The trial of this Tax Certiorari Real Property Tax Law (RPTL) [*2]Article 7 proceeding, challenging the valuation by the Village of Tarrytown and Town of Greenburgh of the real property owned by Cooney Realty, Co, Ferry Landing LLC, and Westchester Industries (collectively Ferry or Petitioner), took place before the Hon. Thomas A. Dickerson on eighteen dates ^[FN1] in 2006, and in addition the following post-trial papers numbered 1 to 8 were considered in connection with the trial of this matter ^[FN2]:

PAPERSNUMBERED

PETITIONERS' POST TRIAL MEMORANDUM OF LAW1

PETITIONERS' PROPOSED FINDINGS OF FACT AND

CONCLUSIONS OF LAW2

POST TRIAL MEMORANDUM OF RESPONDENT GREENBURGH3

RESPONDENTS GREENBURGH'S PROPOSED FINDINGS OF FACT

AND CONCLUSIONS OF LAW4

TARRYTOWN'S MEMORANDUM OF LAW5

PETITIONERS' POST MEMORANDUM OF LAW-REBUTTAL6

RESPONDENT'S GREENBURGH REPLY MEMORANDUM7

REPLY MEMORANDUM OF LAW8

Based upon the credible evidence adduced at the trial, and upon consideration of the arguments of respective counsel and the post trial submissions, the Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

The subject property consists of seven tax lots located within the Town of Greenburgh and the Village of Tarrytown, New York. The seven lots are contiguous, cover approximately 13 acres, and are known as Tax Map ID Nos. Vol. 1, Sheet 1, Parcels P13, P14, P21, P22, P23, P24 and P24A. All the lots are located within the Waterfront General Business District ("WGBD") of the Town of Greenburgh and the Village of Tarrytown; this zoning designation was changed from ID-Industrial to WGBD in 1998. [*3]

Proceedings were filed in assessment years 2001-2005 against both the Town of Greenburgh and the Village of Tarrytown. The prior owners, Cooney Realty Company (which owned lots P13, P24, and P24A) and Westchester Industries, Inc. (which owned P14, P21, P22 and P23), commenced these proceedings in 2001 and 2002; the current owners, Ferry Landings, LLC, then purchased the Cooney Realty lots, and received the Westchester Industries lots through a stock sale transfer, both in 2002, and have since commenced the remaining proceedings.

In 2003, Ferry submitted a formal site plan application to the Village of Tarrytown, proposing a mixed-use development of townhouses, loft residences, and commercial office space. In 2004, the Village of Tarrytown amended Local Law No. 1-2004 (the zoning ordinance) to accommodate this type of proposed development on the subject property. In 2005, the environmental review of the proposed development proceeded to a FEIS (Final Environmental Impact Statement).

For all of the tax years at issue, petitioner's appraiser used both the sales comparison approach (as if the land was vacant) and the income capitalization approach (utilizing the parking lease). [*5]Zoning clearly allowed vehicular storage until 1998. In that year the zoning designation was changed, and vehicle storage was no longer permitted, however, since the prior use was demonstrably continuous, without any evidence of enforcement by respondent, it is evident that parking was a pre-existing non-conforming use. In October 2004 construction of a building on the site was completed, and the Tarrytown Department of Public Works took up residence therein.

Petitioner's income capitalization approach relied, for the period 2001-2003, on rents actually paid by tenants leasing either lots P13 or P14. Expenses were estimated, and a capitalization rate derived from the Korpacz Real Estate Investor Survey. The appraiser concluded the following values:

June 1, 2001 - $860,000

June 1, 2002 - $860,000

June 1, 2003 - $895,000

June 1, 2004 - $1,121,250

Petitioner's sales comparison approach used six comparable sales for the 2001-2003 tax years.

Comparable Land Sale No. 1 compromising approximately 2.76 acres is located on Marbledale Road in the Village of Tuckahoe, Town of Eastchester, New York. It was purchased in November 1999 for $1,100,000, or $398,984 per acre. Notably, hillside property comprises some 40,000 square feet of this site.

Comparable Land Sale No. 2 includes approximately 1.61 acres (encumbered by a roughly 10,600 square foot permanent easement). It is located on Ashburton Avenue in the City of Yonkers, and was purchased in December 2001 for $530,000 or $329,193 per acre.

Comparable Land Sale No. 3, a 2.26 acres parcel on Edison Avenue in the City of Mount Vernon, was purchased in July 2000 for $1,500,000 or $662,544 per acre. It is subject to an agreement by the buyer to both clean the property and indemnify buyer from any claims arising from contamination.

Comparable Land Sale No. 4, measuring approximately 2.65 acres is located partially on South Terrace Avenue in the City of Mount Vernon and partly in Bronx County. It was purchased in October 2000 for a price of $2,000,000 or $754,148 per acre. Notably, the site is accessed via an easement over several neighboring properties.

Comparable Land Sale No. 5, a parcel of approximately 0.62 [*6]acres located on Lafayette Avenue in White Plains, was purchased in August 2004 for $650,000 or $1,048,667 per acre.

Comparable Land Sale No. 6 is a 2.951 acre parcel (of which 1.93 acres is upland and roughly 1.02 acres are underwater) situated on Fernbrook, Yerks and Pier Streets in the City of Yonkers. It was purchased in November 1997 for $800,000 or $1,271,095 per acre. The appraiser adjusted the unit price to $413,864 per acre for the uplands areas.

Generally, petitioner's appraiser noted that land prices have increased by roughly 5% per year between 2000 and the valuation date. Other adjustments included size differences; encumbrance for right-of-way easements; site building depreciation; clean-up and indemnification costs; and flood zone location. The range in adjusted sales prices per acre extended from $240,722 to $584,465, with the appraiser placing somewhat more weight on Comparable Sale 1 than on the other comparable properties. Applying the data, a Greenburgh valuation of $400,000 per acre was selected as appropriate for the subject parcel, which the appraiser then reduced by 2.5% for the Tarrytown taxable status date.

The valuations for Tax Lot 13 using the comparable sales approach are as follows:

Tax Years 2001-2003

Sales Values:GreenburghTarrytown

June 1,2001$865,000$845,000

37407$885,000$865,000

37772$900,000$880,000

Tax Years 2004-2005

The appraiser used five comparable leases, deriving a June 1, 2004 value of $75 per square foot, and a June 1, 2005 value of $76.50 per square foot, or

Income Values:

June 1, 2004 - $1,055,000

June 1, 2005 - $1,075,000

Weighing the 2004-20055 values equally, he determined

Final Values (Greenburgh and Tarrytown):

June 1, 2004 - $1,100,000

June 1, 2005 - $1,100,000

The appraiser employed rents actually paid by tenants who leased either lots P13 or P14, while expenses were estimated and a capitalization rate derived the following values for both Greenburgh and Tarrytown:

January/June 1, 2003 - $385,000

January/June 1, 2004 - $385,000

January/June 1, 2005 - $385,000

Weighing the sales over the income values, that yielded final values of:

38503

Sales Value:	Greenburgh	Tarrytown
37772	$385,000	$375,000
38138	$405,000	$395,000
$425,000	$415,000

Petitioner's appraiser argued that the current "improvements", including the foundations on the parcels, offer no contributory value to the parcels. He also noted that demolition costs are roughly equivalent to the salvage value of the parcels.

For all of the tax years form 2001 to 2005, the appraiser again used the same six comparable sales as for the above parcels. He then adjusted for, inter alia, size, the lack or minimal nature of easement encumbrances, and the non-flood zone status of the parcel, and found a range in adjusted sales prices per acre from $256,770 to $642,911. Equally emphasizing all comparables, as with the prior two parcels, he then arrived at a value of $450,000 per acre for the subject parcel.

Sales values:

Sales Value: Greenburgh Tarrytown June 1, 2001 $2,400,000 June 1, 2002 $2,525,000 June 1, 2003 $2,650,000 $2,585,000 June 1, 2004 $2,775,000 $2,707,000 June 1, 2005 $2,925,000 $2,850,000

This parcel is improved by a light industrial building. For all of the tax years at issue, petitioner's appraiser utilized both the sales comparison and income capitalization methods.

Petitioner's appraiser utilized five comparable sales for the tax years at issue, yielding adjusted sales value per square foot of: $58.99; $61.38; $65.13; $57.61; $61.76, and a rent per square foot of building area of:

June 1, 2001 - $60.00

June 1, 2002 - $61.25

June 1, 2003 - $62.50

June 1, 2004 - $63.75

June 1, 2005 - $65.00

This yielded a Market Value (reduced 1% for the January taxable status dates of Tarrytown, based on his estimate of 2% per year increases), as follows: [*9]

Sales Value: Greenburgh Tarrytown June 1, 2001 $1,600,000 $1,585,000 June 1, 2002 $1,600,000 $1,585,000 June 1, 2003 $1,700,000 $1,685,000 June 1, 2004 $1,700,000 $1,685,000 June 1, 2005 $1,700,000 $1,685,000

The appraiser used rental data from the subject itself, as well as six market rental comparables.

Comparable Rental No. 1, an Industrial/Warehouse/Office building of 13,167 square feet, had an actual rent of $9.50 per square foot. Comparable Rental No. 2, a similar structure of 7,770 square feet, had an actual Rent of $10.04 per square foot. Comparable Rental No. 3, another similar property of 4,270 square feet, had an actual rent of $9.84 per square foot.

Comparable Rental No. 4, another Industrial/Warehouse/Office

building with a size of 2,021 square feet, had an actual rent of $8.91 per square foot. Comparable Rental No. 5, a Warehouse/Office structure consisting of 3,065 square feet, had an actual Rent of $11.21 per square foot. Comparable Rental No. 6, an Industrial/Warehouse/Office property measuring 2,800 square feet, had an actual Rent of $10.00 per square foot.

His final adjusted square foot rental amounts were $9.12; 9.32; $9.98; $8.51; $10.58; and $9.47 for all the Comparables.

Since the area of the subject was estimated at 19,346 square feet, comprised mostly of warehouse and light manufacturing space, the proper rent per square foot, as calculated by the appraiser, with an emphasis on comparable No. 3, was:

2001 - $9.50

2002 - $9.60

2003 - $9.70

2004 - $9.80

2005 - $9.90

Since he determined that the second story area (totaling 7,322 square feet) was worth approximately 20% less in each year, he calculated market values for that portion of the premises at: [*10]

2001 - $7.60

2002 - $7.70

2003 - $7.75

2004 - $7.85

2005 - $7.90

He then calculated the vacancy rate to be 10% for 2001-2002, and 15% for 2003-2005, with management expenses of 3% and reserves of 5%. The appraiser then used a non-institutional capitalization rate, believing that the property is not investment grade property. This yielded values, for both Greenburgh and Tarrytown, of:

June 1, 2001 - $1,500,000

June 1, 2002 - $1,500,000

June 1, 2003 - $1,500,000

June 1, 2004 - $1,500,000

June 1, 2005 - $1,600,000

Finally, relying primarily upon the income capitalization method for his final value estimate, he concluded the following:

Market Values Greenburgh/Tarrytown:

2001 - $1,500,000

2002 - $1,500,000

2003 - $1,500,000

2004 - $1,500,000

2005 - $1,600,000

This parcel has minimal improvements, as well as non-assessable personal property related to the asphalt plant operation. The sales approach used by the appraiser was as if the land were vacant. Notably, while tax years 2001 to 2005 were at issue for the town, only 2003 to 2005 were at issue for the village.

For these tax years, the same six comparable sales were used as for parcels P13, P14, and P 21. The appraiser adjusted for, among other things, size, access, a permanent easement, and flood zone status. The range of adjusted sales prices per acre is from $328,987 to $759,804. He equally emphasized on all comparables, and calculated $500,000 per acre as being most appropriate for the subject parcel. With land prices increasing an average of about 5% per year, and considering a reduction of 2.5% for the Tarrytown tax date, the Market Value yielded is as follows: [*11]

Sales Value: Greenburgh Tarrytown 37042 $1,065,000 37407 $1,120,000 37772 $1,175,000 $1,145,000 38138 $1,225,000 $1,195,000 38503 $1,300,000 $1,270,000

These two parcels are improved by two separate light industrial buildings, with a combined total area of approximately 16,270 square feet. Lot P24 contained roughly 75% of the total improvements, while Lot P24A contained the remaining 25%. For all of the tax years involved, petitioner's appraiser employed both the sales comparison and income capitalization methods. Due to the configuration of the lots (tax lot P24A is virtually enclosed by tax lot P24), and the unlikelihood that hey would be sold to separate owners, petitioner determined that the lots should be treated as a single property.

Over the period in question, five comparable sales were used. Estimated rent per square foot of building area was:

June 1, 2001 - $60.00

June 1, 2002 - $62.50

June 1, 2003 - $65.00

June 1, 2004 - $67.50

June 1, 2005 - $70.25

Total Sales Market Value, both parcels:

June 1, 2001 - $1,000,000

June 1, 2002 - $1,100,000

June 1, 2003 - $1,100,000

June 1, 2004 - $1,100,000

June 1, 2005 - $1,200,000

Sales Market Value for lot 24, with the 2.5% reduction for the Tarrytown tax date, is:

June 1, 2001$750,000$742,500

June 1, 2002$825,000$817,500 [*12]

June 1, 2003$825,000$817,500

June 1, 2004$825,000$817,500

June 1, 2005$900,000$892,500

Sales Market Value for lot 24A:

Sales Value: Greenburgh Tarrytown June 1, 2001 $250,000 $247,500 June 1, 2002 $275,000 $272,500 June 1, 2003 $275,000 $272,500 June 1, 2004 $275,000 $272,500 June 1, 2005 $300,000 $297,500

The appraiser noted that there were two separate sources of income for the two lots. Lot P24A was leased to the Union Free School District of the Tarrytowns during all of the years at issue, while Lot P24 contained office space that was leased for $9,100, and received $14,000 a year from New York Waterways for the use of a ferry slip.

He then calculated Potential Gross Income to be:

2001 - $165,550

2002 - $181,237

2003 - $182,924

2004 - $184,611

2005 - $186,298

and the vacancy rate to be 10% for 2001 and 2002, and 15% for 2003 through 2005. He then estimated the expenses at 3% for management, and 5% for reserves. Here too, he utilized a non-institutional capitalization rate, believing that the property was not investment grade property.

This yielded a Total Market Value of:

June 1, 2001 - $1,000,000

June 1, 2002 - $1,100,000

June 1, 2003 - $1,100,000

June 1, 2004 - $1,100,000

June 1, 2005 - $1,200,000 [*13]

which includes an Income Market Value (for both Greenburgh and Tarrytown)for lot 24 of:

June 1, 2001 - $750,000

June 1, 2002 - $825,000

June 1, 2003 - $825,000

June 1, 2004 - $825,000

June 1, 2005 - $900,000

and an Income Market Value (for both Greenburgh and Tarrytown)for lot 24A of:

June 1, 2001 - $250,000

June 1, 2002 - $275,000

June 1, 2003 - $275,000

June 1, 2004 - $275,000

June 1, 2005 - $300,000

Weighting for the Income method, he determined these to be his final value conclusions for the two parcels.

Respondent Greenburgh structured the parcels into a large combined property, "under improved with three industrial and office or garage buildings." The Town's appraiser first utilized comparable land sales for all seven of the tax lots, asserting that the "land is appraised as though vacant and available for development to its highest and best use " Standards Rule 1-3(b). Looking at the property as whole, with the value in the land, any structures are to be considered transitional uses, utilizing only small areas of the overall site, he argued. Therefore, the Town's appraiser used the sales comparisons as though the land was "substantially" vacant with interim uses. The respondents define interim as "to help pay taxes while property is pending entitlements." (T738).

Petitioner strongly objected to Greenburgh's appraiser's combined assessment analysis, wherein the appraiser considered that the subject parcels, being under common beneficial ownership, lessen the potential value reduction due to access problems and different sized/shaped configurations of parcels. The petitioner notes that the appraiser valued the assembled lots as if they had good configuration, access from two streets, and area along river. Additionally, the petitioner also objected to the lack of information in the appraiser's report on the uses on the land, the appraiser failing to mention the parking uses on P13 and P14, the building on P13 that was donated, or the buildings on P21 and P23.

Land Sale No.1, located in the City of Yonkers, consists of 65,830 + square feet (1.51 + acres) of land with frontage on the Saw Mill River and with access frontage. It was partially utilized as a junkyard and/or as an auto wrecker site, is zoned industrial, and had an unadjusted sale price of $15.19 per square feet in 1999.

Land Sale No.2, referred to as Ichabod's Landing, is located in the Town of Mt. Pleasant, and comprises 146,970+ square feet (3.374 acres, with 1.83 acres underwater). The parcel, located on the Hudson River and sold without approvals, is zoned riverfront district and had an unadjusted sale price in 2002 of $16.09.

Comparable Land Sale No. 3 is located in the City of New Rochelle and is 36,590 + square feet or .84 + acres. At the time of the sale, the parcel was improved by a five room dwelling and a garage building with 3,200 square feet office or apartment space overhead. The building was given a depreciated value of $25 per square foot, which equates to $80,000 of contributory value. Two other sheds added no value to the parcel. It is zoned manufacturing. The unadjusted sale price in 2000 was $21.04.

Land Sale No.4 is 117,612 + square feet or 2.7 acres of land in the City of Yonkers. The land was vacant at the time of the sale. It is zoned industrial. The unadjusted sale price for 2000 was $13.26.

Land Sale No.5 is 120,222 + square feet or 2.76 acres, including approximately 95,800 + square feet in the City of Mt Vernon and 24,422 + square feet in the Bronx. It is partially paved and was used for parking and outdoor storage. It is zoned industrial in Mt. Vernon and manufacturing in the Bronx. The unadjusted sale price was $16.64 in 2000.

Land Sale No.6 is located in the City of Mt. Vernon and is approximately 19,270 square feet. The parcel is 2-6 feet below the grade of the adjacent streets. It is zoned landscaped industrial. In 2001, the unadjusted sale price was $24.65.

Respondent's Land Sale no.7 is located in the City of Yonkers and is approximately 70,400 square feet or 1.62 acres. It is zoned industrial. The property was part of a park and subject to a permanent easement in favor of the MTA. The sale price does not include the charitable gift of $110,000 by seller to buyer. In 2001, the unadjusted sale price was $17.52.

Land Sale No.8 is located in the City of New Rochelle and is [*14]approximately 10,019 square feet or .23 acres. It was used for parking and outdoor storage. It is zoned light industrial. The unadjusted sale price in 2002 was $30.65.

Respondent's Land Sale No.9 is located in Long Island City (Queens) and is 731,500 + square feet or 16.79+ acres. It is zoned "MI-4". It was considered vacant and has frontage on the East River. In 2003, the unadjusted sale price was $22.87.

Land Sale No.10 is located in the City of New Rochelle. The property is a vacant parcel of land composed of four contiguous lots and one other parcel across the street. The contiguous lots are approximately 9,584 square feet. The parcel across the street is approximately 2,614 square feet. It is zoned light industrial. In 2003, the unadjusted sale price was $37.30.

Land Sale No.11 is in the City of Yonkers and was vacant land utilized for outdoor storage. It is 43,560+ square feet or 1+ acre of upland, and 40,075+ square feet of land underwater. It is zoned as industrial. The unadjusted sale price was $26.40 in 2003.

Respondent's final Land Sale, No. 12, is located in Manhattan and is approximately 86,738 square feet and 1.99 acres. It is a paved lot utilized for parking and zoned "M1-1". In 2004, the unadjusted sale price was $36.32.

Respondents used a 7.5% per annum adjustment for the difference in market conditions between the date of the sale and the date of valuation, and for location, topography, configuration and utility. An additional value of $250,000 was included in the valuation for the P24 building, due to the large size of the site, and the relatively small and low cost improvements thereon. This amounted to a value of $20 per square foot.

Respondents also made use of the Income Capitalization Method to value parcels P22 and P24A. First, the respondent estimated the potential gross income of the property and then estimated the expenses to be deducted from the annual income to arrive at an estimated Net Operating Income (NOI). The final step involved selecting the interest and capitalization rates, in order to convert the income into value.

Greenburgh used nine comparable leases to calculate market rent.

As Comparable Lease No. 1, respondent used a lease of Lot 24A (see below), consisting of a 4,270+ square foot free standing garage or shop space in a one story concrete building on a 7,500+ square foot lot. The lease to the Tarrytown Unified School District commenced in 1997 for five years. A five-year renewal option was thereafter exercised extending the lease through 2007. The rents ranged from $10.33 in the first year at issue to $11.41 in the final assessment year.

Comparable Lease No.2, located in the Town of Greenburgh, involves a building which is a one and part two story open storage structure with a two story office section and 14,728 square feet, of which 3,200 square feet is finished office space. Rent for the 2001 to 2004 period was $9.78 per square foot, rising to $10.76 per square foot in 2005.

Comparable Lease No.3 is also located in the Town of Greenburgh and and is approximately 8,400 square feet of space on the first floor of a two story storage/wholesale building. Rent was set at $9.00 per square foot in 2001 through 2003, and thereafter rose to $9.43 per square foot.

Comparable Lease No. 4 is located in the Village of Elmsford and involves approximately 1,908 square feet of space located on the first floor of a two story industrial and office building constructed in 1989. Rents from Sato Auto Repair from 2001 to 2003 were $12.58 per square foot.

Comparable Lease No. 5, also located in the Town of Greenburgh, includes approximately 8,400 square feet, which consists of the entire second floor in a two story storage/wholesale building (see comparable Lease No. 3 above). Rents in 2001, 2002, and 2003 were $66,000, $69,000 (or $8.21 per square foot) and $72,000 per year, respectively.

Comparable Lease No. 6 is located in the City of Peekskill. The tenant leases 2,300 square feet of space, consisting of third floor office space of approximately 1,200 square feet, storage and warehouse space of approximately 768 square feet, and a garage area of approximately 332 square feet. The rents, from lessee Hudson Valley Heating, ranged from $9.65 per square foot in 2002 to $11.22 per square foot in 2005.

Comparable Lease No. 7, located in the Village of Pleasantville, involves approximately 3,353 square feet. From 2002 [*16]through 2005, the tenant, Premier Business Machines, rented one story office/ warehouse space in a two story building, at the rate of $13.30 per square foot.

Comparable Lease No. 8, located in the Village of Pleasantville, involves approximately 2,200 square feet of first floor office/warehouse space, plus the third and fourth floors of the building (10,800 square feet of leasable space). Total area includes 13,000 square feet. Annual rental for the tenant, Akadine Press, is $131,172 based on rent of $10.09 per square foot in 2002, with rent increases annually according to the CPI.

Comparable Lease No. 9, rented to Hillside Food Outreach, Inc., is located in the same building as Lease No. 8 in the Village of Pleasantville. It includes approximately 5.500 square feet of second floor warehouse space in a one and part four story industrial building. The annual rent in 2003 was $64,620, based on $11.75 per square foot, with rent increases annually by the CPI rising to $12.10 in 2005.

Finally, Comparable Lease No. 10, also involves the same building as Leases No. 8 and 9 in the Village of Pleasantville. The tenant, RDI Warehouse, rented approximately 12,000 square feet of first floor warehouse space. The lease commenced in November 2003, with an annual rent of $120,000 based on rent of $10 per square foot, and with the rent increasing annually by 3%.

Adjustments were made for some of the properties for location, condition, layout, quality of finish and appointments, and expense handling under some of the leases.

200120022003

P13 Sales Comp 1880000 2110000 2,950,000 P14 Sales Comp - - 610000 P21 Sales Comp 4180000 4760000 6860000 P22 Income 1670000 1840000 2450000 [*17] Sales Comp 1250000 1400000 1570000 P23 Sales Comp 1770000 1980000 2740000 P24 Sales Comp 1580000 1740000 2310000 P24A Income Sales Comp 330,000 170,000 350,000 180,000 370,000 200,000

20042005

P13 Sales Comp 2650000 2950000 P14 Sales Comp 690000 780000 P21 Sales Comp 6100000 6860000 P22 Income

Sales Comp 2,180,000 1,740,000 2,450,000 1,940,000

P23 Sales Comp 2460000 2740000 P24 Sales Comp 2110000 2310000 P24A Income

Sales Comp 400000230000 440,000 250,000

Respondent Village of Tarrytown used only the Sales Comparison to value lots P13, P14, P21, P23 and P24, their appraiser asserting that Income Approach has application only to P22 and P24A. The same seven comparable sales are also offered for all the lots, with the valuation date for the Village being January 1.

The appraiser asserts that the only value to be considered for P13 and P14 is the value of the land, since any income from the parking improvements on those parcels is an illegal use under its WGBD zoning. The P13 building, constructed in 2004, generated no income during the years at issue because the temporary Certificate of Occupancy was issued after the last taxable status date under review. Thus, the appraiser attributed no value to any of the improvements listed for these lots.

Comparable Land Sale No. 1 is located in the Village of Sleepy Hollow and Town of Mount Pleasant and is referred to as Ichabod's Landing. It contains approximately 5.208 acres, with approximately 1.834 acres of underwater land, and is zoned Riverfront District.

Land Sale No. 2 is located in the Village of Tarrytown and Town of Greenburgh, measures approximately 28,840 square feet, and is zoned Waterfront General Business District.

Comparable Land Sale No. 3 is located in the Village of Tarrytown and the Town of Greenburgh; it comprises approximately 33,505 square feet or .77+ acres, with remediation costs of approximately $361,000, and is zoned Neighborhood Shopping.

Comparable Land Sale No. 4 is located in the Village of Dobbs Ferry and the Town of Greenburgh, and entails approximately 69,880 square feet or 1.607+ acres. Site improvements include a one-story 10,940+ square foot office/laboratory building erected in 1962; it is zoned Business.

Land Sale No. 5 is located in the City of Yonkers and encompasses approximately 62,996 square feet or 1.446+ acres. The zoning is Planned Executive Park.

Land Sale No. 6 is located in the Village of Dobbs Ferry and the Town of Greenburgh, is improved with a 10,000+ square foot abandoned automobile sales/service building, and contains approximately 51,400 square feet or 1.18+ acres.

Comparable Land Sale no. 7 is located in the City of White Plains. It embodies approximately 95,935 square feet (2.202 acres) and zoned Restricted Business.

The appraiser adjusted some sales significantly for time, for utility/frontage, and for size. Comparable Sale No. 7, which measures 95,935 square feet (2.202 acres), compared to the instant property's measurements of approximately 93,787 square feet or 2.16+ acres, requires no size adjustment. It was, however, given a significant, -40% adjustment for location.

In valuing P22 and P24A, respondents appraiser employed the same identical three Comparable Sales No. 1, 2 and 3 as were utilized for the Village's Sales Comparables analysis of parcels P13, P14, P21, P23, and P24, above. Respondent's appraiser used various time adjustments in his calculation, ranging from 40% to 26.6%; size adjustments ranging from 20% to 10%; and utility/frontage adjustments.

200120022003

P13 Sales Comp 1735000 1875000 2065000 P14 Sales Comp - - 490000 P21 Sales Comp - - 4420000 P22 Income

Sales Comp 1.80000e+13 1.94000e+13 2.00000e+13 P23 Sales Comp - - 1850000 P24

20042005

P13 Sales Comp 2230000 2390000 P14 Sales Comp 520000 560000 P21 Sales Comp 4770000 5115000 [*20]P22 Income

Sales Comp 20450001250000 21600001310000 P23 Sales Comp 2000000 2145000 P24 Sales Comp 1510000 1620000 P24A Income

Sales Comp 420,000

175,000 440,000 185,000

While these occupancies provide some indication of market rental value, the appraiser chose instead to rely primarily on comparable lease data.

Comparable Lease No. 1, involving property located on the northeast side of Executive Boulevard in the Town of Greenburgh, included approximately 23,750 square feet of warehouse and light industrial/office space. That lease was for a term of 3 years and 11 months, with a rent was $196,250 per annum, or $8.26 per square foot as of February 2000.

Comparable Lease No. 2, also located in the Town of Greenburgh, involved 46,465+ square feet of warehouse and light industrial/ office space. The lease term was eight years, starting January 2001. For years 1 to 5, the rental was $406,570 per annum, and for years 6 to 8, the rental was $418,200 per annum. The rental per square foot was $8.75 as of January 2001; the lessee, The Wine Enthusiast, Inc., was responsible for all utilities and a pro rata share of the real estate taxes.

Comparable Lease No. 3, also located in the Town of Greenburgh, ran for a term of 5 years 4 months, beginning July 2000. The rental was $427,500 per annum or $9.50 per square foot. The lessor was responsible for the base year taxes and the lessee for increases in taxes and utilities. The area leased by J.S. Sales Company, Inc., comprises 45,000+ square feet of office space.

The appraiser estimated net operating income to range from [*21]$211,550 to $243,800 per year. Applying his derived capitalization rate, the following rounded values were yielded:

January 1, 2001$1,800,000

January 1, 2002$1,940,000

January 1, 2003$2,000,000

January 1, 2004$2,045,000

January 1, 2005$2,160,000

The appraiser estimated net operating income to range from $41,320 to $49,650 per year. Applying his derived capitalization rate, the following rounded values were yielded:

January 1, 2001$350,000

January 1, 2002$375,000

January 1, 2003$395,000

January 1, 2004$420,000

January 1, 2005$440,000

The Respondents argue that the Petitioner's valuation evidence failed to rebut the presumption of validity of the assessments in that the Petitioner's Appraisal was not based upon standard and accepted appraisal techniques and, therefore, did not meet the substantial evidence standard. A party seeking to overturn an assessment must first overcome this presumption of validity through the submission of substantial evidence See e.g., Matter of FMC Corp. [Peroxygen Chems. Div.] v. Unmack, 92 NY2d 179, 187 (1998)] "In the context of tax assessment cases, the substantial evidence' standard merely requires that petitioner demonstrate the existence of a valid and credible dispute regarding valuation. The ultimate strength, credibility and persuasiveness are not germane during [*22]this threshold inquiry...a court should simply determine whether the documentary and testimonial evidence proffered by petitioner is based on sound theory and objective data' "; see also Matter of Niagara Mohawk Power Corp. v Assessor of the Town of Geddes, 92 NY2d 192, 196, (1998) ("In the context of a proceeding to challenge a tax assessment, substantial evidence proof requires a detailed, competent appraisal based on standard, accepted appraisal techniques and prepared by a qualified appraiser"); 22 N.Y.C.R.R. 202.59(g)(2)(appraisal reports utilized in tax assessment review proceedings "shall contain a statement of the method of appraisal relied on and the conclusions as to value reached by the expert, together with the facts, figures and calculations by which the conclusions were reached")]

This Court finds that the Petitioner has submitted substantial evidence based upon " sound theory and objective data " consisting of an Appraisal and the testimony of Appraiser William Beckmann and has demonstrated the existence of a valid dispute concerning the propriety of the assessments.

Petitioner's challenges to the assessments on the subject parcels embrace all parcels for all of the affected years, except as follows:

Greenburgh -Not P14: tax years 2001, 2002, 2003

Tarrytown -Not P14, P21, and P23: tax years 2001 and 2002.

This Court finds that the Ceiling, based on the actual assessments set by the Respondent Village's and Town's respective Assessors, and the corresponding market values, based on the appropriate equalization rates ^[FN6], is as follows:

Having met its initial burden, the Petitioner must prove, through a preponderance of the evidence, that the assessments are excessive. As indicated above, Court has considered and evaluated the weight and credibility of the evidence, the arguments of respective counsel, and the submissions of the parties to determine whether the Petitioner has proven that the assessments are excessive.

Both parties concur that, as two of the subject parcels, P21 and P23, are unimproved property, the proper method of valuation as to those parcels is the Sales Comparison method. The Court also notes that the petitioner has appraised all of the remaining properties not only by the Sales Comparison Method, but also by the Income Capitalization method. The respondents, on the other hand, have only employed the Income Capitalization method for P22 and P24A.

As an initial matter, the Court is compelled to reject respondents' appraiser's methodology insofar as they generally reject the Income Capitalization method for properties clearly earning income, and thereby decline to appraise several of the parcels "as is", namely, in their current, income producing condition and use. Respondent Greenburgh, for example, generally states that the parcels are "appraised as though vacant and available for development to their highest and best use."RPTL § 302 (1) provides:

The taxable status of real property in cities and towns shall be determined annually according to its condition and ownership as of [the applicable taxable status date]

while RPTL § 1400 similarly provides:

Date of taxable status. Real property shall be assessed for village purposes according to its condition and ownership as of [the applicable taxable status date.]

As petitioner properly points out, in Adult Home at Erie Station v. City of Middletown, 801 N.Y.S.2d 776[Supreme Court, Orange County, Dickerson, J., 2005], this Court recognized that [*27]said "condition and ownership" relates to the specific use being made of the property by the petitioner on the relevant taxable status date. See also Volume 10 Opinions of Counsel SBRPS No 45, p 3:

for purposes of real property tax assessments, property must be valued based upon its current use, not its highest and best use, except in the case of vacant land which is idle and put to no use whatsoever. In such latter case, the property may be valued on the basis of its highest and best use.

All parties recognize the existence of the latter exception; respondents, however, urge the Court to find the presence of such circumstances, "vacant land which is idle and put to no use whatsoever", here, justifying an across-the-board use of a highest and best use valuation for all of the parcels.

Respondents rely primarily on Weingarten v. Town of Ossining, 85 AD2d 697, 698 [emphasis added] (2nd Dept. 1981), which indeed held that "zoning and reasonable development potential of unimproved land may be taken into account in determining the market value of property on taxable status dates." Respondents also cite to Dresser-Rand v. Assessor, Town of Erwin et al., 227 AD2d 890 (4th Dept. 1996), which held that a parcel which contains buildings which had deteriorated to the extent "that they reached their maximum useful life and are not marketable" may be valued as if vacant, with a per acre premium for the interim use the deteriorated buildings were then being put to. In order to argue the applicability of Weingarten and Dresser-Rand to the subject parcels, respondents describe the parcels variously as "interim" uses (Greenburgh's appraiser, generally); the income generated from parking as "interim income" (P13 and 14); the parcels as containing "unused buildings" (P21); and as "functionally vacant", of "little use", and "generating no income"(P24).

The Court notes, however, that these, in general, are factually inaccurate assertions. To be sure, P21 and P23 do contain the dilapidated remains of structures or equipment formerly, although not during the tax years at issue, in use. But P13 and 14 were used for parking for at least several years before the first of the taxable status dates, and six or more before the last; such use can hardly therefore be termed "interim." P13 is also subject to a further use, commencing in 2004 (i.e. for the last two of the tax years), namely a newly-constructed 14,633 square foot building, which was joined to a similar structure on an adjacent lot, utilized by respondent Village. P22 contains both a rented bay garage and outside parking. P24 was improved by a one-story garage and office building, both of which were rented during [*28]the relevant tax years. And P24A was also the site of a contemporary garage, rented to respondent Village's School District. Excepting P21 and P23, none of the parcels were either truly "unimproved" land (per Weingarten), or contained buildings which had deteriorated to the extent that they reached their maximum useful life and are not marketable (per Dresser-Rand). To that extent, then, the Court concludes that it is improper to value P13, P14, P22, P24, and P24A, as if vacant, and, as such, according to their highest and best use, and rejects respondents' appraisals to the extent that they so valued those parcels.

The Court also notes respondents' frequent citation to the fact that the zoning of the subject parcels was changed in 1998 to facilitate residential and other development as has been contemplated by petitioners; to the status of approvals for that development; and to the fact that Weingarten, as quoted above, held that zoning and reasonable development potential may be considered in the valuation of unimproved land. Even if it were demonstrated that the parcels were entirely unimproved, however, and despite the change in zoning, it has been conclusively established in this case that initial approval for development of the subject parcels (acceptance of the Final Environmental Impact Statement from the Village) occurred only after the period at issue, namely on December 21, 2005, which is over six months (and, in the case of the Village, nearly one year) after the 2005 (and last) taxable status date. Additionally, even when one considers Weingarten, and weighs the instant conducive zoning for the parcels, there otherwise exists an absence of proof before the Court of reasonable development potential, at least to the extent of treating the subject improved parcels as if instead they were unimproved. (See Baj v Asessor, Town of Goshen, Supreme Court, Orange County, LaCava, J. 2008; NYLJ, July 1, 2008, p. 27, col.3.)

In addition, in regards to the methodologies employed by the parties, the Court notes that, in employing the sales method, petitioner's appraiser elected to make significant adjustments for the effect of access and encumbrances (easements) on the subject parcels. The Court recognizes, however, that as a matter of law, where a property burdened by an easement is joined in ownership with a property benefitted by the same easement, the easement is either extinguished or, as relates to easements by necessity, at the very least suspended during the term of joint ownership. (See Simone v. Heidelberg, 9 NY3d 107 [2007]; Stilbell Realty Corp. v. Cullen, 43 AD2d 966, 967 [2nd Dept 1974]. To be sure, some access and encumbrance issues will remain, as the uses of the parcels have not changed by their unification. Nevertheless, the Court elects to modify petitioner's appraiser's extensive adjustments in this area based on the reduced effect of the unification of the parcels [*29]under one owner (reducing -30% adjustments to -15%, and -25% and -20% adjustments to -10%.)

As set forth above, while respondents did utilize the income method to value only P22 and P24A, petitioner used the method to value each parcel except P21 and P23. The Court has examined the methodologies generally employed by both petitioners and respondents, and found them both to be mostly sound, except as regards several points noted herein. For example, regarding capitalization rates employed by the parties, and having given due consideration to the arguments advanced by all three parties, the Court concludes that petitioner's chosen base cap rates are too high, while respondent's are too low. Petitioner, for example, notes that the parcels themselves may arguably not be institutional grade, but neglects to note that the petitioner's status as a likely sound borrower would undoubtably influence the proper market rate applied to the parcels. In addition, the Court finds that respondent Tarrytown's use of the same rate for all 5 years insufficiently reflects movements in the market during the time period at issue . Thus, the Court concludes that the proper rates to be utilized in relation to the instant parcels are:

20019.5%

20029.25%

20039.0%

20049.0%

20058.75%

Finally, the Court also concludes that, as properly argued by respondent Tarrytown, in employing the sales method, the properties most accurately reflective of the proper values for each of the parcels, due to their proximity to the subject, as well as other similar characteristics, are Tarrytown's Sales Comparables 1, 2, and 3, namely 45 River Street, Sleepy Hollow (Ichabod's Landing); 184 Main Street, Tarrytown (184 Main); and South Broadway and White Plains Road, Tarrytown (South Broadway), and most particularly, of the three, Ichabod's Landing. However, the Court also concludes that, in the case of those properties, petitioner's appraiser's calculation of 5% as the average market price increase during the years at issue is more appropriate and reflective of the market than the larger market increases utilized by respondents' appraisers. The Court thus determines that proper valuation by comparable sales includes an average of petitioner's comparables, adjusted as indicated above, with the above-mentioned comparables offered by one or both respondents, again adjusted as set forth above.

VALUATION [*30]

Parcel 13

As set forth previously, this parcel was used only for parking during tax years 2001 to 2003, and then, in 2004 and 2005, was improved by a light industrial building. Petitioner valued this parcel by both the sales and income methods, weighting the former more heavily for the period 2001 to 2003, but weighting them equally for 2004 and 2005. Based on the income-producing nature of this property throughout the tax years at issue, the Court credits the use of both techniques for those tax years, and credits the weighting by petitioner of the sales and income methods equally in the latter two years.

The Court adopts the adjusted sales price per acre used by petitioner for the six comparable sales, namely $428,908; $320,963; $692,911; $779,286; $882,392; and $444,904. The Court further accepts petitioner's adjustments, except for the encumbrances, which are modified as set forth above. This yields final adjusted sales prices of:

ComparablePrice $/acrePrice $/sq. foot ^[FN7]

















6

1	450353	10.34
2	272819	6.26
3	606297	19.92
4	701357	16.1
5	670618	15.4
378168	8.68

To these adjusted prices the Court, as also set forth above, elects to add Tarrytown's Sales Comparables 1, 2, and 3, for the purpose of averaging them. As set forth above, it is the Court's conclusion that respondent Tarrytown's time adjustment should be 5% and not 8%; the Court also concludes that Tarrytown's size adjustment for Comp 1 is far too high at + 15%, and should instead be + 5%. Adjusted + 2.5% for Greenburgh's tax status date, this yields adjusted prices per square foot of $18.13; $14.31; and $18.47 for these parcels, respectively. [*31]

Averaging all of these newly adjusted sales prices, the Court concludes that a proper valuation for P13 for tax year 2001 is $ 13.49 per square foot for Greenburgh, and $ 13.15 per square foot for Tarrytown. Based on the square footage of P13, and an increase in market value of 5% per year, this yields valuation figures for the taxable status dates as follows:

Sales MV $GreenburghTarrytown













2005

2001	1265187	1233557
2002	1328446	1295235
2003	1394869	1359997
2004	1464612	1427996
1537843	1499396

As set forth above, and as reflective of the rental income generated by the light industrial improvement added to the parcel in 2004, petitioner additionally used the income method to value this parcel for 2004 and 2005. The Court concludes that petitioner's methodology is sound, except as set forth above with regard to the capitalization rates utilized for 2004 and 2005. Employment of the rates found proper by the Court for those years (9.0% and 8.75%) yield overall (tax weighted) cap rates of 11.75% for each year. In light of the identical Net Operating Income found by the petitioner for those two years, $220,000, market values yielded under the income method equals $1,872,340 for both 2004 and 2005. Weighting both methods equally, that provides final market values for P13 as follows:

Final MV $GreenburghTarrytown













2005

2001	1265187	1233557
2002	1328446	1295235
2003	1394869	1359997
2004	1668476	1650168
1705092	1685868

[*32]

Parcel 14

The Court's analysis for this parcel is substantially similar to that for P13. This parcel was used exclusively for parking during the tax years at issue. Petitioner valued this parcel by both the sales and income methods, weighting the former more heavily for the period. Based on the income-producing nature of this property throughout the tax years at issue, the Court credits the use of both techniques for those tax years, and credits the weighting by petitioner of the sales method over the income method.

The Court adopts the adjusted sales price per acre used by petitioner for the six comparable sales, namely $428,908; $320,963; $692,911; $779,286; $882,392; and $444,904. The Court further accepts petitioner's adjustments, except for access, which the Court concludes, regarding comparable property No. 4, should be "Average", rather than "Below Average". Accordingly, the Court discounts 5% "Below Average" adjustment. This yields final adjusted sales prices of:

CompPrice $/acPrice $/sf















6

1	589749	13.54
2	378572	8.69
3	728798	16.73
4	837733	19.23
5	891215	20.46
490229	11.25

To these adjusted prices the Court, as previously, adds Tarrytown's Sales Comparables 1, 2, and 3, for the purpose of averaging them. As set forth above, it is the Court's conclusion that respondent Tarrytown's time adjustment should be 5% per year and not 8%; the Court also concludes that Tarrytown's size adjustment for Comp 1 is far too high at +25%, and should instead be + 15%. Adjusted + 2.5% for Greenburgh's tax status date, this yields adjusted prices per square foot of $16.49; $16.45; and $19.73, respectively.

Averaging all of these newly adjusted sales prices, the Court concludes that a proper valuation for P14 for tax year 2001 is $ 15.84 per square foot for Greenburgh, and $ 15.44 per square foot for Tarrytown. Based on the square footage of P14, and an increase in market value of 5% per year, this yields valuation figures for [*33]the taxable status dates as follows:

Sales MV $GreenburghTarrytown













2005

2001	-	-
2002	-	-
2003	-	463220
2004	498852	486381
523794	510700

As set forth above, and as reflective of the rental income generated by the parking at the parcel, petitioner additionally used the income method to value this parcel. The Court concludes that petitioner's methodology is sound, including the capitalization rates utilized for the period at issue. Direct capitalization of the Net Operating Income from the parcel yields market values, under the income method, of $370,000 for 2001, 2002, and 2003, and $385,000 for both 2004 and 2005. Weighting the sales method predominantly as petitioner did, the Court finds final market values for P14 as follows:

Final MV $GreenburghTarrytown













2005

2001	-	-
2002	-	-
2003	-	463220
2004	498852	486381
523794	510700

Parcel 21

Unlike most of the other parcels at issue, Petitioner and Respondents agreed generally on the proper methodology to be employed in valuing this parcel. Since the property was in essence unimproved, the parties concur that it should be valued as if vacant, and thus according to highest and best use. To that end, the parties also exclusively employed the sales comparison method.

The Court adopts the adjusted sales price per acre used by petitioner for the six comparable sales, namely $428,908; $320,963; $692,911; $779,286; $882,392; and $444,904. The Court further [*34]accepts petitioner's adjustments, except for the encumbrances, which, as set forth above, have only a present minimal effect due to the current joint ownership of the parcels, and thus should not exceed -10%. This yields final adjusted sales prices of:

CompPrice $/acPrice $/sf















6

1	503967	11.57
2	272819	6.26
3	623620	14.32
4	720840	16.55
5	652970	14.99
389291	8.94

To these adjusted prices the Court here again adds Tarrytown's Sales Comparables 1, 2, and 3, for the purpose of averaging them. As set forth above, it is the Court's conclusion that respondent Tarrytown's time adjustment should be 5% per year and not 8%; adjusted + 2.5% for Greenburgh's tax status date, this yields adjusted prices per square foot of $18.14; $14.50; and $18.07, respectively.

Averaging all of these newly adjusted sales prices, the Court concludes that a proper valuation for P21 for tax year 2001 is $13.70 per square foot for Greenburgh, and $13.36 per square foot for Tarrytown. Based on the square footage of P21, and an increase in market value of 5% per year, this yields valuation figures for the taxable status dates as follows:

Final MV $GreenburghTarrytown













2005

2001	3184154	-
2002	3343362	-
2003	3510530	3423407
2004	3686056	3594577
3870359	3774306

Parcel 22 [*35]

The Court's analysis for this parcel is similar to that for P13 and P14. This parcel was improved by a one- and part two-story building containing approximately 26,668 square feet. During the tax years at issue, the property was leased to various tenants, with the second floor utilized as office space and the bulk of the first floor used as a warehouse space with drive in bay trucking access and loading docks. Petitioner valued this parcel by both the sales and income methods, weighting the latter more heavily for the period. Based on the income-producing nature of this property throughout the tax years at issue, the Court credits the use of both techniques for those tax years, and credits the weighting by petitioner of the income method over the sales method.

The Court adopts the adjusted sales price per square foot used by petitioner for the five comparable sales (notably, different comps than those used for parcels P13, P14, and P21), namely $ 65.54; $68.20; $74.84; $67.78; and $60.26. The Court further accepts petitioner's adjustments, except for access, which the Court concludes should be characterized, for the subject, as "Average", rather than "Below Average", and thus the Court discounts the -5% adjustment therefore. This yields final adjusted sales prices of:

CompPrice $/sf

162.26

264.79

359.87

461.00

564.78

Averaging these five ^[FN8] newly adjusted sales prices, the Court concludes that a proper valuation for P22 for tax year 2001 is $ 65.54 per square foot for Greenburgh, and $ 60.98 per square foot [*36]for Tarrytown. Based on the square footage of the improved portion of P22, and an increase in market value of 5% per year, this yields valuation figures for the taxable status dates as follows:

Sales MV $GreenburghTarrytown













2005

2001	1667817	1626215
2002	1751208	1707525
2003	1838768	1792902
2004	1930706	1882547
2027242	1976674

As set forth above, and as reflective of the rental income generated by the light industrial improvement on the parcel, the parties additionally used the income method to value this parcel. The Court concludes that, while all of the income capitalization methodologies appear sound ^[FN9], and in fact have generated Net Operating Income figures within at most a 25% divergence, the use by petitioner of both the actual rents derived from marketing of the premises on the parcel, and the 6 comparable leases, makes its figures more accurate. Employment, then, of the rates found proper by the Court for these years (9.5%; 9.25%; 9.0%; 9.0% and 8.75%) yield overall (tax weighted) cap rates of 12.75% and 12.5% for 2001 and 2002, respectively, and 11.75% for each remaining year. The Court therefore concludes, upon capitalizing the net income calculated by petitioner, that the following income method values are most appropriate:

Income MV $Greenburgh/Tarrytown ^[FN10]

20011,568,627

20021,600,000

20031,617,021

20041,617,021

20051,702,128

The Court accepts the conclusions of all parties that, as relates to Parcel 22, the Income Method best reflects proper market value. Accordingly, and weighting for that method, final market values for P22 are as follows:

Final MV $Greenburgh/Tarrytown

20011,568,627

20021,600,000

20031,617,021

20041,617,021

20051,702,128

Parcel 23

As with Parcel 21, petitioner and respondents agreed generally that since the property was essentially unimproved, it should be valued as if vacant, and thus according to highest and best use. Both parties utilized only the sales comparison method to derive value for this parcel.

The Court adopts the adjusted sales price per acre used by petitioner for the six comparable sales, namely $428,908; $320,963; $692,911; $779,286; $882,392; and $444,904. The Court further accepts petitioner's adjustments, except for any adjustment for "access." As set forth above, access to the instant property is "Average", and thus the comparables, which have similarly average access, need not be adjusted at all. This yields final adjusted sales prices of:

CompPrice $/acPrice $/sf















6

1	546848	12.55
2	345035	7.92
3	658265	15.11
4	720840	17.44
5	785329	18.03
437814	10.05

To these adjusted prices the Court again adds Tarrytown's Sales Comparables 1, 2, and 3, for the purpose of averaging them. As set forth above, it is the Court's conclusion that respondent Tarrytown's time adjustment should be 5% per year and not 8%, and [*37]that the size adjustment for Comp # 1 should be + 5%, not + 15%. Adjusted + 2.5% for Greenburgh's tax status date, this yields adjusted prices per square foot of $18.13; $16.45; and $21.39, respectively.

Averaging all of these newly adjusted sales prices, the Court concludes that a proper valuation for P23 for tax year 2001 is $15.23 per square foot for Greenburgh, and $14.85 per square foot for Tarrytown. Based on the square footage of P23, and an increase in market value of 5% per year, this yields valuation figures for the taxable status dates as follows:

Final MV $GreenburghTarrytown













2005

2001	1283097	-
2002	1347252	-
2003	1414614	1379319
2004	1485345	1448285
1559612	1520699

Parcels 24 and 24A

Parcel 24 was improved by a one-story garage and office building, while P24A contains a one-story garage structure. The Court's analysis for these parcels is similar to that for parcel 22. Petitioner treated both properties together, since they were formerly joined as one (they were separated for leasing purposes at the then-owner's request), and, since P24 essentially surrounds P24A, it would be unlikely for P24A to be sold separately from P24. Petitioner valued both parcels by both the sales and income methods, while respondents, treating the properties separate, valued P24 solely by the sales comparison method, but, like petitioner, valued P24A by both methods.

Petitioner weighted the income method more heavily in his analysis, as did the respondents for P24A. Based on the income-producing nature of these parcels throughout the tax years at issue, the Court credits the use of both techniques for those tax years, and credits the weighting by the parties of the income method over the sales method.

The Court adopts the adjusted sales price per square foot used by petitioner for the five comparable sales (again, different comps [*38]than those used for parcels P13, P14, P21, and P23), namely $ 65.54; $68.20; $74.84; $67.78; and $60.26. The Court further accepts petitioner's adjustments, except for access, which the Court concludes should be characterized, for the subject, as "Average", rather than "Below Average", and thus the Court discounts the -5% adjustment therefore. This yields final adjusted sales prices of:















5

Comp	Price $/sf
1	63.9
2	66.5
3	63.61
4	64.39
66.29

Averaging, as with P22, these five newly adjusted sales prices, the Court concludes that a proper valuation for P24 and P24A for tax year 2001 is $64.94 per square foot for Greenburgh, and $63.32 per square foot for Tarrytown. Based on the square footage of the improved portion of P24 and P24A, and an increase in market value of 5% per year, this yields valuation figures for the taxable status dates as follows:

Sales MV $GreenburghTarrytown















2005

P24 and P24A
2001	1095538	1068208
2002	1150315	1121619
2003	1207830	1177700
2004	1268222	1236585
1331633	1298414

The Court accepts petitioner's conclusion that the improved portion of P24 is approximately 12,600 square feet, or approximately 75% of the improved portion of both parcels, while the improved portion of P24A is approximately 4,270 square feet, or approximately 25% of the total improved area. This yields the following sales comparison market values for each parcel: [*39]

Sales MV $GreenburghTarrytown















2005

P24
2001	821654	801156
2002	862736	841214
2003	905873	883274
2004	951167	927438
998725	973810

and

Sales MV $GreenburghTarrytown















2005

P24A
2001	273885	267052
2002	287579	280405
2003	301958	294425
2004	317056	309146
332908	324603

Due to the rental income generated by the improvements on the parcels, petitioner additionally used the income method to value both parcels, as did respondents for P24A. The Court concludes, upon analysis of the several methodologies, that the use by petitioner of both the actual rents derived from marketing of the premises on the parcels, and the numerous comparable leases for each of the two parcels, constitutes the most sound methodology and renders its figures more accurate. Employment, then, of the rates found proper by the Court for these years (9.5%; 9.25%; 9.0%; 9.0% and 8.75%) yield overall (tax weighted) cap rates of 12.75% and 12.5% for 2001 and 2002, respectively, and 11.75% for each remaining year. The Court therefore concludes, upon capitalizing the net income figures calculated by petitioner, that the following income method values are most appropriate:

Application again of the distribution accepted previously (75% P24, 25% P24A) yields the following income values for the two parcels:

MV $















2005

P24
2001	794118
2002	900000
2003	925532
2004	925532
957447

MV $















2005

P24A
2001	264706
2002	300000
2003	308511
2004	308511
319149

[*41]

The Court accepts the conclusions of all parties that, as relates to these parcels, the Income Method best reflects proper market value. Accordingly, and weighting for that method, final market values for P24 and P24A are as follows:

Final MV $















2005

P24
2001	794118
2002	900000
2003	925532
2004	925532
957447

Final MV $















2005

P24A
2001	264706
2002	300000
2003	308511
2004	308511
319149

These calculations result in final values of:

Parcel 13

Final MV $GreenburghTarrytown













2005

[*42]2001	1265187	1233557
2002	1328446	1295235
2003	1394869	1359997
2004	1668476	1650168
1705092	1685868

Parcel 14

Final MV $GreenburghTarrytown













2005

2001	-	-
2002	-	-
2003	-	463220
2004	498852	486381
523794	510700

Parcel 21

Final MV $GreenburghTarrytown













2005

2001	3184154	-
2002	3343362	-
2003	3510530	3423407
2004	3686056	3594577
3870359	3774306

Parcel 22

Final MV $Greenburgh/Tarrytown













2005

2001	1568627
2002	1600000
2003	1617021
[*43]2004	1617021
1702128

Parcel 23

Final MV $GreenburghTarrytown













2005

2001	1283097	-
2002	1347252	-
2003	1414614	1379319
2004	1485345	1448285
1559612	1520699

Parcels 24 and 24A

Final MV $Greenburgh/Tarrytown















2005

P24
2001	794118
2002	900000
2003	925532
2004	925532
957447

Final MV $Greenburgh/Tarrytown















2005

P24A
2001	264706
2002	300000
2003	308511
2004	308511
319149

which values are well within the range of testimony. (See Rose v. [*44]State, 24 N.Y2d 80 [1969].)

The indicated assessments, based on these assessed values, are:

Final MV $GreenburghEq Rate ^[FN11]IndicatedAV $

Final MV $GreenburghEq RateIndicated

AV $













2005

2001	-	-
[*45]2002	-	-
2003	-	-
2004	498852	3.64%	18158
523794	3.37%	17652

Parcel 21

Final MV $GreenburghEq RateIndicated

AV $













2005

2001	3184154	5.65%	179905
2002	3343362	4.52%	151120
2003	3510530	4.18%	146740
2004	3686056	3.64%	134172
3870359	3.37%	130431

Parcel 22

Final MV $GreenburghEq RateIndicated

AV $













2005

2001	1568627	5.65%	88627
2002	1600000	4.52%	72320
2003	1617021	4.18%	67591
2004	1617021	3.64%	58860
1702128	3.37%	57362

Parcel 23

Final MV $GreenburghEq RateIndicated

AV $













2005

[*46]2001	1283097	5.65%	72495
2002	1347252	4.52%	60896
2003	1414614	4.18%	59131
2004	1485345	3.64%	54067
1559612	3.37%	52559

Parcels 24 and 24A

Final MV $GreenburghEq RateIndicated

AV $















2005

P24
2001	794118	5.65%	44868
2002	900000	4.52%	40680
2003	925532	4.18%	38687
2004	925532	3.64%	33689
957447	3.37%	32266

Final MV $GreenburghEq RateIndicated

AV $















2005

P24A
2001	264706	5.65%	14956
2002	300000	4.52%	13560
2003	308511	4.18%	12895
2004	308511	3.64%	11230
319149	3.37%	10755

Parcel 13

IndicatedAssessmentOver/Under Assessment [*47]

AV $













2005

2001	71483	59400	Under
2002	60046	59400	Under
2003	58306	59400	1094
2004	60733	59400	Under
57462	59400	1938

Parcel 14













2005

2001	-	-	-
2002	-	-	-
2003	-	-	-
2004	18158	17200	Under
17652	17200	Under

Parcel 21













2005

2001	179905	246000	66095
2002	151120	246000	94880
2003	146740	246000	99260
2004	134172	246000	111828
130431	246000	115569

Parcel 22













2005

2001	88627	177750	88523
2002	72320	177750	105430
2003	67591	177750	110159
2004	58860	177750	118890
57362	177750	120388

[*48]

Parcel 23













2005

2001	72495	97800	25305
2002	60896	97800	36904
2003	59131	97800	38669
2004	54067	97800	40733
52559	97800	45241

Parcels 24 and 24A

P24













2005

2001	44868	85300	40432
2002	40680	85300	44620
2003	38687	85300	46613
2004	33689	85300	51611
32266	85300	53034

P24A













2005

2001	14956	21800	6844
2002	13560	21800	8240
2003	12895	21800	8905
2004	11230	21800	10570
10755	21800	11045

Parcel 13 [*49]

Final MV $TarrytownEq Rate ^[FN12]IndicatedAV $













2005

2001	1233557	5.97%	73643
2002	1295235	5.42%	70202
2003	1359997	4.29%	58344
2004	1650168	4.02%	66337
1685868	3.52%	59343

Parcel 14













2005

2001	-	-	-
2002	-	-	-
2003	463220	4.29%	19872
2004	486381	4.02%	19553
510700	3.52%	17977

Parcel 21













2005

2001	-	-	-
2002	-	-	-
2003	3423407	4.29%	146864
2004	3594577	4.02%	144502
3774306	3.52%	132856

Parcel 22













[*50]2005

2001	1568627	5.97%	93647
2002	1600000	5.42%	68640
2003	1617021	4.29%	69370
2004	1617021	4.02%	65004
1702128	3.52%	59914

Parcel 23













2005

2001	-	-	-
2002	-	-	-
2003	1379319	4.29%	59173
2004	1448285	4.02%	58221
1520699	3.52%	53529

Parcels 24 and 24A

P24













2005

2001	794118	5.97%	47409
2002	900000	5.42%	48780
2003	925532	4.29%	39705
2004	925532	4.02%	37206
957447	3.52%	33702

P24A













2005

2001	264706	5.97%	15803
2002	300000	5.42%	16260
2003	308511	4.29%	13235
2004	308511	4.02%	12402
319149	3.52%	11234

Parcel 13













2005

[*51]2001	73643	70350	Under
2002	70202	70350	148
2003	58344	70350	12006
2004	66337	70350	4013
59343	70350	11007

Parcel 14













2005

2001	-	-	-
2002	-	-	-
2003	19872	24250	4378
2004	19553	24250	4697
17977	24250	6273

Parcel 21













2005

2001	-	-	-
2002	-	-	-
2003	146864	130000	Under
2004	144502	130000	Under
132856	130000	Under

Parcel 22













2005

2001	93647	125100	31464
2002	68640	125100	56460
2003	69370	125100	55730
2004	65004	125100	60096
59914	125100	65186

Parcel 23













2005

[*52]2001	-	-	-
2002	-	-	-
2003	59173	79550	20377
2004	58221	79550	21329
53529	79550	47350

Parcels 24 and 24A

P24













2005

2001	47409	67800	20391
2002	48780	67800	19020
2003	39705	67800	28095
2004	37206	67800	30594
33702	67800	34098

P24A













2005

2001	15803	20650	4847
2002	16260	20650	4390
2003	13235	20650	7415
2004	12402	20650	8248
11234	20650	9416

This would result in a reduction in assessed value, for each of the municipalities, for each of the tax years and tax refunds, where payments were already based on such Town and Village assessments, as follows:

Reduction

Parcel 13













2005

[*53]2001	59400	-
2002	59400	-
2003	59400	1094
2004	59400	-
59400	1938

Parcel 14













2005

2001	-	-
2002	-	-
2003	-	-
2004	17200	-
17200	-

Parcel 21













2005

2001	246000	66095
2002	246000	94880
2003	246000	99260
2004	246000	111828
246000	115569

Parcel 22













2005

2001	177750	88523
2002	177750	105430
2003	177750	110159
2004	177750	118890
177750	120388

Parcel 23













2005

[*54]2001	97800	25305
2002	97800	36904
2003	97800	38669
2004	97800	40733
97800	45241

Parcels 24 and 24A

P24













2005

2001	85300	40432
2002	85300	44620
2003	85300	46613
2004	85300	51611
85300	53034

P24A













2005

2001	21800	6844
2002	21800	8240
2003	21800	8905
2004	21800	10570
21800	11045

Parcel 13













2005

2001	70350	-
2002	70350	148
[*55]2003	70350	12006
2004	70350	4013
70350	11007

Parcel 14













2005

2001	-	-
2002	-	-
2003	24250	4378
2004	24250	4697
24250	6273

Parcel 21













2005

2001	-	-
2002	-	-
2003	130000	-
2004	130000	-
130000	-

Parcel 22













2005

2001	125100	31464
2002	125100	56460
2003	125100	55730
2004	125100	60096
125100	65186

Parcel 23













2005

2001	-	-
2002	-	-
2003	79550	20377
[*56]2004	79550	21329
79550	47350

Parcels 24 and 24A

P24













2005

2001	67800	20391
2002	67800	19020
2003	67800	28095
2004	67800	30594
67800	34098

P24A













2005

2001	20650	4847
2002	20650	4390
2003	20650	7415
2004	20650	8248
20650	9416

The Petitions, with costs [ R.P.T.L. §722[1] ], are sustained to the extent indicated above, the assessment rolls are to be corrected accordingly, and any overpayments of taxes are to be refunded with interest.

The foregoing constitutes the Opinion, Decision, and Order of the Court.

Settle Judgement on notice.

Dated: White Plains, New York

August, 2008 [*57]

_______________________________HON. JOHN R. LaCAVA, J.S.C.