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Volume 3 - Opinions of Counsel SBEA No. 88

Opinions of Counsel index

Municipal corporations exemption (“sand reserve”) - Real Property Tax Law, § 406:

Land to be used as a “sand reserve” is not within the scope of the exemption given to specific types of municipally owned real property located outside of its boundaries under section 406.

Our opinion has been requested as to the taxable status of a seven acre parcel of vacant land owned by one town but located within another township.

The statute governing in this situation is section 406, subdivision 2 of the Real Property Tax Law which provides as follows:

2. Real property owned by a municipal corporation not within its corporate limits while used for a public park, public aviation field, highway or for flood control and soil conservation purposes as provided in section two hundred twenty-three of the county law shall be exempt from taxation by any municipal corporation in which it is located, provided the governing board thereof shall so agree in writing.

Thus, the use to which land is put is a primary determinative factor under this section. Apparently the land in question is to be used as a “sand reserve”. We understand from this term that the land will provide the owning town with sand to be used primarily on road surfaces. If such is the case, then the parcel in question does not qualify for exemption under section 406(2).

In a situation quite similar to this, the Attorney General of New York in an informal opinion (1968, Op.Atty.Gen. 39) was called upon to determine the taxable status of a gravel pit owned by a township but located in an adjoining township. After reciting the provisions of section 406, subdivision 2, the Attorney General concluded that the gravel pit “does not fall within the type of realty [contemplated by the terms ‘public park, public aviation facility or highway’] which would qualify for tax exemption. Accordingly, .. . the gravel pit is subject to tax.”

The word “highway” as contained in subdivision 2 refers to an actual roadway. Property held merely for related highway purposes does not qualify for exemption. After the word “highway” in subdivision 2 there is a specific exemption for real property held for flood control and soil conservation “purposes”. The word “purposes”, however, refers only to flood control and soil conservation and does not modify the word “highway” or affect the limitation of that word to physical roadways.

Therefore, a parcel of land used in the manner indicated is not within the scope of the exemption given to specific types of municipally owned real property under section 406 of the Real Property Tax Law.

April 8, 1974

Updated: