TOWARD FAIRNESS FOR PROPERTY OWNERS
Property Rights-Related Bills
New York State Legislature
May 13, 2004
Note: Titles are meant to be descriptive, and may not be
the precise titles of the bills.
- Wetlands Tax Abatement (S. 1243, A. 2736)
Brief Summary: Provides tax relief for owners of DEC-designated
freshwater wetlands. Local assessors would determine the amount
of the tax abatement in accordance with rules and regulations
of the State Office of Real Property Services, which would establish
a standard application form. State will reimburse localities
for the tax savings to landowners. Primary Sponsors: Senator
Owen H. Johnson; Assemblymen Robert G. Prentiss, Clifford W.
Crouch, James N. Tedisco, Robert A. Straniere.
Importance to Private Property Rights: There is no consistent
pattern of tax relief for owners of freshwater wetlands throughout
the state, with some assessors taking the land use restriction
because of wetland designation into account and others not. State
guidelines for local assessors are inadequate. As a result, property
owners generally pay taxes on wetlands even if the land cannot
legally be used for any practical purpose. This situation places
an additional burden on individual property owners to benefit
the public at large. As more landowners challenge local assessments
of wetlands, a burden has been placed on localities because the
State has not assumed the cost of this mandated restriction on
- Separate Assessment of Wetlands (A. 2811)
Brief Summary: This bill amends the Real Property Tax Law
and Small Claims rules to provide for a separate entry of wetland
assessment and to allow the appeal of assessment on wetland separately
from other assessments. It would allow the Small Claims Hearing
Officer to consolidate appeals of wetland assessment. Primary
Sponsor: Assemblyman Robert G. Prentiss.
Importance to Private Property Rights: The local assessor
may often not recognize the loss of market value that the property
owner suffers from wetlands designation. The bill allows separate
appeal of wetlands assessments and also allows this appeal to
proceed to the Small Claims Hearing Officer. The bill also has
the benefit of making possible the generation of wetlands valuation
data, which would make feasible the computation of fiscal impact
- Bill to Establish a Statute of Limitations for Violations
of the APA Act (S. 5678 & A. 911)
Brief Summary: The bill establishes a 10-year statute of
limitations on violations of the APA Act from the date of discovery
of the violation or from the date where, with reasonable diligence,
it should have been discovered. Primary Sponsors: Senator Elizabeth
O'C. Little, Assembly Member Teresa Sayward.
Amendment Needed: The bill should be amended to establish
a 10-year statute of limitations from the date when the violation
was set in place (e.g., from when the non-conforming structure
was built, etc.)
Importance to Private Property Rights: This reform is
strongly recommended. Because of the complexity, severity, and
continuing reinterpretation and toughening of interpretations
of the APA Act, violations are extremely commonplace. Property
owners live in insecurity. Most crimes have a statute of limitations,
which is a classical concept of justice. A statute of limitations
on the APA Act is desperately needed.
- Tax Exempt Reform Legislation - Require Annual Application
with Clear and Convincing Evidence for Non-Profit Exemption (S.1123)
Brief Summary: S. 1123 requires that the burden of annually
establishing the tax exemption be met yearly with clear and convincing
evidence. This is a narrower bill than S.1127. (See below.) Primary
Sponsors: Senators John J. Bonacic and Elizabeth O'C. Little.
Importance to Private Property Rights: This bill responds
to a need resulting from successful lawsuits by non-profit organizations
for exemption of vacant land. The memorandum of support states
that the New York State Court of Appeals, in Mohonk Trust
v. Board of Assessors of Town of Gardiner, 47 NY2d 476, 483
(1979), read the term "used exclusively" to mean "principal"
or "primary." "That ruling has led to a softening
of the statutorily spelled out standard and has diminished the
tax base of localities throughout the State," the memo states.
By making it clear that each acre of exempt property must be
in use a minimum of 120 days yearly, the legislation would undo
certain court precedents that are having a negative effect on
the tax base. The bill memo points out that seven of the State's
cities and twenty-three of the State's towns have tax bases that
were reduced by at least 50 percent as a result of tax-exempt
property in 2000.
- Tax Exempt Reform Legislation - Ensure that Tax Exempt
Properties Are used for Specified Exempt Purposes (S.1126)
Brief Summary: The bill would prohibit land-banking, by requiring
that, when an exempt organization purchases vacant land to develop,
the organization develop and implement plans to build on the
land within two years. Primary Sponsors: Senators John J. Bonacic
and Elizabeth O'C. Little.
Importance to Private Property Rights: Often tax exempt
organizations do not carry out the contemplated use for their
property for many years, while the tax exempt status of the land
burdens the local municipality. This legislation eliminates this
loophole to ensure that the lands being given the tax exemption
fulfill the public purpose of the tax exempt organization.
- Tax Exempt Reform Legislation - Require Stricter Standards
to Quality for Exemption and for Exempt Purpose (S.1127)
Brief Summary: This bill addresses the definitions and requirements
for tax-exempt status. It requires that the group's incorporation
limit the purposes of the group to tax-exempt purposes. It tightens
the requirement that the property be "used exclusively"
for the tax-exempt purpose, meaning that any other use would
subject that part of the property to taxation. It requires that
the property owner provide clear and convincing evidence that
each acre is actually used for tax-exempt purpose at least 120
days a year. Primary Sponsors: Senators John J. Bonacic and Elizabeth
Importance to Private Property Rights: This bill is complementary
to S. 1123, adding the "used exclusively" requirement
to the 120 days per year requirement. By strengthening the provisions
of S. 1123, this bill makes air-tight the overcoming of wrongful
- Tax Exempt Reform Legislation - To Provide Local Discretion
in Granting Exemptions (S. 1398)
Brief Summary: The bill restores discretion to localities
(which existed prior to 1972) in granting exemptions for certain
organizations, those devoted to the "moral or mental improvement
of men, women, or children." Currently, this category of
organizations is automatically entitled to the tax exemption.
Primary Sponsors: Senators John J. Bonacic and Elizabeth O'C.
Importance to Private Property Rights: Converting this
exemption to optional status is meant to strengthen the real
property tax base of local communities.
- Working Forest Tax Exemption Reimbursement to Municipal
Corporations for Lost Revenue from Exempt Private Forest Lands
Brief Summary: This bill, supported by Gov. Pataki, the forest
industry, and environmental groups, would provide for full state
reimbursement to local taxing jurisdictions for any tax revenue
losses brought about by 480 and 480a forest land tax reductions.
Primary Sponsors: Senators Elizabeth O'C. Little and John J.
Amendments to Beware of: Environmentalists have at various
times proposed a trade-off for a measure to require that hunting
cabins on forest industry lands be defined by a short seasonal
restriction. Another idea was that the reimbursement be paid
from snowmobile registration fees. The snowmobile registration
fees should be used to benefit snowmobilers and for enforcement
of snowmobile laws.
Importance to Private Property Rights: At present, the
reduction in taxes paid by forestry lands in the program shifts
to the remaining taxpayers in the local municipality. Since the
reduction is for the benefit of all the people of the State of
New York, the state-wide taxpayers should bear the burden, not
those of a particular municipality.
- Eminent Domain Notification Reform Bill
Current Bill: At posting-time, Assemblyman Richard L. Brodsky
and Senator Vincent L. Leibell have agreed on an excellent compromise
eminent domain notification bill that would use real property
tax assessment address lists to individually notify property
owners of impending eminent domain by mail.
History: Last year's version was A. 497-A, S. 5487, which
passed both Houses of the Legislature, but was vetoed by Governor
Pataki on the grounds that the notification requirements were
too expansive, would result in the need for individual title
searches, and therefore be a fiscal burden.
Brief Summary of Earlier Version: This bill was to reform
the eminent domain procedure law to require that written notice
of eminent domain condemnation be personally served or given
by certified mail to affected property owners ten to thirty days
prior to any required public hearing. It also required a written
synopsis of the determination and findings and other legal information
to be personally served or given by certified mail to property
owners. Primary Sponsors: Senators Vincent L. Leibell and Suzi
Oppenheimer, Assemblyman Richard L. Brodsky.
Disputed Provisions: Basing his objections on objections
of the Attorney General, Division of the Budget, Department of
Transportation, Metropolitan Transportation Authority, and Empire
State Development Corporation, Gov. Pataki stated that the definition
of "condemnees" includes "the holder of any rights,
title, interest, lien, charge or encumbrance in real property
subject to an acquisition or proposed acquisition," meaning
that the bill would require that the condemnor identify all such
persons who hold any interest, including tenants, licensees and
lienholders, and result in substantial costs and workloads, including
the cost of title searches.
Importance to Property Rights: Under New York law, for
all practical purposes, condemnees hear about the condemnation
of their property when it is too late to challenge the basis
of the condemnation. Only the price or a technical legal detail
of the procedure can be disputed. Property owners receive no
notice of the hearing where they could establish issues for court
challenges of the project. Dana Berliner, Senior Counsel of the
Institute for Justice in Washington, D.C., declared at the Property
Rights Foundation of America's Annual Conference that New York
is the worst state in the nation for eminent domain. A prime
reason is the failure to notify property owners until it is too
late to challenge the plans. The bill would correct this deficiency.
- Authority Reform Bill (A.9010C)
This bill passes the Assembly in 2003, but died in Senate. Amended,
it passed the Assembly again, and was referred to the Senate
in February 2004.
Brief Summary: The bill would reform public authorities
and public benefit corporations. It would establish the public
authorities inspector general and the public authorities independent
budget officer. It would establish central procurement offices,
amend the law in relation to disposition of property, and provide
for establish of the inspector general's and the budget office's
revenue accounts. Primary Sponsor: Assemblyman Richard L. Brodsky.
Importance to Private Property Rights: This bill would
provide for transparency and responsiveness for the many public
authorities and public benefit corporations in the state.
The New York State Canal Authority is an example of an inscrutable
authority. PRFA's request for fiscal information was simply denied.
Yet, the Canal authority is involved in far-reaching plans involving
private property from Albany to Buffalo and from Albany to Whitehall,
related to redevelopment of the canal, tourism development, a
National Park Service National Heritage Area, and a full-length
canalway trail. No oversight is made of how condemnation is threatened
and private land is invaded in elusive "partnerships"
among federal, state and local agencies. A recent scandal put
the Canal Corporation in the national eye, when a lone bidder
responding to an obscure notice was awarded the development rights
to the entire 500-plus mile Erie Canal for a mere $30,000. The
Comptroller of the State of New York had to step in to rescind
Another example where reform of an authority is needed is the
Board of the Hudson River-Black River Regulating District. Although
the statute provides that power generation companies and downstream
beneficiaries are to bear the entire cost of the Great Sacandaga
Lake (a reservoir) operation (including real estate taxes for
submerged land paid to localities), during 2003 the District
suddenly charged lake access permit holders for the real estate
taxes, greatly increasing their fees. A controversy erupted and
the Governor's Office of Regulatory Reform was directed to monitor
the District until the finances were put in order and the correct
billings to access permit holders restored. In addition, the
District has no central policy for awarding access permits. Individual
permit-holding property owners, whose real estate value is related
to the terms of the permits, sometimes find that their permits
will be modified by the District field office without warning
- Wetland Homeowner's Relief Act (A. 2812)
Brief Summary: This bill provides regulatory relief for homeowners
who have already built their homes inside or in proximity to
DEC-jurisdictional wetlands, while protecting the environment,
by providing a 50-foot buffer where regulations under the freshwater
wetlands law do not apply to home additions not exceeding 50%
of the floor area in existence when the bill is enacted and other
provisions. The bill adds certainty for landowners with respect
to the wetlands mapping and delineation process by requiring
that once DEC has issued wetlands maps for any given geographic
area, new maps cannot be issued without an enactment by the Legislature,
and by prohibiting DEC from delineating wetlands beyond the boundaries
of mapped wetlands shown on DEC's officially promulgated wetlands
maps. Primary Sponsor: Assemblyman Robert G. Prentiss.
Importance to Private Property Rights: This bill will
promote family security while balancing the need to protect the
environment. The bill will relieve homeowners from the burden
of applying for permits for use of land within 50 feet from the
periphery of their house and garage, and will assure that their
investment in their home will not be unjustly diminished by mapping
or delineating wetlands nearby or inclusive of their house, which
is the greatest investment that families make in their lifetime.
The bill would have little negative impact on wetlands because
it does not provide for the exemption of new homes from wetlands
Currently, landowners can lose much of the value of their property
when DEC enlarges designated wetlands by re-mapping or delineating.
The bill provides permanence to landowners by requiring legislative
approval for re-mapping once DEC has completed wetlands mapping
of an area and by prohibiting DEC from enlarging wetlands beyond
the delineations on its official wetlands maps.
- Citizens Wetlands Expertise Fund (A. 4230)
Brief Summary: This bill establishes a State fund to reimburse
needy property owners for the financial expense of hiring experts
to challenge the DEC's wetlands designations and delineations.
Primary Sponsors: Assemblymen Robert G. Prentiss, David R. Townsend,
James N. Tedisco, Pat M. Casale.
Importance to Private Property Rights: Property owners
claim that DEC is inflating the size of wetlands, but it is prohibitively
expensive for them to hire experts to challenge the DEC. This
bill would create a fund by which property owners would be reimbursed
for legitimate expenses affiliated with challenging wetlands
- Provide Just Compensation to Wetland Owners (A. 4231)
Brief Summary: Provides just compensation to private property
owners for loss of use of land as a result of DEC wetland designations
and encourages voluntary wetland protection. Amends Environmental
Conservation Law, Sec. 49-0305 to clarify that DEC shall justly
compensate landowners for wetland designations. This bill also
requires that the DEC issue regulations to that effect. The bill
establishes a deadline for the issuance of regulations required
under the Conservation Easement Law since 1984. Also adds a new
section for the State Uniform Wetlands Just Compensation /Tax
Abatement Board. Also amends Sec. 24-0905 to more fully describe
the system of cooperative agreements already provided for in
the law and require regulations for same. Primary Sponsor: Assemblymen
Robert G. Prentiss, James N. Tedisco, Clifford W. Crouch.
Amendment Needed: Conservation easements shall be restricted
to "term" easements of 20 years or less, rather than
Importance to Private Property Rights: The bill sets up
a methodology to set into motion a system of wetlands protection
through voluntary cooperative agreements and compensation through
conservation easements originally envisioned by the freshwater
wetlands law. This will help to relieve property owners from
the burden of protecting wetlands, a public benefit, at their
- Carol W. LaGrasse, May 13, 2004
© 2004 Property Rights Foundation of America
All rights reserved. This material may not be broadcast, published,
rewritten or redistributed without written permission.