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Volume 12 - Opinions of Counsel SBRPS No. 4

Opinions of Counsel index

Assessment roll (final roll) (changes ordered by board of assessment review); Correction of errors (unlawful entry) (assessment stipulation agreed to and ratified by less than a majority of the board of assessors and board of assessment review) - General Construction Law § 41; Real Property Tax Law §§ 525, 550:

Assessors are obliged to make the changes to the assessment roll as ordered by the board of assessment review absent State legislation or a determination of a court of competent jurisdiction to the contrary.

An assessment reduction resulting from an assessment stipulation made and approved without the concurrence of a majority of both the board of assessors and board of assessment review is an “unlawful entry” per section 550(7)(c) of the Real Property Tax Law.

Our opinion has been requested regarding the filing of a specific grievance form (RP-524). One of the three members of the board of assessors (BOA) signed a stipulation to a reduced assessment with a taxpayer and presented it to the chairman of the board of assessment review (BAR). The BAR chairman, without discussing it with the other BAR members, ratified the stipulation and the lower value appears on the BAR’s verified list of changes (Real Property Tax Law, § 525(4)). We have been asked to comment on the legality of the procedure followed and, if errors were made, to offer any solutions.

Section 524(3) of the RPTL provides, in part, that the grievance form “shall include a statement, which if signed by both the assessor and the complainant . . . shall constitute a stipulation to the assessed value to be applied to the subject parcel.”  Section 525(3)(a) provides, in part, that the BAR shall ratify assessment stipulations entered into by the assessor and the complainant. {1}

Whatever the merits of the tentative assessment or the stipulated reduced assessment assigned to the parcel in question, it seems clear that correct procedures were not followed. That is, section 41 of the General Construction Law provides:

Whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, gathered together in the presence of each other or through the use of videoconferencing, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board or body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words “whole number” shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting.

Here, unless the one assessor who signed the stipulation and the BAR chairman who ratified it were designated by a majority of their respective boards to take such actions on behalf of those respective boards, there was a failure to comply with this section of law. For purposes of this opinion, we assume that neither the assessor nor the BAR chairman had such designation.

Nevertheless, the stipulation was signed and ratified, and the property owner was notified of the reduction. {2}  The BOA is obliged to make the changes ordered by the BAR absent State legislation or a determination of a court of competent jurisdiction to the contrary (RPTL, § 526(5)). Notwithstanding the apparent procedural errors made in the handling of this one assessment complaint, in this situation the BOA was correct in making the change ordered by the BAR.

There is, however, an administrative procedure which can be used to revisit this situation. After the final assessment roll is filed, a majority of the BOA may petition the BAR to correct the final assessment roll per section 553 of the RPTL.

The grounds for such a petition include an “unlawful entry” on the current assessment roll, an unlawful entry being defined to include “an entry on an assessment roll . . . which has been made by a person or body without the authority to make such entry” (RPTL, § 550(7)(c)). In our opinion, an assessment reduction resulting from an assessment stipulation made and approved without the concurrence of a majority of both the BOA and BAR meets this definition.

As an alternative, a clerical error (per RPTL, § 550(2)(a)) might be alleged. To do so, the BOA’s records will need to evince a different assessment than that appearing on the final roll.

Since the contemplated correction would involve an increase of the property owner’s 2008 final assessment, he or she is entitled to notice of the proposed change and will have an opportunity to be heard by the BAR at its meeting held to consider RP-553 petitions filed by the BOA. {3}  Thereafter, if dissatisfied with the BAR’s determination, the taxpayer will have the right to judicial review of the new revised final assessment (RPTL, § 553(4)(c)). Essentially, the procedure we have suggested would restore the situation to that which existed before the procedural errors occurred (status quo ante). The taxpayer would still have his or her rights to administrative and judicial review of the assessment of his or her property.

June 18, 2008

{1}  We discussed the stipulation procedure in 10 Op.Counsel SBRPS Nos. 37 and 89.

{2}  In fact, taxpayers need not be notified when an assessment stipulation is ratified by a BAR (RPTL, § 525(4)).

{3}  Although only a petition for the correction of a clerical error would necessitate certified mailed notice at least 10 days in advance of the BAR meeting (RPTL, § 553(2)(b)), in this case, even if an unlawful entry is alleged, we recommend that that same notice be given.