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Volume 11 - Opinions of Counsel SBRPS No. 92

Opinions of Counsel index

Agricultural exemption (soil classification) (required revision); (generally) (zoning compliance) - Agriculture and Markets Law, §§ 305, 306; Real Property Tax Law, § 481:

An assessor may not require a county soil and water conservation district to revise its worksheets which the assessor uses to administer the Agricultural Districts Law, but the assessor may request such revision in certain circumstances. An assessor may not rely solely on zoning requirements to conclude that areas classified by such worksheets are residential in nature; rather, the assessor’s personal observation is required.

Our opinion has been requested concerning the Agricultural Districts Law (Agriculture and Markets [AML], Article 25 AA; Real Property Tax Law, §481). An assessor has asked us whether he may require owners of land receiving agricultural assessments to submit corrected soil group worksheets because the property’s current worksheet soil classifications purportedly are not consistent with the minimum residential lot size required by zoning.

Soil group worksheets

The Agricultural Districts Law (AML, Art. 25-AA) authorizes agricultural assessments for “land used in agricultural production” (see, AML, §§301(4), 305(1)(a) and 306(1)). The approval of such an agricultural assessment for eligible land requires the annual filing of an application by the landowner. Each such application must include “classification information prepared for the applicant’s land or water bodies used in agricultural production by the soil and water conservation district office within the county” (AML, §305(1)(a); see also, AML, §306(1)). {1}  The current method by which assessors determine agricultural assessment values for eligible agricultural land, which was added to Article 25-AA in 1980 (L.1980, c.79), is based on such “classification information.”

The “soil group worksheets” which assessors use to make such determinations of value are “prepared at the request of the landowner by the local Soil and Water Conservation District office pursuant to rules established by the Commissioner of Agriculture and Markets” (7 Op.Counsel SBEA No. 105; see also, 1 NYCRR Part 370). {2}  The applicable rules of the State Department of Agriculture and Markets (1 NYCRR Part 370) do not provide that an assessor has the right to “require” that a county soil and water conservation district revise such worksheets (see, 1 NYCRR §§370.10, 370.11). Nevertheless, we believe an assessor may request such a revision in certain circumstances (see, RP-305-d).

We do not believe that such a revision request is appropriate when an assessor solely relies upon zoning requirements to conclude that areas classified by one or more worksheets are residential in nature. Since that appears to be the case in this matter, it is our opinion that the county district need not revise the worksheets in question. However, it is also our opinion that the inclusion of those areas in the worksheets does not preclude the assessor from determining, based on actual observed use, that such lands are not eligible for agricultural assessments.

Zoning and agricultural assessments

Also in our opinion, assessors generally may not base determinations of taxable status on whether the use of a property is in compliance with zoning. In reversing an assessor’s denial of a tax exemption, the Court of Appeals stated “[t]he additional requirement imposed by the Appellate Division that an applicant must possess a special use permit is ... not found in” the exemption statute [RPTL, §420-a] (Legion of Christ v. Town of Mount Pleasant, 1 N.Y.3d 406, 412, 806 N.E.2d 973, 977, 774 N.Y.S.2d 860, 864 (2004)).

There are exemption statutes that do provide that qualified property must comply with land use regulation. One such example is RPTL, section 489, which a court found requires the issuance of a permit by New York City government before a building improvement could be considered “completed” and thus eligible for tax abatement and exemption (see, 31171 Owners Corp. v. New York City Department of Housing Preservation and Development, 190 A.D.2d 441, 599 N.Y.S.2d 19 (1st Dept., 1993)). No such qualification is stated in the definition of “land used in agricultural production” that is set forth in AML, section 301(4). Accordingly, we believe an assessor may not deny, in whole or in part, an agricultural assessment application solely based on land use restrictions set forth in the town’s zoning ordinance. {3} 

April 21, 2005


{1}  AML, section 306(1), states in relevant part that “[s]uch assessment shall be granted pursuant to paragraphs a, b and f of subdivision one of section [305] as if such land were in an agricultural district.”

{2}  We note that 1 NYCRR §370.10(a) states “[a]n applicant for an agricultural group value assessment, or an authorized representative, shall personally deliver, at least 30 days prior to the applicable taxable status date to the county soil and water district office, the assessment roll description, tax map land parcel number or numbers or any other documentation necessary to identify the parcel or parcels and their respective acreage used in the preceding two years for agricultural production.” Subdivision (b) of this same rule states “[t]he district office shall outline on an appropriate soil map or maps the parcel or parcels identified in subdivision (a) of this section and shall delineate land used in agricultural production from nonagricultural land.”

{3}  However, such a taxable determination by an assessor in no manner interferes with the power of a municipality to enforce its zoning ordinance (see, Town Law, §268).

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