Volume 7 - Opinions of Counsel SBEA No. 43
Assessment review (grievance day - repeal of city charter provision) – Municipal Home Rule Law, § 24; Real Property Tax Law, §§ 506, 2006, 2016:
A city charter provision which fixes a date for administrative review of assessment complaints, which was in effect at the time of the codification of the Real Property Tax Law, remains in full force and effect until and unless otherwise amended, repealed or affected.
References in city charters to former provisions of the Tax Law which have been superceded by the Real Property Tax Law are deemed to refer to the corresponding provisions of the Real Property Tax Law, as re-enacted, modified or amended.
A local law repealing a city charter provision which sets forth the date for the administrative hearing of complaints regarding assessments, would not be subject to permissive referendum.
We have been asked to explain the effect of a repeal by local law, of a provision of section 52 of the Charter of the City of Poughkeepsie which provides for the administrative review of assessments on the first Tuesday of every September. We have also been asked whether this local law would be subject to a permissive referendum pursuant to section 24 of the Municipal Home Rule Law.
Section 506 of the Real Property Tax Law provides that the assessors “of each city and town” must complete a tentative assessment roll on or before June 1 (subd. 1) and that the board of assessment review will meet to hear complaints in relation to assessments “on the third Tuesday of June”. While this section speaks in terms of universal application, it – and the entire Real Property Tax Law – is limited by the provisions of section 2006 (formerly §1606, as renumbered by L.1973, c.39, §2). Section 2006 provides that:
[The Real Property Tax Law]...shall not be deemed to repeal or otherwise affect the provisions of any...city...charter..., 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of the legislature that the same shall continue in full force and effect until and unless otherwise duly amended, repealed or affected. (Emphasis added).
At the time of the codification of the Real Property Tax Law (L.1958, c.959), section 52 of the Charter of the City of Poughkeepsie provided, as it does now, for administrative review of assessments to be held “...on the first Tuesday in September of each year, and the next succeeding day...”. Thus, the time for the meeting of the City of Poughkeepsie’s board of assessment review has been and will be governed by the City Charter provisions, and not section 506, “until and unless” the Charter provisions are “duly amended, repealed or affected”. However, a repeal of the provision of the City Charter prescribing the time for administrative review of assessment complaints would have the effect of making the related timing requirements of section 506 of the Real Property Tax Law applicable to the City of Poughkeepsie.
We believe, however, that the far preferable legislative method would be to amend the City Charter to specify the third Tuesday in June as the date on which the board of assessment review will convene to hear complaints in regard to assessments. Failure to do so may result in confusion as to when this review will be available. Similar confusion has apparently arisen in regard to the City’s taxable status date and the date by which the assessors must complete the tentative assessment roll, for this very same reason.
Section 52 of the City’s Charter provides generally that the City assessor has all the powers and duties of town assessors “under and in pursuance of the tax law”. This section further provides “[t]he notice required by the twenty-fifth section of said tax law shall be given as provided by said section...”. The notice referred to was that of the completion and filing of the tentative assessment roll.
Former section 25 of the Tax Law required assessors to complete the tentative assessment roll “on or before the twenty-fourth day of June” and to “forthwith cause a notice [thereof]” to be made. That section was repealed at the time of the codification of the Real Property Tax Law in 1958, but substantially reenacted as section 506 thereof. In 1962 (L.1962, c.804), section 506 was amended to require the filing of the tentative assessment roll on June 1.
According to information provided to us, the assessor’s office in the City of Poughkeepsie has continued to observe June 24 at the date required by law for the filing of the tentative assessment roll because of the City Charter’s reference to former section 25 of the Tax Law. However, subdivision 2 of section 2016 of the Real Property Tax Law provides that:
[r]eference in any...city...charter...to any provision of the tax law...repealed by this charter..., shall be deemed and construed to refer to the corresponding provision of the real property tax law, as reenacted, codified, modified or amended by this chapter. (Emphasis added).
Thus, by fixing its time requirements simply by reference to general provisions of the old Tax Law, rather than specifying the appropriate dates in its own Charter, the City left its assessment calendar contingent upon the assessment calendar established and subsequently amended by the State Legislature in the successor statute, the Real Property Tax Law. Since the superceding provisions of the Real Property Tax Law have been amended since the repeal of section 25 of the Tax Law, the City assessor should prepare and file a tentative assessment roll each year on or before the date set forth in the Real Property Tax Law (June 1).
In any event, if the City Charter is amended so that “grievance day” is held on the third Tuesday in June, the tentative assessment roll would have to be filed before that date (and, therefore, before June 24), in order to allow for the public inspection of the assessment roll which has so long been held essential to a valid assessment and tax on real property (see, e.g., Wheeler v. Mills, 40 Barb. 644 (S.Ct., Orange Co., 1863)).
We have also been asked whether the proposed repeal would be subject to a permissive referendum. Paragraph (c) of subdivision 2 of section 24 of the Municipal Home Rule Law provides that a local law is subject to such a referendum if it “changes a provision of law relating to assessments”.
The only reported case to construe section 24(2) is Archer v. Town of North Greenbush, 105 Misc.2d 60, 431 N.Y.S.2d 644 (S.Ct., Rensselaer Co., 1980), mod., 80 A.D.2d 361, 439 N.Y.S.2d 729 (3d Dept., 1981). At the trial of the matter, the court concluded that a local law to “hold harmless”, from tax share increases, veterans owning property exempted from taxation pursuant to section 458 of the Real Property Tax Law, was not subject to the provisions of section 24(2)(c) “because it does not change the procedure or manner of assessment” (431 N.Y.S.2d at 646).
On appeal, this finding was affirmed, the Third Department relying on an earlier decision construing a comparable provision of the former City Home Rule Law. Citing Matter of Yaras, 283 App.Div. 214, 126 N.Y.S.2d 733 (3d Dept., 1953), aff’d, 308 N.Y. 864, 126 N.E.2d 306 (1955), the court noted that “in an analogous situation this court interpreted the word ‘changes’ as referring to an amendment which substitutes one form of local procedure for another from [sic] of local procedure” (439 N.Y.S.2d at 731).
In the case of Matter of Yaras, supra, one of the issues was the meaning of a section of the City Home Rule Law which made a local law subject to referendum if it changed “a provision of law relating to...the exercise of the power of condemnation”. In that case, the City of Albany had adopted a local law to repeal provisions of the City Charter which vested exclusive jurisdiction of condemnation proceedings in the Supreme Court. As a result of that repeal, condemnation proceedings within the City would become subject to the statewide Condemnation Law, which vested jurisdiction in the county courts.
Although the court in Yaras ultimately concluded that it need not decide whether a permissive referendum was available under those circumstances, it indicated that “the provision for a referendum does not apply to a case of a total repeal of the local provision, leaving in operation only a statewide statute on the subject” (126 N.Y.S.2d at 741). Clearly, if this dictum is sound, it would resolve the question presented here. Since the repeal of the provision in section 52 of the City of Poughkeepsie’s Charter would “leave in operation only a statewide statute [Real Property Tax Law, §506] on the subject”, no permissive referendum would lie.
Beyond the dictum in Yaras, however, the judicial construction of section 24(2)(c) in the Archer case, supra, leads us to the conclusion that the proposed local law would not be subject to a permissive referendum. In our opinion, the repeal would not, in the terms of the Archer case, “substitute one form of local procedure for another form of local procedure” and, therefore, section 24(2)(c) would not apply.
August 24, 1979
Revised November 1981