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Village Seeks Dismissal of Article 78 Lawsuit

gavelAttorneys representing the Village of Scarsdale, Terry Rice and Dan Vinclette filed a motion to dismiss the Article 78 brought by the Scarsdale Committee for Fair Assessments on January 13, 2017. Drafted by Scarsdale Attorney Robert Bernstein and verified by Mayra Kirkendall-Rodriguez for 151 petitioners, the Article 78 asked the court to annul, void and rescind the 2016 tax assessment roll for Scarsdale and roll back valuations to 2015 assessments. If the Village failed to roll back the assessments, they asked that the petitioners who would pay more taxes on the 2016 roll than the 2015 roll be refunded the difference.

The Village of Scarsdale countered by asking for the dismissal of the Article 78 based on a number of procedural issues and the petitioners' failure to "allege any cognizable cause of action."

In an affirmation of support of the memorandum to dismiss the case, the attorneys write, "The petition consists of nothing more than a host of unsubstantiated allegations that are designed to disparage the name and reputation of the public officials involved in the 2016 revaluation.... Moreover, Petitioner ignores the fact that property valuations made by tax assessors are presumptively valid and that the presumption can only be rebutted with substantial evidence of overvaluation through proof based upon both sound proof and objective data. Here, Petitioner failed to present any evidence to rebut this presumption."

Recounting the history of the revaluation, the affirmation of support explains the role of Scarsdale resident Mayra Kirkendall Rodriguez who has been a vocal opponent of the Village Board and organized the petitioners to file the Article 78. The affirmation says that after the Village filed the 2016 roll, "Mayra Kirkendall Rodriguez became an immediate critic of the results and the valuation process. Despite having been told repeatedly that the Assessor is independent and that elected officials did not have the authority to supersede the Assessor's determination to file the final 2016 assessment roll, Mayra Kirkendall Rodriguez continued to insist that the Town/Village Board engage in such unlawful conduct.... When she realized that the Board would not supersede the independent determination of the Assessor, she then insisted that the Board seek special legislation from the State Legislature and Governor to invalidate the revaluation. When the Board declined to pursue that political remedy she threatened the Board with litigation and subsequently facilitated the commencement of this action. It should be noted that Mayra Kirkendall Rodriguez exercised her rights under Article 5 of the Real Property Tax Law and received a reduction in her 2016 assessment, almost to the level of her 2015 assessment."

The Village also explains why a roll back to a prior tax roll would not be legal or feasible for the Village as it would "deprive certain property owners of their right to grieve their 2015 assessment because certain statutory deadlines have passed."

In a 44-page memorandum filed on February 15 they argue for dismissal because:

1) The suit failed to name of the County of Westchester and the Scarsdale School District who they call "indispensable parties" who receive taxes based on the assessment roll. Since they would be required to pay refunds and could be "adversely affected" the lawyers argue that the suit can't proceed in their absence.

2) The suit fails to provide a factual basis for "outlandish claims" related to the revaluation and did not provide "substantial evidence of overvaluation based on sound theory and objective data."

3) The Committee for Fair Assessments lacks standing to assert a claim as it is an unincorporated association who does not own property or pay taxes in the Village. The memorandum says that the claim does not demonstrate injury to any "members" of the committee and failed to establish that it is advocating a position fairly representative of the community of interests which it seeks to protect. It doesn't provide the specifics of how individual members were affected and does not establish whether or not the organization was open to all individuals who were affected.

4) The claim does not provide facts to support that the 2016 revaluation "constituted a waste of or injury to public funds" or that it was illegal, imperiled the public interest or "calculated to work public injury.

The Village contends that the claim that the group was denied equal protection is baseless for several reasons ... one because the petition fails to show how the petitioners were treated differently than "similar persons or entities." The motion says, since the group was an ad hoc organization it would be difficult to comprehend how any equal comparator could exist. It says, "The petition challenges broad methodologies of assessment but fails to provide a single instance of purportedly similarly situated person or property that was treated differently."

The memorandum cites extensive case law to show that rescinding a municipality's tax roll has not previously been supported in a court of law. In Hellerstein vs. Assessor of Town of Islip in 1975, the court said, "if we invalidate the assessment roll this could bring fiscal chaos to the Town of Islip. ... and cause disorder and confusion in public affairs." Mayor Jon Mark cited this same case repeatedly over the last year and a half when residents pleaded with the Village Board to throw out the 2016 assessment roll.

Under General Municipal Law 51 the plaintiff was required to furnish a bond to the defendant therein, to be approved by a justice of the Supreme Court. The memorandum notes that the petitioners failed to post a bond.

Several people who signed the Article 78 and paid $500 each to fund the action are now running for Scarsdale Village Trustee. Brice Kirkendall-Rodriguez, husband of Mayra Kirkendall Rodriguez, who led the challenge to the Village, signed the petition. Candidate for Trustee Robert Selvaggio is a petitioner and Robert Berg, candidate for Village Mayor supported the suit saying he would have signed it except for the fact that his assessment was reduced between 2014 and 2016 and he therefore had nothing to gain. In recent weeks these candidates from the newly formed Scarsdale Voters' Choice Party who supported the suit then asked the Village to settle it rather than spend taxpayer funds to fight it. They said, "We will, with the Court's assistance, fashion a fair resolution of the lawsuit."

However, the Village launched a defense against the Article 78 which, if settled, would cost taxpayers considerable funds and might lead to further lawsuits. The outcome of the case may impact the results of the upcoming Village election on March 21.

About the Village's motion to dismiss, Robert Berg, who is currently running on the slate of the Scarsdale Voter's Choice Party for Mayor in opposition to the Scarsdale Citizens Party, said, "It reminds me of the alternative facts from Donald Trump. It sounds like the Ryan reval was fine and these people just disagree with the results. It ignores the entire history of what happened here. Mayor Mark admitted it was a mistake, no one on the Village Board was happy with it and the Village is withholding money from Ryan. These are all legal technicalities. If you read the substance of the brief, there's nothing there. The bottom line is that the reval is arbitrary and capricious and they should settle it. They are fighting this ... but to what end?"

The case has been assigned to Judge Scheinkman and it is not known when a decision will be announced.

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