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Volume 6 - Opinions of Counsel SBEA No. 92

Opinions of Counsel index

Taxes (enforcement) (village taxes) (alternative method) - Real Property Tax Law, § 1442:

A village which has acted by resolution to provide for county enforcement of the collection of delinquent village taxes may rescind or revoke that resolution.

We have been asked whether a village, which has once acted by resolution to permit the county to enforce unpaid village taxes, may subsequently rescind or revoke that resolution.

Chapter 619 of the Laws of 1977 authorized, on a Statewide basis, counties and villages to agree to transfer the function of enforcing the collection of delinquent village taxes to the county. Before this transfer can occur, however, the county legislative body must adopt a local law and a village must adopt a resolution to that effect (Real Property Tax Law, § 1442(1)).

A resolution has been described as “an act of a character not prescribing a permanent rule of government” (Collins v. Schenectady, 256 App.Div. 389, 10 N.Y.S.2d 303; see also, Jewett v. Luau-Nyack Corp., 31 N.Y.2d 298 at 306, 291 N.E.2d 123, 338 N.Y.S.2d 874 at 881). In Ashton v. City of Rochester, 60 Hun 372, 14 N.Y.S. 855 at 857, aff’d, 133 N.Y. 187, 30 N.E. 965, it was held that:

in this country, nearly all legislative acts are repealable . . . [N]o Legislative body. . . can so part with its power by any proceeding as not to be able to continue the exercise of it. . . . [A] statute can be repealed by an express provision or by necessary implication. A repealing act is a total abrogation of the law repealed, but rights acquired, and which becomes [sic] vested under the law before its repeal, are not affected by the repealing act.

As a general rule, a municipality which has the power to enact ordinances has, as a necessary incident to that power, the right to amend, change or repeal them (40 N.Y. Jur., Municipal Corporations § 718 (1965)). A resolution being a less formal legislative act than an ordinance, we believe the right to adopt a resolution, carries with it the power to “amend, change or repeal” it, subject to any rights which become vested prior to the change or repeal. (For example, certain municipal creditors may acquire vested rights in consequence of bond resolutions and capital note resolutions issued pursuant to section 31.00 of the Local Finance Law. These creditors would be protected from any change in those resolutions which would constitute an “impairment of contract” in contravention of the Federal Constitution (see generally, 2 McQuillin, Municipal Corporations [3d Ed. Rev.] § 4.18, p. 40).)

Neither the county nor county taxpayers appear to acquire any vested rights which would be adversely affected if a village board of trustees were to adopt a resolution for the county to enforce the collection of unpaid village taxes in one year and to repeal or revoke it in a subsequent year. Therefore, we believe that the village board of trustees may subsequently repeal such resolution.

We also note that section 1450 of the Real Property Tax Law, which provides for the election of the method to enforce the collection of delinquent village taxes, appears to permit the village board of trustees to vary the method of enforcement annually. Subdivision 1 of that section declares that delinquent village taxes will be enforced by tax lien sales unless the board has adopted a resolution pursuant to section 1442 or, “after receiving the account of unpaid taxes and not later than the seventh day of February,” it determines that the taxes will be collected by civil action pursuant to section 1440. There is nothing in this language which suggests that the alternative remedies thus afforded the village board of trustees are forever lost upon adoption of a resolution providing for county enforcement of collection.

In conclusion, we believe that a village board of trustees may revoke or repeal a resolution requiring the county to enforce unpaid village taxes provided that it does so prior to the date otherwise required by law for enforcement of those taxes by tax lien sale or civil action in accordance with the provisions of section 1450.

January 21, 1980