2002-04-30
I l___.l V _......
COUNTY CLERIC DUTCHESS COUNTY;
, MAY 1'0 2002
LERK
: I
App'lication for INDEX NUMBER pursuant to C.P.L.R.
. Section 80 '18.
!NDEX NUMBER
"
FEE
'2002 '
k.. .!'.fl:.Cl'-7'~"\! t- t )
~ ~A- "v'Ti -I.... -. ',' .- ~
Spaces below to be TYPED or PRINTED by applicant
, I
TITLE OF ACTION OR PROCEEDING
rs.,"~I,~'h.,t.,~~'fr'r,~~" ....r1,~j -, J;',
SUPREME COURT OF THE STATE OF NEW YORI<
COUNTY OF DUTCHESS
-I \..Yf\ir'~ ()l- V':/~7~:';: .~'~..~11
x
CHECI< AS APPLICABLE
COHSVMtn. 0
cnWIT ,
TnAlIS^CnO/l
"
ALPINE IMPROVEMENT ,LLC.,
-AGAINST-
TOWN OF WAPPINGER, TOWN BOARD OF TOWN
OF WAPPINGERS BOTH AS THE TOWN BOARD AND
AS THE ADMINISTRATIVE AND ASSESSING BODY
FOR WAPPINGER SEWER TRANSMISSION/TREATMENT
IMPROVEMENT AREA PHASE 3A.
PLAINTIFF,
HOT 11
COl/SVMtn . ~
CntolT
TI1N1SM;nOIl
11011 0
r^YMEIIT or-
COI.fTT\AC TV^l
OallG^TIOH
DEFENDANTS.
Name and address of
Attorney for Plaintiff
or Pe litioner
Teleph9ne No,:
Name ~nd address of
Attorney for Defendant
or Respondent
Telephone No.
A.
Nature cH1d object of action
or
NiJ lure of special proceeding
JON H. ADAMS, ESQ. Corbally, Gartland & Rappleye'a E's~[.
35 Market Street, Poughk.eepsie,: NY 12601 ~ CJ
(914) 454-1110 ,....., nC:
S .;:_~~~;
~ . ~J~~~ ' "
<~o'
-0 ~ "'r~ 2 .
~." .-.__..l...."
~ .. ~~.~=.~.
-(.
DECLARATORY JUDGMENT
N
0"\ .
,
IS THIS ACTION OR PROCEEDING CONFIDENTIAL UNDER 'ANY LAW OF,TH~ STATE
OF NEW YORK 7
YES D'
'II
NO ~
8.
A~plica lion (or Index Number riled by:
Plalnlif(
." XX
Dorel1don! ::"0
APRIL 30, 2002
DATE
/~I
/
JON H.
;.
SIGNATURE (Iypo nom, below)
ADAMS, ESQ. , '
" .
, "
, .
. "
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
--------------------------------------X
ALPINE IMPROVEMENT LLC Plaintiffs designate
DUTCHESS
County as the place of
trial.
The basis of the venue is
Plaintiffs' business
address.
rA.~. " 4"b /0 -/
Index No~~t.~U-" //
Date Purchased '1(20 I ZdD't-
Plaintiffs,
- against -
Town of Wappinger, Town Board of
Town of Wappingers Both As The Town
Board And As The Administrator And
Assessing Body For Wappinger Sewer
Transmission/Treatment Improvement Area
Phase 3A,
SUMMONS
Defendant's business
office is:
TOWN OF WAPPINGER
MIDDLEBUSH ROAD
WAPPINGER FALLS, NY 12590
Defendants.
-----------------------------~~---------X
To the above named Defendant(s)
You are hereby summoned to answer the complaint in this action
and to serve a copy of your answer, or, if the complaint is not
served with this summons, to serve a notice of appearance, on the
Plaintiff's Attorney(s) within 20 days after the service of this
summons, exclusive of the date of service (or within 30 days after
the service is complete if this summons is not personally delivered
to you within the .State of New York); in case of your failure
to appear or answer, judgment will tak gainst you by default
for the relief demanded in the co laint
Trial to be held in the Co ty of utc
, Esq.
ARTLAND AND RAPPLEYEA, LLP
or Plaintiffs
Street
ie, NY 12601
1110
Dated: Poughkeepsie, New
April 30, 2002
Defendant's address:
TOWN OF WAPPINGER
MIDDLEBUSH ROAD
WAPPINGER' FALLS, NY
N
<::::>
<;.;a
"'.;)
l::::
'~,-,::
, . r -''''"'"l
:; j I-j C'j
::"~.';;. S~' r~
..~:~.~i
. ~;--'-I:2
'-'i~f ~
-,~
12590
:;:..
"tJ
:::0
W
a
..",
--:"..
-..
N
. .
N
r).::.:
::.- ,~ --!
-0 u:. ;.rl'.~
~ ::j~~~
~,y~~
'(j :"'C:
'~-i
I'. _<
SUPREME COURT OF THE STATE OJ; NEW YORK
COUNTY OF DUTCHESS
-----------------------------------------------------------------------x
ALPINE IMPROVEMENT LLC,
Plaintiff,
-against-
TOWN OF W APPINGERS, TOWN BOARD OF THE TOWN
OF W APPINGERS, BOTH AS THE TOWN BOARD AND
AS THE ADMINISTRATIVE AND ASSESSING BODY
FOR WAPPINGER SEWER TRANSMISSIONrrREATMENT
IMPROVEMENT AREA PHASE 3A,
COMPLAINT
Index #
~
~=
=
""
Defendant.
-------~-----------------------------------------------------------------x
The complaint of Plaintiff alleges as follows:
1. Plaintiff is a duly formed limited liability company existing under the laws of
the State of New York.
2. Plaintiff is the owner of a parcel of real commercial property situate in the
territory of the WAPPINGER SEWER TRANSMISSIONrrREATMENT IMPROVEMENT
AREA PHASES 3A(Improvement Area) said parcel designated on the special assessment
rolls of the Town of Wappinger for the year 2002; said parcel is identified on the tax rolls
and records of the Town and Improvement Area as parcel no 6175-02-707773.
3. This is an action commenced pursuant to CPLR 3001 to declare capital
assessments for sewer treatment as unconstitutional and in excess of the jurisdiction of the
Town Board that administers the improvement fees. The parcel of Plaintiff is improved by
1
I.....'
..
""
0"\
a. shopping center.
4. The Improvement Area was formed by the Town Board on or about January 25,
1999, without notice to Plaintiff for the purpose of providing wastewater treatment for
properties within the territory determined to be benefitted by the improvements.
5. Upon information and belief, the plan for fmancing included in the resolution
forming the Improvement Area, required that be annual assessments for fmancing the costs
of the improvements be determined on a benefit basis.
6. Prior to January 1,2002 said Town Board did make, prepare and complete its
first t~ntative special assessment roll for the Improvement Area for the 2002 and without
actual notice to Plaintiff of the assessment to be placed on its property.
7. On such special assessment roll, the Petitioner's aforesaid parcel of real property
was assessed and assessment units placed thereon as $713,000.00 (Ex A).
8. Thereafter on some date unknown to Plaintiff, tax bills for such assessment
were mailed to Plaintiff, said tax bill showing a levy of $44,852.58 for general town
purposes and a levy of $120,037.00 for the sewer improvement.
9. Plaintiff paid said levy under compulsion, but duly protested the amount of the
levy for the sewer improvement.
ILLEGALITY OF ASSESSMENT
10. Upon information and belief, the special assessments of Plaintiffs real
property, made as described in preceding Paragraphs 1 through 9 of this complaint, is
2
illegal, unconstitutional, erroneous, discrin:rinatory, unjust, and without legal foundation for
the reasons set forth in this complaint.
11. The imposition of special assessments is, upon information and belief, based
upon a methodology not authorized by Town Law; under the Town Law Article 12-C,
Improved Area's enabling authority must impose special assessments based upon general
benefit.
12. The assessment made by Defendants is almost wholly based upon an ad
valorem methodology, a method not authorized by Article 12-C of the Town Law or b: the
Resoh;ltion of the Town Board
13. Defendants acted in excess of its authority by using ad valorem assessments
in lieu of a method devoid of usage considerations.
14. The levy based upon a methodology is null and void.
15. Plaintiff has no adequate remedy at law.
AS AND FOR A SECOND CAUSE OF ACTION,
PETITIONER ALLEGES AS FOLLOWS:
16. Plaintiff repeats and realleges all those allegations set forth in the preceding
Paragraphs 1 through 15, as if fully and separately set forth herein.
17. Plaintiff has average daily flow of waste water for treatment of 6000 gpd.
18. Upon information and belief, the engineer for the Improvement Area has
determined that the average flow for an individual residence in the Improvement Area is 320
3
gpd.
19. Upon information and belief, for pwposes of its assessment roll, each
residence in the district is assumed to have an implited assessed value of $100,000.00,
irrespective of value. Said methodology is premised upon information and belief that each
residential unit requires the same sewerage treatment capacityinespective of its value; under
such method, treatment determines the number of units.
20. By contrast, as to commercial properties, treatment is irrelevant, as only
valuation, actual value rather than general value, accorded to residences is used.
21. By using, as to residential properties, an average assumption of treatment,
Defendants have acknowledged that treatment should be the primary denominator of value.
22. Upon information and belief, no reasonable correlation exists between the
services rendered to commercial properties on the assessment roll and valuation and costs
of Improvement Areas.
23. Upon information and belief, an unpermissive and unconstitutional imbalance
exists between the assessments accorded to commercial properties as contrasted to
residential properties in the Improvement Area.
24. Upon information and belief, the assessment roll is an illegal contrivance
designed to shift the costs of services from those actually receiving the benefit of same to
those services owned by parcels having no comparable benefit or elective franchise.
4
25. The assessment methodology as imposed upcn Plaintiffs parcel is
confiscatory and constitutes an illegal taking absent arbitation of a uniform method of
allocation of costs based upon benefit.
26. The assessment is unconstitutional and a den al of equal protection as no
reasonable nexus exists between the assessment and costs r ~lative to the services rendered
to plaintiff as contrasted to assessment imposed on residen .lal properties.
27. The assessment methodology of the district l' ;ed to determine benefit, and
any levy made pursuant to the same should be dec ared illegal as obtained by
uncon~titutional means.
28. Petitioner has no adequate remedy at law.
AS AND FOR A THIRD CAUSE OF t\CTION,
PLAINTIFF ALLEGES AS FOLlOWS:
29. Petitioner repeats and realleges all those allei ations heretofore set forth in
Paragraphs 1 through 28, as if fully and separately set fortl herein.
30. Because of the method for determining asseSSl lent, Plaintiffis burdened with
an assesment and cost five times the assessment and cost .;corded to other properties for
the same service.
31. The assessment and costs are unequal and a ( ~nial of equal protection.
32. Petitioner has no remedy at law.
33. Petitioner is entitled to a declaratory judgmel t declaring that such levy i:.
invalid.
5
AS AND FOR A FOURTH CAUSE OF ACTION
PLAINTIFF ALLEGES AS FOLLOWS:
34. Petitioner repeats and realleges all those allegations set forth in preceding
paragraphs 1 through 33, as ifherein fully set forth.
34. The offices of Plaintiff and manager are located in Westchester County and
the real property is administered from such offices; upon information and belief, said address
is listed on the assessment roll of the town for the Improvement Area.
35. Plaintiff had no notice either of the public hearing on the formation of the
sewer improvement area or the public hearing on the preliminary assessment roll for the
2002 levy.
36. Defendant was required to give actual notice to Plaintiff of each public
hearing.
37. Plaintiff was prejudiced by the absence of notice as it was not accorded the
opportunity to review and object to the methodology of an assessment
38. The absence of actual notice was a violation of Plaintiff's constitutional
rights of due process.
39. Plaintiff has no adequate remedy at law.
Wherefore, Plaintiff demands judgement:
One. Delaring the assessment and levy described in the complaint null and void;
Two: Directing a refund of any payment made pursuant to the void assessment
and levy together with interest
6
Three: Such other relief as may bejust and equitable.
Four: Directing payment of costs and disbursements.
DATED:
April 30, 2002
Poughkeepsie, New York
LAND & RAPPLEYEA
BY:
7
02l~Jit..QJ-,._!gEc.. 16...:..,3.7,,;.IAX 914 592 8068 9146749670
. . ..........,...,.. -... .,,--,
51' "'EMENT OF COUNTl:'I1UWl'l LA ..:J -- . --. .---
... ""v. ...."'.._..
TOWN OF WAPPINGER Sequence No. 9869
?o'rFillca1 Ycu01/01l2002 tQ 12131/2002 * Wa(n.ntDatc 12117/2001 PageN~. lof 1
_.....-....,.-...--.----__......._.__..__...__4 ..__.__....--......._..._..__.......__..._.____...______
A-P: CHECKS PAYABLE TQ TO 'i}' V IN PERSOll{ SWIS SIBIL ADDRESS 0$: !.teAL DtSCRIJ'TION
'jilriciQ M~upin.Ro;.TilXCs Town Hall 135689 6157-0:Z-707773-000(}"MV
zo MiddlcDushRd. 20 Middic;bvJh Rd. Addreu: 1404 ROUTE 9
P.O. Boll 3~ W.ppil\gCfS flU,. NY Munl: W APPINOER. "
Wappinj;crt Falls, NY 12Soo School: W APPINOERS CEN SCHlS
(PH)&45.207-4342 NYS Tu & Finance Sc:hool District Code:
452 - NBH SHOP CTR Roll Secf.
Parcel Acreas:c: 86.8 I
Acc:ount No. I 9107773
:S.nk Code 0150133
ALPINE IMPROVEMENTS, LLC
C/O D L C MANAOEMErIT CORP
580 WHITE PLAINS RD
TARRYTOWN NY 10591
ROPERTY TAXPA YF.R'S BILL OF R.TOHTS Est1mllt~ State Aid: ~~~~ S8;;)~-::
he aSSCS$or estimates tho Full Market Vahle of this property as or JanQlry 1,2001 was: 14.153,846
ne Total Assessed Value ofthis property is:. 9;200,000
i1e{Jnlform Nrcentage of Value ~ed [0 establish ass~$ment." in your muni~ipa1ity wns; 65.00
f you fetl your assessment Is too high., you have the ri~bt to seek I red1.J.dion In the future. For further information, please l\$k your
.sscssor for the booklet "Ho'IV to FlIc a Complaint on Your ^sse~$menC'. Please note that the period for filing complaints on the
Ibove assessment has p.assecl...
-i;'mDtl~~;---~..~---~i~;---i:a.ll;~~~-----~;;;p~~-_.----~-._-~---;-~.;;;;---- El(;;;;tion------------S!u~.r;;p;;;;;_-.
.____...____...._..___...______..__.........__.__...__4..__.____...______.___.____....._.__-___.._.....__...____......_.._._
ROPE~TV T~XES
ruIn!' PUrD05C
.NON.HOMESTEAD PARCEL..
:ounly Toxts
.'(J~rr Ouuidc;
{ul:h.lIln\lilh: Fire TOTAL
\rnbulnl\cc Town TOTAL.
" H"r>p S Tomulrc:all/2
Happ 5 Tnll1s/1!'l:Il1/l3
::uuat:l".." I.ev"(
% Chaaet! Fl'1lm
fDof Year
'tulSbl, AJu.ucf VIlIII,
2.t.U.al1a
Jtab:s per $1000
or Dcf ~I'U
TJ t AlDnul\l
-----..---
..619.64~
2.474.228
342.S~S
}O26,200
307 ,~90
713,0$0
.o.S
0.2
0.8
Q.U
ft.7
0.0
920U,ooO.00
9200.000.00
9200,000.00
9200.000,00
~.127450
4,875280
1.&40016
.4451110
"
" 41.172.54'
<<.1152.58
16, 92$.4~
4,101.7:1
5.965.56.
12U.OJ7.11f;:'
'.,
\
TOTAL TAXES DUE
$239,058.71
Apply For Third.Party Notification By; 07/1512002 .
" TaXl:ll paid by CA Cf-1
. NO PENAL1Y TO FEB.28.ADD 29;' MAR. I-MAY Jl, 40/. JUNE 1- AUC 31 ;
--......--.....-........-...--.-..--..---..----.....-..---------....--.....-----...-.........---.---...-....-...........--..---.....--:-........-
TOWN OF WAPPINGER Bill No. 001271
RECEIVER'S STU~ 135689 6157.02.707773-0000
Dank Code 0151" .,
Tnwn of:
School:
Pnopcrty Alldra.:
WAf'PINOER
WAPPINGERS CEN SCHL.S
1404 R04TE.9
IDTNE OOROVEMENTS, LLC
);. ClO D L C MANAGEMENT CORP
.~":j,5"&O WHITE rLAINS.RD
~1~~~'.lOWNNY 10591
r~y (ly: 0111&/200:
a-A
TP-'