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Volume 7 - Opinions of Counsel SBEA No. 56

Opinions of Counsel index

Assessment roll, form (designation of owner) (unopened stub street); Subdivision maps (offer of dedication) - Highway Law, § 189; Real Property Tax Law, § 502; Town Law, § 278:

The assessor must decide whether to list an unopened “stub street” (in a subdivision) as owned by the subdivider, as owner unknown, or in the name of the municipality. The assessor should attempt to determine whether the land has been dedicated to and accepted by the municipality, or whether it has been used as a public highway for at least ten years.

We have been asked a question concerning the assessment of an unopened “stub street”. It appears that the property (66′ x 150′) originally was represented on a subdivision map as a street. With the preparation of tax maps in 1979, the property was described as a separate parcel with a designation of “owner unknown”. The area apparently has not been dedicated to the town but the subdivider disclaims ownership of the property. We are asked how the property should be listed on the assessment roll.

Section 500 of the Real Property Tax Law requires assessors to annually ascertain by diligent inquiry all real property located within their assessing units. Real property for assessment administration purposes is defined in section 102(12)(a) as “[l]and itself . . .”. References in related statutes (i.e., Real Property Tax Law, §§ 406(2), 530(2)) indicate that highways are real property, and case law references to the assessment of highways and streets show a well-established understanding that this type of property should be described and assessed on an assessment roll (cf., Johnson v. City of Niagara Falls, 230 N.Y. 77, 129 N.E. 213 (1920); People v. Underhill, 144 N.Y. 316, 39 N.E. 333 (1895); Flack v. Village of Green Island, 122 N.Y. 107, 25 N.E. 267 (1890); In re Bragaw Street in City of New York, n.o.r., 141 N.Y.S. 987 (S.Ct., Queens Co., 1913)).

Subdivision 2 of section 502 provides that each entry on the assessment roll shall include “the name of the owner, last known owner or reputed owner . . .”. An assessor should not use the designation “owner unknown” unless, after diligent inquiry, he is unable to ascertain the owner, last known owner or reputed owner (see, 5 Op.Counsel SBEA No. 34).

In ascertaining property descriptions and ownership, an assessor should rely generally on the latest documentary evidence available to him. However, if he finds that this evidence is incorrect, he should use the data or information which, in his best judgment, is proper. It is not the assessor’s responsibility to resolve conflicting claims to property ownership (see, generally, 6 Op.Counsel SBEA No. 36).

In this particular instance, the assessor made an assumption that the “sub street” must still belong to the subdivider. the conclusion reached appears to have been the most prudent one under the circumstances. From the valuation perspective, however, it should be noted that where title to land used as a street or highway remains vested in a developer who has sold all other abutting lots, the courts have held that the value of such an interest is nominal only (Matter of City of New York, N.Y.L.J., Feb. 4, 1972, p. 19 c. 5; Matter of Schneider, 136 App.Div. 444, 121 N.Y.S. 9 (1st Dept., 1910); Matter of City of New York (Carroll Street), 137 App.Div. 39, 121 N.Y.S. 435 (2d Dept., 1910)).

Pursuant to section 334 of the Real Property Law, before any lot in a subdivision or development may be sold, a subdivision map must be filed in the office of the county clerk as well as in the office of the city, town or village clerk where the property is located. Subdivision 1 of section 278 of the Town Law provides that if a filed subdivision plat does not contain a notation to the effect that an offer of dedication of streets, highways or parks is not being made, the filing of the plat in the office of the county clerk constitutes a continuing offer of dedication to the public, which may be accepted by the town board at any time prior to revocation of the offer by the developer. It should also be noted that before a dedication is complete there must be an acceptance by the municipality. This may be done on a formal basis or by the act or conduct of the municipality (Niagara Falls Suspension Bridge Co. v. Bachman, 66 N.Y. 261 (1876); Holdane v. Village of Cold Spring, 21 N.Y. 474 (1860)).

In the absence of a formal acceptance, the courts have held certain acts as indicating acceptance. These include: the inclusion of the property in a map of streets and highways (In re Walton Ave., 131 App.Div. 696, 116 N.Y.S. 471 (1st Dept., 1909), aff’d 197 N.Y. 518, 90 N.E. 59 (1909); Village of Pleasantville v. Siciliano, 141 Misc. 283, 252 N.Y.S. 469 (S.Ct., Westchester Co., 1931); In Re Bragaw Street in City of New York, supra); approving construction or installation of utilities (Petrie v. Rochester, 206 Misc. 96, 132 N.Y.S.2d 501 (S.Ct., Monroe Co., 1954); In re Pearsall Street in City of New York, n.o.r., 135 N.Y.S. 763 (S.Ct., Queens Co., 1912)); exempting the property from taxation (In re Bragaw Street in City of New York, supra); and the passage of an ordinance directing the street be graded, paved or put in proper condition for use by the public (City of Cohoes v. D & H Canal Co., 134 N.Y. 397, 31 N.E. 887 (1892); Matter of Hunter, 163 N.Y. 542, 57 N.E. 735 (1900); Flack v. Village of Green Island, supra).

However, the courts in other cases have held that acceptance of dedication by public authorities is not shown by deleting the parcel as an entry on the assessment roll (Johnson v. City of Niagara Falls, supra); or by the filing of a map laying out a sewer system showing the subject street thereon (People v. Underhill, supra); or by assessing property whose description is given as being on the subject land claimed to have become a public highway (Johnson v. City of Niagara Falls, supra).

Finally, section 189 of the Highway Law provides that “[a]ll lands which shall have been used by the public as a highway for the period of ten years or more, shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway . . .”. Whether a road has become a public highway under this section is a question of fact (Flack v. Village of Green Island, supra); People v. Loehfelm, 102 N.Y. 1, 5 N.E. 783 (1886); People v. Sutherland, 252 N.Y. 86, 168 N.E. 838 (1929)).

As indicated in the preceding paragraphs, the ultimate resolution of ownership of the subject property is a question of fact. We recommend that the town attorney be consulted for guidance on the matter.

January 29, 1981