(dissenting). Because I believe the Department of Environmental Protection’s (DEP) unwritten rule—that in order for the religious property to qualify for exemption pursuant to the water exemption statute or the sewer ordinance it may not contain more than one caretaker residence on the proper*336ty—is arbitrary, capricious and unreasonable, I respectfully dissent.
The water exemption statute here at issue provides, in relevant part, that
“the real estate owned by any religious corporation located in the city of New York as now constituted, actually dedicated and used by such corporation exclusively as a place of public worship . . . [is] hereby exempted from the payment of any sum of money whatever to said city, for the use of water taken by same from said city” (L 1887, ch 696, § 1, as amended by, inter alia, L 1907, ch 135, § 1, and L 1980, ch 893, § 1 [emphasis added]).
The City’s sewer ordinance provides that any property entitled to an exemption from the payment of water rents or charges shall also be exempt from payment of the sewer rents or charges (Administrative Code of City of NY § 24-514 [b] [5]; [e]). The pertinent issue in this case is whether the property is used “exclusively as a place of public worship” to qualify for the exemption.
The Church argues without contradiction that exclusive use also includes uses of that property that are incidental to the property’s eleemosynary use. By allowing one caretaker residence, the DEP concedes that “exclusive use” cannot be interpreted literally and another use may exist on the property. Why is it then, the Church asks, that one caretaker for a small religious property is permitted under the exemption, but two caretakers, essential for a much larger institution, are not? A good question that, in my view, has no answer and requires reversal in this case.
The Church points us to two prior decisions of New York courts that have rejected the City’s one caretaker rule. In Matter of Bethelite Community Church, Great Tomorrows Elementary School v Department of Envtl. Protection of City of N.Y. (27 AD3d 256 [1st Dept 2006], revd on other grounds 8 NY3d 1001 [2007]), the First Department held that a corporation that operated a church and school in a building in Manhattan was entitled to an exemption from the payment of water and sewer charges pursuant to the statute, despite the fact that the pastor, a church administrator/religious counselor and a full-time teacher for the school resided in three apartments within the building. And in Matter of Chung *337Te Buddhist Assn. of N.Y., Inc. v Kusterbeck (2003 NY Slip Op 51432[U] [Sup Ct, NY County 2003]), Supreme Court granted a water exemption to an applicant that had 14 rooms for overnight guests and priests.
Those two courts found persuasive our cases interpreting the exemption for religious organizations from real property taxes,* noting that these exemption statutes “have [the] same underlying purpose” (Chung, 2003 NY Slip Op 51432[U] at *5). In interpreting the exemption for religious organizations under the Real Property Tax Law, we have construed the Legislature’s requirement that the religious property be used “exclusively” for its religious purposes to mean “principally” or “primarily” (see Matter of Symphony Space v Tishelman, 60 NY2d 33, 38 [1983]; Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476, 483 [1979]), and held that “uses merely auxiliary or incidental to the main and exempt purpose and use will not defeat the exemption” (Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244, 249 [1992] [internal quotation marks omitted]).
In Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg (79 NY2d 244 [1992]), we considered whether a not-for-profit religious corporation whose primary purpose is the teaching of principles and doctrines of the Jewish faith was entitled to reed property tax exemption for a 31-acre parcel of land it owned. The property was used primarily during the summer months when students were provided rigorous religious and educational instruction. The property contained a main building with a kitchen and communal dining room, a ritual bath, recreational facilities, classrooms, synagogues and a variety of housing facilities including 64 bungalows and six trailers {id. at 247). Petitioner sought exemption pursuant to section 420-a of the Real Property Tax Law, but was granted the application only in part. The assessor determined that the housing units and wooded land were taxable because they were not used *338exclusively for religious purposes (id. at 248). We stated the test for “exclusive use” under the Real Property Tax Law as follows:
“The test of entitlement to tax exemption under the ‘used exclusively’ clause of the statute is whether the particular use is ‘reasonably incident[al] to the [primary or] major purpose of the [facility]’. Put differently, the determination of ‘whether the property is used exclusively for the statutory purposes depends upon whether its primary use is in furtherance of the permitted purposes’ ” (id. at 250 [citation and some internal quotation marks omitted]).
Applying this test, we held that the entire property, including the housing units and the trailer occupied by the caretaker, was entitled to a real property tax exemption because the challenged uses were incidental to the religious purposes of the organization.
Here, the DEP offers no explanation how a single caretaker residence better achieves the objective of the water or sewer exemption, while two, or perhaps one and a visiting pastor’s residence, do not. Nor does the statute’s language or the legislative history support the DEP’s rule. The purpose of the water exemption statute, like that of the Real Property Tax Law exemption, is to benefit not-for-profit charitable, educational and religious organizations. The City’s strict one caretaker rule ignores an exempt organization’s actual need, by denying the statutory exemption to those organizations whose exempt use requires more on-site personnel or incidental facilities than a similar smaller institution. The small and large, by being treated the same, are being treated unequally.
The test for entitlement to an exemption under the water statute or sewer ordinance should be clear—whether the particular use is reasonably incidental to the primary purpose of the exempt organization. Applying such a test here, not even the DEP disputes that the Church is a religious corporation whose real property is dedicated and used exclusively as a place of public worship. Nor does the DEP dispute the Church’s stated need for round the clock caretakers and that the residences for those caretakers are “incidental and necessary” to the operation of the Church. It has simply decided that “one is enough” and that position, in my view, is arbitrary.
Consequently, the DEP’s decision to deny the requested exemption was arbitrary and capricious and should be reversed.
*339Chief Judge Kaye and Judges Ciparick and Graffeo concur with Judge Read; Judge Pigott dissents in a separate opinion in which Judges Smith and Jones concur.
Order affirmed, with costs.
Real Property Tax Law § 420-a provides for mandatory real property tax exemption for religious organizations. This section states in pertinent part that:
“Real property owned by a corporation or association organized or conducted exclusively for . . . religious . . . purposes, and used exclusively for carrying out thereupon one or more of such purposes either by the owning corporation or association or by another such corporation or association as hereinafter provided shall be exempt from taxation as provided in this section” (RPTL 420-a [1] [a] [emphasis added]).