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Volume 9 - Opinions of Counsel SBEA No. 73

Opinions of Counsel index

Assessments, generally (transfer of function to county) (necessity of county charter) (non-assessing unit villages) (city charters) - New York State Constitution, Art. IX, § 1(h)(1); Municipal Home Rule Law, § 33-a; Real Property Tax Law, §§ 102, 1402:

The power to assess property may be transferred to a county pursuant to local law subject to the “split referendum” requirement; no county charter is necessary. If the village assessment function is to be ceded to the county, the referendum must be approved by the residents of all villages (considered as a whole), even villages which are not currently assessing units. City charters need not be amended to implement county assessing, but inconsistent charter provisions should be removed.

We have asked a series of questions concerning the procedure necessary to transfer the assessment function to a county. First, may a non-charter county transfer the assessing function from towns and cities to the county pursuant to Municipal Home Rule Law (MHRL), section 33-a?

Section 33-a(1) of the MHRL provides:

Subject to restrictions in the constitution, in this article or in any other applicable law, the board of supervisors of any county may, by local law, transfer functions or duties of the county or of the cities, towns, villages, districts or other units of government wholly contained in such county to each other, or for the abolition of one or more offices, departments or agencies of such units of government when all their functions or duties are so transferred (emphasis added).

Section 33-a was added to the MHRL by chapter 708 of the Laws of 1970. Included in the bill jacket for that chapter is the sponsor’s memorandum which states that the purpose of the bill was “[T]o empower a county to provide by local law for the transfer of a function or duty of a county, city, town, village or district wholly within the county without the necessity of the adoption of a county charter.”

The statement in support of the bill reiterates that:

[T]his bill further implements the above mentioned Constitutional provision by providing the necessary authorization for the transferring of a functional duty without the necessity of a county charter. Thus, smaller counties or any other county which has adopted a county charter, would be able to provide for the transferring of any particular function or duty desired by the people without the necessity of a county charter.

Accordingly, “any county” -- not only a charter county -- is authorized to transfer functions or duties. To the extent that 3 Op.Counsel SBEA No. 79 and 9 Op.Counsel SBEA No. 30 indicated that a charter was necessary to transfer the assessing function to the county, those opinions are superseded. However, the portions of our prior opinions that discuss the requirement for a split referendum, where transfer from cities or villages, as well as towns, is involved, remain valid.

The second question concerns the procedure applicable to villages. Since 3 Op.Counsel SBEA No. 79 was written, villages have been empowered to terminate their assessing unit status (RPTL, §§ 1402(3), 102(1)). At this writing, nearly one-half of the State’s villages have opted to cease being assessing units, {1} opting instead to levy their taxes against the village portion of the latest town or county assessment roll. This raises the question whether a village referendum is necessary if the village assessment function is also to be transferred to the county {2} where some (or all) of the county’s villages are not assessing units.

A village which has ceased to be an assessing unit pursuant to the provisions of section 1402(3) of the RPTL retains the ability to rescind that local law and become an assessing unit once again (§ 1402(3)(b)), and, to date, three of the State’s villages have done so. In our opinion, a village referendum on county assessing is required if the village assessment function is to be ceded to the county. As to villages which are still assessing units, the rationale is obvious. As to villages which are still assessing units, the rationale is obvious. As to villages which are not currently assessing units, we think the referendum is necessary because the villages would be ceding their authority to rescind their local laws in the future and again become assessing units.

The third question is whether a city located within a county which assumes the assessment function must also amend its city charter to delete the city assessment provisions, or whether this is accomplished by the city voters’ approval of the county’s local law. The Constitution requires that city voters approve the transfer of the city assessment function to the county. However, there is no additional requirement for amendment of a city charter before the terms of the county local law may take effect. An amendment of the city charter is therefore unnecessary insofar as the legality of county assessing. We recommend, however, that provisions of the city charter which are inconsistent with county assessing (e.g., sections concerning the appointment of the assessor) be removed.

Finally, we are asked whether the county real property tax service agency would be supplanted by a county assessment department or whether the countywide assessment function could be added as an additional duty of the existing department. Section 1530 of the Real Property Tax Law provides for a real property tax service agency in each county that does not assess real property for purposes of taxation, except a county wholly within a city (i.e., New York City). The head of such agency shall be the director of real property tax services. Accordingly, this provision currently excludes Nassau County and Tompkins County from having a real property tax service agency and a director of real property tax services. If another county were to adopt such a local law and become a county that assesses real property, it too would no longer be subject to the provisions of section 1530; there would be no county real property tax service agency and no director of real property tax services. A county department of assessment would be created in the local law, with all assessment duties assigned to the head of such departments (see, RPTL, §§ 102(1), (3), 1540).

September 15, 1992

{1}  The State Board maintains a list of villages which are not assessing units in its rules (9 NYCRR 190-1.6(a)).

{2}  Currently, the State has two county assessing units, Nassau and Tompkins.  In Nassau County, the County Board of Assessors assesses property for State, County, town, school and special district purposes (Nassau County Charter, § 602).  Villages (and cities) may choose to use the County roll as the basis for their own assessment rolls (Charter, § 608; cf., RPTL, § 1402(2)), and a few Nassau County villages have opted to terminate their assessing unit status (9 NYCRR 190-1.6(a)(28)).  In Tompkins County, the County assesses for all purposes, including village purposes (Tompkins County Charter and Code, § 4.05(a)).