
    In the Matter of James Dudley, Appellant, v Robert Kerwick, as Assessor of the Town of Hardenburgh, et al., Respondents. (Proceeding No. 1.) In the Matter of the State of New York, Appellant, v Robert Kerwick, as Assessor of the Town of Hardenburgh, et al., Respondents. (Proceeding No. 2.)
    Argued February 11, 1981;
    decided April 30, 1981
    
      POINTS OF COUNSEL
    
      Peter H. Bouman and George L. Ingalls for appellant in the first above-entitled proceeding.
    I. Article 7 of the Real Property Tax Law is not and should not be deemed the exclusive method of judicial review under these facts. (Van Deventer v Long Is. City, 139 NY 133; Matter of Winter v Board of Assessors of County of Nassau, 63 Misc 2d 451; Zinder v Board of Assessors of County of Nassau, 66 Misc 2d 150, 38 AD2d 836; Matter of State Bd. of Equalization & Assessment v Kerwick, 91 Misc 2d 152; Central School Dist. No. 1 of Towns of Ontario, Walworth, Macedon, Williamson & Marion v Rochester Gas & Elec. Corp., 61 Misc 2d 846; People ex rel. Hoesterey v Taylor, 121 Misc 718, 210 App Div 196, 239 NY 626; Matter of State Bd. of Equalization & Assessment v Kerwick, 92 Misc 2d 547; Howitt v Street & Smith Pub., 276 NY 345.) II. Respondents’ acts coupled with the decisions of the court below deny petitioner and the class he represents rights guaranteed to them under the Fourteenth and First Amendments to the United States Constitution. (Everson v Board of Educ., 330 US 1; Walz v Tax Comm., 397 US 664; Abington School Dist. v Schempp, 374 US 203; Torcaso v Watkins, 367 US 488; Buffalo Hebrew Christian Mission v City of Syracuse, 33 AD2d 152; Autokefalos Orthodox Spiritual Church of St. George v City of Mount Vernon, 285 App Div 1175; Riverdale Country School v City of New York, 13 AD2d 103, 11 NY2d 741; Matter of Cannon Point North v Tax Comm. of City of N. Y., 30 AD2d 522.) III. The proceeding may be prosecuted and defended as a class action. (Kovarsky v Brooklyn Union Gas Co., 279 NY 304; Lichtyger v Franchard Corp., 18 NY2d 528; Harris v Wyman, 60 Misc 2d 1076; Young v Shuart, 67 Misc 2d 689, 39 AD2d 724; Matter of Knapp v Michaux, 55 AD2d 1025; Matter of O’Reilly v Grumet, 308 NY 351; Matter of Sheridan v Kennedy, 19 Misc 2d 765, 10 AD2d 606, 8 NY2d 794; Ray v Marine Midland Grace Trust Co., 35 NY2d 147.) IV. All necessary parties have been joined or can be joined. (Dobkin v Chapman, 21 NY2d 490; Mullane v Central Hanover Trust Co., 339 US 306; Walker v Hutchinson City, 352 US 112; Maloney v Ensign, 43 AD2d 902; Matter of Fellner v Mc
      
      Murray, 41 AD2d 853; Matter of Marshall v Quinones, 43 AD2d 436; Matter of Belmont, 40 Misc 133, affd sub nom. People ex rel. Belmont v Leonard, 83 App Div 643; Matter of Zimmerman v Kramer, 29 Misc 2d 413.) V. Relief on the merits is available to petitioners. (Mercantile Nat. Bank of City of N. Y. v Mayor of N. Y., 172 NY 35; City of Hudson v Board of Educ., 158 Misc 583; Van Deventer v Long Is. City, 139 NY 133; Bayer v Smith, 178 Misc 695; Harvey v Comby, 245 App Div 318; Hackley v Draper, 60 NY 88; Rice v Van Vranken, 132 Misc 82, 225 App Div 179, 255 NY 541; Cummings v National Bank, 101 US 153; Board of Educ. v Barnette, 319 US 624.)
    
      Robert Abrams, Attorney-General (Shirley Adelson Siegel and George M. Thorpe of counsel), for appellant in the second above-entitled proceeding.
    The petition was timely filed under the applicable Statute of Limitations. (Cohn v Lionel Corp., 21 NY2d 559; Kober v Kober, 16 NY2d 191; Mercantile Nat. Bank of City of N. Y. v Mayor of N. Y., 172 NY 35; Matter of Goldstein v Mills, 185 Misc 851, 270 App Div 930; Matter of Drelich v Kahn, 60 Misc 2d 227; Matter of Winter v Board of Assessors of County of Nassau, 63 Misc 2d 451; Matter of Dubbs v Board of Assessment Review of County of Nassau, 46 AD2d 651; Akari House v Irizzary, 81 Misc 2d 543; Matter of Troy Towers Redevelopment Co. v City of Troy, 51 AD2d 173, 41 NY2d 816; Hillside Colony v Barbolt, 86 Misc 2d 20.)
    
      Stephen L. Oppenheim for respondents.
    I. The court below correctly applied the 30-day Statute of Limitations. (Frank v Levitt, 47 NY2d 853; Solnick v Whelan, 49 NY2d 224; Press v County of Monroe, 50 NY2d 695; Campbell v Nassau County, 273 App Div 785; Matter of Policemen’s Benevolent Assn. of Westchester County v Hitt, 75 Misc 2d 565; Timmerman v Board of Educ., 272 App Div 1075; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; Greater N. Y. Corp. of Seventh-Day Adventists v Town of Dover, 29 AD2d 861; Matter of Mary Immaculate School of Eagle Park v Wilson, 73 AD2d 969; Van Deventer v Long Is. City, 139 NY 133.) II. Treated as article 78 proceedings, these proceedings are untimely. (Matter of Central School Dist. No. 2 of Towns 
      
      of Coeymans, New Scotland, Bethlehem & New Baltimore v New York State Teachers’ Retirement System, 27 AD2d 265; Matter of Kleinman v Kaplan, 20 AD2d 594; Frank v Levitt, 47 NY2d 853; Matter of Policemen’s Benevolent Assn. of Westchester County v Hitt, 75 Misc 2d 565; Timmerman v Board of Educ., 272 App Div 1075; C.H.O.B. Assoc. v Board of Assessors of County of Nassau, 45 Misc 2d 184, 22 AD2d 1015, 16 NY2d 779; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; Zinder v Board of Assessors of County of Nassau, 66 Misc 2d 150, 38 AD2d 836; Bloom v Mayor of City of N. Y., 35 AD2d 92, 28 NY2d 952; Matter of Drelich v Kahn, 60 Misc 2d 227.) III. Appellants may not maintain these proceedings on behalf of a class of petitioners. (People ex rel. Friendly v Davenport, 119 App Div 790; Ray v Marine Midland Grace Trust Co., 35 NY2d 147; Suffolk Housing Servs. v Town of Brookhaven, 69 AD2d 242; Kovarsky v Brooklyn Union Gas Co., 279 NY 304; Lichtyger v Franchard Corp., 18 NY2d 528; Matter of O’Reilly v Grumet, 308 NY 351; Matter of Sheridan v Kennedy, 19 Misc 2d 765, 10 AD2d 606, 8 NY2d 794; Harris v Wyman, 60 Misc 2d 1076; Young v Shuart, 67 Misc 2d 689, 39 AD2d 724; Matter of Knapp v Michaux, 55 AD2d 1025.) IV. An action will not lie to declare a tax roll void. (People ex rel. Marsh v Delany, 49 NY 655; People ex rel. Onderdonk v Supervisors of Queens County, 1 Hill 195; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; People ex rel. Friendly v Davenport, 119 App Div 790; Matter of Allen Sq. Co. v Krieger, 217 App Div 123.) V. Appellants failed to exhaust their administrative remedies. (Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; Matter of Dubbs v Board of Assessment Review of County of Nassau, 46 AD 2d 651; Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371; Frank v Levitt, 47 NY2d 853; Matter of State Bd. of Equalization & Assessment v Kerwick, 72 AD2d 292; Henry v Metropolitan Dade County, 329 F2d 780; Klotz v Consolidated Edison Co. of N. Y., 386 F Supp 577.) VI. The court does not have personal jurisdiction over necessary parties respondent. (Overing v Foote, 65 NY 263; People ex rel. 
      
      Hoesterey v Taylor, 210 App Div 196; Stuart v Palmer, 74 NY 183; Matter of Pacifica Foundation v Lewisohn, 79 Misc 2d 550; Matter of Utica Sheet Metal Corp. v County of Tompkins, 40 AD2d 567; Russell v City of New York, 22 AD2d 706, 16 NY2d 641; Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N. Y., 16 NY2d 222; Matter of Zimmerman v Kramer, 29 Misc 2d 413; Matter of Sima v Board of Stds. & Appeals of City of N. Y., 278 App Div 785; Matter of Douglaston Civic Assn. v Board of Stds. & Appeals of City of N. Y., 278 App Div 659, 302 NY 920.) VII. That properties containing Universal Life Church churches are constitutionally and statutorily entitled to exemption. (Gillette v United States, 401 US 437; Epperson v Arkansas, 393 US 97; Fowler v Rhode Island, 345 US 67; Zorach v Clauson, 343 US 306; People ex rel. Watchtower Bible & Tract Soc. v Haring, 8 NY2d 350; Order Minor Conventuals v Lee, 64 AD2d 227; Greater N. Y. Corp. of Seventh-Day Adventists v Town of Dover, 29 AD2d 861; Matter of New York Conference Assn. of Seventh-Day Adventists v Schenck, 279 App Div 845, 304 NY 706; People ex rel. Seminary of Our Lady of Angels v Barber, 42 Hun 27, 106 NY 669.)
   OPINION OF THE COURT

Wachtler, J.

The main issue on this appeal is whether individual taxpayers may, by way of an article 78 proceeding, challenge wholesale religious exemptions from taxation granted to other property owners. The Appellate Division held that in this situation the exclusive procedure for the challenge was article 7 of the Real Property Tax Law.

The instant litigation, as well as the litigation involved in two related appeals (see Town of Hardenburgh v State of New York, 52 NY2d 536; and Matter of State Bd. of Equalization & Assessment v Kerwick, 52 NY2d 557 [both decided herewith]), came about as a result of the dramatic increase in the number of parcels of land accorded tax-exempt status by respondent Kerwick, the Assessor of the Town of Hardenburgh, in 1977. It is undisputed that this increase was due to the enrollment, en masse, of 88% of the town’s landowners as officers in an allegedly religious denomination known as the Universal Life Church. It appears that all Universal Life Church members who sought an exemption received one. The facts in the petition, which for present purposes are assumed to be true, state that on April 27, 1977 Kerwick telephoned petitioner James Dudley and informed him that if he failed to become a Universal Life Church follower he, along with 12% of the remaining landowners, would have to pay the full $500,000 annual governmental expense of the town. Allegedly Kerwick also represented that as assessor, he intended to accept and approve all exemption applications filed by members of the Universal Life Church and that should petitioner Dudley desire to join he could do so at the town supervisor’s house. Dudley refused.

Within four months of the filing of the assessment roll, Dudley commenced this article 78 proceeding seeking to challenge Kerwick’s actions. Shortly thereafter, petitioner State of New York, a substantial landowner and taxpayer in the town, also brought an article 78 proceeding seeking essentially the same relief. In both proceedings, petitioners sued on behalf of themselves and other taxpayers similarly situated. Respondents moved to dismiss in both cases on various grounds including failure to state a cause of action, failure to join necessary parties and untimeliness. Special Term, treating the proceedings in a joint opinion, denied respondents’ motions to dismiss and allowed the matter to proceed as a class action on behalf of all nonexempt property owners. The Appellate Division reversed, based on its conclusion that article 7 of the Real Property Tax Law was petitioners exclusive method to challenge the exemptions, and that the 30-day Statute of Limitations contained in section 702 of the Real Property Tax Law had run. We disagree.

Historical background and a practical construction of article 7 of the Real Property Tax Law indicate that it was designed by the Legislature as a remedy for the taxpayer who wishes to challenge an excessive or illegal assessment on property in which he has an ownership interest (Matter of Board of Educ. v Parsons, 61 Misc 2d 838, 842). It was not designed to reach the unusual situation encountered here, where taxpayers concede the propriety of their own assessments, but seek instead to challenge the assessor’s action in granting wholesale exemptions to other properties within the town.

The ancestry of what is now article 7 can be traced back to the common-law writ of certiorari which allowed review of tax assessments only upon the limited grounds of an assertion of want of jurisdiction, or some basic illegality, as distinguished from errors in judgment on questions of fact or law (History of Tax Certiorari Proceedings, Fifthteenth Ann Report of NY Judicial Council, 1949, pp 324, 325). The function of the common-law writ, however, was not broad enough to provide review of assessments on the grounds that they were excessive or unequal (People ex rel. Kendall v Feitner, 51 App Div 196, 199) and to remedy this perceived defect in the common law, the first statutory certiorari proceeding to review tax assessments was enacted in 1880 (L 1880, ch 269). The tax certiorari proceeding subsequently was made a part of the Tax Law in 1896 (L 1896, ch 908, §§ 250-264), and in 1909 it was enacted as article 13 of the Tax Law (L 1909, ch 62) In 1959, article 4.3 was superseded by the provisions of article 7, which, insofar as we are here concerned, was not designed to make any substantive change (see Governor’s Memorandum, NY Legis Ann, 1958, p 496; Kilmer, Introduction to the Real Property Tax Law, reprinted in McKinney’s Cons Laws of NY, Book 49A, Real Property Tax Law [1960], p XXIII, at p XXXIII).

It is clear then that the tenor of article 7 is to provide an expeditious procedure by which the numerous and ex-pectable challenges by taxpayers of their own assessments can be resolved (Matter of Board of Educ. v Parsons, 61 Misc 2d 838, supra). It is reasonable in this situation that the Statute of Limitations be very short, because the taxpayer has before him, or can shortly assemble, all the pertinent facts demonstrating that his particular assessment is overvalued, illegal or unequal to others (Real Property Tax Law, § 706). Viewed in this light, Matter of Hellerstein v Assessors of Town of Islip (37 NY2d 1) properly was brought as an article 7 proceeding, even though the taxpayer challenged the legality of every assessment on the roll, because such a wholesale challenge was a logical derivation of the taxpayer’s challenge to the legality of her own assessment, on the ground that the assessor had failed to assess property in the taxing unit at full value (see Real Property Tax Law, § 306). But no such situation exists in this, case, where the taxpayers concede the legality of their own assessments, where activities of the assessor which are challenged pertain to many other parcels on the assessment roll, and where the facts must be developed concerning a multitiude of specific exemptions. Such a challenge is outside the scope and intent of article 7 and, accordingly, the Appellate Division was incorrect in applying the 30-day Statute of Limitations contained in article 7.

It being clear that petitioners do not challenge governmental action with regard to their specific assessments, the question remains whether the activity challenged falls within the ambit of CPLR article 78. The gist of the petitions is that they allege a broad perversion of the entire process of granting exemptions, with the resulting deterioration of the tax base and imposition on petitioners of a hugely disproportionate share of municipal expenses. Without doubt petitioners have alleged a wrong; the question is whether they have a remedy.

In arguing that they do not, respondents placed great reliance on an 1893 opinion of this court in the case of Van Deventer v Long Is. City (139 NY 133, 138) in which it was stated: “The question may be asked, what is the remedy of the taxpayer whose taxes are too high because some property has been omitted from the assessment roll? Where the omission is intentional he may prosecute the assessors criminally for taking a false oath to the assessment roll. His remedies may be very inadequate. But he is in the position of every citizen aggrieved by governmental action. He must appeal to public opinion and to the ballot, and use his efforts to procure the election of better or more competent assessors.”

The inherent flaw in this statement is clearly reflected in the present case. There is little likelihood that the populace of the Town of Hardenburgh will exercise the ballot to remove respondent Kerwick. In this town, if the petitions are to be believed, the only assessor likely to be removed is not the one who acts to create the injustice, but instead one who terminates it. It is precisely this type of tyranny of the majority which the Van Deventer rule endorses and for this reason we deem the above-quoted language ill-advised, as well as inconsistent with the more recent trend of liberalizing the ability of taxpayers to challenge governmental action (see Boryszewski v Brydges, 37 NY2d 361). Therefore, to the extent that Van Deventer is inconsistent with the result we reach in this case, it is expressly disapproved.

The petitioners here have alleged far more than erroneous determinations regarding some of the property in the town. They accuse the assessor of virtually ignoring statutory guidelines in granting exemptions to Universal Life Church members. In this situation, if we hold he may do so with impunity, we would, in essence, give assessors unbridled authority to create new grounds for exemption as they please, by the device of warping those statutory exemptions presently in effect. It is axiomatic that the Legislature, not the assessor has authority to create grounds for exemption from taxation. When an assessor grants exemption from taxation in wholesale fashion indicating that he has arrogated this legislative power to himself, he cannot cloak himself with protection surrounding individual discretionary decisions, and relief by way of an article 78 proceeding will lie.

To be sure, in view of the public interest against frequent second-guessing of assessment decisions, the burden the petitioners must carry in this case is not slight. However, we need not decide at this juncture whether this burden has been met, and it suffices to note that petitioners have alleged a broad conspiracy involving arbitrary and bad-faith abuses of the exemption process.

There remains to be discussed the procedural context in which this challenge is to go forward. As stated previously, the Special Term permitted the petitioners to sue as a class on behalf of themselves and other similarly situated taxpayers. The Appellate Division, however, declined to rule on the propriety of this device because of its erroneous view that the proceedings were time barred. For this reason a remittal is necessary to provide the Appellate Division with an opportunity to exercise its discretion.

We are also presented with the question as to whether the persons who enjoyed the religious exemptions from taxation should be joined as parties. Because, in essence, petitioners seek to have this significant privilege revoked, we think it beyond any doubt that these persons are necessary parties (see CPLR 1001; City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475; Siegel, New York Practice, § 132, pp 162-163). The petitioners have by their amended petition sought to join as a respondent class the exempted property owners. It is specifically recognized in CPLR 901 (subd a), that whereas joining respondents as a class may be appropriate, such joinder may present additional problems (see Siegel, New York Practice, § 146, pp 188-189). In any event, the intial determination in this regard is a matter of discretion which has not yet been exercised and is a matter to be addressed on remittal. Of course in the event that class treatment is found inappropriate, this does not rule out joinder in a more conventional fashion.

Accordingly, the orders of the Appellate Division should be reversed, and the matter remitted to that court for further proceedings in accordance with this opinion.

Gabrielli, J.

(dissenting). The majority in this case has approved the use of CPLÉ article 78 as a vehicle for challenging the wholesale omission of certain real properties from the tax rolls of a small community. Outraged by allegations in the petitions suggesting a flagrant abuse of the religious tax exemption in the Town of Hardenburgh, the majority posits that there must be a judicial remedy for the individual property owners who suffer the consequences of the tax assessor’s actions. As the majority recognizes, however, the rule articulated in Van Deventer v Long Is. City (139 NY 133, 138) presents an insuperable obstacle to affording the petitioning taxpayers a remedy in this case. Thus, the majority concludes, that 88-year-old precedent must be disregarded. Because I believe that the Van Deventer rule represents a sound policy of judicial abstention and respect for the political processes, I must respectfully offer my dissenting views.

It should be made clear that I do not sanction the actions allegedly taken by the tax assessor in this case. At this point in the litigation, the only question before the court is whether the petitioners have a legal right to maintain the present proceeding. Thus, I base my dissent only upon my colleagues’ decision to overrule the Van Deventer decision, in which this court unanimously held that a taxpayer may not maintain an action or proceeding to challenge the legality of the tax assessor’s decision to omit certain properties from the tax roll even though the taxpayer claims that the assessor acted fraudulently.

It has been observed that “[g]reat cases like hard cases make bad law” (Northern Securities Co. v United States, 193 US 197, 400 [Holmes, J.]). The import of this oft-quoted maxim is obvious. Cases which present a particularly sympathetic set of facts or which have received a high degree of notoriety may often tempt courts and Judges to adopt legal rules that serve well for the moment but cannot withstand the test of time. I am afraid that this case presents a classic illustration of the phenomenon.

The allegations in the petitions, if believed, point to a truly egregious set of circumstances. The town tax assessor, it is alleged, authorized the removal of some 88% of the property within the Town of Hardenburgh from the tax roll on grounds of religious exemption. The exemptions were obtained, according to the petitions, by individuals who claimed adherence to a rather formless religion known as the Universal Life Church, an apparently nondenominational organization with few, if any, recognizable religious tenets. The net result of the tax assessor’s action is that the 12% of the town’s property owners who are not adherents have been asked to shoulder the tax burden for the entire town. It is this set of circumstances which has led the other Judges of this court to conclude, quite understandably, that there must be a judicial remedy to combat “the tyranny of the majority” (p 551).

My colleagues’ reliance upon “loaded” phrases such as this, however, cannot obscure the flaw in their analysis. Our democratic system of government is founded upon the notion that, in most instances, the views and wishes of the majority are entitled to prevail. Indeed, the “tyranny of the majority”, which is decried by my colleagues in this case, is, in actuality, the norm in our political system. And, this is so even when a majority of the populace votes in such a way as to further its own parochial or financial interests and, in so doing, impairs the interests of the minority. The various bills of rights contained in the Federal and State Constitutions are the means we have chosen to check the prerogative of the majority when it wishes threaten to impede the fundamental freedoms of those individuals who happen to find themselves in the minority. Where none of these fundamental freedoms are involved and the laws are otherwise observed, however, there is no basis in law or logic for impeding the will of the majority. Hence, it is no objection to the Van Deventer rule to say that it “endorses” the “tyranny of the majority”.

Underlying the Van Deventer rule is the simple and sound principle, which my colleagues seem to have overlooked, that there need not be a judicial remedy to right every perceived wrong among citizens. Some controversies, particularly those involving the formulation or implementation of public policies, are not readily amenable to judicial resolution. These controversies, often referred to as non justiciable or “political” questions, are best left for resolution in the political or legislative arena. As we previously have had occasion to note, “[t]he power of the judiciary is as subject to * * * limitations as is that of the co-ordinate branches of government, for the spectre of judicial tyranny is no more palatable to a free people than is the threat of an uncontrolled executive or legislative branch” (Saxton v Carey, 44 NY2d 545, 549).

It is noteworthy that the problem which the other Judges of this court have chosen to address has already been remedied to a large extent without the need for resort to judicial intervention. In an apparent effort to close the “loophole” underlying the Hardenburgh situation, the Legislature has enacted an amendment to section 436 of the Real Property Tax Law which will have the effect of narrowing the availability of the religious tax exemption and, perhaps, preventing future Hardenburgh situations from arising (L 1978, ch 738; see Town of Hardenburgh v State of New York, 52 NY2d 536 [decided herewith]). Thus, contrary to my colleagues’ assertions, it simply cannot be said that the political process, represented in this case by the elected Legislature, is ineffectual in circumstances such as these.

I would also note that the majority’s effort to justify its holding today by drawing an analogy to the liberalized standards for taxpayers’ suits is unpersuasive. Our previous cases eliminating barriers to taxpayers’ suits and allowing citizens to challenge certain governmental actions have all dealt exclusively with the narrow question of the individual’s “standing” to assert an admittedly justiciable claim (see, e.g., Wein v Carey, 41 NY2d 498; Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Boryszewski v Brydges, 37 NY2d 361; Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1; but see Wein v Comptroller of State of N. Y., 46 NY2d 394). None of those cases, however, suggest any fundamental shift in the court’s approach to the separate and distinct question of justiciability (Matter of Abrams v New York City Tr. Auth., 39 NY2d 990; see Saxton v Carey, 44 NY2d 545, supra). Thus, they provide no support for the majority’s position in this case.

The majority’s decision to overrule Van Deventer completely rather than attempting to distinguish that holding from the peculiar circumstances presented here is bound to give rise to certain unfortunate practical consequences which the majority does not appear to have anticipated in its writing. Specifically, now that the majority has decided that Van Deventer is no longer the law in this State, there is presumably nothing to prevent individual property owners from routinely bringing article 78 proceedings to challenge the tax assessor’s decision to grant , a tax exemption to one or more of their neighbors on grounds of illegality. Indeed, when stripped to its essentials, the holding of the majority is simply that article 78 may be used by a property owner to challenge the favorable tax treatment, in any form, accorded to another as long as the allegations in the pleadings “accuse the assessor of virtually ignoring statutory guidelines”. I consider this situation to be a highly undesirable one, since although individual property owners rarely have a substantial financial stake in the amounts collected from their fellow taxpayers, petty jealousies and rivalries may lead them to utilize the procedure authorized in this case to bring vexatious lawsuits.

For all of these reason, I respectfully dissent and cast my vote to affirm the decision of the Appellate Division dismissing the petitions.

Judges Jasen, Jones, Fuchsberg and Meyer concur with Judge Wachtler ; Judge Gabrielli dissents and votes to affirm in a seprate opinion; Chief Judge Cooke taking no part.

Order reversed, with costs, and matters remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein. 
      
      . Article 13 was completely revised in 1949 to eliminate some anachronistic procedural formalities, but the substantive nature of the proceeding remained unchanged (Fifteenth Ann Report of NY Judicial Council, 1949).
     
      
      . The dissenter’s suggestion that the “tyranny of the majority” is the political norm misses the point. In no way do we suggest that the people’s will as expressed in an election is to be circumvented by judicial proceedings. The issue of religious exemptions was never approved in Hardenburg — even if it had, approval by local referendum cannot justify actions of an assessor in direct contravention of State law. It is the Legislature, not the town assessor, which determines the qualifications for exemption. In this instance emphasis on the sanctity of the elective process is more appropriately placed on lawful enactments of the duly elected State Legislature.
     
      
      . Joining respondents as a class may well pose a problem in this case in the event that further development of the record indicates that the situation of each exempted landowner poses differing facts reflecting on the legitimacy of the exemption.
     