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Volume 6 - Opinions of Counsel SBEA No. 88

Opinions of Counsel index

Board of Assessment Review (powers and duties) (basis of determination - notice to complainant) - Municipal Home Rule Law, § 10; Real Property Tax Law, § 1524:

A town may adopt a local law requiring the board of assessment review to notify each complainant of the basis of the board’s determination.

A town has adopted a local law requiring the board of assessment review to include a statement informing each complainant of the basis for the board’s determination. We have been asked whether the town has the power to enact this local law.

The home rule powers of local governments are set forth generally in section 2 of Article 9 of the New York State Constitution and more specifically in the Municipal Home Rule Law (Consolidated Laws, Chapter 36-a). Paragraph c of section 2 of Article 9 of the Constitution provides, in part:

In addition to powers granted in the statute of local governments or in any other law ...

(ii)[E]very local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government:
* * *
(8) The levy, collection and administration of local taxes authorized by the legislature and of assessments for local improvements, consistent with laws enacted by the legislature.

Clearly, the board of assessment review is an obvious and integral part of the “administration” of the real property tax, and, therefore, it must initially be considered to be within the constitutional grant of power set forth in subparagraph (8). Moreover, paragraph d of subdivision 1 of section 10 of the Municipal Home Rule Law provides specifically that:

In addition to powers granted in the constitution, the statute of local governments or in any other law,...
* * *
(ii) every local government...shall have power to adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law, relating to the following subjects,...except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government:
* * *
d. A town:
(1) The preparation, making, confirmation and correction of assessments of real property and the review of such assessments subject to further review by the courts as provided by law, consistent with laws enacted by the legislature.

Thus, in addition to the general grant of power in Article 9 of the Constitution, State law provides that, although taxation is outside the property, affairs or government of local government, towns may act by local law in regard to the administrative review of assessments. However, this specific grant of home rule power to towns is limited by two conditions:

(1) Any local law concerning administrative review may not be inconsistent with either the Constitution or any general or special law, and

(2) The Legislature may specifically restrict the adoption of any local law concerning the administrative review of assessments.

Article 15-A of the Real Property Tax Law is a State law which in terms and in effect applies alike to all towns, that is, a general law (MHRL, §2(5)). Within Article 15-A, section 1524 establishes a uniform procedure for administrative review, including in paragraph (c) of subdivision 2 a required procedure for determinations by the board of assessment review. And included within this paragraph is a requirement that the board of assessment review mail a notice of determination to each complainant, which notice must include a prescribed statement of the complainant’s right to judicial review.

Given this general State law, which in part requires the mailing of a notice of determination, has the State restricted the adoption of local laws? We conclude that for two reasons the answer is no. First, Article 15-A includes two sections, 1558 and 1560, which by their provisions, clearly allow for the enactment of consistent local legislation. Section 1558, stated in the negative, prohibits the adoption of any charter law or local law inconsistent with the provisions of Article 15-A. Section 1560, stated more positively, provides that all general, special, local or other laws which are not inconsistent with the provisions of Article 15-A shall apply to the counties, cities and towns to which the article applies.

The second reason for our conclusion that the State has not precluded the adoption of this local law is that the general State law, section 1524, is silent on the subject. That is, although that statute is concerned with the subject of notice by the board of assessment review, it neither provides for the information required by the town local law, nor does it prohibit the adoption of local laws requiring additional information. “The mere fact that a local law may deal with some of the same matter touched upon by State law does not render the local law invalid” (People v. Lewis, 295 N.Y. 42, 64 N.E.2d 702). There must be a clear indication that the State has preempted the subject matter, and in the absence of evidence of such a desire or design to occupy an entire field to the exclusion of local law, the courts will not strike down local laws (Wholesale Laundry Board of Trade, Inc. v. City of New York, 17 App. Div.2d 327, 234 N.Y.S.2d 862, affd, 12 N.Y.2d 998, 189 N.E.2d 623, 239 N.Y.S.2d 128; People v. Judiz, 38 N.Y.2d 529, 344 N.E.2d 399, 381 N.Y.S.2d 467; Albert Simon Inc. v. Myerson, 36 N.Y.2d 300, 327 N.E.2d 801, 367 N.Y.S.2d 755; People v. Cook, 34 N.Y.2d 100, 312 N.E.2d 452, 356 N.Y.S.2d 259).

Having concluded that local law making is possible, the issue to be considered is whether this local law is consistent with the Constitution and laws of the State and, therefore, valid. We conclude that it is. The State law requiring that a notice of determination be mailed to each complainant is silent on the subject of additional information to be included in the notice. We do not believe that this silence precludes the inclusion of additional information required by the local law. We do not believe that this is a case where a local law may be said to be inconsistent with State law because it prohibits something acceptable under the State law (People v. Cook, supra; Wholesale Laundry Board of Trade, Inc. v. City of New York, supra). Rather than being inconsistent with section 1524, we see the subject local law to be one designed to improve the process of assessment review. As such, it is not inconsistent with the State law governing the same subject (Town of Clifton Park v. C.P. Enterprises, 45 App.Div.2d 96, 356 N.Y.S.2d 122; Belle v. Town Board of Town of Onondaga, 61 App. Div.2d 352, 402 N.Y.S.2d 677).

Accordingly, in view of the constitutional and statutory grants of power to towns to act in regard to the review of assessments and because the subject local law is neither prohibited by nor inconsistent with State law, we conclude that the local law is within the power of the town to adopt.

October 8, 1979

NOTE:  Construes law prior to L.1991, c.662.

Updated: