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Volume 3 - Opinions of Counsel SBEA No. 72

Opinions of Counsel index

Forest and reforested lands exemption (time of valuation) (change in level of assessment) - Real Property Tax Law, § 480:

Following approval by the Department of Environmental Conservation of an application for classification of property under section 480 of the Real Property Tax Law, the last final assessment of the property existing at the time the application is filed with the assessor is controlling with respect to assessment rolls prepared subsequent to the date the application was approved. The only authorized adjustments are those reflecting a material change in level of assessment. Where an application is approved subsequent to taxable status date, should the property owner wish to have such classification reflected in his current assessment it appears that he must make a timely application for judicial review.

Our opinion has been requested as to the assessment of certain lands classified under section 480 of the Real Property Tax Law (Fisher Act).

Prior to taxable status date in 1973, owners of forest land filed applications with the town assessor for classification of their land under the Fisher Act and the assessor transmitted the applications to the Department of Environmental Conservation. The applications were approved by Environmental Conservation approximately forty-five days after the town assessment roll was completed and filed in final form. Upon receipt of the approval the owner contacted the assessor requesting that such classification be reflected on the 1973 town assessment roll.

Subdivision 3 of section 480 of the Real Property Tax Law provides for the tax exemption accorded land classified as eligible under the Fisher Act. It reads, in part, “[t]he assessment of an eligible tract shall be no higher than the valuation of similar lands without substantial forest growth situated in the same town and at no time shall it exceed the valuation fixed at the time the application for classification is filed as hereinafter provided.” Filing requirements are contained in subdivision 4 of that section which provides, in substance, that the landowner is to file application with the town assessors who are required to transmit a copy to the Department of Environmental Conservation for its approval or disapproval. Should the application be approved, the assessor in assessing the property must then take into consideration the eligibility for exemption of such property with the assessment to be “fixed at the time the application for classification is filed.” However, after the assessor completes and files the tentative assessment roll, changes to such roll may be made only under very limited circumstances specifically authorized by statute. Section 480 is silent on this matter and therefore it appears there is no authority for an assessor to make such change to a current assessment roll. Of course, once an application is approved by Environmental Conservation, the property must appear as classified therein on the next and each succeeding assessment roll assuming that there has been no change in the property.

This matter has been considered by the Court of Appeals in People ex rel. Luther v. McDermott, 265 N.Y. 47, 191 N.E. 770. In that case a landowner applied for classification of his property in 1932 after taxable status date but before the date the tentative assessment roll was completed and filed and notice given with respect to the hearing of complaints. The classification of the landowner’s property remained unchanged and in fact the assessment was increased on the 1932 assessment roll. The landowner’s application was approved by the Department of Conservation some three months after the final assessment roll was completed and filed. The Court of Appeals in construing section 13 (formerly section 16) of the Tax Law from which section 480 of the Real Property Tax Law was derived, held that the assessment that was controlling was the figure appearing on the 1931 assessment roll since the 1932 assessment roll had not been completed on the filing date. In reducing the assessment, the court noted that the property owner appeared on grievance day seeking a reduction of his assessment for various reasons, including the rights growing out of his application for classification, and having been denied administrative relief, applied for judicial review.

Under this decision the controlling assessment is that existing on the date an application is filed at which figure the assessment is fixed should the application subsequently receive the approval of the Department of Environmental Conservation. Where such approval has not been received prior to the time the assessor completes and files the tentative assessment roll, it appears that a property owner, in order to protect his interests for that year’s assessment roll, must file a complaint with the board of assessment review, and if approval is delayed beyond the time the final assessment roll is completed and filed, to file a timely application for judicial review under Article 7 of the Real Property Tax Law. The only legal remedy to enforce a partial exemption, such as that authorized by section 480, is an Article 7 proceeding (Sikora Realty Corp. v. City of New York, 262 N.Y. 312, 186 N.E. 796). Therefore, it appears that failure of the property owner to timely file such complaint would preclude him from obtaining relief with respect to his assessment as it appears on the 1973 assessment roll.

Of course, as noted above, the property owner would be entitled to a Fisher Act exemption on subsequently prepared assessment rolls assuming that he continues to meet the provisions of the Act. In the instant case the controlling assessment would be the figure appearing on the 1972 assessment roll. However, in this connection attention should be directed to an amendment to subdivision 3 of section 480 approved on June 11, 1973 which became effective as of October 1, 1973 (L.1973, c.713). Under this amendment, subdivision 3 continues to provide that the assessed valuation is to be “fixed at the time the application for classification is filed,” and, in addition, provides further that the assessed valuation on Fisher Act property may be increased or decreased in any town where there has been a material change in the level of assessment. Therefore, on subsequent town assessment rolls such changes in level as have occurred or may occur in the future will be reflected with respect to property classified under the Fisher Act. Thus, with respect to the property in question the assessment appearing on the 1972 town assessment roll is controlling and subject to change if there has been a change in the level of assessment on the 1973, 1974, or any subsequently prepared assessment roll.

January 15, 1974