Petitioner commenced these tax certiorari proceedings to challenge the assessment of petitioner's parcel of real property situated within the Town of Esopus, Ulster County, New York for tax years 2002 - 2005. The property was assessed as follows:

Tax Year	Assessment (Without RPTL 480-a Exemption)	Equalization Rate
2002	$637,500.00	100%
2003	$765,000.00	100%
2004	$765,000.00	85%
2005	$765,000.00	74%

The property consists of approximately 108.69 acres located at 112 Hudson Lane, Ulster Park, New York in the Town of Esopus. The property has approximately 2200 feet of frontage along the Hudson River and approximately 2330 feet of frontage on the public road, Hudson Lane.

The subject property is zoned RF-1, Riverfront District Zoning District. Approximately 104 acres of the property are entitled to an exemption as forest land under Real Property Tax Law § 480-a, the remaining 4 acres do not receive the exemption. While the property is generally "unimproved", there are two (2) Quonset huts and a garage located on the portion of the property that is not subject to the exemption under RPTL § 480-a. The proof at trial established that these Quonset huts are generally uninhabitable due to the presence of asbestos, and the structures on the property do not increase the valuation of the property. The RPTL § 480-a exemption has been granted continuously for over twenty-five (25) years and the owners have submitted commitments in accordance with RPTL § 480-a with the New York State Department of Environmental Conservation (DEC) and Ulster County every year during that period, including the tax years in question.

A brief recitation of the history of this case is critical to the analysis of the issues at trial. Petitioners made a motion for partial summary judgment in May, 2005 seeking to establish that: (a) the property should be considered forest land for purposes of valuation based upon the RPTL § 480-a exemption status; (b) the property should be classified as "912" property on the tax assessment roll; and (3) only properties classified as "912" properties, which necessarily includes an exemption under RPTL § 480-a, should be used as comparable sales for appraisal purposes. Supreme Court (Bradley, J.) granted petitioner's motion in its entirety, and the respondents appealed. The Appellate Division, Third Department (Mugglin, J.) modified the lower court's ruling as it related to requiring only "912" properties to be used for comparison in an appraisal (Gordon v Town of Esopus, 31 AD3d 981 [3d Dept 2006]). The lower court's rulings regarding the other issues were affirmed. A trial took place on September 12, 13 and 14, 2007. [*2]

Petitioner and respondents submitted appraisal reports and testimony by qualified real estate appraisers to establish their respective positions regarding opinions and conclusions as to the value and classification for the subject property. Both appraisers utilized the sales comparison approach for purposes of valuation; however, they disagreed regarding the comparable sales that should be used in appraising this property. The conclusions of the respective appraisers for the parties regarding the value for each of the taxable years at issue are as follows:

Tax Year	Value - Petitioner's Appraiser	Value - Respondents' Appraiser
2002	$148,000.00	$1,240,000.00
2003	$155,000.00	$1,295,000.00
2004	$163,000.00	$1,360,000.00
2005	$167,000.00	$1,425,000.00

Petitioner's expert, Donald A. Fisher, MAI, ARA, of Pomeroy Appraisal Associates, Inc.,

a certified real estate appraiser, valued the property utilizing the sales comparison approach. His appraisal classified the property as "managed forest land" and contained seventeen (17) comparable sales, all of which contained the RPTL § 480-a exemption. These comparable sales pertained to property that was generally located outside of Ulster County. Mr. Fisher based his appraisal upon the "current use" of the subject property as managed forest land. Petitioner Richard E. Gordon testified regarding the property, the RPTL § 480-a exemption and the use of the property.

Respondents' expert, Michael J. DeWan, MAI, of L.T. Bookhout, Inc, a certified real estate appraiser, also valued the property utilizing the sales comparison approach. His appraisal classified the property as "vacant land", and as a result, based his appraisal on the "highest and best use" of the subject property. Mr. DeWan determined that the highest and best use of the property would be as "... future sites for high-end homes along or near the bluffs, with the balance of acreage reserved for natural resource protection" (see DeWan appraisal report, February 7, 2007, at 72). Mr. DeWan utilized five (5) comparable sales located within Ulster County. None of the comparable sales carried the RPTL § 480-a designation.

While both appraisers utilized the same approach, different comparison properties were selected based upon the appraiser's different theories regarding the types of properties that should be used in comparison to a subject property such as this.

The fundamental issue in this case revolves around whether this property should be considered managed forest land or vacant land and, as a result, whether the valuation should be based upon the current use of the property or if it should be valued based upon the property's highest and best use. Petitioners contend that the historical designation of this property as forest land by DEC for purposes of the RPTL § 480-a exemption and their ongoing commitment to maintain the land in accordance with this program require the property to be valued under a [*3]"912" classification, thus also requiring a current use analysis. Respondents contend that while the property carries the RPTL § 480-a designation for purposes of a tax exemption, the property is really vacant property that should be assessed based upon its highest and best use.

The decision of the Appellate Division, Third Department is instructive on this issue and dictates the classification that must be used in determining the issues raised at the trial of this matter. The Appellate Division made it clear that property that receives a RPTL § 480-a designation must be classified as "912" property. Thus, it is the law of the case that the subject property must be classified as "912" property for purposes of valuation and assessment.

It is well-settled that the property valuation by a tax assessor is presumptively valid and that a petitioner challenging such an assessment must present substantial evidence to overcome this presumption (Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179 [1998]). The Court finds that petitioners have met their burden of production based upon the decision of the Appellate Division, Third Department on petitioners' motion for summary judgment, as well as the submission of a detailed, competent report by a qualified appraiser such as Mr. Fisher. Together, these meet the standard of substantial evidence. Finding that the petitioners have met their burden of production, the Court must now weigh the record and determine whether the petitioners have established by a preponderance of the evidence that their property was overvalued by the respondents for the years in question.

Based upon a review of all of the evidence, this Court gives greater weight to the testimony and proof adduced by the petitioners. The petitioners have established through the decision regarding the motion for partial summary judgment, as well as the appraisal and the testimony at trial, that the subject property is managed forest land subject to a designation pursuant to RPTL § 480-a, which dictates a "912" classification. The petitioners demonstrated strict compliance with the requirements of RPTL § 480-a in working with a forester to maintain the property to ensure a harvesting of trees at the appropriate time in the future. The Court credits the proof adduced by the petitioners, especially the testimony of the appraiser, regarding the use of the property and the impact that such use has upon valuation. The Court further credits Mr. Fisher's testimony regarding the need to value this property based upon the standard in New York which requires valuation to be based upon the current use of the property except in certain circumstances.^[FN1] Courts in New York have clearly established that value must be determined based upon the use and condition of the property on the taxable status date, and not on the basis of some possible use at some date in the future (see PCK Dev. Co. v Town of Ulster, 20 AD3d 660 [3d Dept 2005]; Matter of Stonegate Family Holdings v Bd. of Assessors of Town of Long Lake, 222 AD2d 997 [3d Dept 1995], lv denied 92 NY2d 817 [1998]). The Court finds the respondents' argument that the subject property should be valued as vacant land unpersuasive and thus discredits Mr. DeWan's appraisal which utilizes a highest and best use analysis, in direct contradiction to the standard to be applied in New York, to arrive at the conclusion he reached. Petitioners have established that the subject property does not fall into the category of property that must be evaluated utilizing a highest and best use standard.

Based upon the foregoing, the Court finds that petitioners have overcome the [*4]presumption of validity of the Town's assessment and have established by a preponderance of the evidence that their property was overvalued by the respondents for the years in question. As such, the Court adopts the values calculated by Mr. Fisher which result in the following taxable assessments, taking into account the equalization rates and the RPTL § 480-a exemption for each year:

Tax Year	Market Value	Equali-zation Rate	Indicated Assessment	480-a Exemp-tion	4 acres Not Exempt	Total Taxable Assessed Value	Town's Taxable Assessed Value	Excess Taxable Assess-ment
2002	$148,000	100%	$148,000	$28,508	$5,460	$33,968	$206,200	$172,232
2003	$155,000	100%	$155,000	$29,860	$5,700	$35,560	$235,000	$199,440
2004	$163,000	85%	$138,550	$26,690	$5,100	$31,790	$235,165	$203,375
2005	$167,000	74%	$123,580	$23,807	$4,544	$28,351	$235,500	$207,149

Respondents are directed to issue refunds of overpayments with interest as provided in Real Property Tax Law § 726 in accordance with the above values. Since the amount of the reduction in assessment is more than half of that demanded by petitioner, petitioner is entitled costs and disbursements as of right pursuant to Real Property Tax Law § 722 (1).

Accordingly, it is hereby

ORDERED, that the relief requested by petitioner is hereby granted in accordance with the above; and it is further

ORDERED, that respondents are directed correct the assessment roll in accordance with the above; and it is further

ORDERED, that respondents are directed to issue refunds of overpayments with interest in accordance with the above; and it is further

ORDERED, that respondents are directed to remit the amount petitioners incurred for costs and disbursements in this matter within sixty (60) days of receipt from petitioners of a bill of costs outlining such costs and disbursements.

This shall constitute the Decision and Order of the Court. All papers, including this Decision and Order, but excluding the Trial Transcript and Trial Exhibits, are being returned to counsel for the petitioners. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry, and notice of entry.

SO ORDERED.

ENTER.

Dated: March 20, 2008

Kingston, New York_________________________________

HON. KIMBERLY A. O'CONNOR

Acting Supreme Court Justice