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Volume 8 - Opinions of Counsel SBEA No. 99

Opinions of Counsel index

Costs, generally (for other than local improvements) (entry on assessment roll or tax roll) - Real Property Tax Law, §§ 551, 553; Village Law, § 4-414:

Subject to due process requirements, costs incurred by a village for other than local improvements may be assessed against real property in the manner provided by local law, not limited by the provisions of the RPTL relative to omitted assessments.

Section 4-414 of the Village Law provides that costs incurred by a village for other than local improvements (such as for snow and ice removal, or the demolition of an unsafe building) required to be made by the owner may be “assessed, levied and collected as may be provided by local law”. The Court of Appeals has held that an analogous provision applicable to cities (General City Law, § 20[35] [g]) concerns not the taxing power but the exercise of “the police power of the State, delegated, under our State Constitution, to local governments” (Lane v. City of Mount Vernon, 38 N.Y.2d 344, 347-48, 342 N.E.2d 571, 379 N.Y.S.2d 798, 801 [1976]). Accordingly, the Court held that “[t]he assessment before us was not a tax levy” (id.).

Thus, although Village Law, section 4-414 refers to costs being “assessed, levied and collected”, in our opinion, these terms need not be interpreted to involve the panoply of Real Property Tax Law [RPTL] provisions pertaining to the addition of omitted assessments (see, e.g., §§ 551, 553(1)(c),(d)). (In many instances, those provisions would preclude adding these costs to the current year’s tax roll.)

We find support for this conclusion in the difference between section 4-414 and its predecessor statute in the old Village Law. Prior to the 1972 recodification of the Village Law (L.1972, c.892), former section 168 provided three means of recovering costs other than for local improvements: (1) by action against the owner or occupant; (2) by special warrant issued by the village board of trustees for collection of the assessment; or (3) by inclusion in the next annual tax levy. The statute required notice to the owner or occupant of the purpose and amount of the expenditure made and a meeting of the village board to make an assessment upon the land. If the assessment remained unpaid after fifteen days, these three remedies were available to the village.

The specificity of former section 168 was deleted in the recodified section 4-414. This was, however, in keeping with the “Legislative Intent” of the new Village Law:

[T]he municipal home rule law has set forth in general terms the powers and duties of village public officials. Thus, the detailed enumeration of powers and duties of village public officials in the former village law is no longer necessary and only serves to restrict proper village development.

It is this philosophy which pervades the entire bill. The bill reduces the village law to skeletal outline which the villages may then use as a guide. The village law could then be implemented by the adoption of local laws tailored to the needs of each village. (L.1972, c.892, § 57)

Accordingly, section 4-414 provides that these costs “be assessed, levied and collected as may be provided by local law” (emphasis added). Thus, so long as property owners are afforded all the process that is their due under the Federal and State Constitutions (notice and opportunity to be heard), a village may assess, levy and collect these assessments in the year in which they are incurred.

It is noted, however, that the Court of Appeals has said that the phrase “assess, levy and collect” is to be read in the conjunctive and not the alternative (D’Angelo v. Cole, 67 N.Y.2d 65, 490 N.E.2d 819, 499 N.Y.S.2d 900 (1986)). Thus, a village ordinance, adopted pursuant to section 4-114 which purported to authorize the village to recover costs in a civil action, was declared invalid on the ground that it was inconsistent with the State enabling legislation.

March 21, 1986
Revised December 19, 1986

NOTE: Revised to incorporate discussion of the case of D’Angelo v. Cole, 67 N.Y.2d 65.