2008 Notice of Petition
STATE OF NEW YORK
SUPREME COURT
COUNTY OF ALBANY
Albany County Clerk
Document Number 10210362
Rcvd 06/17/20084:35:20 PM
II11I111111111111111111111111111111111111111111111
in the Matter of the Application of:
FRONTIER COMMUNICATIONS OF SYLVAN LAKE, a/kla
CITIZENS COMMUNICATIONS CO.,
Petitioner,
NOTICE OF PETITION
Index No.: S ~ II - 08'
-against-
ST A TE BOARD OF REAL PROPERTY SERVICES,
Respondents.
To Review Special Franchise Assessments
Pursuant to Article 7 of the Real
Property Tax Law (2008-2009).
RECEIVED
jU~.l j 0 2008
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~ PLEASE TAKE NOTICE that upon the annexed duly verified petition of Frontier Communications
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~ of Sylvan Lake, a/k/a Citizens Communications Co., application will be made at a General Term of this
TOWN CLERK
Court, to be held at the Albany County Courthouse, Albany, New York on the 18th day of August, 2008 at
9:30 a.m., or as soon thereafter as counsel may be heard, pursuant to Article 7 of the Real Property Tax Law
("RPTL") of the State of New York, for review and reduction of the full values or assessments on special
franchise property owned by Petitioner for the year 2008, as set forth in the annexed verified petition; and for
such other and further relief as the Court deems appropriate, including costs, disbursements and attorney fees.
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PLEASE TAKE FURTHER NOTICE that Respondent is required to serve a verified answer upon
Petitioner's attorneys at least five days prior to the return date of this matter.
DA TED:
June 16, 2008
HISCOCK & BARCLAY, LLP
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By: ,/ ~~~
(La nee A. Zimmerman
Attorn sior Petitioner
50 Beaver Street
Albany, New York 12207-2830
Telephone (518) 434-2163
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TO: STATE BOARD OF REAL PROPERTY SERVICES
16 Sheridan Avenue
Albany, New York 12210
ANDREW CUOMO, ATTORNEY GENERAL
New York State Department of Law
The Capitol
Albany, New York 12224
2
STATE OF NEW YORK
SUPREME COURT
COUNTY OF ALBANY
In the Matter of the Application of:
FRONTIER COMMUNICATIONS OF SYLVAN LAKE, a/kfa
CITIZENS COMMUNICATIONS CO.,
Petitioner,
PETITION
Index No.:
5--- J- 7 (- c.
eofi/or
-agains/-
FILF).:;)
ST A TE BOARD OF REAL PROPERTY SERVICES,
Respondents.
To Review Special Franchise Assessments
Pursuant to Article 7 of the Real
Property Tax Law (2008-2009).
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Petitioner, Frontier Communications of Sylvan Lake, a/k/a Citizens Communications Co., by its
attorneys, Hiscock & Barclay, LLP, for its petition, alleges upon information and belief:
PURPOSE OF PETITION
1. The purpose of this petition is to challenge the special franchise full values or assessments
made by the New York State Board of Real Property Services and to determine the appropriate special
franchise full values or assessments of Petitioner's real property. Said values were established pursuant to
Real Property Tax Law Article 6.
JURISDI CTI ON AND VENUE
2. This Court has jurisdiction pursuant to SS702 and 740 of the Real Property Tax Law
("RPTL") and venue is proper pursuant to RPTL S702 and CPLR ss505(a) and 506(b).
PARTIES
3. Petitioner, Frontier Communications of Sylvan Lake, a/k/a Citizens Communications Co., is a
domestic corporation which maintains its principal office at 3 High Ridge Park, Stamford, Connecticut
06905.
4. Respondent, State Board of Real Property Services, is an administrative agency of the
Executive Department of the State of New York, with its principal office at 16 Sheridan A venue, Albany,
New York.
COMMON ALLEGATIONS AND FACTS
5. Petitioner was and still is engaged in the provision of telecommunications servIces to
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consumers in the County of Dutchess, and other counties in the State of New York, and is subject to the
regulation and supervision of the Public Service Commission of the State of New York ("PSC").
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6. Petitioner has been granted certain franchises and rights to construct, maintain and operate in,
under, above, upon and through public streets, highways, and other public places within the above named
counties its lines, wires, poles, conduits, supports and enclosures, with their appurtenances, which franchises
and rights have been defined in RPTL ~1 02(17) as "special franchise" property.
7. Respondent is required by RPTL ~600 to annually determine the assessments of Petitioner's
special franchise property for purposes of real property taxation.
8. On or after February 4,2008, Respondent notified Petitioner in writing that it had determined
tentative full values or assessments for Petitioner's special franchise property for the year 2008 located in the
municipalities, as set forth in Exhibit A, attached hereto.
9. Petitioner believed that it had been aggrieved by these tentative full values or assessments and
complained in due time to Respondent to review, correct, and reduce such full values or assessments. On or
about February 29, 2008, Petitioner filed with Respondent written and verified statements of complaint
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(hereinafter, "Grievances"). In its Grievances, Petitioner objected to and applied for con-ection and reduction
of said full values or assessments.
10. Respondent held hearings on the tentative full values or assessments and the Grievances.
Petitioner appeared at the hearings and stated the reasons the assessments on its special franchise property
should be reviewed and reduced. In support of its contentions, Petitioner requested that Respondent consider
docun.1ents fu'1d other evidence submitted to the State Office of Real Property Services (hereinafter "0RPS")
regarding its special franchise full values or assessments and evidence submitted as part of Petitioner's
Grievances. Petitioner fully complied with Respondent's requests for additional information.
11. Respondents refused to correct or reduce said tentative full values or assessments, and by
notices dated on or May 6, 2008, informed Petitioner of the final full values or assessments on its special
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franchise property for the year 2008. The final full values or assessments are set forth in fourth column of
Exhibit A.
AS AND FOR A FIRST CAUSE OF ACTION
12. Petitioner repeats and realleges, as if fully set forth herein, paragraphs 5 through 11.
13. In determining the full values or assessments of Petitioner's special franchise property,
Respondent used the method of valuation known as reproduction cost new less depreciation ("RCNLD").
14. The depreciation element in the RCNLD valuation method is comprised of physical
depreciation, functional obsolescence and economic obsolescence.
15. Physical depreciation is comprised of both curable and incurable components. However, in
calculating the appropriate depreciation amount to be deducted in determining the value of Petitioner's
special franchise property, Respondent en-oneously, improperly deducted arbitrary, inadequate and
insufficient amounts for all components of physical depreciation.
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16. Moreover, the technological changes occurrmg m the telecommunications industry have
rendered portions of Petitioner's special franchise property functionally and economically obsolete.
17. Respondent failed and/or refused to make adequate adjustments attributable to the functional
and economic obsolescence present in the subject property. As a result, Respondent erroneously, improperly
and illegally deducted arbitrary, inadequate and insufficient amounts for functional and economic
obsolescence in calculating the appropriate depreciation fullOwlt to be deducted in determining the value of
Petitioner's special franchise property.
18. As a result of Respondent's improper and inadequate deduction for all forms of depreciation,
the final full values or assessments for Petitioner's special franchise property for the year 2008 are
overvalued, in excess of and more than the actual value of petitioner's special franchise property.
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19. Petitioner is aggrieved, is and will be injured by the determinations made by Respondent in
calculating the [mal full values or assessments of Petitioner's special franchise property for the year 2008, as
thereby Petitioner will be required to pay a far greater amount in taxes in FY 2008-2009 than it would be
compelled to pay had such determinations been made justly and properly. In addition, Petitioner will be
required to pay more than its just proportion of the aggregate taxes to be levied upon real property, including
special franchise property, situated in the assessing units set forth in Exhibit A for FY 2008-2009.
20. The [mal full values or assessments of Petitioner's special franchise property referred to herein
are erroneous by reason of overvaluation, and are illegal and void in that the [mal full values or assessments
for the special franchise property located in each of the assessing units set forth in Exhibit A are in excess of
the actual full values of such property, as set forth in Exhibit A.
AS AND FOR A SECOND CAUSE OF ACTION
21. Petitioner repeats and realleges, as if fully set forth herein, paragraphs 5 through 20.
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22. The fmal full values or assessments of Petitioner's special franchise property are erroneous by
reason of overvaluation in that Respondent failed to use accurate and proper salvage factors, service lives
and/or residual factors (hereinafter collectively, II factors ") in determining the full value of Petitioner's special
franchise property.
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Petitioner is aggrieved, is and will be injured by the determinations made by Respondent in
calculating the fmal full values or assessments of Petitioner's special franchise property for the year 2008, as
thereby Petitioner will be required to pay a far greater amount in taxes in fiscal year ("FY") 2008-2009 than it
would be compelled to pay had such determinations been made justly and properly. In addition, Petitioner
will be required to pay far more than its just proportion of the aggregate taxes to be levied upon real property,
including special franchise property, situated in the assessing units set forth in Exhibit A for FY 2008-2009.
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24. Petitioner claims that the actual full values or assessments on its special franchise property
should be as set forth in the fifth column of Exhibit A.
25. The final full values or assessments of Petitioner's special franchise property referred to herein
are erroneous by reason of overvaluation, and are illegal and void in that the final full values or assessments
for the special franchise property located in each of the assessing units set forth in Exhibit A are in excess of
the equalized actual full values of such property.
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AS AND FOR A TIDRD CAUSE OF ACTION
26. Petitioner repeats and realleges, as if fully set forth herein, paragraphs 5 through 25.
27. The State Board, in its determination of the tentative full values or assessments, separated the
valuation of each of the special franchise properties into two parts, or elements: the tangible and the
intangible. After evaluating the tangible part of the property, which already reflected any "intangible" value,
the State Board arbitrarily added an additional amount representing the intangible element. The additional
amount added for the intangible element was without reasonable basis and the methodology employed to
arrive at that added amount erroneously included revenues not attributable to the tangible special franchise
assets.
28. The State Board's methodology for valuing the Petitioner's "franchise" fails to take into
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account the deregulation of the telecommunications industry and its impact on the value of the Petitioner's
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"franchise". Said franchises are utilizable by many of Petitioner's competitors and has little, if any, value
separate and apart from the Petitioner's tangible property. In addition, the State Board's methodology
measures all sources of Petitioner's corporate revenues against the original cost of Petitioner's investment in
its special franchise tangible property. Thereafter, the State Board determines whether said revenues are
"excessive". This methodology fundamentally assumes that all of Petitioner's revenues are derivable from a
monopoly "franchise" and that Petitioner's revenues are restricted to a "market rate of return" on the original
cost of its investment in its special franchise tangible assets. Such analysis is fundamentally flawed,
irrational, and ignores the current market based and competitive nature of the telecommunications industry.
Said methodology is applied differently to cable companies (RCNLD is utilized to analyze "excess"
earnings); direct competitors to Petitioner who utilize the very franchise which Respondent's assume is a
monopoly.
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29. In determining the "value" for the intangible element of Petitioner's special franchise
properties. the State Board's tentative assessments are based on revenue items that were wholly unrelated to
the subject special franchise property and, as such, should not have been considered by the State Board in its
determination of the intangible element. Moreover, the inclusion of such revenue items in the computation of
the intangible value is illegal, capricious, and constitutes a double taxation of income rather than real estate.
As a result, the State Board has computed intangible values that are illegal, contrary to New York law and
are, in some cases, many times the value of the tangible assets.
30. Although Petitioner's franchise area (and the equipment located therein) has remained largely
the same for many years, in tax year 2008 the Respondents have arbitrarily, capriciously and without rational
basis, increased the intangible value of Petitioner's property by several hundred percentage points when
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compared to the intangible values applied in all previous years.
31. Sixty (60) days have not lapsed since Petitioner received formal notice of the final special
franchise assessments for the year 2008 from Respondent.
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No previous application for the relief requested herein has been made.
'\THEREFORE, Petitioner respectfully requests that as related to each and every cause of action
stated above, the Court issue an Order:
(a) declaring that the determinations by Respondent of fmal full values or assessments of
Petitioner's special franchise property in the assessing units set forth in first column of Exhibit A be annulled
and canceled, as unconstitutional, illegaL arbitrary, capricious, overvalued, unequal and erroneous;
(b) decreeing that the final full values or assessments of Petitioner's special franchise property in
each of the assessing units set forth in the first column of Exhibit A be reduced to the values set forth in the
fifth column ("Claimed Full Value or Assessment") of Exhibit A;
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(c) granting Petitioner recovery of any and all taxes paid associated with such, illegal and
excessive special franchise full values or assessments; and
(d) granting such other and further relief as the Court may seem just and proper, including costs,
disbursements and attorney fees.
DA TED:
June 16,2008
HISCOCK & BAReLA Y, LLP
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/' ence A. Zimmerman
Attorneys for Petitioner
50 Beaver Street
Albany, New York 12207-2830
Telephone (518) 434-2163
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VERIFICATION
ST ATE OF NE'W YORK )
) 85.:
COUNTY OF ALBANY )
LA WRENCE A. ZIMMERMAN, being duly sworn, deposes and says:
I reside in the County of Albany and State of New York and am an attorney at lav/ and the duly
authorized attorney and agent appointed by the Petitioner for the institution of this proceeding. I have read
the foregoing petition and know the contents thereof, that the same is true to my own knowledge, except as to
those matters therein stated to be alleged upon information and belief, and as to those matters I believe them
to be true.
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The source of my information and knowledge, and the grounds of my belief as to all matters therein
stated to be alleged upon information and belief are various reports received by me from representatives and
agents of the Petitioner in reference to the matters at issue, said representatives and agents having knowledge
of the said matter at issue. I make this Verification in place of Petitioner as they are located in the State of
Connecticut.
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Subscribed and sworn to before
me this 16th day of June, 2008.
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No ary Public
SHARON R. MADDALLA
Notary Public, State 'Of New 'York
No.01MA61l7905
Qualified In Rensselaer County
8.ommisslon ExpIres Nov. 1. 2008
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EXHIBIT A
The following table contains a list of the assessing units in which Petitioner's special franchise property that is
the subject ofthis lawsuit is located, the final assessments for such property, and the claimed assessments for
such property.
FULL VALUE
OR TENT A TIVE FULL FINAL FULL CLAIMED FULL
ASSESSMENT V ALUE OR V ALUE OR VALUE OR
ASSESSING UNIT NUMBER ASSESSMENT ASSESSMENT ASSESSMENT
Dutchess County , ,
Town of Beekman 644200-1322 1,800,541 1,800,541 450,135
Town of East
Fishkill, Dutchess
County C.A.P. #2 644200-1328 9,610,959 9,610,959 2,402,740
Town of La Grange,
Duthess County
c.A.P. #3 644200-1334 1,930,963 1,930,963 482,741
Town of Union
Value, Dutchess
County CA.P. #3 I 644200-1354 211,135 211,135 52.784
Town of
Wappinger,Dutchess
County C.A.P. #1
T own outside
villages 121,781
Total Town 644200-1356 121,781 121,781 30,445
TOTALS 13,675,379 13,675,379 3,418,845
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STATE OF NEW YORK
EXECUTIVE DEPARTMENT
STATE BOARD OF REAL PROPERTY SERVICES
16 Sheridar. Avenue
Albany, New York 12210-2714
(518) 474 -1071
RP30
Dated
May 06, 2008
CERTIFICATE OF FINAL SPECIAL FRANCHISE FULL VALUE
For city and town assessment roll to be :iled in 2008
Frontier Corom. of Sylvan Lake
C/O Mr. Stefan Peleschuk
3 High Ridge Park
Stamford, CT 06905
644200
The State Board of Real Property Services has determined the final special franchise full v..lues fo::-
the following assessing units at the amounts shown below. The full values were determined in
accordance with Article 6 of the Real Property Tax Law and Part 197 of Title 9 of the Official
Compilation of Codes, Rules and Regulations of the State of New York. The full values include both the
value of the tangible property situated in, upon, under or above public streets, highways, wate::-s and
other public places and the value of the franchise, right, authority or permission to occupy such
public streets, highways, waters and public places.
Full Value
Number
Full Value
Final
Town of Beekman, Dutchess County
Dutchess County C.A.P. #2, Town of East
Fishkill
644200-1322
644200-1328
$~,800,54~
$9,nO,959
Dutchess County C.A.P. #3, Town of La Grange
Dutchess County C.A.P. #3, Town of Union Vale
Dutchess County C.A.P. #1, Town of Wappinger
Town Outside Villages
Total Town:
Grand Total
644200-1334
$~,930,.963
$2~~,~35
644200-1354
644200-1356
121,781
$121,781
$13,675,379
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Lee Kyr~cou
Secretary of the State Board
F-08-0462
Page 1
STATE OF NEW YORK
EXECUTIVE DEPARTMENT
STATE BOARD OF REAL PROPERTY SERVICES
16 Sheridan Avenue
Albany, New York 12210-2714
(518)474-1071
RP30
Dated
May 06, 2008
CERTIFICATE OF FINAL SPECIAL FRANCHISE FULL VALUE
For city and town assessment roll to be filed in 2008
Frontier Comm. of Sylvan Lake
C/O Mr. Stefan Peleschuk
3 High Ridge Park
Stamford, CT 06905
644200
The State Board of Real Property Services has determined the final special franchise full values for
the following assessing units at the amounts shown below. The full values were determined in
accordance with Article 6 of the Real Property Tax Law and Part 197 of Title 9 of the Official
Compilation of Codes, Rules and Regulations of the State of New York. The full values include both the
value of the tangible property situated in, upon, under or above public streets, highways, waters and
other public places and the value of the franchise, right, authority or permission to occupy such
public streets, highways, waters and public places.
Full Value
Number
Full Value
Final
Town of Beekman, Dutchess County
Dutchess County C.A.P. #2, Town of East
Fishkill
644200-1322
644200-1328
$~,800,54l
$9,610,959
Dutchess County C.A.P. #3, Town of La Grange
Dutchess County C.A.P. #3, Town of Union Vale
Dutchess County C.A.P. #1, Town of Wappinger
Town Outside Villages
Total Town:
Grand Total
644200-1334
$~,930,963
$211,135
644200-1354
644200-1356
121,781
$121,781
$13,675,379
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. Lee Kyr' 'COll
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Secretary of the State Board
F-08-0462
Page 1
STATE OF NEW YORK
SUPREME COURT
COUNTY OF ALBANY
IN THE MATTER OF THE ApPLICATION OF
FRONTIER COMMUNICATIONS OF SYL VAN LAKE,
alkJa CITIZENS COMMUNICATIONS CO.,
Petitioner,
-against-
ST ATE BOARD OF REAL PROPERTY SERVICES,
Respondent.
NOTICE OF PETITION
AND PETITION
Hiscock & Barclay, LLP
Attorneys for Petitioner
50 Beaver Street
Albany, New York 12207
(518) 434-2163
ALLlBOl\35430\1