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Lawyers for both sides have spoken and it's up to Town of Aurora Assessor Patricia J. Caligiuri to make a decision on whether the retirement community planned by Presbyterian Homes of Western New York will be tax-exempt or not.

Her decision will determine if the $20 million project would contribute millions of dollars in taxes to the town over the years. It may affect the future of the largest development in the town.

"We've said all along if the tax assessor does not grant tax-exempt status, we have to revisit the project," said David R. Saunders, president of Presbyterian Homes, adding, "We've never asked for a free ride."

Saunders said he is not saying the project would fizzle, but that he does not know if the group would be able to develop the project if the application for tax exemption is denied.

Ms. Caligiuri said she was given an eight-page brief by lawyers for Presbyterian Homes, and a 15-page opposing opinion from the attorney for Park Associates, a competitor of Braecroft. Park Associates, through attorney Arthur J. Giacalone, contends a tax exemption would give Presbyterian Homes an unfair advantage.

The developer would build 153 cottage, independent and assisted-living units on a 75-acre parcel between Mill Road and Center Street. There also is the possibility of adding a 30- to 40-bed nursing home in seven to 10 years.

Entry fees would be required, as well as monthly fees.

"Our mission doesn't say we only take care of poor people," Saunders said.

Giacalone said there have been several court decisions on similar projects that eventually were denied tax exemptions.

"It's remarkably clear they do not qualify," he said.

He also points to an opinion by the state Office of Real Property Services that a large number of residents would need to be indigent for the project to be tax-exempt under the type of exemption Presbyterian Homes is seeking.

"How can Braecroft qualify for real property tax exemption when our state's highest court has expressly held that a retirement community for middle-income seniors does not qualify for the exemption?" Giacalone asks.

"We know of at least six other facilities similar to Braecroft that have received tax-exempt status," Saunders said.

The assessor has asked Town Attorney Frederick A. Wolf to render an unbiased legal opinion on the points of law raised by the other attorneys.

"The state law requires assessors either to exempt or not exempt applicants who ask for it," Ms. Caligiuri said. "The law is what governs it, whether they qualify or don't qualify." Presbyterian Homes asked for an exemption for this year, and it was not granted, she said.

"We would like to have (a decision) as soon as the assessor is ready, but that really is her call," Saunders said.

While Wolf has promised to try to have a recommendation for the assessor by next week, she has months to make a formal decision.

"June 1, 1999 is the taxable status date," she said.

Saunders notes that Presbyterian Homes has offered to spend about $500,000 to improve the sewer line on Center Street, which would benefit the community. He also has agreed to make payments in lieu of taxes.

If the town assessor determines the facility meets the requirements for a tax-free project, then it is up to the Town Board to negotiate a payment in lieu of taxes plan. Preliminary negotiations would have the project paying 50 percent of its taxes when it is up and running, and then add 1 percent a year for 50 years, Supervisor William J. Green has said.

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