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Volume 7 - Opinions of Counsel SBEA No. 22

Opinions of Counsel index

Special assessments (apportionment of costs - installment payments (change in property) - Village Law, § 22-2200:

A change in the use, condition or ownership of property does not permit a change in a special assessment for village local improvements even though the assessment is being collected in installments.

We have been asked whether the amount of a special assessment payable in installments may be increased due to a subsequent change in use of benefited property. A village assessed certain property owners in the central business area for a portion of the construction costs for improved parking areas. The village obtained a statutory installment bond which is being paid from assessments being collected over a five-year period.

Two nonprofit organizations were among the owners of the benefited properties. In apportioning and assessing the costs of the local improvements, the village board determined that the nonprofit organizations’ properties were not benefited as much as properties used for commercial purposes. Thus, the assessments on these properties were based only on a portion of the value of the property as of the apportionment date. Thereafter, one of the nonprofit organizations sold its property to an individual who is now using the property as a commercial establishment.

Village Law, section 22-2200 governs the procedure to be used for determining, assessing and financing village local improvements. Subdivision 1 of that section requires a village making local improvements to hold a hearing and thereafter to make a determination of the cost to the lands benefited and the properties which will be benefited by such local improvements. The assessments in question were proposed and approved in accordance with these requirements.

Imposition of an assessment requires a determination of which properties will benefit from the improvement and a “just and equitable” apportionment of the cost on those properties according to “frontage, area or otherwise” (Village Law, § 22-2200(2)). In Kermani v. Town Board of Town of Guilderland, 27 A.D.2d 694, 364 N.Y.S.2d 251 (3d Dept. 1975), rev’d on other grounds, 40 N.Y.2d 854, 356 N.E.2d 473, 387 N.Y.S.2d 1001 (1976), the Appellate Division stated that, “[t]he long established rule in assessing the expenses of street improvements upon the property benefited is to consider the effect of such improvement upon its market value. The assessment should be made in view of that fact and without regard to the present use or the purpose of the owner in relation to future enjoyment (People ex rel. Hewlett v. Mayor, 63 N.Y. 291, 299)” (364 N.Y.S.2d at 254). Therefore, the assessment should measure the benefit to the market value of the property rather than the benefit to the present use of the property.

Subdivision 2 of section 22-2200 of the Village Law further provides that after the filing of the completed apportionment and the assessment map, “. . . any person deeming himself aggrieved thereby may, within fifteen days after the filing of such apportionment and map apply to a court of record for an order of certiorari to review said assessments. The apportionment, the assessments and the map shall be deemed final and conclusive unless such an application to [sic] be made within such fifteen days” (emphasis added).

It is our opinion that once the fifteen-day period has passed, the apportionment cannot be changed upon the facts presented. The Comptroller has issued an opinion to the same effect, declaring that “[i]f a local improvement is assessed pursuant to Village Law, section 280 [a predecessor, and substantially identical to current section 22-2200], that assessment may not be changed, even though the assessment has been divided into annual installments” (16 Op. State Compt. 38, 1960). The use of installments for payment is permitted by Village Law, section 22-2200, subdivision 3. Permitting each property’s share of the cost to be raised in installments is simply a method to reduce the immediate financial burden on the benefited property owners, as compared to the impact of a single payment. As there would be no authority for a reassessment if the cost were borne in one single payment, we believe there can be no implied authority therefor simply because payment is made over a term of years rather than in one lump sum payment. In other words, once the assessment and apportionment become fixed, each property’s share thereof is constant, regardless of a change in use, condition or ownership of the property, or the fact that the expenses are raised in installments rather than in an entire amount.

This is not unlike the situation which existed prior to 1979 in the case of annual assessments of real property for general tax purposes where an owner of exempt property transferred title to his property to a person not qualified for that exemption. Prior to the enactment of section 520 of the Real Property Tax Law (L. 1978, c.635, eff. January 1, 1979), the new owner would receive the benefit of such exemption until the preparation of the next assessment roll. Effective January 1, 1979, this was no longer true for general tax purposes. The provisions of section 520, however, have no application to the facts presented.

Therefore, once the period for review has passed, the assessments are deemed final and conclusive. A subsequent change in the use of the property does not permit an increase in the special assessment.

August 21, 1980