Revocation of Empire-Zone-Business Certifications Upheld in 9 of 11 Instances

The Third Department, in a full-fledged opinion by Justice Lynch, considered the Empire Zone Designation Board’s revocation of petitioners’ certifications as empire zone businesses. The Department of Economic Development (DED) was directed, in 2009, to conduct a review of all certified businesses to determine whether decertification was warranted on one of two grounds: “First, DED could decertify a business enterprise if it was a “shirt-changer,” that is, if the enterprise was certified prior to August 1, 2002, and it “caused individuals to transfer from existing employment with another business enterprise with similar ownership . . . to similar employment with [the enterprise] or if the enterprise acquired, purchased, leased, or had transferred to it real property previously owned by an entity with similar ownership, regardless of form of incorporation or ownership” (General Municipal § 959 [a] [v] [5]; see 5 NYCRR 11.9…). Second, DED could decertify a business enterprise if it failed to meet the 1:1 benefit-cost test … . The latter test required decertification where it was determined that the enterprise “has submitted at least three years of business annual reports [and it] has failed to provide economic returns to the [s]tate in the form of total remuneration to its employees (i.e., wages and benefits) and investments in its facility that add to a greater value than the tax benefits the business enterprise used and had refunded to it” … . Applying the standard criteria for review of administrative determinations, the Third Department upheld all but two of the 11 decertifications, but also determined retroactive decertifications were improper. Matter of Lyell Mt. Read Bus. Ctr. LLC v Empire Zone Designation Bd., 2015 NY Slip Op 03906, 3rd Dept 5-7-15