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Volume 7 - Opinions of Counsel SBEA No. 104

Opinions of Counsel index

Board of Assessment Review (qualifications) (procedures to review) - Civil Practice Law and Rules, Article 78; Executive Law, § 63-b; Public Officers Law, §§ 3, 10; Real Property Tax Law, § 523; Town Law, § 23:

The members of a town board of assessment review are appointed town officials and are subject to the provisions of both the Public Officers Law and the Town Law. A proceeding pursuant to Article 78 of the CPLR is the proper procedure by which to review qualifications of members of such board, where there are no questions of fact and no ambiguities in the statutory law invoked. In any other circumstance, the proper action would be one in the nature of quo warranto brought by the Attorney General.

Section 523 of the Real Property Tax Law provides that there shall be a board of assessment review in each “local government” to which title one-A of Article 5 applies (see, §528). The board consists of three to five members who are appointed by the legislative body of the local government. Neither an assessor nor any member of an assessor’s staff may be appointed, and a majority of the board may not consist of members who are officers or employees of the local government. There is no requirement that members of the board of assessment review be property owners (2 Op. Counsel SBEA No. 16).

As an appointed town officer, a member of a board of assessment review is subject to the provisions of both the Public Officers Law and the Town Law (see, 1978 Op. Atty. Gen. 300 [Inf.]). Examples follow of the requirements which these statutes impose upon all town officers.

Sections 3(1) and 30(l)(d) of the Public Officers Law provide in part that a local officer must be a “resident” of the municipal corporation for which he is chosen, both at the time he is chosen and throughout his term of office. For this purpose “residence” is synonymous with “domicile” (Aiello v. Power, 9 Misc.2d 523, 167 N.Y.S.2d 338 (S.Ct., Kings Co., 1957), aff’d 4 A.D.2d 833, 166 N.Y.S.2d 793 (2d Dept., 1957), aff’d 3 N.Y.2d 892, 145 N.E.2d 389, 166 N.Y.S.2d 763 (1957)), and “domicile” means living in a particular locality with intent to make it a fixed and permanent home (Matter of Newcomb, 192 N.Y. 238, 84 N.E. 950 (1908)).

Similarly, section 23 of the Town Law provides in part that an appointed town officer must be an “elector” of the town at the time he is appointed and throughout his term of office. For this purpose an “elector” is a person who is a resident of the town and who, if he so chose, could register as a voter (1970 Op. Atty. Gen. 67 [Inf.]). Thus, a town “elector” must be a domiciliary of the town (Holzberger v. Schoentag 54 Misc.2d 547, 283 N.Y.S.2d 92 (S.Ct., Dutchess Co., 1967)).

Where, during his term of office, a local officer ceases to be a resident of the municipal corporation which he serves, section 30(l)(d) of the Public Officers Law provides that his office shall be vacant. Such a vacancy may be filled by the town board pursuant to section 64(5) of the Town Law (1978 Op. State Compt. File #239). In cases of uncertainty as to whether a town officer satisfies the residency requirement, the responsibility for initiating an investigation rests with the town board, which may commence an action for a declaratory judgment to determine the issue (1978 Op. Atty. Gen. 197 [Inf.]).

In addition to the residency requirement, every officer of a municipal corporation must take an oath of office and file it in the office of the clerk of the municipal corporation within thirty days after his term of office commences (Public Officers Law, §§10, 30(l)(h)). Of similar import is section 25 of the Town Law which provides that every town officer must take and subscribe an oath of office within fifteen days after the commencement of his term of office and within eight days file the same in the county clerk’s office. In Entwistle v. Murtaugh, 17 N.Y.2d 6, 214 N.E.2d 153, 266 N.Y.S.2d 969 (1966), the Court of Appeals, construing sections 10 and 30(l)(h) of the Public Officers Law and section 25 of the Town Law, stated that it is sufficient for a town officer to file his oath of office within the time limited by section 30 of the Public Officers Law, in either the county clerk’s office or the town clerk’s office.

If a local officer fails to take and file his oath of office as required by law, both section 30(l)(h) of the Public Officers Law and section 25 of the Town Law provide that the office shall be vacant. In People ex rel. Walton v. Hicks, 173 App.Div. 338, 158 N.Y.S. 757 (3d Dept., 1916), the court considered section 30 of the Public Officers Law and held that where a public officer neglects to file his oath, “the office becomes vacant ipso facto. That is all there is to it. No judicial procedure is necessary; . . .there is no incumbent, and the vacancy may be filled by the proper appointive power” (158 N.Y.S., at 758). Thus, if a member of a town board of assessment review fails to timely take and file his oath of office, his office is vacant and the town board may fill the vacancy pursuant to section 64(5) of the Town Law.

Depending upon the circumstances, there are alternative methods of obtaining judicial review of whether a town officer has satisfied the qualifications for his office. A proceeding in the nature of mandamus may be commenced by a taxpayer or person claiming title to the office pursuant to Article 78 of the Civil Practice Law and Rules, or an action in the nature of quo warranto may be initiated by the Attorney General pursuant to section 63-b of the Executive Law. The general rule appears to be that the former is appropriate where there are no unresolved questions of fact and no ambiguities in the statutory law invoked. Where there are unresolved questions of fact the proper procedure to try title to office is an action in the nature of quo warranto (Dykeman v. Symonds, 54 A.D.2d 159, 388 N.Y.S.2d 422 (4th Dept., 1976); Anderson v. Krupsak, 51 A.D.2d 229, 381 N.Y.S.2d 135 (3d Dept., 1976); Brescia v. Mugridge, 52 Misc.2d 859, 276 N.Y.S.2d 947 (S.Ct., Suffolk Co., 1967); Oakley v. Longobardi, 51 Misc.2d 427, 273 N.Y.S.2d 372 (S.Ct., Putnam Co., 1966); cf., Dekdebrun v. Hardt, 68 A.D.2d 241, 417 N.Y.S.2d 331 (4th Dept., 1979)).

In Holzberger v. Schoentag, supra, the court dismissed an Article 78 proceeding seeking the removal from office of a town supervisor (because he allegedly was not a resident of the town), on the ground that unresolved questions of fact were presented by the issue of whether the incumbent supervisor was an “elector” of the town. In Sylvester v. Mescall, 277 App.Div. 961, 99 N.Y.S.2d 948 (4th Dept., 1950), however, it was held that mandamus was proper to try title to office where former members of the Lackawanna Municipal Housing Authority failed to file their oaths of office as required by the Public Officers Law, because there were no questions of fact.

Thus, where issues are raised concerning the qualifications for office of current members of a board of assessment review, either a request should be made to the Attorney General’s office, for commencement of a quo warranto proceeding, or an Article 78 proceeding instituted.

October 9, 1981

NOTE: Revised August 11, 1983, to incorporate changes in statutory references made by Chapter 714 of the Laws of 1982, effective January 1, 1983.

Updated: