Volume 10 - Opinions of Counsel SBRPS No. 1
Assessment review (filing fee for administrative complaint) - Municipal Home Rule Law, §§ 10, 33; Real Property Tax Law, §§ 524, 2006:
An assessing unit may not enact a local law requiring the payment of a fee for filing an administrative complaint with respect to an assessment of real property.
Our opinion has been requested as to the legality of a Nassau County ordinance (No. 50-1992), passed by the County Board of Supervisors on February 10, 1992, which requires payment of a $25 “administrative filing fee” to be submitted with each complaint with respect to a real property assessment made to the Nassau County Board of Assessment Review. In our opinion, the fee is not authorized and may not be imposed by local legislation.
To begin, we note that Article 9 of the State Constitution grants certain home rule powers to local governments. For example, section 2(c)(8) of Article 9 authorizes the adoption of local laws, not inconsistent with the State Constitution or State law, which pertain to the “levy, collection and administration of local taxes authorized by the legislature. . . .” Implementing the Constitution, section 10(1)(ii)(a)(8) of the Municipal Home Rule Law (MHRL) provides that a county, city, town or village may adopt local laws pertaining to “The levy and administration of local taxes authorized by the legislature. . . .” Similarly sections 32 and 33 of the MHRL authorize a county to adopt a county charter. Again, however, both the Constitution and the MHRL provide that the local laws may not be inconsistent with State law.
Nassau County has its own “County Government Law,” more commonly known as the County Charter (enacted L.1936, c.879). Section 103(5) thereof authorizes the Board of Supervisors to:
adopt, amend and repeal ordinances for the purpose of making effective any of the provisions of the act and to carry out all powers conferred upon the county or the board of supervisors by any other law, and provide for the enforcement thereof by appropriate penalties . . .
Section 6-11.0 of the Nassau County Administrative Code (L.1939, c.272) provides for the administrative review of assessments, and some of these provisions supersede State law. For example, the assessment calendar applicable in Nassau County differs from that in the Real Property Tax Law, a difference that is authorized in State Law (RPTL, § 2006; see also 9 Op.Counsel SBEA No. 53). We note, however, that the Code makes no provision for a filing fee, nor could it, unless authorized by State law.
This apparent inconsistency is explained by closer analysis of the RPTL. The generally applicable provisions for the administrative review of assessments are contained in RPTL, Article 5, Title 1-A (L.1982, c.714), which, like the Nassau County law, includes no filing fee provision. Significantly, section 528 of Title 1-A provides that the Title “shall apply to all counties except counties wholly within a city” (subd. 3) and, further, that no “charter law” as defined in MHRL, section 32, or local law shall be adopted which is inconsistent with the Title. {1} In our opinion, RPTL, section 528, clearly proscribes all local laws inconsistent with Title 1-A of Article 5 of the RPTL with respect to the administrative review of assessments. {2}
There remains the question of whether local legislation may be enacted in relation to a subject matter about which the State law is silent. This question turns on the principle of State preemption, which has been addressed in several related circumstances in recent years.
In 6 Op.Counsel SBEA No. 88, we concluded that a town could enact a local law to require a board of assessment review to advise complainants of the basis for the determination of their complaints. In that opinion, we analyzed the Constitution, the MHRL and the provisions of Article 15-A of the RPTL. We concluded that the notice requirement was not inconsistent with the then State law (RPTL, former § 1524) requiring notices of determination to be sent to complainants, and that it could further the process of assessment review. {3} In contrast, in 8 Op.Counsel SBEA No. 83, we concluded that it would be improper for a board of assessment review to adopt a policy requiring complainants to submit professional appraisals with complaints.
The distinction is readily apparent: in the former opinion we concluded that a municipality could require its board of assessment review to perform an additional act, thereby improving the assessment review process. In the latter opinion, the conclusion was that no requirement could be placed on a taxpayer seeking review when the board of assessment review had adequate means to gather necessary facts by other methods. Such a requirement would inhibit, not forward, the process of assessment review.
In the related activity of the preparation of assessments, the Court of Appeals has provided an extensive analysis of this principle. In 41 Kew Gardens Road Associates v. Tyburski, 70 N.Y.2d 325, 514 N.E.2d 1144, 520 N.Y.S.2d 544 (1987), the Court sustained New York City’s local law requiring the submission of income and expense statements by owners of income-producing properties. The Court’s rationale was that MHRL, section 10(1)(ii)(a), authorizes the enactment of local laws which are consistent with State law and that the law under review had a rational purpose in seeking information which would be significant in determining assessed values.
Thereafter, in 9 Op.Counsel SBEA No. 7, we concluded that other municipal corporations may also act pursuant to the MHRL to require submission of income and expense statements, because, as found in 41 Kew Gardens, this is a purpose rationally related to the determination of accurate assessments. We contrast the instant ordinance imposing a fee for filing an administrative complaint; there is no indication of any potential improvement in the determination of such complaints.
Nassau County did provide us with its justification for enactment of the fee. Principal reliance was placed upon the decision in Jewish Reconstructionist Synagogue v. Village of Roslyn Harbor, 40 N.Y.2d 158, 352 N.E.2d 115, 386 N.Y.S.2d 198 (1976), wherein the Court of Appeals upheld the power of a village to impose a fee for a zoning appeal. The County contended that this precedent and the County’s municipal home rule powers authorized the subject ordinance. We disagree.
There was no question in Roslyn Harbor that the Legislature had delegated to villages the power to administer zoning regulations (Village Law, Article 7). The instant situation is readily distinguishable because the Legislature has stated in RPTL, section 528, its intent to preempt local enactments with respect to administrative review of assessments. Further, as the Court of Appeals stated in Roslyn Harbor, “[A]n ordinance should be scrutinized more carefully for its inhibitions against the pursuit of a right as distinguished from a benefit” (40 N.Y.2d at 162, 386 N.Y.S.2d at 200). Obviously, the imposition of a complaint filing fee would inhibit some taxpayers from seeking assessment review.
Beyond inhibiting assessment challenges, the instant ordinance might also be viewed as a revenue generating scheme. The Court of Appeals has struck down a local law imposing a “traffic impact fee,” finding that State law with respect to town budgets for highway maintenance and improvements preempts local laws in this regard and that this is an improper method to raise revenue (Albany Area Builders Association v. Town of Guilderland, 74 N.Y.2d 372, 546 N.E.2d 900, 547 N.Y.S.2d 627 (1989)).
Finally, we note that where the Legislature intended that a fee be required for review of an assessment, it has provided a fee in State law. Section 730 requires a (possibly refundable) $25 filing fee for small claims (i.e., judicial) assessment review petitions. To date, the Legislature has not seen fit to impose a similar fee for administrative assessment review. Unless and until it does so, local governments subject to section 528 of the RPTL may not do so on their own. Accordingly, we believe that Nassau County acted beyond its authority in enacting Ordinance No. 50-1992.
April 14, 1992
Revised May 1994
Reissued May 1995
NOTE: Subsequent to the date when this Opinion was provided in letter form, the issue was considered in Supreme Court, Nassau County, in A and H and M Realty, et al. v. Board of Supervisors, Index No. 6118/92, McGinity, J., 4/24/92, wherein the court found that RPTL, section 528, preempted any local law in this regard. No appeal was taken.
{1} We note, in passing, that the assessment calendar is set forth in Title 1 of Article 5, not Title 1-A, hence the aforementioned conclusion that local calendars may differ (but see, Friendly Ice Cream Corp. v. Tompkins County, 159 Misc.2d 779, 606 N.Y.S.2d 568 (Sup.Ct., Tompkins Co., 1993)).
{2} Section 559 of RPTL, Article 5, title 3, contains a similar provision preempting local enactments with respect to the process of administrative correction of errors (see, Atria Associates v. County of Nassau, 181 A.D.2d 847, 582 N.Y.S.2d 439 (2d Dept., 1992)).
{3} This provision of former section 1524 of the RPTL was later recodified in section 525 of the law (L.1982, c.714). In 1991, chapter 662 amended RPTL, section 525, to require all boards of assessment review to provide such information.
