. H-9881

vs

THE TOWN OF CHAUTAUQUA and the BOARD

OF ASSESSMENT REVIEW FOR, THE TOWN

OF CHAUTAUQUA, COUNTY OF CHAUTAUQUA,

Respondents.

_______________________________________________________

BIERSDORF & CAMERON, P.C.

(Dan Biersdorf, Esq.

of Counsel) for Petitioner

CUSICK, HACKER, & MURPHY, ESQS.

Special Counsel to John Beckman

(David Murphy, Esq.

of Counsel) for Respondents

JOHN BECKMAN, ESQ.

Attorney for Respondents

DECISION AND ORDER

GERACE, J.

BACKGROUND

On June 29 and 30, 1995, the Court held a non-jury

trial to decide the market value and the 1994 assessment of

the property known as the Dart Airfield and formerly known

as Aero Industries, Mayville, New York.

The Court heard testimony from Robert Dart ("Dart"),

the Petitioner and owner of the property; Howard Schultz

("Schultz"), an appraiser with the MAI designation, who

testified as an expert valuation witness on behalf of the

Petitioner; James Szakacs ("Szakacs"), an appraiser hired

on behalf of the Respondent to provide valuation testimony

and Joseph Mertik, an appraiser for the State of New York

Real Property Tax Services.

The parties submitted findings of fact, conclusions of

law, and a trial brief together with computer discs

containing their submissions to the Court. With unabashed

plagiarism, the Court has taken the liberty of lifting

portions of the findings of fact, briefs and memoranda

presented by counsel, without allocation of credit to

either of them.

DESCRIPTION OF SUBJECT PROPERTY

The property is located at 6165 Plank Road in the Town

of Chautauqua and assessed as parcel 12-1-14.2.1. It is

owned by Robert G. Dart and consists of approximately 67

acres of land, with various buildings containing

approximately 69,000 square feet of gross area; it has just

under 6,000 feet of frontage on three (3) public roads and

is a level, regularly shaped parcel. (Cf. Appraisals).

The property is zoned B-Business District and RA-

Residential/Agricultural District and is a mixed use

property.

It is operated as a privately owned airport with

approximately 2,800 feet of unpaved, improved landing

strips, ancillary asphalt paving and an office building.

The property is also improved with 20 other separate and

interconnected buildings which range from airport hangars

to leased commercial space.

There are 10 primary hangar buildings of pole barn

construction on the property that were built between the

years 1982 and 1992. The condition of the hangers ranges

between poor, fair and good condition; mostly good.

The subject property is also improved by a wood frame

office building built in 1987, an airplane and engine

repair shop building of approximately 2,000 square feet

built in 1975, a light manufacturing/storage space of some

15,000 square feet built in the mid-1970's and a second

manufacturing/storage space (Building "X") of approximately

4,500 square feet which comprises like manufacturing and

auto service and repair uses.

The combined hangar buildings at the subject property

accommodate 48 separate hangar spaces for airplane owners

who regularly use the subject airport. There is also ample

cleared exterior space for uncovered airplane "tiedowns" on

a rental basis.

The property also has a wood frame residential

building with ancillary garage and workshop of

approximately 2,500 square feet in size which petitioner

occupies as his home. It was built in the early 1900's,

with the garage and workshop addition reportedly added in

1950. Szakacs reached a value conclusion of $55,000 for

the dwelling and accompanying land of one acre. The

corresponding value conclusion by Schultz was $70,000.

Some of the buildings were designed as hangar

facilities to store planes utilizing the Dart Airfield.

Other buildings were constructed during the past 20 years

to house the operations of Aero Industries, a light

industrial company that Dart operated from the subject

location.

Aero Industries ceased doing business in 1991.

Dart has had moderate success in leasing some of the

buildings Aero Industries had occupied.

The Court inspected the property. A few of the pole

barns have a weathered, hang dog look that would qualify

the airfield for a Will Rogers movie, but, for the most

part the buildings appeared to be in reasonably good

condition. The entrance used by the Court is an unpaved

dirt driveway with holes and mini-mogels that made driving

at a 25 MPH speed a bouncing adventure.

NEW YORK STATE REAL PROPERTY SERVICES'

INVENTORY APPRAISAL

Petitioners introduced the New York Real Property

Services (formerly Equalization and Assessment) inventory

cost survey report for the subject property prepared by

Richard Beaty, a state agency employee. The Court accepted

this report into evidence over Respondent's objection,

subject to whatever ultimate determination would be made

concerning its admissibility and weight.

Under the Uniform Rules of Court Part 202.59, the

parties are precluded from going outside the appraisals

filed for mutual exchange pursuant to the Court Rule for

expert valuation proof.

Moreover, there is some question whether personnel of

the State Real Property Tax Services should appear "as an

expert witness on behalf of municipalities in certiorari

proceedings" except where an advisory appraisal was used

by the assessor. See opinion of Justice Mary M. Werner,

JSC, published December 21, 1995 in the New York Law

Journal in 101 North Broadway Associates v. Board of

Assessors.

That caution is justified by the situation presented

by the testimony here by Beaty's co-worker, a Mr. Mertik.

He testified that the agency's document was prepared "for

equalization purposes only (T. 15)". He acknowledged that

the time lag between the valuation date and the base

inventory data used by the state agency "could go as far

back as 1989." (T. 16.) Mertik also said the document was

geared to the state agency's limited scope reproduction

cost computerized format (T. 19) and that the report did

not comply with even minimal USPAP standards for appraisals

and was not keyed to any controlling assumptions or

limiting conditions. T. 18.

For all the above reasons, the Court gives no weight

to New York State RPS documents.

THE APPRAISALS

Both Szakacs and Schultz considered the subject

property for use as an airfield, but, Schultz values the

entire parcel as an airfield, and Szakacs values the former

Aero buildings independently from the airfield because he

feels they are suitable for light manufacturing, office

space, and storage.

The property is unique. There are no private

airfields anywhere in Western New York that have such a

large building area or even land area. However, Szakacs

did not think the airfield use was the highest and best

use, or the most likely and profitable use of the entire

property, or the sole use for which a knowledgeable real

estate investor would evaluate its desirability in the

market.

Both appraisers agreed the site possessed

substantially more gross building area than is customarily

associated with a private airfield. This excess building

area consisted of the structures formerly occupied by Aero

Industries.

The manner in which this excess building area was

considered in each appraisal was the subject of

considerable dispute between the two experts. Both agreed

that the direct sales comparison approach was the best

indicator of value, but, they disagreed about the highest

and best use of the former Aero Industries buildings when

valued under that approach.

Schultz testified he viewed these structures as excess

building area to the airfield and would require a positive

building size adjustment to sales of other airfields with

less building area.

Szakacs viewed the buildings formerly occupied by Aero

Industries as having a highest and best use for a light

manufacturing/storage/office facility.

The different conclusion by the appraisers about

highest and best use is a primary difference between them

relative to their value conclusions under the direct sales

comparison approach.

Schultz concluded that all the subject property, other

than the dwelling, had a value of $254,000 based upon his

conclusion for highest and best use. This incorporated a

building size adjustment of $2.00 per square foot to his

comparable airport sales for the extra building size

attributable to the former Aero Industries space. Szakacs

valued the entire facility at $500,000 (including the

dwelling), however, in the sales comparison approach he

valued the landing strip without the former Aero Industries

buildings at $225,000 and considered the former Aero

Industries buildings to have a contributory value of

$280,000.

Dart testified that he has had a very difficult time

trying to lease the former Aero Industries space. He

stated that the construction of that space in sections,

which suited the particular operation that he ran, was not

finding acceptability in the marketplace for a light

manufacturing use as he had done. T. 290, T. 32.

He did not, however, list the property with brokers.

Instead, he relied on word of mouth and a sign posted along

the road advising passersby of the availability of space.

Respondents contend those efforts were inadequate.

[Given the location of the property, a more aggressive

attempt may have resulted in leasing the property for

industrial purposes, especially for industrial and business

incubator purposes.]

Schultz testified that the former Aero Industries

space should not be classified as light manufacturing since

the ceiling heights, building configurations, and access to

the buildings were such negative features that no one would

consider buying the property for that type of operation.

T. 69.

Schultz also testified that the location of the

airplane hangars on the site made access to the former Aero

Industries buildings extremely difficult for uses

associated with the airport. T. 76.

[The Court agrees these features would make it

difficult, if not impossible to find an industrial lessee

or buyer for the entire Aero complex.]

In contrast to Schultz, Szakacs testified that the

highest and best use for the former Aero Industries

buildings should be for a light manufacturing/storage/

office facility. Using this conclusion he valued the

former Aero Industries space at $6.50 per square foot.

However, he also testified that in his search of

airfields for comparison to the subject property, he did

not find any airfields which had manufacturing facilities

on them and that out of the literally thousands of

manufacturing facilities he had viewed, he never found a

manufacturing facility that was surrounded by an airport.

T. 256, T. 206.

He also testified that a light manufacturing use for

which the history of the Aero space indicated it was

suitable (such as small item assembly) would not require

large bulk shipments of heavy materials; that the site was

more than ample to support use for light manufacturing and

storage. T. 234-235, T. 253.

DECISION

In a tax certiorari proceeding it is well established

that the assessment is presumed to be valid, and the

initial burden is upon the party contesting the assessment

to overcome this presumption of validity by substantial

evidence.

MatterofAdirondackMountainReservev.BoardofAssessors

ofTownofHudson, 99 A.D.2d 600, 601 (Third Department,

1984); CarriageHouseMotorInnIncvWatertown 136 AD2d

895, affd 72 NY2d 990; MatterofCountyDollarCorpvCity

ofYonkers, 97 AD2d 469.

This burden lies on petitioner with equal weight as to

both over valuation and the issue of inequality. Merrick

HoldingCorpvBdofAssessor 76 M2d 754; TillsoeCorpv

Assessors 55 M2d 431. The applicable law is set forth in

MatterofGeneralMotorsCorpvAssessor,Townof Massena,

146 A.D.2d 851 (Third Department, 1989).

This presumption of validity remains in place and is

controlling until the petitioner overcomes the presumption

with sufficient evidence demonstrating the invalidity of

the assessment. At that point, petitioner has made out a

prima facie case and the presumption disappears. The

presumption is not evidence, has no weight as evidence, and

is not to be considered by the Court in weighing the

evidence. GeneralMotorsCorp.vTownofMassena, 146

A.D.2d 851 (Third Department, 1989).

THE SCHULTZ APPRAISAL

Petitioner's appraiser, Schultz, performed the

traditional three approaches to valuing the real estate.

Uniform Rules 202.59(g)(2) prescribes that appraisals

need to contain an explanation of all of the "facts,

figures, and calculations by which the conclusions were

reached".

The Schultz appraisal met this test by providing

sufficient evidence to overcome the presumption of

correctness.

Respondent charges that the entire Schultz appraisal

is defective because he merely placed a reversionary value

on a building referred to in the Record as Building "X"

(Redlich). This 4,000 square foot building was subject to a

land lease with a reversionary interest in favor of Robert

Dart but was not fully valued in the petitioner's report.

The lease had 17 years more to run. Respondent says the

appraisal should have placed a value on the building

irrespective of any lease.

That Mr. Schultz did not compute a value for this

leasehold interest does not present a problem for the

Court, any more than it did for the assessor. The assessor

was entitled to reflect in the overall value the presence

of this building, new in 1992 (T. 54) without regard to the

internal lease structure and without regard to the fact

that the property interest in the building was split

between a leasehold and reversionary interest. Cf. Barnum

v.Srogi, 54 NY 2d 896 (1981); Zappalav.Hann, 198 AD 2d

879 (4th Dep't. 1993); ContinentalAssuranceCo.v.

VillageofLynbrook, 113 AD 2d 795 (1985).

The Court does not consider this omission fatal

because this was only one of many buildings, but, more

relevantly, the appraiser was considering the valuation

from the perspective of the market place. See Matterof

A&Pv.Kiern, 79 AD2d 371 where the Court said the issue

is highest value in the marketplace.

THE SZAKACS APPRAISAL

Petitioner complains that the Szakacs appraisal

report is incomplete per Rule 202.59(g)(2) and should not

be considered because it is missing a land value

calculation. T. 257.

The direct sales comparison approach in the Szakacs

appraisal report contained two separate analyses for the

non-dwelling portion of the subject property; one analysis

for the airport portion, the second for the improvements

formerly occupied by Aero Industries. Szakacs did identify

comparable sales which he used for both light

manufacturing/storage/office facilities and for airports.

Petitioner argues that the direct sales comparison

approach in the Szakacs appraisal report is deficient and

inadmissible under Rule 202.59(g)(2) because it is missing

an analysis containing the facts, figures, and calculations

by which his conclusions were reached or his adjustment

processes were explained. Those omissions are not fatal;

they may affect the weight, but, not the admissibility.

Moreover, in several instances Szakacs appraisal provided

more analysis and explanation than did Schultz, and, unlike

Schultz, he did have his notes at the trial.

Petitioner's motion and order excluding the Szakacs

appraisal report from consideration in the case is denied.

The Court also denies Petitioner's motion to exclude the

cost approach and direct sales comparison approach

analysis, and denies respondent's motions addressed to the

Schultz appraisal. Both appraisals meet the thresholds of

Rule 202.59(g)(2); both meet the test for admissibility.

AERO INDUSTRIES STRUCTURES

There is a sharp difference between the two reports in

characterizing and valuing buildings 11, 12, 13, 14, 15,

18, and 19 which were formerly occupied by Aero Industries

for a light assembly operation.

The remaining structures, except for the dwelling,

have been associated with the operation of the airport.

Both Schultz and Szakacs agreed the highest and best use of

the buildings which have been historically utilized by the

airport facility should continue to be used for that

purpose. They did not agree as to the highest and best use

for the structures formerly occupied by Aero Industries.

Szakacs testified that the highest and best use for

those structures would be as a separate light

manufacturing/storage/office facility. Schultz believed

these structures were simply additional gross building area

available for purposes that would not interfere with the

operation of the airport.

Szakacs identified two comparable sales used for light

manufacturing/storage/office purposes from which he

concluded that these structures had a contributory value of

$280,000 under the direct sales comparison approach.

Szakacs appraisal report, pages 48.

Unfortunately, the Szakacs report lacks an adjustment

explanation. While this does not qualify to exclude the

Szakacs direct sales comparison approach for the former

Aero Industries' buildings from consideration as evidence,

the absence of adjustment explanations affects the weight

of that evidence and the Szakacs value conclusion.

Schultz testified that the former Aero Industries

buildings would be unsuitable for a light manufacturing/

storage/office facility because of extremely poor access.

Petitioner makes much of the fact that Szakacs, who was

asked by petitioner's counsel during the trial to draw the

land parcel that he would envision being used for light

manufacturing, produced a drawing that petitioner claims

"was a twisted, convoluted parcel of land that possessed an

extremely irregular shape to avoid the other airport

buildings which surround it." Szakacs conceded that such an

irregularly shaped parcel as he had drawn would be

considered less valuable as a light manufacturing facility

in the marketplace . T. 239, 240.

Interesting, but, this ignores the fact the facility

was once used in that fashion, and, ignores the fact it

would not be purchased in that configuration by a

reasonably intelligent buyer.

More relevant is Szakacs testimony that tractor

trailers would not be able to access the buildings formerly

housed by Aero Industries. He claims access would not be a

problem because light manufacturing does not require large

bulk shipments and material transfers could be accomplished

by small vehicles. T. 279.

Respondent believes the access argument is a "red

herring", but, in this Court's judgment, lack of access by

tractor trailers would seriously impact on the conclusion

that the former Aero Industry buildings can effectively be

utilized for a separate light manufacturing/storage/office

integrated complex or be considered the highest and best

use (although they might be available for industrial or

business incubator purposes).

This feature suggests that Szakacs' conclusion about

highest and best use is overly optimistic, but, that

Schultz's conclusion in ignoring the incubator potential is

too pessimistic.

Szakacs testified that, if a feature is seen more

frequently in the marketplace, it will be considered more

acceptable or more desirable. T. 248.

A feature which is critical to the highest and best

use determination for the former Aero Industries' space is

the acceptability or desirability by the marketplace of

manufacturing space which is surrounded by an airport.

Szakacs testified that he did not find any private airport

that had a history of manufacturing use located on the

site, nor any surrounded by an airport. T. 206, 257.

Apparently, the marketplace does not consider a

manufacturing facility surrounded by an airport desirable,

acceptable or marketable.

Respondents argue that by Mr. Dart's own account,

the former Aero manufacturing site was an efficient layout

for a small scale assembly and manufacturing. He testified

that:

"Material entered Building 17, flowed through 18

into 11, went to building 12 where it was finished

and packed, and was stored in 14 and 15." T. 30

The fact that Aero is no longer in operation may belie

the suggestion the site was "an efficient layout", but,

there was no testimony on this point.

However, Respondents say this integrated small assembly

use was interrupted by changes in use initiated by Mr.

Dart; that he removed the heavy duty electrical service

ancillary to the assembly process (T. 30, 47), and he was

the one who installed a firewall so that he could

accommodate a sandwich shop on his premises. T. 47.

Respondents argue that in lieu of the more intense

assembly manufacturing use, and in lieu of an effort to

rent out the space as improved for that use, Mr. Dart

elected to strip the Aero space of many of its amenities

and to alter the configuration of the space, itself. This

is all true, but, he certainly had a right to make changes

that would accommodate his airport operations.

The Court cannot conclude that the highest and best

use for the former Aero Industries space should be as a

light manufacturing/storage/office facility. This is not

to suggest that this space has no industrial value. It

does. But, its contributory value should be calculated in

part as gross building area of the airport based upon how

its features complement an airport operation, and, in part

as industrial or business incubator. Schultz calculated

the former, but not the latter feature. T. 68.

Schultz's adjustment for the extra gross building area

is $2.00 per square foot. When he made this adjustment to

his three comparable sales, the dollar amount for this

adjustment ranged from $81,000 to $92,000. Schultz

appraisalreport,page63.

This is the equivalent of 40,500 to 46,000 square feet

of extra gross building area.

**29.$81,000 ÷ $2.00 per square foot, $92,000 ÷ $2.00 per

square foot.

The $2.00 per square foot for the extra 40,000 square

feet of usable space that the subject property enjoyed as

compared to sale 1 is patently questionable; the OGLS

leased office space was a part of this area and the Court

was advised that this space (8,500 sq. feet) was rented by

Dart at $15,000 a year. Even the "cheap construction"

space as described by Schultz in discussing his cost report

on Pole Barn Construction had a base square foot price of

over $7.60, by comparison. T. 140-141.

The income approach used by Schultz completely ignored

Flea Market seasonal rents although, by Mr. Dart's own

testimony, the income derived from the Flea Market was

directly and exclusively attributable to the land (R. 175).

It also ignored the fact that Dart was not charging the

leasehold for property taxes.

According to Szakacs, the former Aero Industries

buildings possessed 42,981 square feet which means

Schultz's adjustment to his comparable sales for extra

gross building area basically relates to the former Aero

Industries buildings.

In assigning a value of $2.00 per square foot to the

entire gross building area on the subject site, Schultz

understated the value of that part of the Aero facility

that had been used for assembly line operations.

Dart has rented some of the former Aero Industries

buildings for low intensity storage, but claims much of the

space has received no interest from the marketplace.

Perhaps the marketplace would have shown more interest had

petitioner demonstrated an aggressive effort to find

tenants. The evidence, however, indicated less than an all

out effort to educate the marketplace of space

availability.

Schultz testified that the unrented space has features

which he believes cause the space to be unrentable. He

noted that building 11, one of the largest buildings on the

site has low ceiling heights. He also testified that these

buildings are located on the site in a way that they have

poor ingress and egress for storage use and are not

accessible for airplane use. T. 76.

The real test is not the Schultz opinion, but, that of

the marketplace that was virtually untapped. The fact that

it was not infects Schultz's allocation of $2.00 per square

foot for the entire extra gross building area.

Unfortunately, neither appraiser considered the rental

value of incubator space nor identified or compared such

space in this county.

COMPARABLE SALES

Respondent criticizes the Schultz' size of the

adjustments factors he applied to his three comparable

sales, claiming Schultz's total adjustments to his sales

comparables were extremely high relative to the sale prices

of those comparables. The net adjustment for his

comparable sale number one is -$79,677 (- 32%), + $52,323

(+ 47%) for comparable sale number two, and + $24,323

(+24%) for comparable sale number three.

Petitioner concedes these adjustments are more than de

minimis, but claims they are reasonable for the type of

property in the case where both appraisers acknowledge

numerous sales simply do not occur, and, reasonable because

a relatively large adjustment was needed to account for the

extra gross building area formerly occupied by Aero

Industries.

The Court notes two of the Schultz sales were also

selected by Szakacs in his appraisal report, but, unlike

Schultz, Szakacs' work did not include an explanation of

his adjustment process.

Petitioner appears to argue that a substantial, almost

incredible, adjustment of comparable sales with an

explanation is far more acceptable than an analysis with no

adjustment explanation.

Both experts also utilized a cost approach in their

respective appraisal reports; both indicated the cost

approach did not give a reliable indicator of value for

this facility. T. 87, 179.

The experts differed on the expected life of the pole

barn structures. Szakacs used 35 years, Schultz used 20

years. T. 184, 82.

MarshallandSwiftValuationService, recognized by

both experts provides an effective life for pole barn

structures of 20 years. Schultzappraisalreport,page46.

Schultz's conclusion of a 20 year effective life would

appear to be the more credible except for one important

fact. Some of the pole barn structures in the comparable

sales were over 35 years old and still in good condition.

Allocating a 20 year life or depreciating the hangar

buildings by 75% as of 1994 (R. 84) indicated that, in Mr.

Schultz's opinion, these buildings would require

replacement in a mere five years; this was clearly not a

fair inference for Mr. Schultz to draw from the market as

evidenced by the 35 to 40 year age of hangars at the

comparable airport facilities he investigated.

Having visited the property and inspected the

buildings, the Court's is satisfied that the 20 year life

is unrealistic. The assessors would be justified in using a

25 to 30 year life to most of the buildings, except for

those Dart identified for demolition. Szakacs' 35 year

estimate is too high, however. Dart testified that these

buildings were built with the cheapest construction that he

could find; moreover, the quality of the metal of pole barn

structures built 35, 40 years ago was superior to the

imported products available when he built his pole barns.

T. 25-26.

The appraisers differed over the type of construction

used for the non-dwelling buildings. Schultz considered

all of these buildings to be erected with pole barn

construction. T. 79.

Szakacs testified, though, that he assumed buildings

10, 11, 12, 13, 18, and 19 were built of slab construction

and not pole barn construction. He described slab

construction as construction involving footings as opposed

to poles sunk into the ground. T. 265-266, 267.

Szakacs also admitted that there was a cost

distinction between pole barn construction and slab

construction. He stated that pole barn construction is

cheaper. T. 266.

Dart testified that buildings 10, 11, 12, 13, 18, and

19 were built of pole barn construction as opposed to the

slab construction assumed by Szakacs. T. 283, 284.

This affects the replacement cost analysis since

Szakacs admits that slab construction is more costly than

pole barn construction.

INCOME APPROACH

The experts differ on the appropriate rent that should

be attributed to buildings 10, 11, 18, 19, 17, 20, and 21.

With regards to buildings 10, 11, 18, and 19, Szakacs

estimated the rent for that space under the assumption that

it was superior to the space contained within building 12.

T. 261-262.

From his appraisal report, the actual rent which

Szakacs attributed to building 12 (which he concluded was

market rate) was $1.00 per square foot. T. 199.

Szakacsappraisalreport,page56.

In comparison to this building, he estimated the rent

for buildings 10, 11, 18, and 19 at $1.75 per square foot.

Dart testified the Szakacs' conclusion that building 12 was

superior to these buildings was in error because building

11 was less than 50 percent as rentable as building 12,

buildings 18 and 19 were only 60 percent as rentable.

T. 286, 287.

Dart even explained why those buildings were

substantially inferior to building 12 and would command

significantly less rent than building 12. T. 285, 286.

Petitioner says the rent for these four buildings

should be no greater than 60 percent of the rent potential

for building 12 which translates into $0.60 per square

foot. Using that level of rent as opposed to the $1.75 per

square foot contained within the Szakacs report, the

potential rent buildings 10, 11, 18, and 19 can generate is

only $8,287 rather than the $24,171 which he listed.

The Court considers the $24,171 to be too high; $8,287

too low; $10,359 just right.

Szakacs also erred in claiming that building 17 could

generate $2,160 per year in rent. He based this upon the

fact that this building would be able to accommodate four

planes for storage at $45.00 per bay per month. T. 257.

Szakacsappraisalreport,page56.

Dart testified that such rent potential was impossible

because the building is in such extremely poor condition

with broken trusses that it should be torn down, and, that

there is no access to the building from a direction which

would allow a plane to be pushed into the building. Dart

contends this lack of accessibility makes it physically

impossible to store any planes in building 17. T. 287.

Maybe so, but, that does not mean that building 17 is

without value in spite of the broken trusses. Firstly,

trusses can be repaired or replaced; secondly, other items

than aircraft could be housed there.

Perhaps Szakacs has overstated the rent potential for

building 17 in his income analysis, but, not by the $2,160

per year stated by petitioner; more likely by $1200.

Szakacs estimated that buildings 20 and 21 would

produce the same level of rent as building 12. Dart

testified that buildings 20 and 21 are in nearly as poor a

condition as building 17 and would be scheduled for

demolition very soon after 17 was torn down; that the

quality of building 20 is only 20 percent of the quality of

building 12 and building 21 is only 10 percent of the

quality of building 12. T. 288.

The Court agrees with petitioner that if these

buildings are considered rentable at all, the amount of

rent that they could generate would probably be de minimis.

But, even de minimis rents contribute to pay the real

estate taxes.

Szakacs testified he gave only 40 percent weight to

the income approach. When his income process is adjusted

for the differences noted by Dart, the net operating income

is significantly reduced. The capitalization of the

reconstructed net operating income would result in an

indicated value of approximately $300,000.

FINDINGS OF FACT

1. Petitioner has sufficient interest in the

property to maintain this petition; all statutory and

jurisdictional requirements have been met; and the Court

has jurisdiction over the subject matter of the action and

the parties hereto.

2. On March 1, 1994, Petitioner owned the parcel of

property located at 6165 Plank Road, Town of Chautauqua,

County of Chautauqua, State of New York, legally described

by S.B.L. Number 12-1-14.2.1. The subject property

consists of approximately 67 acres. It has a slightly

irregular shape with frontage on three roads within the

Town of Chautauqua.

3. The subject property is improved with a number

and variety of structures. One structure is a two story

dwelling. The remaining structures are hangar and/or

storage buildings erected with pole barn construction,

including buildings formerly occupied by Aero Industries

for light manufacturing purposes. The pole barn buildings

have approximately 53,707 square feet of gross building

area. There are 20 different pole barn structures

identified on the site. The finish in the pole barn

structures range from dirt floors with no interior finish,

heat, or electrical, to concrete floors with some

insulation, electrical service, and space heaters and

interior finish.

4. The buildings on the subject site which were

identified by number 11, 12, 13, 14, 15, 18, and 19 were

previously occupied by Aero Industries which involved a

light manufacturing operation. The Aero Industries

business ceased operation in 1991. Sometime after the

cessation of that operation, Petitioner removed industrial

electrical units and service and a firewall from the Aero

building. The current condition of the buildings formerly

occupied by Aero Industries, and their location on the site

render the complex inefficient and inadequate as a complex

for light manufacturing, except for incubator purposes for

light, low volume production purposes. The location of

several of these buildings on the site makes them

impractical for use in the airport operations.

5. Because it is the only private air field of

significant size in the County, the highest and best use

for the subject property as improved is as a small private

airport, and in buildings not needed for the airport uses,

for small industrial incubator operations, low density

storage and related office uses.

6. The effective life for the pole barn structures

viewed by the Court is 25 years, with the type of

maintenance practiced by petitioner.

7. Petitioner offered the appraisal of Howard

Schultz to provide an opinion of value for the subject

property. He concluded that the subject property had a

market value of $324,300 on January 1, 1994. The appraisal

report prepared by Mr. Schultz contained a complete listing

of calculations, adjustments, and explanations sufficient

to support the conclusion of value reached in the report,

except that the life allocated to the buildings was too

conservative; he did not place a fee value on the leased

premises, and, he undervalued the light industrial

(incubator) potential of the former Aero Industries

property; understated a realistic depreciation of the

buildings.

8. Having failed to list the property with brokers or

advertise, petitioner's efforts to market the Aero property

for industrial purposes were less than aggressive and

contributed to the low income levels.

9. Respondent offered the appraisal of James Szakacs

for the purpose of providing an opinion of value for the

subject property on March 1, 1994. His appraisal provided

an adequate basis for his opinion, except for the real

estate omission and less than complete listing of

calculations and explanations. Mr. Szakacs concluded that

the value of the subject property on that date was

$500,000. The Court finds this valuation is too high; the

industrial potential of property is overrated as is the

potential for airplane storage in building 17. The

appraisal ignored modifications in the Aero buildings that

petitioner had a right to make; it elevated pole barn

construction to slab construction valuation; that the 35

year effective life contemplated by the appraisal was too

generous, given the Marshall and Swift Valuation Service 20

year effective life, and the finding of the Court and

acknowledgment of the parties that petitioner built with

the cheapest construction he could find, and the finding

that the quality of metal for pole barn structures at the

time petitioner constructed the buildings was inferior to

the quality of metal for pole barns built in the year of

the properties used for comparison purposes.

10. Respondent's reappraisal did not make adequate

adjustment for the location of the property. The Court

takes judicial notice of the fact that the overwhelming

majority of light and heavy industrial sites are within the

Jamestown/Falconer area in south Chautauqua County, and,

in the Dunkirk area in the north. The difference between

Hartfield and the Jamestown/Falconer region for

manufacturing purposes favors the city area. The

difference between Evans and Hartfield for private airport

purposes likewise places Hartfield at a great disadvantage

from the standpoint of desirability and market.

11. The assessment for the January 1, 1994, valuation

date (March 1, 1994, taxable status date) is $515,000. The

Court finds that the fair market value of the subject

property on January 1, 1994, to be $415,000.

CONCLUSIONS OF LAW

1. Both appraisal reports are deemed adequate to

meet the requirements of Uniform Rules 202.59(g)(2).

2. The assessed value for the January 1, 1994,

valuation date (March 1, 1994, taxable status date) shall

be reduced on the books and records of the Town of

Chautauqua from $515,000 to $415,000.

3. Real estate taxes paid by the Petitioner to the

Town of Chautauqua, the County of Chautauqua, and the

Mayville Central School District shall be recomputed

accordingly and refunds, if any, paid to Petitioner as

required by such computations, together with interest as

provided by law.

The signing, filing, and mailing of a copy of the

Court of this Decision and Order to all Counsel shall not

constitute notice of entry required by CPLR 2220. Counsel

are not relieved from the applicable provisions of that

section respecting notice of entry.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: February , 1996

Mayville, New York

_________________________________

JOSEPH GERACE

Supreme Court Justice

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, was duly granted in the above

entitled action on the day of , 1996, and

filed by the Court in the office of the Clerk of the County

of Chautauqua on the same date.

ASSESSMENT REVIEW: Private Airport; light industry;

Highest and Best Use; Admissibility of State Inventory

Appraisal; Adequacy of appraisals lacking land calculation

and full value of leasehold interest.