Opinion
May 25, 1995
Appeal from the Supreme Court, Greene County (Cobb, J., Connor, J.).
At issue on this appeal is whether petitioner's real property, which consists of a gas transmission system used to transport natural gas from Canada throughout the Northeast, is entitled to the partial tax exemption established by RPTL 485-b. In Matter of Long Is. Light. Co. v Board of Assessors ( 81 N.Y.2d 1029, 1030) (hereinafter LILCO), the Court of Appeals held that a utility's "transmission and distribution equipment is used primarily to carry and conduct natural gas and electricity, and is not used primarily to `sell' its services as that term is used in [RPTL 485-b (5)]". Petitioner argues that the holding in LILCO is inapplicable to this case because petitioner is not a utility company and does not own the gas which is transmitted by its system. We reject petitioner's argument.
Whether the owner of the transmission system is a utility that owns the gas transmitted by the system is irrelevant for the purpose of RPTL 485-b because the exemption relates to the use of the land (see, Matter of Sitterly Rd. Assocs. v Board of Assessment Review, 142 A.D.2d 243, 246), not the nature or character of the owner. Petitioner's transmission system is used primarily to carry and conduct natural gas, which is the identical use of the real property in the LILCO case. We see no rational basis for the disparate treatment which would arise if the applicability of the RPTL 485-b exemption depended upon the nature or character of the owner of the transmission system and who owned the gas transmitted by the system.
Petitioner also seeks to distinguish the LILCO case on the theory that the real property at issue in that case consisted of utility poles, wires and mains used to distribute the product directly to consumer sites, whereas petitioner uses its property for "the gross and voluminous transport of another's product". We conclude that this distinction is also irrelevant. Regardless of whether the property is part of a system used to distribute gas directly to consumers or for the "gross and voluminous transport" of gas, the primary use of the property is to carry and conduct natural gas, which, according to the LILCO case ( 81 N.Y.2d 1029, 1030, supra), is not a use that qualifies for the RPTL 485-b exemption. Petitioner's remaining arguments, for the most part, constitute a thinly veiled attack on the soundness of the rationale of the holding in the LILCO case, which must be addressed to the Court of Appeals. Until the Court of Appeals overrules or restricts the scope of its holding in LILCO, we agree with Supreme Court that the LILCO case is dispositive of the issue of whether petitioner's gas transmission system is entitled to the RPTL 485-b partial exemption.
Cardona, P.J., Mercure, White and Spain, JJ., concur. Ordered that the judgments and order are affirmed, without costs.