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Volume 11 - Opinions of Counsel SBRPS No. 46

Opinions of Counsel index

Housing exemption (incidental or appurtenant facilities) - Public Housing Law, § 52:

If an exemption under section 52 of the Public Housing Law is to be granted to a social, recreational or communal facility incidental or appurtenant to a public housing project, a nexus must be shown between the facility and the project.

Our opinion has been requested concerning the exemption for municipal housing projects (Public Housing Law (hereafter PHL), §52). A housing authority, which owns an apartment complex, designed for senior citizens, has also purchased three additional parcels located nearby. The attorney for the authority states that the purchase was made to protect the residents of the municipal housing from incompatible development. The assessor states, however, that one of the parcels is for sale and that a computer company is considering its purchase for storing secured computer data. The question is whether the three parcels qualify for the exemption for municipal housing projects.

Real property owned or leased by a housing authority may qualify for a tax exemption. Separate provisions apply when such property is used for a federal, municipal or State aided housing project (see, PHL, §52(3) which applies to a “federal or municipal project”; PHL, §52(3-a) which applies to a “federal project”; and PHL, §52(4) which applies to a “state project”). A “project” is “a specific work or improvement to effectuate all or any part of a plan” and may include “dwelling accommodations for persons of low income, and ... stores, offices and other non-housing facilities as well as social, recreational or communal facilities as may be deemed by the authority or municipality to be incidental or appurtenant to a project” (PHL, §3(14)).

The statutory provision that a public housing project may include “recreational and other facilities incidental or appurtenant thereto” tracks the language of Article 18, section 1, of the State Constitution. PHL, section 3(13), states in relevant part that a “plan” for such a project shall “effectuate the purposes of article eighteen of the constitution or any other provision of the constitution delegating any similar power or providing homes for persons of low income.”

The court in Diehl v. O’Dwyer, 193 Misc. 1032, 84 N.Y.S.2d 109 (Sup.Ct., New York Co., 1948), considered whether the construction of a public school near a public housing project, that purportedly would serve the project’s children, would constitute an “incidental and appurtenant” facility within the meaning of Article 18 of the State Constitution and PHL, section 3(13). The court denied a motion for summary judgment holding that “the question whether [the public school] is a facility incident or appurtenant to [the public housing project] cannot be answered summarily” (193 Misc. at 1037, 84 N.Y.S.2d at 114). We presume that the proof that the court was asking the parties to present at trial would involve the issue of whether the school would primarily benefit children living in the housing project.

The State Division of Housing and Community Renewal’s rules (9 NYCRR Part 1611) give examples of what types of site improvements and “non-dwelling facilities” are permissible in State-aided “projects designed for senior citizens.” The listed site improvements include “adequate parking space,” “ramp access from parking areas to adjacent sidewalks,” sidewalks and “sitting areas” that are “properly protected with acceptable shade trees and windbreaks” (9 NYCRR 1611.1). The enumerated “non-dwelling facilities” include “a centrally located tool storage space and a small general store room,” “indoor and outdoor recreational facilities,” and “management and maintenance spaces” (9 NYCRR 1611.2). It appears that the primary users of the facilities enumerated in the regulations of the DHCR would be the residents, visitors and maintenance staff of the housing projects.

Here, the housing authority’s attorney does not contend that the primary users of the three parcels in question are or would be the apartment building’s residents, visitors or maintenance staff. It appears instead that the primary users of those properties are or would be commercial or business organizations, such as the computer company. We believe that the rationale presented by the housing authority could lead to an unrestricted claim of exemption based on an undefined, purported power to prevent “non-compatible development” in a “buffer zone.” Despite the paucity of judicial determinations, but consistent with DHCR’s rules, we believe a nexus to the housing project must be proven if exemption is to be allowed. As the initial trier of fact, the assessor must make this determination.

June 4, 2003

Updated: