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Volume 1 - Opinions of Counsel SBEA No. 93

Opinions of Counsel index

Special assessments (public utility property) (park) - Real Property Tax Law, §§ 102 (15), 490 and Village Law, § 275-a:

Special assessments for sewer improvements may be levied by a village on land and buildings owned by (1) a public utility and (2) a park owned by a nonprofit organization. The charges should be imposed in proportion to the benefit received.

Our opinion has been requested in regard to the levy of special benefit assessments for sewer construction in a village on (1) public utility property and (2) a tax exempt park.

For the purposes of this opinion, we assume that the provisions of section 275-a of the Village Law - the section relating to the levy of assessments to pay bonds issued for sewer systems - is the section of the Village Law under which the assessments will be levied.

Under that provision, sewer assessments must be made "in proportion as nearly as may be to the benefit which each lot or parcel will derive from the construction of said sewer system."

Clearly, an assessment made in this manner is a "special assessment" as that term is defined in the Real Property Tax Law. Namely, it is a "charge imposed upon benefited real property in proportion to the benefit received by such property" (Real Property Tax Law, section 102(15)).

We will first consider whether public utility property is liable for this special assessment.

Only that property belonging to a public utility company which can derive benefit from a sewer system can be assessed. Special franchise property of public utilities (the assessment of public utility property located in public places assessed by this Board) by its very nature cannot be benefited by a sewer improvement, and, therefore cannot be assessed therefore (Matter of Westchester Lighting Co. v. Sewer Commissioners, 219 App. Div. 377, 219 N.Y.S. 597; Matter of Anthony Avenue, 45 Misc. 525, 95 N.Y.S. 77, aff'd, 124 App. Div. 904, 109 N.Y.S. 1123, aff'd, 196 N.Y. 513).

This same reasoning would apply to telephones, wires, poles etc. of telephone companies located on private property which are separately assessed to those companies.

Of course, land and buildings derive some benefit and may be assessed even though owned by a public utility.

The park owned by the nonprofit organization is not exempt from special assessments for sewer improvements levied by a village (see Real Property Tax Law, § 490) and should be assessed in accordance with the benefit received (7 Op. State Compt. 418 (1951)).

February 4, 1972