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Volume 8 - Opinions of Counsel SBEA No. 89

Opinions of Counsel index

Home rule (State law) (apportionment of assessment - addition of local conditions) - Municipal Home Rule Law, § 10; Real Property Tax Law, § 32:

A county lacks authority to adopt a local law which conditions a property owner’s right to an apportioned assessment and consequent tax liability upon fulfillment of plans or pledges made by a subdivider or developer.

Section 932 of the Real Property Tax Law (RPTL) permits a person who owns a portion or share of real property assessed as one parcel to obtain an apportionment of the assessment of the whole. The law obligates the collecting officer to accept a partial payment of taxes equal to the tax due on the apportioned assessment.

County officials have asked whether the County may condition the apportionment of the assessment (and consequent tax liability) of land in a subdivision upon a subdivider having fulfilled all intended uses of lots, as designated on approved subdivision maps. Apparently, in many instances subdividers are, in effect, abandoning lots designated by references such as “not buildable” by failing to pay taxes. After apportionment of the assessment for the owners of the developed lots, the homeowners in the subdivision have no interest in having the taxes paid on these unuseable parcels. The result is taxes go unpaid and the County eventually becomes the owner, with no real hope of recouping its financial loss through public auction.

We do not believe that the County’s problem may be resolved by adopting a local law which, in effect, attaches additional conditions to a right otherwise afforded by State law. The local law authority of counties is simply not that broad.

Pursuant to section 2(c)(ii) of Article IX of the New York State Constitution, every local government has the “power to adopt and amend local laws not inconsistent with the provisions of this Constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government:

. . . (8) The levy, collection and administration of local taxes authorized by the legislature and of assessments for local improvements, consistent with laws enacted by the legislature.

The power of taxation being a State function, the delegation of any part of that power to a subdivision of the State must be made in express terms and cannot be implied (County Securities v. Seacord, 278 N.Y. 34, 15 N.E.2d 179 (1938)).

In 1964, the Legislature adopted the Municipal Home Rule Law (L.1963, c.843) which closely followed the Constitutional terminology authorizing local legislation, other than the requirement imposed on counties, towns and villages (but not on cities; see, Sonmax, Inc. v. City of New York, 43 N.Y.2d 253, 372 N.E.2d 9, 401 N.Y.S.2d 173 (1977)) that local laws relating to the levy and administration of local taxes authorized by the Legislature be consistent with the laws enacted by the Legislature.

Section 10(1)(a) of the Municipal Home Rule Law provides that a county may enact local laws concerning “[t]he levy and administration of local taxes” (¶8) and “[t]he collection of local taxes” (¶9), but in either case the local laws must be “consistent with laws enacted by the legislature” (emphasis added). To determine whether a local law of the nature proposed would be inconsistent with any “law enacted by the legislature” we must examine the precise meaning of this phrase.

The first clauses of subdivision 1 of section 10 require local laws to be consistent with State general laws (subdivision 1(i) and (ii)). In contrast, section 10(1)(a) requires county laws relating to local taxes to be “consistent with laws enacted by the legislature” (emphasis added). Based on general rules of statutory construction, the difference in terminology is assumed to have a specific purpose (McKinney’s Statutes, § 236) namely, to refer to different things. The limitations on local laws which may be adopted by counties pursuant to paragraph (a) are more extensive than the general restrictions placed on political subdivisions by section 10(1). This is because the definition of “law” is more inclusive than that of “general law”.

Section 2 of the Municipal Home Rule Law defines “law” as a “state statute, charter or local law”, and “general law” as a “state statute which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages” (see, Wholesale Laundry Board of Trade v. City of New York, 43 Misc.2d 816, 252 N.Y.S.2d 503 (S.Ct., N.Y. Co., 1964), aff’d 22 A.D.2d 762, 252 N.Y.S.2d 955 (1st Dept., 1964), aff’d 15 N.Y.2d 604, 255 N.Y.S.2d 265 (1964)). Applying these definitions to the question before us, a county local law relative to the levy, administration or collection of local taxes must be consistent with any State statute, including section 932 of the RPTL.

The most common test cited by the courts for what is and is not consistent with State law is to ask whether the local law prohibits what the State law permits or whether the local law permits what the State law prohibits (see, e.g., People v. Lewis, 295 N.Y. 42, 64 N.E.2d 701 (1945); Wholesale Laundry Board of Trade v. City of New York, 17 A.D.2d 327, 234 N.Y.S.2d 862 (1st Dept., 1962), aff’d 12 N.Y.2d 998, 189 N.E.2d 623, 239 N.Y.S.2d 128 (1963)). The Court of Appeals has said that “when the State has acted upon a subject, and in so acting has evidenced a desire that its regulations should pre-empt the possibility of varying local regulations . . . [then] a local law may be said to be inconsistent with State law because it prohibits something acceptable under the State law” (People v. Cook, 34 N.Y.2d 100 at 109, 312 N.E.2d 452, 356 N.Y.S.2d 259, at 267 (1974)).

It is our opinion that a county local law which would condition a property owner’s right to an apportioned assessment otherwise provided by section 932 of the RPTL, upon fulfillment of plans or promises made by another, would be inconsistent with State law and, therefore, beyond the authority conferred upon the county by the Municipal Home Rule Law (see, American - Russian Aid Association v. City of Glen Cove, 41 Misc.2d 622, 246 N.Y.S.2d 123 (S.Ct., Nassau Co. 1964), aff’d 23 A.D.2d 966, 260 N.Y.S.2d 589 (2d Dept. 1965), in which the trial court declared that “the defendant City should not be permitted to enforce its building code through the media [sic] of denial of tax exemption” (246 N.Y.S.2d, at 129)). In the same sense, a county should not be permitted to enforce promises made by a developer or subdivider through the media of denying owners of property within the subdivision their right of apportionment guaranteed by section 932.

The State Legislature is concerned about abuses arising out of subdivision planning and development {*}. For example, in 1985 section 334 of the Real Property Law was amended, prohibiting the acceptance for filing of a subdivision map in the absence of appropriate certification that there are no outstanding taxes or liens on the property subject to the offered subdivision map (L.1985, c.605). Whether the Legislature might consider additional restrictions or the imposition of certain liabilities upon subdividers under circumstances described in this Opinion remains to be seen.

January 16, 1986

{*}  Although the legislative interest and action is on a subject also of concern to local governments, it seems clear that the State action is proper (see, Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705 (1929)).