Petitioners Joseph Pacini and Karen Pacini "Pacini" commenced this Article 78 proceeding to annul the Decision of David Parker, Small Claims Assessment Review Officer "Parker", which denied their claim to reduce their residential assessment by $64,000.00 pursuant to a Small Claims Assessment Review they instituted "SCAR", (Real Property Tax Law §729, etc.). They contend the hearing officer's decision was arbitrary and capricious. They seek an Order of the Court granting their reduction or in the alternative remanding the matter to a different hearing officer for a de novo hearing.

Respondent, Assessor of the Town of Whitestown, New York "Town" moves to dismiss the proceeding on the ground the Pacini's petition fails to state a claim upon which relief may be [*2]granted as a matter of law pursuant to Rule 7804 (f) of the Civil Practice Law & Rule "CPLR".

Petitioners own a newly constructed one-family residence at 210 Comenale Crescent, Village of New York Mills, New York. The Town comprises, in part, the Village. Petitioners filed a grievance before the Town's Board of Assessment and Review contesting their 2006-2007 assessment of $223,500. They contended they were over assessed by $64,000. The Review Board denied their request. The SCAR proceeding was then timely commenced. Parker conducted a hearing September 14, 2006. He rendered his written decision October 4, 2006, reducing the assessment by $20,000.00.The decision states, inter alia, "while the town provides comparable sales that suggest the present assessment of the subject represents its market value, there appears to be a discrepancy as to square footage. The town is assigning value based upon 2500 square feet and the owner is claiming 2300 square feet. It is for this reason I have made a reduction of $20,000 to the assessment."1.The decision further recites that unequal assessment constituted the basis of Petitioners' claim. He reasoned that any further reduction based on unequal assessment could not be granted because they compared their residence to only thirty other residential properties. His decision states "[O]ne must examine the entire tax roll in the given town to prove unequal assessment".

After review of the parties submissions and oral arguments the Court remanded the decision to Parker for a more reasoned decision. The basis for the remand included Parker's necessity to address the legal basis for the $20,000 reduction as well as the legal basis of the Town's methodology in determining the correctness of the Pacini assessment. It appeared to the Court the Town's assessment was determined by multiplying the total square footage of the residence by an average square foot construction cost and not by the fair market value of the property.

Parker timely responded. He set forth that the Town presented ample proof the market value of the subject property is between $250,000 and $260,000.2 He further stated that "[A]lthough the plaintiff did present a number of properties he contended were of comparable value, yet had lower assessments, he did not adhere to the above mentioned requirement that he use the entire tax role." (sic)

He confirmed that the basis for his $20,000 assessment reduction was the Town's erroneous determination of the total square footage of the residence. He then applied a cost per square foot to the reduced footage to derive the assessment reduction. Since Petitioners failed to examine the Town's entire tax roll in support of their claim Parker denied their application with the exception of the $20,000 reduction.

In reviewing the Hearing Officer's decision in a SCAR the Court's role is limited to ascertaining whether a rational basis exists for the decision. See Meola v. Assessor-Town of Colonie, 207AD2d 593; lv denied 84 NY2d 812; Bellomo v. Board of Assessment Review, 185 AD2d 574; lv denied 80 NY2d 761.

The Court finds the decision is not rational in that it was based on Parker's misinterpretation and misapplication of the Real Property Tax Law §729 (4). That section states: [*3]

"Unequal assessment" or an assessment which is unequal shall mean and include:

(a) an entry on an assessment roll of the assessed valuation of real property improved by a one, two or three family residential structure which is made at a higher proportion of full value than assessed valuation of other residential property on the same roll;

The Pacini's application was purportedly based on some thirty comparable one-family properties, convincing evidence they were relying on §729 (4)(a). It is clear that subsection contains no language mandating that inequality must be based on the entire tax roll. See Pace v. Assessor of Town of Islip, 252 AD2d 88, 90.

There is also no rational basis for the assessment reduction of $20,000. Instead of determining assessment based on a reduction in fair market value of the residence because of the 200 square foot discrepancy, Parker simply multiplied that footage reduction by an unspecified dollar amount per square foot, an erroneous methodology. See Pace, supra, at 90-92.

Since the Hearing Officer's decision is not rational it is annulled and remanded to the

Oneida County Chief Clerk of Combined Courts (Supreme Court) to designate a different hearing officer to conduct a SCAR hearing de novo and to render a decision pursuant to RPTL §733. At the de novo proceeding the hearing officer should consider, inter alia, whether the methodology used by Pacini in seeking their $64,000 reduction is valid.

In light of this Decision the Town's cross-motion to dismiss is DENIED as is the necessity to address other relief sought by Petitioners.This Decision also constitutes the Order of the Court. Pacinis are directed to file same with the Oneida County Clerk within twenty days of the date hereof and serve a copy on Respondent, with notice of entry thereon, within ten days thereafter.

The Court will forward the pleadings and Hearing Officer's decisions to the Clerk of the Combined Courts for forwarding to the re-assigned hearing officer.3

Dated: Rome, New York

April 10, 2007

John W. Grow

Justice of the Supreme Court

1. The Decision states the reduction was based on the Hearing Officer's finding that the total square footage of the residence was 2300 square feet as asserted by Pacini, 200 square feet less than the square footage determined by the Town.

2. Applying the Town's 80% equalization rate to $260,000 fair market value would result in an assessment of $208,000.00.

3.Motions, Memos of Law, etc. submitted to this Court are returned to the respective parties.