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Volume 3 - Opinions of Counsel SBEA No. 47

Opinions of Counsel index

Board of assessment review (local law providing for county board) - Municipal Home Rule Law, §§ 10, 33; Real Property Tax Law, §§ 1524, 1530, 1558, 1560:

A proposed local law which provides for a transfer of a town function to the county is subject to a mandatory referendum. Since Erie County does not assess real property for purposes of taxation, it may not provide for the appointment of a board of assessment review by local law.

Our opinion has been requested as to whether a local law adopted by the Erie County Legislature providing for the establishment of a board of assessment review to review assessments for county tax purposes would be subject to a mandatory referendum.

Municipal Home Rule Law, section 10(1)(i) concerning the adoption and amendment of local laws relating to property, affairs or government does not empower local governments to adopt laws effecting taxation because taxation is a State function, and any delegation of authority by the State concerning taxation must be by specific enactment (Roosevelt Raceway, Inc. v. Nassau County, 18 N.Y.2d 30, 218 N.E.2d 539, 271 N.Y.S.2d 662; County Securities v. Seacord, 278 N.Y. 34, 15 N.E.2d 179).

Cities, towns, and villages are authorized to adopt local laws concerning the preparation, making, confirmation, correction and review of assessments of real property subject to further review by the courts (Municipal Home Rule Law, §§ 10(1)(c)(2); 10(1)(d)(1); 10(1)(e)(1)). Counties, however, are limited to the adoption of local laws concerning the levy, administration, and collection of local taxes authorized by the Legislature (Municipal Home Rule Law §§ 10(1)(a)(8), (9)), to the establishment of county agencies to advise and assist assessors, collectors, and receivers of taxes (Real Property Tax Law, § 1530) and to the provision of a method for the correction of manifest clerical or other errors or omissions in assessment rolls or returns thereof (Municipal Home Rule Law, § 10(1)(b) (2); Real Property Tax Law, §§ 550, 556). Clearly, the county has no authority to adopt the proposed local law under Municipal Home Rule Law, section 10.

Assessments for county and town purposes have been reviewable by town officials since 1813 (L.1813, c.52; revised statutes, Van Ness and Woodworth, Vol. 2, p. 509). Since the proposed local law provides for a transfer of a town function to the county, it is subject to Municipal Home Rule Law, section 33 and N.Y. Const., Art. IX, section 1(h). That is, a referendum is mandatory, Matter of Wendell v. Lavin, 246 N.Y. 115, 158 N.E. 42; People v. Raymond, 37 N.Y. 428; People ex rel. Town of Pelham v. Village of Pelham, 215 N.Y. 374, 109 N.E. 513.

Section 1524 of the Real Property Tax Law provides for the appointment of a board of assessment review by “local governments” which is defined in section 1520 as “counties, cities, or towns with the power to assess real property for the purpose of taxation.” Section 1558 of the same law provides that no “charter law” as such term is defined in Municipal Home Rule Law, section 32 nor local law shall be adopted which is inconsistent with the provisions of Article 15-A. Section 1560 further provides that the provisions of all general, special local, or other laws which are inconsistent with the provisions of Article 15-A are inapplicable to counties, cities, and towns to which Article 15-A applies. That is, because Erie County does not assess real property for purposes of taxation, it may not provide for the appointment of a board of assessment review by local law since the same would be inconsistent with the provisions of the aforementioned Article 15-A.

There is no question but that the assessment of real property is a town function, and it is our opinion that the proposed local law, which provides for an administrative review, not only upon petition of the aggrieved property owner, but also upon petition of Erie County, acting through its Commissioner of Finance, is tantamount to a transfer of the assessment function itself. This is in violation of N.Y. Const., Art. IX, in that the county, upon the petition of the Commissioner of Finance, could increase or decrease any assessment appearing on the town assessment roll.

September 11, 1973

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