Property Rights Foundation of America®
Founded 1994

TOWARD FAIRNESS FOR PROPERTY OWNERS
Property Rights-Related Bills
in the
New York State Legislature
May 13, 2004

Note: Titles are meant to be descriptive, and may not be the precise titles of the bills.

  1. 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 land.
  2. 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 data.
  3. 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.
  4. 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.
  5. 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.
  6. 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 O'C. Little.
    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 court precedent.
  7. 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. Little.
    Importance to Private Property Rights: Converting this exemption to optional status is meant to strengthen the real property tax base of local communities.
  8. Working Forest Tax Exemption Reimbursement to Municipal Corporations for Lost Revenue from Exempt Private Forest Lands (S.1415)
    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. Bonacic.
    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.
  9. 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.
  10. 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 the award.
    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 or explanation.
  11. 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 rules.
    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.
  12. 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 designations.
  13. 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 be perpetual.
    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 individual expense.

- Carol W. LaGrasse, May 13, 2004

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