Volume 8 - Opinions of Counsel SBEA No. 39
Alternative veterans exemption (local law) (rescission) - Real Property Tax Law, § 458-a:
A municipal corporation which timely adopts a local law to not grant the alternative veterans exemption may rescind that local law and thereafter grant the exemption as provided in section 458-a.
We have been asked whether a municipality that “opts out” of alternative veterans exemption may later rescind its local law and thereafter grant the exemption.
Section 458-a(4) authorizes a county, city, town or village to adopt a local law providing that no alternative veterans exemption will be granted for purposes of taxes levied by or on behalf of such county, city, town or village, provided that such local law adopted no later than 90 days prior to such municipality’s first taxable status date occurring on or after December 31, 1984. For so-called “June villages” (i.e., those villages having a fiscal year commencing June 1), the first such taxable status date will be January 1, 1985 (see, RPTL, § 1400).
It is well established principle that included within the power of the Legislature is the power to repeal existing laws, unless restricted by the Constitution (McKinney’s Statutes, § 2; Farrington Pinckney, 1 N.Y.2d 74, 133 N.E.2d 817, 150 N.Y.S.2d 585 1956)). Thus, no session of the Legislature can bind its successors (People ex rel. Schaap v. Martin, 6 N.Y.2d 371, 160 N.E.2d 637, 189 N.Y.S.2d 884 (1959)). Similarly, a city council (and by analogy, counties, towns and villages) may repeal a local law by a subsequently enacted local law (LaCagnina v. City of Schenectady, 70 A.D.2d 761, 416 N.Y.S.2d 873 (3d Dept. 1979); see also, McQuillan, Municipal Corporations (3d Ed.) Vol. 6, § 21-10).
As to the real property tax, the Attorney General has concluded that a municipality may repeal its local law reducing the business investment exemption (RPTL, § 485-b). The Attorney General stated, “The statute establishes a state-wide exemption from taxation with a local option to reduce the percentage of the exemption available, and it would therefore follow that a municipality may repeal a local law limiting the state statute so that the municipality would then be fully adopting the statute” (1977, Op.Atty.Gen. 96, 98). The option not to grant the alternative veterans exemption is clearly analogous to the option to reduce the business investment exemption.
The issue is not altogether free from doubt, however. The same section of the McQuillan treatise, cited above, states an exception to the general power to repeal. “There is no implication of power to repeal, however, where an ordinance has been enacted under a narrow, limited grant of authority to do a single designated thing in the manner and at the time prescribed by the Legislature, which excludes the implication that the legislative body . . . is given any further jurisdiction over the subject than to do the lone act.” In New York State Employees’ Retirement System v. Board of Supervisors of Tioga County, 157 Misc. 87, 283 N.Y.S. 405 (Sup.Ct., Tioga Co., 1935), aff’d, 251 App.Div. l98, 296 N.Y.S. 286 (3d Dept., 1937), aff’d 278 N.Y. 496, 15 N.E.2d 434 (1938), the court held that once a county board of supervisors had opted into the State retirement system, it could not rescind its action. The court looked to the intent of the Legislature to create a permanent retirement system, and noted that if a municipality had the power it might “repeatedly elect to come in or withdraw” (283 N.Y.S. at 408).
Although it could be argued that the Legislature has given each municipality a “narrow limited point of authority to do a single thing in the manner and at the time prescribed” (i.e., opt out of § 458-a by a local law before a specified date), here the clear Legislative intent is in favor of the general adoption of the new exemption. If a municipality rescinded its local law to opt out of the exemption, it would presumably do so at a time when it could have no longer exercised its option to not grant the exemption; hence the possibility of repeated elections “to come in or withdraw” is not present here.
Accordingly, based on the foregoing analysis, it is our opinion that a municipal corporation that timely adopts a local law to not grant the alternative veterans exemption may later rescind that local law and thereafter grant the exemption as provided in section 458-a of the RPTL.
September 28, 1984
NOTE: Section 5 of Chapter 899 of the Laws of 1985 added language to section 458-a(4) that effectively codifies this Opinion.