Volume 7 - Opinions of Counsel SBEA No. 89
Equalization rates (county rates) (clerical errors) (local laws) - Municipal Home Rule Law, § 3; Real Property Tax Law, § 808; Westchester County Administrative Code, § 122.81:
A county legislature may adopt a local law limiting the category of “clerical errors” in county equalization rates, notwithstanding the provisions of section 808 of the Real Property Tax Law.
Our opinion has been requested on a proposed local law which would amend the Westchester County Charter in regard to corrections of “clerical errors” in the apportionment of county taxes.
Since 1979, the County Charter has required the Westchester County Tax Commission to “adopt the latest available State equalization rates for the purpose of ascertaining the valuation of property in each tax district” (§ 122.61, as amended by L.L.No. 3-1979). A previous section of the Westchester County Tax Act had provided that equalization rates to be used for the apportionment of multijurisdictional taxes within the County were to be those “fixed by the county board for the assessment roll upon which such tax is to be extended” (former § 540; now § 283.81).
By Local Law, the County Legislature added a section to its Tax Act to provide for correction of clerical errors in county equalization. The language in that section is not substantially different from comparable provisions of section 808 of the Real Property Tax Law.
The proposal in question would limit the class of correctible clerical errors under the County Charter to those made by the Tax Commission itself; in other words, clerical errors made by the State Board in determining the rates which are subsequently adopted by the Tax Commission would not fall within this category.
First, it seems clear that in the absence of this amendment, a clerical error made by the State Board in the determination of an equalization rate subsequently adopted by the County for its own purposes would be a correctible clerical error under either section 808 of the Real Property Tax Law or the current provisions of the County Charter. At least one court has so held. In Town of Oxford v. Chenango County Board of Supervisors, 23 A.D.2d 951, 260 N.Y.S.2d 59 (3d Dept., 1965), the amount of assessed value attributable to veterans exemptions (RPTL, § 458) within the Town was improperly deducted twice from the total taxable real property for the purpose of tax apportionments. The County, without further investigation, adopted the equalization rates subsequently calculated by the State Board and used them as its own for County tax apportionment purposes. The court stated as follows:
[It] is evident that, in legal and practical effect, the county equalization agency, in adopting the State agency’s computations, adopted the error underlying them. . . .
It seems equally apparent that if the County agency adopted the State’s figure, without independent consideration, it made the error its own; and the result is no different, and is, perhaps, even more strongly demanded, if full credence be given the County’s assertion that, technically, it establishes its own equalization rates, since there is, of course, no claim that the repetitive error resulted from the exercise of any judgment or consideration by the County. (260 N.Y.S.2d, at 61).
Assuming the court to have been correct in construing the language of the Real Property Tax Law, we believe a similar result would be reached under the present provisions of the County Charter.
However, local governments, in varying degrees, have been given the authority to adopt local laws for a variety of purposes (see, e.g., Municipal Home Rule Law, § 10). For example, section 299.51 of the Westchester County Administrative Code provides that the enactment of that Code “shall not operate to deprive the County Board of the power to enact local laws in relation to any matter in respect to which such power would otherwise exist, nor shall it limit such power”. Accordingly, if the Westchester County Legislature is otherwise vested with authority to adopt a certain type of local law, the State Legislature’s enactment of the County Administrative Code and County Charter does not limit that authority.
Section 33 of the Municipal Home Rule Law authorizes the adoption, amendment and repeal of county charters. Paragraph c of subdivision 3 of that section mandates that a county charter provide for “the equalization of real property taxes consistent with standards prescribed by the legislature”. In the case of Heimbach v. Mills, 67 A.D.2d 731, 412 N.Y.S.2d 668 (2d Dept., 1979), the Appellate Division, Second Department, considered this requirement and found it to be far less restrictive than other provisions of the Municipal Home Rule Law. To contrast, the court cited section 10, subdivision 1, paragraph a(9), which permits counties to adopt local laws relative to the collection of local taxes, but requires those local laws to “be consistent with laws enacted by the legislature”.
In the Heimbach case. Orange County had amended its charter to vest the power to fix equalization rates for county tax apportionment in the county executive, rather than the county legislature as otherwise provided in Article 8 of the Real Property Tax Law. The court stated, “the restrictions on the power to adopt charters contained in subdivision 1 of section 33 (restrictions found ‘in the Constitution, in this article or in any other applicable law’), do not encompass a requirement of consistency with general law, or with sections 800, 802 and 804 of the Real Property Tax Law, in particular” (412 N.Y.S.2d, at 670). The court concluded that this County Charter need only be consistent with “standards” prescribed by the Legislature and found that the assignment of the equalization determination to one person or another was not a standard but “rather, a procedural matter” (id.). It added that “consistency with prescribed standards, therefore, simply requires that the county/allow the substantive formula set forth in the Real Property Tax Law in determining the equalization rates” (412 N.Y.S.2d, at 671 (emphasis added)).
That being the case, it is our opinion that provision for correction of clerical errors in county tax apportionment would be a matter well within the jurisdiction of a county legislature to act. We do not believe that correction of clerical errors is a “standard” within the meaning of section 33, subdivision 3, of the Municipal Home Rule Law.
This does not end the matter, however. Cities and towns in a county may yet preserve their right to administrative review and correction of a clerical error made by the State Board as provided in sections 816 and 820 of the Real Property Tax Law. That is, a municipality would have to file a complaint within 30 days from the date of the county’s resolution adopting equalization rates for tax apportionment purposes (§ 816), the State Board would be required to review what would, in effect, be its own equalization process (§ 818) and make a determination as to whether “such equalization is fair and equitable and if not what corrections should be made” (§ 818). If an error was discovered, correction would be made as with any other error corrected under Article 8 in the manner provided in section 820 of the Real Property Tax Law.
Accordingly, it is our opinion that the Westchester County Legislature may adopt the proposed local law, notwithstanding the provisions of section 808 of the Real Property Tax Law. The tune for seeking review of the State Board’s clerical errors would thereby be reduced from two years to thirty days, and cities and towns in the County would be compelled to pursue their remedy by means of the formal hearing procedure set forth in section 816, rather than the informal, undefined procedures of the current section of the Westchester County Charter.
June 1, 1981