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Decision No. 14,981

Appeal of GEORGE R. HUBBARD from action of the Board of Education of the Greece Central School District and Superintendent concerning a tax levy.


 (November 14, 2003)


Harris Beach LLP, attorneys for respondents, James A. Spitz, Jr., Esq., of counsel


MILLS, COMMISSIONER.--Petitioner, a member of the Board of Education of the Greece Central School District ("board"), challenges various actions of the board and its superintendent (collectively referred to as "respondents") regarding the establishment of a tax rate and issuance of a tax warrant for the 2002-2003 school year.  The appeal must be dismissed.

In advance of the district"s May 21, 2002 annual election, the superintendent presented the board with a proposed budget of $153,761,699 and also prepared detailed information about the budget, including a report summarizing the district"s projected revenues for the 2002-2003 school year ("the report").  After calculating the district"s anticipated income from other sources, including a $3,050,000 allocation from the district"s fund balance, the report projected a need for property tax revenue of $78,098,372.  Based on this latter figure, the superintendent calculated a tax rate of $22.31 using an estimated property assessment base of $3,500,000,000 provided by the Assessor"s Office in the Town of Greece ("town assessor").

Following defeat of the budget, the board, on June 4, 2002, adopted a contingency budget of $152,686,488.  The district also revised its budget information to reflect projected tax revenue of $77,191,780 and an adjusted tax rate of $22.05794 (hereinafter $22.05).  The revised revenue figures also included a $3,050,000 allocation from the district"s fund balance.  In accordance with Real Property Tax Law "1306-a, respondents calculated the revised tax rate without considering whether any properties were exempt under the New York State School Tax Relief ("STAR") Program.

In August 2002, the town assessor provided respondents with a final total property assessment base of $3,486,419,858, slightly less than the initial $3.5 billion estimate.  After applying the projected $22.05 tax rate to this lower assessment figure, the superintendent calculated the district"s actual property tax revenue at $76,917,155, a figure $274,625 less than the amount budgeted by the board under its contingency budget.

In advance of the board"s August 13, 2002 meeting, the superintendent prepared a memorandum recommending that the board issue a tax warrant for $59,490,864, which was calculated by applying the proposed $22.05 tax rate to the total taxable property assessment base (which excluded all exempt property) of $2,696,283,694.   The memorandum explained that because the actual property tax base figure was slightly lower than the estimate initially provided by the assessor"s office, the district"s projected income using the $22.05 rate was $274,625 less than initially estimated.  The superintendent further explained that to compensate for this shortfall without increasing the tax rate, he was recommending that the board increase the amount appropriated from the district"s fund balance from $3,050,000 to $3,324,625.

At the August 13, 2002 meeting, the district"s assistant superintendent for finance and support services further explained the analysis and recommendation in the August 9, 2002 memorandum and responded to questions from board members.  After the presentation, the board voted to establish the 2002-2003 tax levy at $59,490,864, as recommended by the superintendent.  At the conclusion of the meeting, the board executed the tax warrant reflecting a tax rate of $22.05 and a total amount to be raised by property taxes of $59,490,864.37.  The tax warrant also reflects that the district will receive $17,426,290.33 in STAR reimbursements from the State.

Petitioner contends that the superintendent"s August 9, 2002 memorandum is confusing, contains "superfluous information," is "unnecessarily complex," and improperly implies that the determination of the tax levy is conditioned on various aspects of the STAR program.  Petitioner also contends that the board"s August 13, 2002 resolution establishing a $59,490,864 tax levy conflicts with the tax warrant issued by the board.  Finally, citing the district"s 2000-2001 and 2001-2002 Property Tax Report Cards, petitioner contends that respondents have "persist[ently] misrepresented" their computation of the tax levy by subtracting STAR reimbursements.

Petitioner requests that I direct respondents to amend the district"s 2002-2003 revenue budget to reflect the $3,324,625 applied from the district"s fund balance; re-vote the August 13, 2002 resolution establishing the tax levy, and instruct respondents to "establish the tax levy in accordance with Education Law and to cease the inclusion of superfluous information in public records pertaining to establishing the tax levy and tax rates."

Respondents contend that the appeal is untimely to the extent that petitioner challenges the district"s Property Tax Report Cards for the 2000-2001 and 2001-2002 school years.  Respondents further assert that the district"s calculation of the tax rate and tax levy, and the board"s execution of the tax warrant, was proper.  Respondents also assert that the board and district residents were given complete and accurate information regarding the budget figures.

Initially, I must address a procedural matter.  The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been included in the petition (8 NYCRR ""275.3 and 275.14; Application of Bean, 42 Ed Dept Rep ___, Decision No. 14,810; Appeal of O"Herron, 40 id. 204, Decision No. 14,461; Appeals of Simpson, et al., 40 id. 5, Decision No. 14,402).  Although I will accept petitioner"s reply, I have considered only those portions that respond to new material or affirmative defenses set forth in respondents" answer.

Turning to the merits, I find nothing improper about the superintendent"s August 9, 2002 memorandum.  It is apparent that the superintendent attempted in good faith to provide the board with the figures and information necessary to evaluate his recommendation of a $59,490,864 tax levy.  The memorandum clearly explains that the projected income from property taxes, using the $22.05 projected tax rate, was less than originally anticipated because the initial estimate of the property tax assessment base from the town assessor"s office was slightly higher than the actual figure.  Further, it is clear that the superintendent was recommending that the board allocate an additional $274,625 from the district"s fund balance to offset the shortfall from the tax levy, rather than increase the proposed property tax rate, which apparently had been publicized to district residents.  The record also reflects that the assistant superintendent for finance and support services made a presentation at a board meeting to further explain the August 9, 2002 memorandum and recommendation, and gave board members the opportunity to ask questions. Under these circumstances, I find that petitioner has failed to establish that the information presented to the board was confusing, inaccurate, or otherwise improper.

Further, I do not find that the August 9, 2002 memorandum conflicts with Real Property Tax Law "1306-a.  Consistent with "1306-a(1), the superintendent calculated the tax rate without considering STAR exemptions, and applied the rate only to the taxable property assessment base (excluding all exempt property) to determine the amount of the tax levy.  Petitioner has not cited any statutory or regulatory authority prohibiting respondents from increasing the allocation from the district"s fund balance to compensate for the lower property tax base.

I also find no merit to petitioner"s assertion that the tax warrant conflicts with the board"s August 13, 2002 resolution.  Consistent with the resolution, the tax warrant reflects that the $22.05 tax rate would be applied to the non-exempt property to raise $59,490,864 in taxes.

Finally, with respect to the district"s 2001-2002 Property Tax Report Card, the assistant superintendent for finance and support services, who began working for the district in September 2000, explains that although the district had initially improperly excluded projected STAR revenues from its total estimated school tax levy, the district revised its report card after being advised of the error.

In an appeal to the Commissioner, petitioner bears the burden of establishing all of the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Laurie, 42 Ed Dept Rep ___, Decision No. 14,867; Appeal of Boiko, 40 id. 409, Decision No. 14,513; Appeal of Taylor, 39 id. 368, Decision No. 14,261) and to demonstrate a clear legal right to the relief requested (Appeal of Boiko, supra; Appeal of Taylor, supra).  Petitioner has failed to meet his burden requiring dismissal of this appeal.

In light of this disposition, I need not address the parties" remaining contentions.