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Volume 11 - Opinions of Counsel SBRPS No. 17

Opinions of Counsel index

Tax maps (generally) (subdivisions and parcel splits out of compliance with zoning and planning ordinances); Assessments, generally (parcel) (subdivisions and parcel splits out of compliance with zoning and planning ordinances) - Real Property Tax Law, §§ 502, 503:

An assessor should update tax maps and assessment rolls to reflect subdivided lots, regardless of whether the subdivision received local zoning or planning approval, because a failure to do so could compromise the enforcement of any taxes levied thereon.

We have received an inquiry concerning the maintenance of tax maps (Real Property Tax Law, § 503). The issue involves subdivisions of parcels where the parties to the conveyances (i.e., deeds recorded in the County Clerk’s Office) have not complied with local zoning and planning ordinances. The question is whether the conveyances should be ignored when updating tax maps and in preparing assessment rolls (e.g., RPTL, § 502).

In 10 Op.Counsel SBRPS No. 2, we discussed at length the relevant statutes and the duties of the county director and the assessor in preparing tax maps and deciding what constitutes a particular parcel. That opinion focused on the situation where two or more individually mapped parcels are under single ownership and discussed the considerations to be made in deciding whether to merge the parcels into one on the tax map and assessment roll. Here, the issue centers more on subdivisions or “splits.”

It appears that the conveyances meet the requisites to convey title to real property set forth in Real Property Law, section 243. Since the conveyances are evidently facially valid to convey title, the question becomes whether there is any provision of law rendering them invalid or non-recordable. While we have no special expertise regarding real property transactions and recording of conveyances, we do note that Real Property Law, section 291, imposes on the county clerk a non-delegable duty of recording and indexing written instruments affecting real property (Baccari v. DeSanti, 70 A.D.2d 198, 431 N.Y.S.2d 829 (2d Dept., 1979)). Thus, a county clerk must record a conveyance if the clerk is satisfied that the conveyance meets the requisites set forth in section 291 (which are the same as in § 243), subject only to the statutory exceptions for rejecting a conveyance submitted for recording, which are enumerated in Real Property Law, section 333.

Subdivision 1-e of section 333 provides that a conveyance may not be recorded unless it is accompanied by the State Board-prescribed Real Property Transfer Report form (RP-5217) which requires the submission of specified information. Chapter 257 of the Laws of 1993 added to that list a statement as to whether the municipality, in which the parcel being conveyed is located, has a planning board (or other entity which approves subdivisions) and, if so, whether the parcel being conveyed has received such approval or that such approval is not required. However, section 333(1-e)(iv) specifically provides that no conveyance is rendered invalid due to a failure to accurately report the information. Indeed, a review of section 333 indicates that there is no provision authorizing a county clerk to reject a conveyance submitted for recording based on a failure of the grantor or grantee to comply with local zoning or planning or ordinances.

The question then becomes what is the practical effect for assessment administration. The accurate description of property being assessed is essential to the validity of the assessment and, an inaccurate description may undermine enforcement of the lien for unpaid taxes against such parcel (Berzal v. Hyland, 74 A.D.2d 955, 426 N.Y.S.2d 157 (3d Dept., 1980)). That being the case, a failure to update tax maps and assessment rolls to reflect subdivided lots, regardless of whether the subdivision received local approval, could compromise the enforcement of any taxes levied thereon.

This leads to the ultimate question as to how a town can enforce its zoning and planning laws and ordinances. The answer lies in section 268 of the Town Law, which prescribes the available enforcement procedures: injunction and prosecution (see also, Op.State Compt. 77-116). While those issues are beyond our expertise, we note that the Practice Commentaries written to accompany section 268 include the observation that enforcement of compliance with local zoning and planning laws and ordinances can be frustrating and requires “perseverance and commitment” by the town (McKinney’s Cons. Laws of N.Y., Book 61, Town Law, § 268, 2001 Supplementary Pamphlet, at 254-55). However, the fact remains that section 268 sets forth the sole enforcement provision available to the town in this regard. {1}  An attempt by assessment administrators to effectively ignore subdivisions, which have not received local approval, will merely result in potential tax enforcement problems.

September 17, 2001

{1}  As observed in Op.State Compt. No. 77-116, other remedies may be pursued by the Attorney General and the State Department of Health.