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Volume 6 - Opinions of Counsel SBEA No. 37

Opinions of Counsel index

Industrial waste treatment facilities exemption (special ad valorem levies) (sewer charges - Westchester County) - Real Property Tax Law, §§ 102(14), 477; Westchester County Administrative Code, § 168:

Property otherwise exempt from special ad valorem levies pursuant to section 477 of the Real Property Tax Law is nevertheless liable for such levies for sewer district purposes if located in Westchester County.

Our opinion has been requested concerning the effect of section 168 of the Westchester County Administrative Code (relating to the imposition of “sewer taxes” on all real property within a sewer district) on section 477 of the Real Property Tax Law (relating to the exemption from taxation and special ad valorem levies (defined in Real Property Tax Law, §102(14)) for industrial waste treatment facilities). A certain parcel, eligible to receive the exemption for industrial waste treatment facilities (§477), is also within a sewer district to which the provisions of section 168 apply. The question is whether district “sewer taxesmay be assessed against this property.

Subdivision 14 of Real Property Tax Law, section 102, defines a special ad valorem levy as “a charge imposed upon benefited real property in the same manner and at the same time as taxes for municipal purposes to defray the cost, including operation and maintenance, of a special district improvement or service, but not including any charge imposed by or on behalf of a city or village. Title C of the Westchester County Administrative Code, entitled; SEWERS, provides, in part, that all lots or parcels within any sewer district are declared to be benefited by such sewers (§168), that apportionment of the “sewer taxes will be based on the equalized value of the real estate of the various towns and cities within the district (§179), and that the subsequent taxes will be based upon the assessed value of all real estate within such district (§179). Thus, the “sewer tax” mentioned in section 168 is a special ad valorem levy (New York Telephone Co. v. Common Council and Assessor of the City of Rye, 43 Misc.2d 668, 252 N.Y.S.2d 126, aff’d, 25 App. Div.2d 682, 269 N.Y.S.2d 692; 2 Op.Counsel SBEA No. 25).

Subdivision 4 of Real Property Tax Law, section 477, provides, in part, that industrial waste treatment facilities, which are entitled to an exemption, “shall be exempt from taxation and special ad valorem levies as herein provided. (emphasis supplied) Section 168 of the Westchester County Administrative Code provides, in part, that “[n]otwithstanding the provisions of any general, special or local law, specifically or otherwise to the contrary, no lots or parcels of land in any county sewer district shall be exempt from the taxes and assessments to be imposed as provided by this title, except such as may belong to the United States or be used as a cemetery, or property acquired by the state or county for park or parkway purposes. (Section 2 of the Code includes in the definition of “land all improvements, structures, etc. which are in, over or under the land.) Should the property in question not fall within one of the enumerated exceptions within section 168, a conflict arises: section 477 apparently grants an exemption from special ad valorem levies, while section 168 expressly denies any exemption from such levies for sewer district purposes.

As a general rule of statutory construction, where a special statute conflicts with a general statute and where there is no legislative intent indicating otherwise, the special statute controls (DeMaggio v. Dematteis, 9 Misc.2d 1025,166 N.Y.S.2d 1004). The legislative intent in enacting section 168 is that its provisions should apply “| notwithstanding... any general, special or local law.... The legislative intent in enacting the Real Property Tax Law is that “[t]his chapter shall not be deemed to repeal or otherwise affect the provisions of any special or local law or ordinance or of any county, city or village charter, or other special form of government, it being the intention of the legislature that the same shall continue in full force and effect until and unless otherwise duly amended, repealed or affected (Real Property Tax Law, §2006). The Westchester County Administrative Code is a local law, applicable only to Westchester County, and is therefore a special law (Town of Pelham v. Village of North Pelham, 38 Misc.2d 234, 237 N.Y.S.2d 253). Additionally, section 168 was added (L.1948, c.852) before the recodification of the Real Property Tax Law (L.1958, c.959).

Accordingly, we conclude that the express legislative intent, in this situation, is that section 168 controls (in agreement with the general rule). Thus, the property here in question is not exempt from special ad valorem levies for sewer district purposes.

August 24, 1977

Updated: