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Volume 7 - Opinions of Counsel SBEA No. 26

Opinions of Counsel index

Taxes (delinquent) (notice requirement – amendment of city charter by local law) – Municipal Home Rule Law, § 10; Real Property Tax Law, §§ 1002, 1060:

A city may adopt a local law amending the notice of tax sale provisions contained in its charter, although the charter provisions were established by special act of the Legislature. The amended provisions need not precisely parallel the corresponding notice provisions of Article 10 of the Real Property Tax Law.

We have been asked whether the City of Newburgh has the authority, under section 10 of the Municipal Home Rule Law, to enact a local law which would reduce the notice requirements for city tax lien sales. The present requirement of the City Charter, which is derived from Chapter 590 of the Laws of 1917, is that the City publish a notice of tax sale in one newspaper once in each of the two weeks immediately preceding the sale. The contemplated local law would amend the Charter so as to require only one publication in the two weeks preceding the sale.

We believe that the question of the validity of the proposed local law is controlled by Sonmax, Inc. v. City of New York, 43 N.Y.2d 253, 372 N.E.2d 9, 401 N.Y.S.2d 173 (1977). In Sonmax, New York City had adopted a local law amending the in rem tax foreclosure procedure that had been established for the City by special act of the Legislature. The provisions amended shortened the time period required before the institution of foreclosure proceedings. The Court of Appeals held that “the requirement [of section 10 of the Municipal Home Rule Law] that local laws relating to the levy and administration of local taxes authorized by the Legislature be consistent with laws enacted by the Legislature is imposed only on counties, towns and villages, not on cities” (43 N.Y.2d at 257). Turning aside the contention that the local law enacted by the City was unconstitutional because it was inconsistent with Title 3 of Article 11 of the Real Property Tax Law, the Court stated:

[T]he enactment of a special localized in rem tax foreclosure procedure, whether its detailed provisions deviate from those of the State statute in little or greater degree, is entirely consistent with the design and pattern of the statute establishing the State-wide foreclosure procedure. . .. Petitioners appear to have been diverted by the false assumption that lack of uniformity (i.e., the failure of the procedural details of the city’s title D precisely to parallel those of the optional State statute) is the same as inconsistency or contradiction. It is not. (Id., at 258 (emphasis in original)).

We see no inconsistency between the Real Property Tax Law and the proposed local law to amend the Newburgh City Charter. The notice provisions of section 1002 apply only to counties. Section 1060 of the Real Property Tax Law provides that cities may enact local laws prescribing the terms and conditions of sales of tax liens (id., subdivision 1), and that such laws shall contain such provisions “as may be necessary effectively to provide for a means of sale of the right to receive taxes” (id., subdivision 2).

Accordingly, it is our opinion that the City of Newburgh has the authority under State law to enact the local law described.

March 4, 1981

Updated: