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Volume 11 - Opinions of Counsel SBRPS No. 33

Opinions of Counsel index

Approved assessing units (base proportions) (school district option not to adopt) - Real Property Tax Law, § 1903:

A school district wholly contained within an approved assessing unit, which adopts a resolution to not use the dual tax rate system authorized by section 1903 of the Real Property Tax Law, may not rescind such resolution.

We have been asked whether a school district, which is wholly contained within an approved assessing unit and which has duly opted out of the dual tax rate system authorized by section 1903 of the Real Property Tax Law, may subsequently opt into that system. In our opinion, it may not.

We recognize that local legislative actions may generally be repealed absent a legal prohibition against doing so. However, our examination of Article 19 of the RPTL leads us to the conclusion that just such a prohibition implicitly applies here. Our reasoning is as follows:

First, the primary purpose of Article 19 is to allow the preservation of the status quo, in terms of the distribution of the tax burden between the classes, in order to soften the impact of a newly-implemented revaluation. Allowing a school district to introduce dual tax rates long after that impact has been absorbed is hardly consistent with this purpose. Rather than fostering stability and continuity during the transition to a new environment, it would bring disruption and discontinuity to the existing environment.

Second, it is the last two sentences of section 1903(1)(a) of the RPTL which authorize school districts within approved assessing units to decline the 1903 option. There is nothing in these two sentences or elsewhere in Article 19 that even remotely suggests that such a decision may be reversed. In fact, the last sentence specifically states that in a school district that has opted out, “school taxes shall be levied as otherwise provided by law” (in other words, using a uniform tax rate).

Third, there is a provision elsewhere in section 1903 that specifically allows certain other options adopted under section 1903 to be rescinded -- namely, subdivision nine, which provides that an approved assessing unit or an eligible non-assessing unit village which has adopted the dual tax rate system authorized by section 1903 may subsequently rescind that decision. If the State Legislature believed that local legislative bodies inherently had full authority to rescind any option they might adopt under section 1903, this provision would not have been necessary. By choosing to grant express authority for these specific rescissions but not others, the Legislature effectively signaled its intention that the authority to rescind is to apply only as articulated in this subdivision (see, discussion of statutory construction maxim of expressio unius est exclusio alterius in McKinney’s Statutes, §240).

Finally, Article 19 contains various provisions that allow movement toward interclass equity after the approved assessing unit completes its revaluation, while blocking movement in the reverse direction. The drafters of the legislation clearly understood that the preservation of the pre-revaluation class shares would work to the disadvantage of one of the classes (generally, if not invariably, the non-homestead class), and sought to promote the amelioration -- and preclude the exacerbation - of the bias against that class. Thus, for example, the legislation:

(i) allows approved assessing units to annually adjust class tax shares so as to reduce, but not increase, the inter-class disparities (see, RPTL, §1903(4));

(ii) expressly allows approved assessing units, non-assessing unit villages, and school districts that are using the dual tax rate system to opt out at any time, not just upon the completion of the revaluation (RPTL, §§1903(1)(a), (9), supra); and

(iii) provides that when a “new portion” comes into being (e.g., a school district or village is created or reconfigured), the tax shares for that portion must be based on current market conditions, not pre-revaluation conditions (RPTL, §1903(3)(h)). {1}

If a school district, which had opted out of the dual tax rate system could subsequently reverse that decision and revert to the inequitable pre-revaluation class tax shares, it would constitute the type of “backsliding” that Article 19 is seemingly designed to prevent.

Accordingly, for the reasons stated above, we believe a school district has no authority under current law to rescind an election it has made pursuant to section 1903(1)(a) of the RPTL to opt out of the dual tax rate system authorized thereby.

October 18, 2002

{1}  Indeed, it seems clear that the school district whose superintendent posed the question being considered could not be considered a “new portion” for this purpose, because a new portion by definition must not have existed on the “base assessment roll,” which essentially means the pre-revaluation roll (§1901(6)(a)), and the school district was in existence well before the approved assessing unit’s revaluation was conducted.