We begin our story by presenting two correspondences sent to successive chairpersons of the Cortland County Legislature (Ms. Marilyn Brown and Mr. Scott Steve). These correspondences were accompanied by a timeline of events surrounding our property assessment experiences dating back to May of year 2001. Suffice it to say, no meaningful action was taken by way of response.
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April 25, 2006
Marilyn E. Brown
Chairperson
Cortland County Legislature
County Office Building
60 Central Ave
Cortland, New York 13045
Dear Chairperson Brown:
At Mr. Scott Steve’s request, roughly a year ago we compiled a timeline of misadventures experienced when, as private citizens and taxpayers, we had the temerity to contest the fundamental merits upon which our residential property assessment was raised. Mr. Steve asked us not to include the formal basis upon which we independently derived our assessment valuation, so this formal basis has not been included (but, we would be more than happy to send it along if you wish to see it). In short, we’re sending you precisely the same documentation we sent Mr. Steve.
As you’ll readily see, however, there’s plenty of documentation that has been included. Some of the “highlights” are:
• Collusion amongst members of the Cuyler Town Board and the Town Assessor for purposes of denying us a fair hearing before the Cuyler Board of Assessment Review (BAR);
• Contrary to existing law, refusal by the Town Assessor to provide us with the precise manner in which her latest assessment result was obtained (a transcript and tape of this refusal are available upon request); and,
• Before the Cuyler BAR and officials presiding at Small Claims Assessment Review (SCAR) hearings, various misrepresentations by the Cuyler Town Assessor (misrepresentations which directly contradict existing law).
As a point of information, Mr. Steve informed us that he did attempt to interview the Cuyler Town Assessor (Ms. Julie Ray) subsequent to his receipt of our report, but Ms. Ray refused to discuss the issues of contention without an attorney present. Mr. Steve did not press the matter. It’s also interesting to note that it was Mr. Steve himself who suspected collusion between the Cuyler Town Assessor and the SCAR Hearing Officers who presided at our hearings.
As I related to you on the telephone, Mr. Steve originally offered (prior to his receipt of our report) to call in the state Attorney General’s Office for purposes of performing an investigation. After receiving the report (a report he characterized as “too hot to handle”), Mr. Steve had a change of heart and clearly dropped the matter entirely.
Here’s a central issue to consider: On March 4, 2004, we were informed that Ms. Ray raised our assessment from $57,800 to $65,500. As the basis for her assessment revaluation, Ms. Ray provided the comparable sample properties she selected for the purpose of deriving her assessment determination. The recent transactions prices for these properties were $40,000, $45,000, $47,500, and $59,000. So, here’s the question: Without violating generally accepted appraisal/assessment principles, how can an assessment of $65,500 reasonably be extrapolated from the aforementioned sample of comparable properties used by the Assessor to establish our valuation?
It’s a trick question! The answer is, it can’t be done; and, there is no-one in New York State (or anywhere else for that matter) who can lend legitimacy to Ms. Ray’s work. If you choose to speak with any of the government officials involved directly or indirectly with this matter, what you’ll hear from them at best is a good deal of disparagement and character assassination; what you will never hear is a substantive refutation of the facts we’ve presented.
I find it hard to believe that you have not already heard of abuses in this area -- namely, the arbitrary methodologies not infrequently applied to the establishment of local assessments for a number of ”outsiders.” Suffice it to say, such abuses render the system of equitable taxation a mockery. In any event and at the risk of sounding repetitious, I ask that you keep in mind that all of the abuses we recount are copiously supported by factual documentation. So, the question really is not whether such abuses occurred (and are occurring), the real question is whether anything effectively is to be done about it.
“Hope springs eternal in the human breast!”
Sincerely yours,
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April 11, 2005
Scott Steve
Chairman
Cortland County Legislature
County Office Building
60 Central Ave
Cortland, New York 13045
Dear Chairman Steve:
Consistent with your instructions, we have compiled a timeline of (what we consider to be) the most egregious abuses we have encountered in contesting our residential property assessment over the course of the past several years. You will find multiple accompanying exhibits. We have assiduously avoided including a full-blown treatment of our valuation analysis (which we will be more than happy to provide upon request), but we have devoted space to an identification of various instances where the rules and procedures governing the grievance process were blatantly ignored or deliberately violated by a variety of public officials. There is quite a bit more pertinent information we could provide; for the sake of achieving relative brevity, however, we have attempted to confine our treatment to the underlying documentation you now have in hand. Still, if our summary appears overly lengthy, please keep in mind that the bulk of our treatment has been developed as a response to the ongoing contrivances foisted upon us by segments of our local government.
It is unlikely that the abuses we document could persist in an environment of informational transparency and proper monitoring oversight; in the absence of such conditions, however, it is clear that the public officials (involved in the residential assessment and grievance processes and) to whom we have been exposed rely on the ignorance of upstate New York residents insofar as this ignorance applies both to the application of pseudo-scientific valuation methods and the pretense of affording a fair hearing for the airing of challenges. The “system” may provide the appearance of providing avenues for redress, but this is an appearance that is entirely deceiving. If the treatment we have received is at all representative of the mentality governing treatment accorded a significant number of taxpayers (and we believe this to be the case), then one of the major inputs (namely, residential assessment valuation) used in the determination of local property tax payments can fairly be characterized as being faith-based. When a taxpayer cannot obtain a precise explanation as to how a dollar value is assigned to his or her residential assessment or has no reasonable expectation that the merits of an arbitrarily-derived valuation can be successfully contested, there is no other conclusion to be reached. We can identify no other area of U.S. taxation where such absurdities are accepted as the norm.
The BAR and SCAR processes conducted in the manner described by the underlying documentation cannot reasonably be labeled as anything but scandalous; the only question remaining is whether there is any avenue by which to right the abject wrongs to which we (and others, undoubtedly) have been subjected for far too long.
We very much appreciate your time and consideration.
Sincerely yours,
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Timeline of Events
May 2001
I met with (then) Town of Cuyler Assessor Mr. David Briggs for the purpose of contesting my assessment ($81,400 for prior tax year 2000). In support of my case, I presented an appraisal (dated April 3, 2001) and my own independent analysis which called for a lowering of my residential assessment to $57,800. Mr. Briggs accepted the validity of my analysis as well as the appraisal (performed by Mr. Tom Bonne; Real Estate License Number 48000039322; Bear Rock Realty & Appraisal; 42 Main St.; Cortland, NY 13045), which placed the value of my residential property at $53,000. Although Mr. Briggs was willing to lower my assessment below $57,800, I insisted that the $57,800 figure was satisfactory as far as I was concerned, and we signed a formal stipulation agreement which lowered my residential assessment to $57,800.
My wife and I attended the Cuyler Board of Assessment Review (BAR) hearing at which Mr. Briggs presented the signed stipulation agreement to the Cuyler BAR members. Minutes of the Cuyler BAR hearing indicate that the BAR concurred with Mr. Briggs’ decision. [See Exhibit 1]
December 2001
The December 2001 Cuyler newsletter (distributed by the town Supervisor at the time, Mr. Steve Breed) indicates that, as of July 2001, the Cuyler Town Board “was not happy with the amount of the assessment that our assessor Dave Briggs lowered one of our citizens. Dave Briggs did not see fit to go through the assessment review board.” [See Exhibit 2]
As evidenced by the Cuyler BAR Minutes, it appears the Cuyler Town Board did not understand that Mr. Briggs followed lawful procedures in his handling of our stipulation agreement (to which reference has been made above); in any event, Mr. Breed informed us (in roughly June of 2002) that Mike Polakoff was the citizen target of the Cuyler Town Board’s unhappiness. Until approximately June 2002, my wife and I were unaware of the existence of the December 2001 edition of the newsletter. In point of fact and as underscored by the Cuyler BAR’s own Minutes, Dave Briggs did present the stipulation agreement to the Cuyler BAR, and the Cuyler BAR concurred with his assessment determination.
Also during June 2002, conversations my wife and I held with Mr. Breed brought to our attention rather novel circumstances surrounding the Cuyler Town Board’s hiring of its new Assessor for 2002, Ms. Julie Ray. In the context of the preceding paragraph, the public interview of Ms. Ray for the position of Town Assessor by the Cuyler Town Board is of interest [refer to Exhibit 3], as the following excerpt demonstrates: “… Julie Ray stated that she could handle Mike Polakoff if he attempted to lower his assessment in the future.”
April 2002
In examining the trend of recent real estate transactions in our area, my wife and I decided to visit the new Assessor, Ms. Ray, at her office (Cortland County Office of Real Property Services). We felt that our assessment should be reduced by $2,400. Ms. Ray volunteered to generate a computer-driven valuation of our property using the Real Property Services database. Generated before the three of us in a matter of a few moments, Ms. Ray’s results, which clearly surprised her, demonstrated that our assessment should be lowered by $1,700.
At this juncture, Ms. Ray decided that an inspection of our home was in order. To save time, her visit also was used to conduct a formal stipulation meeting. Upon being presented with my methodology supporting a $2,400 reduction of our residential assessment, Ms. Ray acknowledged the validity of my approach and judged that a compelling case had been established. Nevertheless, Ms. Ray expressed a desire to investigate alternative bases to justify a lowering of our assessment. She voiced her concern, on this and other occasions, that the Cuyler Town Board would be exceedingly angry if she agreed to any such reduction in our case. She acknowledged the legitimacy and objectivity of my statistical approach, but stated that she wanted to be able to defend her actions before the Cuyler BAR by presenting additional methodologies. Although Ms. Ray already had access to the appraisal of our home performed one year earlier, I provided her with an additional copy which had been accepted by then Cuyler Town Assessor, Mr. Briggs, as support for our assessment reduction at that time. In conducting a physical inspection of our home (but not of our garage, barn, or land) Ms. Ray conceded that all representations regarding our home, as identified by our appraisal, were accurate.
Ms. Ray expressed a desire to compare our property to a limited number of properties judged to be comparable to ours. I presented to Ms. Ray a spreadsheet containing a list of several such properties that evidenced lower dollar-per-square-foot assessments. According to Ms. Ray, equity dictated that our dollar-per-square-foot assessment should be no higher than the lowest dollar-per-square-foot assessment corresponding to any such otherwise comparable property, a conclusion underscored by guidelines contained in the NYS ORPS publication dated February 2001, page 8, and entitled, “How to File for A Review of Your Assessment”. I stated that this basis for valuation would result in a total assessment for us of no higher than $50,700. I also stated that we were only seeking a total assessed value of $55,400. At that point, Ms. Ray represented that her only remaining task would be to verify the comparability of the several properties I had presented to her. She also indicated a willingness to lower our assessment on the tax rolls without informing the Cuyler BAR, but I insisted that a signed stipulation agreement must be presented before that body.
May 2002
Before the Cuyler BAR, Ms. Ray reversed the positions she had represented at the formal stipulation meeting conducted at our home. She justified her unwillingness to lower our assessment based on the introduction of a new tenet, namely, that Cortland County’s computer database does not represent an official data source. Since our analysis used these data and these data are unofficial, according to Ms. Ray’s statements before the Cuyler BAR, the results we obtained could not be considered valid and should be dismissed. [See Footnote 1]
Incredibly, one hour subsequent to making these pronouncements before Cuyler’s BAR members, Ms. Ray admitted to us in private that the assessment data in question are, in fact, official. She also admitted to us that she had made a mistake in not lowering our assessment, signing a stipulation agreement to this effect, and presenting this stipulation agreement to the BAR. When we asked her to inform the Cuyler BAR of her change of heart, she refused.
One of the more blatant additional misrepresentations by Ms. Ray involved the basis of her contention that our appraisal was invalid. She asserted that one of the three properties used in the appraisal analysis was a duplex (as opposed to being a single-family residence), and this misspecification compromised the results of the entire appraisal. This critical issue will be revisited in the August 19, 2002 section of this document (below).
Twelve days prior to grievance day, Ms. Ray informed us by telephone that a new “formula” had come to her attention, a formula that established that our land was fairly assessed. She followed up our conversation with an email. [See Exhibit 4] In her email, Ms. Ray stated that she would mail us a supporting “report.” She never did.
Suffice it to say, the Cuyler BAR did not lower our assessment. The BAR’s entire (enigmatic) explanation was as follows: “Supporting data supports your assessment.” [See Exhibit 5 Page 1, Page 2]
June 2002
It was in this timeframe that my wife and I first were informed by Mr. Breed (Cuyler Town Supervisor) of the circumstances surrounding the hiring of Ms. Ray as Town of Cuyler Assessor by the Cuyler Town Board (see December 2001 events above). It was also at this time that we asked Mr. Breed to provide us with a sworn affidavit attesting to those facts.
August 19, 2002
With Mr. John Libby sitting as presiding officer, my wife and I attended a Small Claims Assessment Review (SCAR) hearing held in Cazenovia. In addition to presenting my analysis and our appraisal [Exhibit 6], we also presented a data set Ms. Ray provided to me on May 16, 2002. This data set [Exhibit 7] confirms the property owned by Mr. Shawn Post (whose name can be located directly below my name) is a single-family (category 210) residence, inasmuch as all the properties listed within this data set are category 210 residences. Ms. Ray falsely had claimed before the Cuyler BAR that the Shawn Post residence was actually a duplex. [See Footnote 2]
We also presented Mr. Breed’s memo [See Exhibit 3]. In response, Ms. Ray stated that Judy and I had offered her a bribe during her visit to our home in April of 2002. According to Ms. Ray, the bribe consisted of our offer to her of tea and doughnuts. (By the way, she drank the tea!) At that point, we had, shall we say, a rather strong reaction, and the proceedings were terminated by Hearing Officer Libby. [see Exhibit 8]
August 20, 2002
Mr. Libby’s official decision [Exhibit 9] left our assessment unchanged.
September 4, 2002
Responding to my written complaint regarding the SCAR proceedings conducted by Mr. Libby, Judge Judith O’Shea (District Administrative Judge, Sixth Judicial District) determined that we should be granted another SCAR hearing. [Exhibit 10]
September 26, 2002
With Mr. David Kimpel acting as presiding officer, I attended the SCAR hearing ordered by Judge O’Shea, convened at the Tully Town Hall. Ms. Ray was accompanied by the Town of Cuyler’s attorney, Mr. Richard Van Donsel. [See Footnote 3]
Ms. Ray asserted that, for residential property encompassing less than 10 acres, appraisal principles specify that no consideration is to be given to land that otherwise would be characterized as wasteland. In this regard and as identified by our appraisal, a significant portion of our land lies in a flood zone. Ms. Ray’s “10-acre rule” is a blatantly false representation of NYS ORPS land valuation guidelines. Moreover, it is important to note that Ms. Ray did not present this “10-acre rule” to the Cuyler BAR when arguing her case against us. [See Footnote 4]
August 20, 2002
Mr. Libby’s official decision [Exhibit 9] left our assessment unchanged.
September 4, 2002
Responding to my written complaint regarding the SCAR proceedings conducted by Mr. Libby, Judge Judith O’Shea (District Administrative Judge, Sixth Judicial District) determined that we should be granted another SCAR hearing. [Exhibit 10]
September 26, 2002
With Mr. David Kimpel acting as presiding officer, I attended the SCAR hearing ordered by Judge O’Shea, convened at the Tully Town Hall. Ms. Ray was accompanied by the Town of Cuyler’s attorney, Mr. Richard Van Donsel. [See Footnote 3]
Ms. Ray asserted that, for residential property encompassing less than 10 acres, appraisal principles specify that no consideration is to be given to land that otherwise would be characterized as wasteland. In this regard and as identified by our appraisal, a significant portion of our land lies in a flood zone. Ms. Ray’s “10-acre rule” is a blatantly false representation of NYS ORPS land valuation guidelines. Moreover, it is important to note that Ms. Ray did not present this “10-acre rule” to the Cuyler BAR when arguing her case against us. [See Footnote 4]
Regarding our land valuation, Ms. Ray originally represented to us (May 2002) that land corresponding to ours is assessed at $6,500 for the first acre (upon which the house is situated) and no more than $500 per additional acre for up to 10 acres. Accepted at face value, this treatment would sum to a land valuation total of $10,000. Since our land encompasses eight acres and Ms. Ray established our land assessment at $11,000 (someone, I won’t say who, is having a little problem with arithmetic), it was clear that the land portion of our assessment was excessive. Referring to Exhibit 11 (2002 Town of Cuyler Land Schedule), let’s use the $7,500 figure set forth by the Exhibit 11 schedule as it applies to the first acre of a multi-acre residential property. Note that $500 per acre is the valuation assigned to “residual” acres; that is, additional acreage beyond the first acre on which the homeowner’s residence is situated. In direct contradiction to Julie Ray’s assertions, however, land that can be classified as “waste” or “wet” land should not be lumped into the residual category (conclusive support for the preceding assertion can be found in the next paragraph presented on this page and as well as on our PAST AS PROLOGUE 2 website page: May 2004 section). For our eight-acre property, therefore, $7,500 for the first acre and (6 x $100) $600 for an additional six acres brings the total to $8,100. The last acre should be classified as wood land and assigned a $700 valuation. Thus, $8,800 is the appropriate land valuation consistent with the 2002 Town of Cuyler Land Schedule as published and in effect at the time.
According to Mr. Joe Hesh (Albany ORPS), there are no state laws stipulating differential treatment for the valuation of land under 10 acres in area. The Town of Cuyler’s land valuation schedule for 2002 [Exhibit 11], among other things, identifies “waste” land and “wet” land as being valued at $100 per acre beyond the first acre on which a residence is situated. I presented compelling evidence, supported by photographs and by our appraisal, that roughly six acres of our land acreage routinely is flooded and/or is marshy year-round and hence corresponds to the waste- or wet-land categorization (since this land cannot be used for cultivation, home construction, or any other similar developmental purpose). Mr. Kimpel, nevertheless, clearly accepted the Assessor’s argument that the entirety of my land represents “prime” acreage. In so doing, Mr. Kimpel demonstrated his acceptance of the Assessor’s “10-acre rule.” No such rule exists on the books of New York State and no such stipulation is set forth by the Town of Cuyler’s 2002 Land Valuation schedule employed for the express purpose of establishing land valuation.
As his cursory decision underscores [see Exhibit 12 Page 1, Page 2, Page 3], Mr. Kimpel was summarily and arbitrarily dismissive of my analysis and supporting documentation. Leaving consideration of the merits of my analysis aside, at the very least, Mr. Kimpel’s conclusion was based on the unquestioning acceptance of misrepresentations on the part of the Assessor. In view of the voluminous data, extensive analysis, and the appraisal which I presented in support of my case, it certainly can be said that Mr. Kimpel’s written decision cannot be considered to be analytically substantive in nature. [See Footnote 5]
2003
We were and are under the impression that, once a SCAR judgment is rendered, we are not permitted to initiate an assessment grievance for two years, so we took no action during 2003.
According to Mr. Joe Hesh (Albany ORPS), there are no state laws stipulating differential treatment for the valuation of land under 10 acres in area. The Town of Cuyler’s land valuation schedule for 2002 [Exhibit 11], among other things, identifies “waste” land and “wet” land as being valued at $100 per acre beyond the first acre on which a residence is situated. I presented compelling evidence, supported by photographs and by our appraisal, that roughly six acres of our land acreage routinely is flooded and/or is marshy year-round and hence corresponds to the waste- or wet-land categorization (since this land cannot be used for cultivation, home construction, or any other similar developmental purpose). Mr. Kimpel, nevertheless, clearly accepted the Assessor’s argument that the entirety of my land represents “prime” acreage. In so doing, Mr. Kimpel demonstrated his acceptance of the Assessor’s “10-acre rule.” No such rule exists on the books of New York State and no such stipulation is set forth by the Town of Cuyler’s 2002 Land Valuation schedule employed for the express purpose of establishing land valuation.
As his cursory decision underscores [see Exhibit 12 Page 1, Page 2, Page 3], Mr. Kimpel was summarily and arbitrarily dismissive of my analysis and supporting documentation. Leaving consideration of the merits of my analysis aside, at the very least, Mr. Kimpel’s conclusion was based on the unquestioning acceptance of misrepresentations on the part of the Assessor. In view of the voluminous data, extensive analysis, and the appraisal which I presented in support of my case, it certainly can be said that Mr. Kimpel’s written decision cannot be considered to be analytically substantive in nature. [See Footnote 5]
2003
We were and are under the impression that, once a SCAR judgment is rendered, we are not permitted to initiate an assessment grievance for two years, so we took no action during 2003.
FOOTNOTES:
1. Mr. Mahlon Perkins (an attorney located in Dryden who has served as a Cortland County Assessment Hearing Officer) scoffs at Ms. Ray’s assertion. Mr. Perkins agrees with our position that Cortland County assessment data contained on the County’s computer database most certainly must be considered to be official in nature. Mr. Perkins was incredulous upon hearing our recounting of Ms. Ray’s assertion before the Cuyler BAR. (Click here to return to text.)
2. The data set includes individualized breakdowns of the assessed “outbuilding” components for each of the residential property assessments listed. Such data could not be accessed by the public at the time of this writing using the Cortland County Office of Real Property Services’ computers, a restriction which proves that Ms. Ray indeed is the source of this report. (Click here to return to text.)
3. In the context of a SCAR Hearing, accompaniment of the Town Assessor by the Town’s attorney is a highly unusual action, one that sends an unmistakable signal to the SCAR Hearing Officer. (Click here to return to text.)
4. According to Mr. Russell Ruthig (Attorney at Law; Cortland, NY; 607-753-3551), it is a violation of SCAR procedures for an Assessor to present evidence at a SCAR hearing that was not previously introduced at that year’s BAR hearing. Support for Mr. Ruthig’s pronouncement: “The SCAR process is an alternative appeal process for residential property to a formal Tax Certiorari proceeding and provides for review before a Hearing Officer in an informal setting.” (Source)
There is a formal legal distinction made between the terms "review" and an "appeal" (see this link). Accordingly and within the context of the above statement (which defines the SCAR process), use of the term "review" must be interpreted as being functionally synonymous with the term "examination." In other words, a SCAR hearing cannot simultaneously be both a legal review and a legal appeal.
“An appeal does not mean a new trial or the presenting of new evidence.” (Source)
Since an appeal process precludes the presentation of new evidence and because the SCAR hearing is in fact an appeals process, it must follow that new evidence cannot properly be introduced at a SCAR hearing.
“.. a de novo standard of review means the appeals court is considering the facts, and whether or not the lower court applied the law correctly, as though for the first time – ignoring conclusions made by the lower court.” (Source)
The above two legal citations reveal that the term "de novo" must be interpreted in the context of the circumstances under consideration. This conclusion is buttressed by the reference included above (a reference that identifies a number of different de novo applications). Therefore, new facts cannot be considered at the SCAR hearing; and, the review performed by the appeals court should, properly speaking, represent an examination of the existing facts presented at the BAR and whether the relationships provided by these existing facts have been correctly assessed.
In general, the Court has held that a petitioner need only present “substantial evidence” to rebut the presumption of the validity of the assessments by establishing the existence of a valid and credible dispute regarding valuation. This is a minimal burden and is usually satisfied by a competent appraisal based on “sound theory and objective data.” This standard of evidence is far lower than the “ preponderance of evidence” standard actually required to prove value at trial after the initial presumption has been overcome. (Source: Understanding Real Property Tax Assessment Review Proceedings in New York State)
(Click here to return to text.)
5. It is also fair to infer that Mr. Kimpel is unaware that, by law, the Assessor is not to be accorded a universal presumption of correctness once the SCAR proceedings commence. (Click here to return to text.)