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Court Looks at Determination by Board of Assessors

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Assessors of the County of Nassau dated January 5, 1998, which granted the application of the respondent Temple for a renewal of a tax exemption pursuant to Real Property and Tax Law § 420-a for the 1998-1999 school tax year and the 1999 general tax year, the petitioners appeal from a judgment of the Supreme Court, Nassau County, which, upon granting the cross motion of the respondent Temple to dismiss the proceeding, dismissed the proceeding.

The petitioners sought review of a determination of the Board of Assessors of the County of Nassau (hereinafter the Board) that the Temple (hereinafter the Temple), a religious organization chartered in the State of California, was exempt from real estate taxes on its property in Old Westbury, Nassau County. The Supreme Court granted the cross motion of the Temple to dismiss this proceeding finding that the petitioners did not have standing to challenge the Board’s determination and the Board’s determination was not arbitrary and capricious or irrational.

The courts have held that taxpayers in a community have standing to challenge an agency’s determination that a property within the community’s borders is exempted from the tax rolls. The decrease in the tax base that occurs when a property is improperly exempted from taxation has been found to constitute a cognizable injury to such taxpayers. Thus, the Supreme Court erred when it found that the petitioners did not have standing to challenge the instant exemption.

On the merits, the determination of the Board granting a tax exemption to the Temple was not rationally supported by the evidence contained in the record. Under local zoning ordinances, the Temple was required to obtain a special use permit before the property could be used for any purpose other than a single-family residence. The Temple’s 1997 application for a special use permit was denied by the Zoning Board of Appeals of the Village of Westbury. Therefore, its use of the property as a religious and spiritual center was illegal and acted as a complete bar to the granting of its application for a tax exemption. In addition, the Temple could not avail itself of the parsonage exception contained in Real Property Tax Law § 462 as the Temple never submitted an application for such an exemption to the Board.

In a child protective proceeding pursuant to Family Court Act article 10, the petitioner appeals from an order of the Family Court, Nassau County, dated June 10, 2003, which denied its application for temporary removal of the subject child, and awarded temporary joint custody to the child’s cousin and grandmother. By decision and order on motion of this Court dated June 25, 2003, enforcement of the order was stayed pending hearing and determination of the appeal.

On May 19, 2003, the Nassau County Department of Social Services (hereinafter the DSS) filed an emergency petition pursuant to Family Court Act § 1022 seeking to remove one-year-old Toni G. from her parents’ custody and to place her in temporary foster care pending the determination of an abuse proceeding based upon the parents’ alleged failure to provide the child with proper nutrition.

On May 20, 2003, the Family Court commenced a hearing to determine the issue of Toni’s temporary removal. On or about May 22, 2003, the Family Court granted the DSS a temporary order of custody and Toni was placed in foster care. Thereafter, on or about May 28, 2003, the DSS filed a formal abuse petition against the respondent parents.

The evidence adduced at the hearings demonstrated that returning the child to her mother and father presents, as the Family Court found, an imminent risk to the child’s health. Contrary to the parents’ contention, the record contains no evidence to show that such risk would be eliminated by granting temporary custody to Toni’s cousin and grandmother. Indeed, the order would allow the grandmother and cousin to reside with Toni’s parents while the abuse proceeding is pending, and there is no evidence to show that the household’s offending circumstances have been remedied.

Moreover, the record is devoid of evidence that the cousin and grandmother are suitable custodians. The Family Court, in chambers, conducted off-the-record ex parte discussions with the cousin and grandmother by telephone, in the absence of counsel, upon which it based its decision to award them temporary custody. Thus, the Family Court’s decision regarding temporary custody lacks a sound and substantial basis in the record.

In light of the evidence in the record, the safer course is not to return the child to her parents’ household, but to keep her in temporary foster care pending a full fact-finding hearing. Moreover, because the respondent parents have now been separated from their child for over 10 months, we direct that the matter be set down for an immediate hearing to be completed expeditiously. Pending resolution of the petition, the Family Court should arrange for appropriate visitation between the child and her parents and other family members, as well as continued involvement by the parents in the child’s health care. This decision should not be construed, however, as suggesting any particular determination on the abuse petition.

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