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Volume 11 - Opinions of Counsel SBRPS No. 14

Opinions of Counsel index

Assessments, generally (selective reassessment) (improved parcels) - Real Property Tax Law, § 305:

An assessor who reassesses only those parcels which have undergone improvement may bear the burden of proving that he or she did not selectively reassess such parcels, but rather, properly added the value of the improvement to the prior assessment.

We have been asked to reconsider that portion of 10 Op.Counsel SBRPS No. 60 in which we expressed the opinion that an assessor may not selectively reassess only properties that have been recently improved. An assessor has advised us that, in the absence of a statutory mandate to reassess on a periodic basis, {1} there are many years in which the only assessments he increases are those of parcels to which improvements have been made. The assessor suggests that the relevant judicial decisions, including those cited in 10 Op.Counsel SBRPS No. 60, indicate that we were in error by opining that an assessor is acting contrary to law in selecting only recently improved parcels for reassessment. Respectfully, we disagree and reaffirm our prior opinion.

It is true that the majority of the judicial decisions cited in 10 Op.Counsel SBRPS No. 60 concerned reassessment upon sale. Some, however, concerned new construction or improvements.

For instance, in DeLeonardis v. Assessor of City of Mt. Vernon, 226 A.D.2d 530, 641 N.Y.S.2d 83 (2d Dept., 1996), the court said, “[W]hile assessment upon improvement may be permissible, the respondents have not, as in Nash v. Assessor of Town of Southampton, 168 A.D.2d 102, 571 N.Y.S.2d 951, alleged that there is in place a comprehensive assessment plan under which all properties will be reassessed, including those on which improvements have been made” (226 A.D.2d at 532, 641 N.Y.S.2d at 85). The court then went on to hold:

Utilizing the recent purchase price as a basis for determining the increase in assessed value of a property on which improvements have been made pursuant to building permits, while similarly situated properties which have not been improved are not subject to reassessment, results in a discriminatory treatment of the petitioner by imposing upon him a tax burden not imposed upon owners of similarly situated property [citation omitted]. Therefore, the petition is granted to the extent of vacating the reassessment, and the matter is remitted to the respondents for a new assessment taking into account only the value of the improvements to the property (226 A.D.2d at 532-33, 641 N.Y.S.2d at 85).

Still more recently, and subsequent to the issuance of our prior opinion, the same court again revisited this issue in Stern v. Assessor of the City of Rye, 268 A.D.2d 482, 702 N.Y.S.2d 100 (2d Dept., 2000). First, citing Nash, (supra), the court said, “reassessment upon improvement is not illegal in and of itself” (268 A.D.2d at 483, 702 N.Y.S.2d at 101). The court then found for the taxpayers:

Here, the petitioners’ properties were reassessed after recent improvements. However, rather than adding the value of the improvements to the prior assessment [citing DeLeonardis], the properties were reassessed to a comparable market value that included the value of the improvements [citing Nash]. Since no comprehensive assessment plan was in place to reassess the entire tax roll to reflect the comparable market value of all appreciated properties, those properties with recent improvements bore a discriminatory tax burden not imposed on similarly-situated properties that had also appreciated, but which had no recent improvements [citing DeLeonardis] (268 A.D.2d at 483, 702 N.Y.S.2d at 102; emphasis added).

The Stern decision is consistent with the conclusion expressed in 10 Op.Counsel SBRPS No. 60. While limiting reassessment to recently improved properties may withstand judicial scrutiny in certain circumstances (e.g., adding the value of the improvement to the prior assessment), the assessor who admittedly does so will likely bear what the courts refer to as the “burden of going forward” when confronted by a taxpayer who claims that he or she has been selectively reassessed. In Stock v. Baumgarten, the court said:

It is undisputed that there is a presumption of validity of an assessment by the taxing authority and the burden reposes on the challengers to show by substantial evidence that the assessments are excessive. This presumption of validity shifts the burden of going forward and is overcome as soon as credible evidence to the contrary is received sufficient to make out a prima facie case that the assessment is erroneous [citations omitted] (211 A.D.2d 1008, 1009, 621 N.Y.S.2d 754, 756 (3d Dept., 1995). {2}

In conclusion, reassessing only those parcels which have been improved during the past year is not the preferred method for assessing all property at the statutory standard of uniform percentage of value. Where an assessor does so, either by choice or due to lack of resources devoted to the assessor’s office, an allegation of selective reassessment should not be unexpected. To prevail in court, the assessor may be called upon to bear the burden of proving that such changes are not discriminatory.

July 23, 2001

{1}  The law does require that property be assessed at a uniform percentage of value (Real Property Tax Law, § 305(2)), and, even in the absence of a statute requiring periodic reassessment, many assessing units do so, some on an annual basis.

{2}  A recent lower court decision also addressed this issue in the context of a tax certiorari proceeding (Blumberg v. Sherman, 185 Misc.2d 402, 713 N.Y.S.2d 271 (Sup.Ct., Essex Co., 2000)).