Volume 4 - Opinions of Counsel SBEA No. 20
Board of Assessment Review (composition) (increasing or decreasing number on board) - Real Property Tax Law, § 1524:
A town is authorized to increase membership on a board of assessment review to not more than five members and decrease membership to not less than three. To increase membership, the town board should make a new appointment in a year that no vacancy exists. To decrease membership, the town board should not fill vacancies which exist.
Our opinion has been requested as to whether a town, having appointed a five member board of assessment review, may thereafter decrease the number of such members from five to three.
Real Property Tax Law section 1524, contained in Article 15-A enacted by Chapter 957 of the Laws of 1970, requires the legislative body of a town to establish a board of assessment review to be composed as set forth therein. Pursuant to section 6 of Chapter 957, members of a board of assessment review are to be appointed in accordance with the provisions of section 1524 for terms commencing on October 1, 1971. The statutory provisions relevant to this inquiry are contained in subdivision 1 of section 1524 which provides, in part, as follows:
1. Composition; terms of office of members. In each local government there shall be a board of assessment review. Members shall be appointed by the legislative body of the local government and shall have a knowledge of property values in the local government.. . . The board of assessment review shall consist of not less than three nor more than five members. The terms of office of members of the board of review shall be five years. In the case of the first board appointed under the provisions of this article, however, the terms shall be of such length that not more than one will expire in each of the first five years after the members of such board are appointed.
Therefore, while required to establish boards of assessment review, the prescribed authority delegated is to appoint a board consisting of not less than three nor more than five members, each such member to be appointed for a five-year term, except that the terms of office of the members of the first board commencing on October 1, 1971 would be staggered so that not more than one term would expire in each of the first five years of existence of the board. Accordingly, a town may have a three, four or five member board of review, the composition of the board being determined by the number of members currently appointed. The statute is silent as to procedure for increasing membership from three or four to five members, and similarly for decreasing membership from five to three members, and, ostensibly, for allocating or adjusting the length of terms of remaining members if a change should be made. The obvious intent, however, appears to clearly authorize a town to increase membership from three to four or five members and, in the absence of limiting language, to decrease membership from five to three members.
The question then remains as to the procedure to be employed by a town board to reduce the number of members of a board of assessment review from five to three. Pursuant to section 1524 a town board is mandated to establish a board of assessment review and, having no discretion in the matter, the town may not abolish the board. Furthermore, in an unreported Supreme Court case in Suffolk County, it was held that members of a board of assessment review cannot be removed from office prior to the expiration of their term of office except for incompetency or misconduct shown after a hearing upon stated charges pursuant to section 75 of the Civil Service Law (Galli v. Barnett, 168 N.Y.L.J., No. 42, p. 17, col. 8 (8-30-72), aff’d, 42 App.Div.2d 840, 346 N.Y.S.2d 761, motion for lv. to app. den., 33 N.Y.2d 516, 348 N.Y.S.2d 1027).
Therefore, the only course of procedure open to a town to decrease the membership of a board of assessment review from five to three members would be to not appoint new members for two years. Thus, in the first year, membership would be reduced to four and in the following year to three. Of course, a town may be called upon to explain its action. A possible necessity for such move would be the inability of the town to obtain a qualified person to accept appointment. At any rate, it would appear that the action of the town board would be reviewable under an Article 78 proceeding (Seifried v. Town of Clarkstown, Rockland County, 23 App.Div.2d 795, 259 N.Y.S.2d 202). Similarly, in increasing the membership, a new appointment could be made in a year that no vacancy exists on the current board, and this procedure could be repeated in a subsequent year when there is no existing vacancy to bring the membership to the maximum five persons.
October 11, 1974
NOTE: This Opinion is superseded in part by Opinion 11-95.