Skip to main content

Volume 5 - Opinions of Counsel SBEA No. 8

Opinions of Counsel index

Aged exemption (residence and occupancy requirement) (local authorization - maximum acreage) - Real Property Tax Law, § 467:

In enacting an ordinance adopting or amending the aged exemption (Real Property Tax Law, § 467), a town may not limit the exemption to a home and one acre of land surrounding such home since there is no specific maximum acreage requirement in the statute. It is the responsibility of the assessor to determine what amount of land is properly included in the determination of what constitutes a residence for purposes of the statute.

We have received an inquiry concerning the so-called “aged exemption,” section 467 of the Real Property Tax Law. The question is whether the town board, in enacting an ordinance increasing the income limit for purposes of such exemption, may also stipulate therein that the exemption is limited to a home and one acre of land surrounding it.

The power of taxation is a function of the sovereign state (N. Y. Const., art. XVI, § 1) and no subdivision of the State may exercise it unless a delegation of the power is made in express terms by a proper enabling act. Where the Legislature so delegates its taxing power, any taxes imposed by localities must conform to the authorization conferred (see, United States Steel Corporation v. Gerosa, 7 N.Y.2d 454, 166 N.E.2d 489, 199 N.Y.S.2d 475, and cases therein). The same rule applies where the Legislature has delegated its power to exempt from taxation.

Accordingly, section 467, when adopted, must be adopted in its entirety, and once adopted it applies in its entirety and as amended by the State Legislature unless or until the granting municipality rescinds or revokes the exemption. The local law, ordinance or resolution granting the exemption may not vary the terms of the State statute authorizing the exemption. Therefore, the town may not enact an ordinance stating that this exemption is limited to a home and one acre of land since there is no such specific language in the State statute.

However, the statute does set forth certain residential and occupancy requirements (§ 467(3)(c) and (d)) which if not satisfied require denial of the exemption. These are that the property must be the legal residence of the applicant, must be occupied in whole or in part by the applicant, and must be used exclusively for residential purposes. Thus, if a parcel has a mixed use, such as a residence located over a business property or farmland, upon which an otherwise qualified person resides, an exemption cannot be allowed on the parcel because the exclusive residential use requirement is violated.

It should be noted, however, that what constitutes a separately assessed parcel of real property for purposes of assessment and taxation is not defined in the Real Property Tax Law, and therefore, with the exception of certain circumstances not relevant to this inquiry, an assessor has discretion to determine what constitutes a separately assessed parcel. Thus, we have advised assessors that if a portion of a tract used for other than residential purposes, such as farming, is capable of being separately described and assessed on the assessment roll, and such a separate assessment is made, the exemption would apply to the separately assessed portion used exclusively for residential purposes (see, 2 Op.Counsel SBEA Nos. 14 and 17). Several assessors have informed us that in such circumstances they will generally ascertain the average size residential parcel in their community (e.g., by reference to local zoning laws) and use that as a guide in determining parcel size for this exemption. In addition, we have suggested as a rule of thumb, that it is not unreasonable to consider a home and one acre of surrounding land as constituting a “residence” for purposes of this exemption. However, since the State statute does not specifically limit the exemption to one acre of land, but rather simply requires that the property be used as a residence, there is no authority for the town in question to so incorporate a one-acre requirement in their local ordinance. It is the responsibility of the local assessor to determine what amount of land would fall within the general classification of “residential” for purposes of this exemption.

May 23, 1975