Volume 1 - Opinions of Counsel SBEA No. 42
Sole assessor; independent board of review (appointment by village) - Municipal Home Rule Law, § 10(1); Real Property Tax Law, § 1408:
A village is empowered to adopt a local law providing for appointment of a single assessor for a six-year term. The board of assessment review, however, must be composed as provided by section 1408 of the Real Property Tax Law.
Our opinion has been requested as to whether a village, pursuant to the authority of the Municipal Home Rule Law, is empowered to adopt local laws to provide for the appointment of a sole assessor for a six-year term and for the appointment of an independent board of review.
The Municipal Home Rule Law enumerates general grants of powers of local governments (which include counties, cities, towns and villages) and enumerates grants of specified powers of the various categories of local governments.
Under the provisions of this statute, every local government has the power to adopt local laws which relate to its property, affairs or government, provided that the local laws are not inconsistent with a general statute or the State Constitution.
Every local government may also adopt local laws which relate to matters specified in subdivision 1 of section 10 of the Municipal Home Rule Law, even though they do not pertain to its property, affairs or government, provided that the local laws are not inconsistent with a general statute or the Constitution. One of the matters so specified is the general power of local governments to adopt local laws relating to “[t]he powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, hours of work, protection, welfare and safety of its officers and employees . . .” (Municipal Home Rule Law, section 10, subdivision 1, paragraph a, subparagraph (1)).
A further provision in the Municipal Home Rule Law relates specifically to home rule powers of villages as follows:
“The amendment or supersession in its application to it, of any provision of the village law relating to the property, affairs or government of the village or to other matters in relation to which and to the extent to which it is authorized to adopt local laws by this section, notwithstanding that such provision is a general law, unless the legislature expressly shall have prohibited the adoption of such a local law.” (Municipal Home Rule Law, section 10, subdivision 1, paragraph e, subparagraph (3))
It is our opinion, therefore, that notwithstanding the provisions of the Village Law relating to appointment of assessors, a village is empowered to adopt a local law providing for appointment of a single assessor for a six-year term.
The second part of the question, that is, whether a village is empowered to adopt a local law providing for an independent board of assessment review (patterned after section 1524 of the Real Property Tax Law), must be considered in terms of the following provision of the Municipal Home Rule Law concerning village powers to adopt local laws relating to correction of assessments:
“The preparation, making, confirmation and correction of assessments of real property and the review of such assessments subject to further review by the courts as provided by law, consistent with laws enacted by the legislature.” (emphasis supplied) (Municipal Home Rule Law, section 10, subdivision 1, paragraph e, subparagraph (1))
It should be noted that the provision granting home rule powers to a village to adopt local laws relating to correction of assessments has a condition included in the grant; that is, that the local laws be consistent with “laws enacted by the legislature”. This, of course, is narrower than a condition that the local law is not inconsistent with any “general law” as that term is defined in the Municipal Home Rule Law.
Subdivision 1 of section 1408 of the Real Property Tax Law provides as follows:
“1. At the time and place and during the hours specified in the notice given pursuant to section fourteen hundred six of this chapter, the board of review shall meet to hear complaints in relation to assessments brought before it. The board of trustees and assessors, or a committee of such board constituting at least a majority thereof and the assessors, shall constitute the board of review.”
An argument could be made that section 10, subdivision 1, paragraph e, subparagraph (1) of the Municipal Home Rule Law does not apply with respect to the composition of the board or body preparing, confirming and correcting real property assessments and further, that the powers of municipal governments to adopt local laws relating to the mode of selection, qualifications, terms of office, etc. of municipal officers as provided in subparagraph (1) of paragraph a of that section would include boards of assessment review.
However, we are inclined toward the construction that local laws relating to review of assessments, including the board or body authorized to review assessments, must be consistent with state laws, and that a local law cannot supersede the provisions of section 1408 of the Real Property Tax Law. The review procedure is a vital and integral part of the taxing process, and in view of the questionable authority of a village to deviate from the provisions of section 1408 of the Real Property Tax Law, it would be ill-advised to appoint an independent board of review until the law is amended to provide therefor.
Accordingly, it is concluded that, in the absence of an enactment by the State Legislature, the board of assessment review in a village must be composed as provided by section 1408 of the Real Property Tax Law.
January 31, 1972