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Volume 12 - Opinions of Counsel SBRPS No. 12

Opinions of Counsel index

Building permits (delinquent) (relevy with town tax) - Municipal Home Rule Law § 10; Real Property Tax Law § 900:

A town may not relevy delinquent fees to renew building permits in its annual tax levy.

We have been asked if a town may relevy delinquent fees to renew building permits in its annual tax levy (Real Property Tax Law, § 900). We think not.

The New York Department of State has provided by regulation that “[b]uilding permits shall be required for work which must conform to the Uniform Code” (19 NYCRR 1203(a)(1)). Municipalities may “establish fees when a permit is issued . . . to offset the cost of a code enforcement program” (9 Warren’s Weed, New York Real Property § 97.13 (5th ed)). “The amount of a building permit fee should bear a direct relation to the cost of the governmental service involved” (12 NY Jur 2d, Building, Zoning and Land Controls § 45). {1}

Municipal Home Rule Law (MHRL), § 10(1)(ii)(a)(9-a) authorizes a county, city, town or village to adopt a local law for “[t]he fixing, levy, collection and administration of local government rentals, charges, rates or fees, penalties and rates of interest thereon, liens on local property in connection therewith and charges thereon.” The Attorney General, in an informal opinion, has construed the aforementioned statute as permitting a village board of trustees “to enact a local law providing for fees to be charged applicants to the planning board” (1989 Ops Atty Gen No. 89-69).

The State Legislature, in certain circumstances, has delegated to local governments the power to relevy delinquent fees owed to the municipality. For example, a town may relevy delinquent water rents owed to a town water district (Town Law, § 198(3)(d)) and a county or town may relevy delinquent sewer rents owed to the county or town sewer district (General Municipal Law, § 452(4); see also 10 Op.Counsel SBRPS No. 71).

In contrast, no such authority has been delegated by the Legislature to towns that adopt building permit fees, by local law, pursuant to MHRL, § 10(1)(ii)(a)(9-a). Accordingly, in the absence of such statutory authority, it is our opinion that delinquent building permit fees may not be collected by inclusion in a town’s annual tax levy.

October 15, 2008

{1}  The Court of Appeals has stated, in a case involving village fees imposed upon applicants for variances and special use permits, that “when the power to enact fees is to be implied, the limitation that the fees charged must be reasonably necessary to the accomplishment of the statutory command must also be implied” (Jewish Reconstructionist Synagogue v. Village of Roslyn Harbor, 40 NY2d 158, 163, 352 NE2d 115, 118, 386 NYS2d 198, 200 (1976)). The State Comptroller has opined that “[i]t is a fundamental principle that a permit fee must bear a direct relation to the costs of issuing the permit and inspecting or enforcing the permitted activity” (1999 Ops St Comp No. 99-13).