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Volume 9 - Opinions of Counsel SBEA No. 55

Opinions of Counsel index

Taxes, generally (charges for removal of brush, etc.) - Real Property Tax Law, § 936; Town Law, §§ 64, 130:

A town may enact a local law requiring removal of brush, grass, rubbish or weeds, and, where there is noncompliance, cause the work to be performed and charge the expense to the property owner at the same time and in the same manner as other town taxes.

Our opinion has been asked concerning the application of the provisions of section 64(5-a) of the Town Law.

Section 64(5-a) provides that a town may require owners of real property to remove “brush, grass, rubbish, or weeds” or to spray “poisonous shrubs or weeds.” Where the owner fails to perform the task, the town may arrange for the required action, and the total expense of such action may be:

assessed by the town board on the real property on which such brush, grass, rubbish, weeds or poisonous shrubs or weeds were found, and the expense so assessed shall constitute a lien and charge on the real property . . . and shall be collected in the same manner and at the same time as other town charges (emphasis supplied).

The State Comptroller has concluded that the provisions of this section are not self-executing and that a town must enact an ordinance in order to implement these provisions (26 Op.State Compt. 173 (1970); 23 Op.State Compt. 680 (1967)). As stated in the former Opinion, section 130(16) of the Town Law authorizes the enactment of an ordinance to provide for a variety of matters, including:

requiring the cutting, trimming and removal of brush, grass and weeds and the removal of rubbish. . . .

Neither section 64(5-a) nor section 130(16) prescribes any specific manner in which such assessments are to be made. We are aware of one town’s local law enacted pursuant to section 130(16) which provides that such assessments are to be made in accordance with Article 15 of the Town Law (§§ 231, et seq.), relating to the financing of public improvements. This seems appropriate since section 237 of that Article provides for an “assessment” which is expressed as a specific sum of money to be levied against a parcel of real property, as is contemplated by both section 64(5-a) and section 130(16). {*}   This “assessment” is entered on an assessment roll prepared solely for this purpose by the assessor or the town board (in accordance with Town Law, §§ 237 and 239 of Article 15). The town supervisor then transmits to the county legislative body a statement setting forth the description of each parcel liable for payment together with the name of the owner and amount assessed (Town Law, § 243). Section 243 further provides that the county legislative body is then required to levy, and if necessary, enforce the payment of such amount(s) at the same time and in the same manner as county taxes (id.).

Where costs and expenses are imposed pursuant to section 64(5-a), that section provides that the costs and expenses are in the same nature as any taxes levied for town purposes. Thus, where the same remain unpaid, the town is made whole by the county (RPTL, § 936). The county would then enforce the lien in accordance with either Article 10 or Article 11 of the RPTL (or a special tax act, if applicable).

December 18, 1990

{*}  This differs, of course, from an “assessment” made pursuant to RPTL, § 102(2), which is a “determination made by assessors of . . . the valuation of real property.”