Volume 7 - Opinions of Counsel SBEA No. 83
Board of Assessment Review (powers and duties) (reduction below amount requested) - Real Property Tax Law, Article 7; §§ 733, 1524:
A board of assessment review may not reduce an assessment to an amount less than that requested in a complaint, notwithstanding the authority of a court to do so under appropriate circumstances.
We have been asked whether a board of assessment review may reduce the assessed value of a complainant’s property to an amount lower than the amount requested in the EA-512 grievance form filed with the board. While we have considered this question before (2 Op. Counsel SBEA No. 99) it arises again because of the decision of the Court of Appeals in W. T. Grant Co. v. Srogi, 52 N.Y.2d 496, 420 N.E.2d 953, 438 N.Y.S.2d 761 (1981).
Prior to 1971, review of assessments was the responsibility of the board of assessors. However, with the enactment of the Assessment Improvement Law (L.1970, c.957), the review function was transferred to a new board of assessment review, comprised of appointees who are neither assessors nor members of the assessor’s staff (Real Property Tax Law, § 1524(1)). The statutory duty of the board of assessment review is to “determine the final assessment of the real property of each complainant” (RPTL, §1524(2)(c)). In contrast to the trial de novo nature of the tax certiorari proceeding (RPTL, Art. 7), the board of assessment review conducts an administrative proceeding “designed to ensure the accuracy of the assessment and not designed to be an adversary proceeding” (Jakubovitz v. Dworschak, 67 A.D.2d 977, 413 N.Y.S.2d 444, at 445 (2d Dept., 1979)).
We believe that there are fundamental differences between administrative review hearings under Article 15-A and judicial proceedings under Article 7. The board of assessment review has been characterized as a “quasi-judicial” body charged with the responsibility of “coming to a fair judgment” (700 Shore Road Association v. Board of Assessment Review, etc., 70 Misc.2d 822, 335 N.Y.S.2d 114, at 117 (S.Ct., Nassau Co., 1972)). There is no specific grant of authority to the board of assessment review to amend the complaints presented to it in review proceedings. Moreover, as the court suggested in the Jakubovitz case, the administrative review of an assessment is not an adversarial proceeding; for example, there is no right to cross-examine witnesses nor do the formal rules of evidence apply.
In 1973, in discussing the board of assessment review’s authority to change tentative assessments, we stated:
[There] is clear authority for the board of review to reduce an assessment. The sole limitation as to the amount of any such reduction is that the final assessment may not be less than that which the petitioning property owner has requested in his complaint (People ex rel. Interstate Land Holding Co. v. Purdy, 206 App.Div. 606, 198 N.Y.S. 940, aff’d, 236 N.Y. 609, 142 N.E. 303). (2 Op.Counsel SBEA No. 99).
In W. T. Grant Co., supra, the Court of Appeals reversed the longstanding Purdy rule that in certiorari proceedings a court could not reduce the assessed valuation of property below the amount claimed in the petitioner’s application. In W. T. Grant, the Court held that “where the evidence establishes a value lower than that alleged in the petition, a court can reform the petition to conform with the proof and order the appropriate reduction” (52 N.Y.2d, at 513, 438 N.Y.S.2d, at 769). The Court stated that the remedial nature of the assessment review proceeding should not be thwarted by a “pleading technicality” (id.). That is, a municipality, having been given adequate notice of the certiorari proceeding through the petition commencing it, would not be prejudiced if the court reduced the assessment below that requested in the petition. The Court found this to be consistent with the constitutional provision that assessments may not exceed full value (N.Y. Const., Article XVI, § 2). In a footnote to the decision, the Court said, “we merely hold that, under the facts of this case, the reformation of the petition to conform with the proof was a remedy which was within the court’s power to grant and which was not affected by any error of law” (438 N.Y.S.2d, at 769).
Less than seven months after the W.T. Grant decision. Chapter 1022 of the Laws of 1981 added a new title 1-A to Article 7 of the Real Property Tax Law (i.e., §§ 730-738), providing a special proceeding for small claims assessment review. Judicial review pursuant to this alternative procedure is the responsibility of a hearing officer appointed by the Chief Administrative Judge of the Office of Court Administration. The qualifications for appointment as a small claims hearing officer are more stringent than those for a board of assessment review member. Section 731 provides that a person appointed a hearing officer must be “qualified by training, interest, experience, temperament and knowledge of real property assessment valuation practices and provisions of state and local law governing the making of assessments. . . .” In contrast, the qualification for appointment to the board of assessment review is “a knowledge of property values in the local government” (§ 1524(1)(a)).
It is significant that section 733(1) of the Real Property Tax Law specifically provides that the small claims hearing officer may not reduce an assessment to an amount less than that requested by the complainant-taxpayer. It would seem incongruous to conclude that in reducing assessments, a board of assessment review may go beyond the reduction sought, but that a small claims hearing officer, who hears appeals from board of assessment review determinations, may not do so.
Given the Court of Appeals’ statement in the W. T. Grant footnote (quoted above) that its holding was based on the particular facts in that case, the differences between board of assessment review hearings and judicial proceedings, and the subsequent enactment of the new small claims hearing procedure, it is our opinion that the W. T. Grant case should not be read as also empowering boards of assessment review to grant assessment reductions in excess of amounts claimed in the petitions they receive from taxpayers. Notwithstanding the overruling of the Purdy case, our conclusion, as to the authority of the board of assessment review, remains as stated in 2 Op.Counsel SBEA No. 99, that is, a board of assessment review may not reduce an assessment to an amount less than that requested in the complaint presented to the board.
August 20, 1982