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Volume 8 - Opinions of Counsel SBEA No. 84

Opinions of Counsel index

Aged exemption (local authorization) (notice of school district hearing); Hearings (notice of) (mailing and publication) - Public Officers Law, §§ 102, 104; Real Property Tax Law, § 467:

When a school district proposes to adopt or amend a resolution with respect to the aged exemption, it must publish notice of a hearing five days prior to its meeting, in addition to the mailing and posting of notice as otherwise required by the Public Officers Law.

We have been asked to explain the notice required of a school district which is adopting or amending a resolution with respect to the “aged exemption” (Real Property Tax Law [RPTL], § 467), in conjunction with the public notice requirements of the Public Officers Law (§ 99).

Subdivision l(a) of section 467 of the Real Property Tax Law provides, in part, that an exemption is to be granted to real property of aged persons who satisfy statutory prerequisites “provided the governing board of such municipality, after public hearing, adopts a local law, ordinance or resolution providing therefor” (emphasis added). Similarly, subdivision 3(a) provides that a municipality opting to grant the exemption may provide by local law, ordinance or resolution that the maximum income limit to be applicable in the municipality shall be any figure between $3,000 and $12,025.

Boards of education act by resolution, and although there appears to be no specific statutory notice requirement relating to the adoption of resolutions, we have suggested that case law supports the conclusion that five days notice is a general requirement. Therefore, we have concluded that “notice of a public hearing on a resolution to adopt or amend the aged exemption . . . must be published once at least five days prior to the day set for the hearing” (5 Op.Counsel SBEA No. 2).

The purpose of the public hearing requirement of section 467 is to permit individuals who will be affected to make known their opinions concerning the proposed action of the municipal corporation. An increase in the income ceiling will presumably increase the number of individuals who will become eligible to receive that exemption, and these persons may wish to speak in favor of raising the income ceiling. Conversely, the resultant tax shift to those individuals not entitled to this type of exemption may be cause for concern, and these persons, too, have a right to state their opinion to the governing body.

In contrast to this requirement of notice by publication, section 104 of the Public Officers Law provides that public notices of the time and place of a meeting of a “public body” must be given to the news media at least one week before and posted at least 72 hours before the meeting. Subdivision 3 of that section provides that the required public notice is not to be construed to require publication as a legal notice. (At least one court has said that a school board is a “public body” within the meaning of subdivision 2 of section 102 of the Public Officers Law, and we agree with that conclusion (Kamlet v. Board of Education, Plainedge Union Free School District, 91 Misc. 2d 1105, 399 N.Y.S.2d 366 (Sup.Ct., Nassau Co. 1977)).)

We do not believe that the Public Officers Law was intended to supersede or pre-empt other laws requiring notice of governmental action. Since section 104 only requires posting and distribution of notice to the news media, the receipt of which may or may not be reported by the news media, mere compliance with that section without publication, may result in interested members of the public not receiving notice of the school board’s intention to adopt or amend the aged exemption. Such a result is clearly contrary to the intent of the Open Meetings Law (see, Public Officers Law, § 100).

To ensure that all interested parties will have the opportunity to learn of the pending school board action, it remains our opinion , that a school board must publish notice of its public hearing to adopt or amend the aged exemption at least five days before the day set for the hearing. Compliance with the mailing and posting requirements of the Public Officers Law would not suffice.

April 8, 1982
Revised August 2, 1986 to incorporate increase in maximum income limit for purposes of RPTL, section 467 (L.1986, c.756, eff. 8/2/86) and to incorporate renumbering of certain sections of the Public Officers Law (L.1983, c.652).