Volume 6 - Opinions of Counsel SBEA No. 124
Special franchise assessment (privately owned broadcast tower located on town owned property) - Real Property Tax Law, § 102(17):
A privately owned broadcast tower located on town owned property is not tangible property of a special franchise within the meaning of subdivision 17 of section 102 of the Real Property Tax Law, but rather, is a structure within the meaning of subdivision 12(b) of that section, and therefore subject to assessment by the local assessor.
Pursuant to section 300 of the Real Property Tax Law, all real property located within New York State is subject to taxation unless specifically exempted therefrom by law. Paragraph (h) of subdivision 12 of section 102 of the Real Property Tax Law, includes in the definition of real property “[s]pecial franchises as defined in subdivision seventeen of this section.” The question is whether a privately-owned broadcasting tower located on town owned property should be classified as “special franchise” property for the purpose of real property taxation.
Subdivision 17 of section 102 of the Real Property Tax Law defines a special franchise in the following terms:
the franchise, right, authority or permission to construct, maintain or operate in, under, above, upon or through any public street, highway, water or other public place mains, pipes, tanks, conduits, wires or transformers, with their appurtenances, for conducting water, steam, light, power, electricity, gas or other substance. For purposes of assessment and taxation, a special franchise shall include the value of the tangible property situated in, under, above, upon or through any public street, highway, water or other public place in connection therewith, (emphasis supplied)
As is evident from the above quotation, special franchise property consists of two elements: the physical property located in the public way or public place, and the grant of a right to operate, construct or maintain the property. If either of these two elements is missing, there can be no special franchise (People ex rel. New York Cent. Co. v. State Tax Commission, 264 App. Div. 80, 35 N.Y.S.2d 77, mod. on other grounds, 292 N.Y. 130, 54 N.E.2d 332, mot. for rearg. den., 292 N.Y. 717, 56 N.E.2d 122). It is our opinion that the broadcasting tower in question was not constructed, and is not maintained or operated on a public place within the intendment of subdivision 17 of section 102 of the Real Property Tax Law. Therefore, the first essential element of a special franchise is absent in the present case.
A special franchise is a right to do something in a public street or other public place which, except for the grant under which it is exercised, would be a trespass (People ex rel. New York Cent. R. Co. v. Graves, 271 App.Div. 728, 68 N.Y.S.2d 677, aff’d, 305 N.Y. 613, 111 N.E.2d 733). The trespass is a trespass on the public’s right of way. A public place within the meaning of section 102 is a place the general populace has a right to use in a continuous and relatively unrestricted manner. Accordingly, section 102(17) of the Real Property Tax Law speaks of a public street, highway and water in conjunction with the words public place when defining a special franchise.
Apparently, the general public does not have. the right to an essentially unrestricted and continued use of the land upon which the broadcast tower is located. The land is mainly used as a raincatch for a reservoir. The fact that this land has been determined to be exempt as “held for a public use” within the meaning of section 406 (1) of the Real Property Tax Law does not mean that it is a “public place” within the meaning of section 102 (17). As explained, the latter statute has a far more restricted connotation.
In conclusion, it is our opinion that the broadcast tower is not special franchise property, but is rather a “structure” within the meaning of section 102(12) (b) and is, therefore, to be assessed locally by the appropriate assessor.
January 16, 1978