JUDICIAL REVIEW 

Only after administrative remedies have been exhausted may unsatisfied petitioners seek judicial review. Those who have exhausted the administrative process and not found satisfactory relief have two viable legal-options to pursue a reduction in their tax assessment: (i) a statutory, administrative small-claims process; and (ii) a formal property tax certiorari litigation. We describe the judicial review available below. 

 

SMALL CLAIMS ASSESSMENT REVIEW

In 1982, the NY Legislature enacted a more-streamlined Small Claims Assessment Review (SCAR) program to enable homeowners of 1, 2 and 3 family structures an informal alternative to a Tax Certiorari Proceeding. The statute provides for timely review, in an informal small claims setting, of a prior administrative determination.

This procedure is not available to all property owners, but is available when a 1, 2, or 3 family property is used for residential purposes exclusively and is owner-occupied as of the taxable status date (Please note: that for a property to be owner occupied it need not be the owner’s primary residence). But property owned by a corporation or a partnership does not qualify for Small Claims Assessment Review status. In addition to the above requirements, the petition may not properly seek more than the amount requested at the Board of Assessment Review stage, and should not be for more than a 25% reduction should the property have a value greater than $450,000.

Note:  That If the EQUALIZED VALUE of the parcel in question is greater than $450,000, the total reduction in assessment which may properly be requested in a Small Claims Assessment Review may not exceed 25 percent of the assessed value. If the EQUALIZED VALUE is $450,000 or less, the total reduction in assessment which may properly be requested in a Small Claims Assessment Review may not exceed the amount previously requested before the Board of Assessment Review.

Parties must first have filed a complaint with the Board of Assessment Review. To begin the Small Claims process, three additional copies of the petition must be filed with the County Clerk’s Office in the County where the property is located. This needs to occur within thirty days of the completion and filing of the final assessment role. Once again the failure to file a timely complaint will prove to be fatal. The date of the completion and the filing of the final assessment roll is defined as the date that is provided by law as the last day for the filing for the assessment roll or until notice of the filing has been given as required.

Within ten days of filing the petition, it must also be sent by certified mail return receipt requested to the following parties (1) the Clerk of the Assessing Unit, (2) the Assessor or the Chairman of the Board of Assessors, (3) the Clerk of the School District, (4) the County Treasurer and (5) the Village Clerk.

Within forty-five days of the petition being accepted, a hearing officer should schedule the case. The SCAR proceeding is an informal one without giving the petitioner a right to pre-hearing discovery. It is important to note that the hearing officer in this proceeding acts as both a trier of fact and of law and is obligated to ensure that the proceeding does substantial justice between the parties according to the rules of substantive law.

The petitioner at the hearing bears the burden of proof to prove the case by substantial evidence. The substantial evidence standard is a minimal standard which requires less than clear and convincing evidence. Once the petitioner has met the burden of providing substantial evidence and rebuts the presumption of validity a court must weigh the entire record to determine whether the petitioner has established by a preponderance of the evidence that the property is overvalued.

Decisions are not rendered from the bench but are required to be rendered within 30 days of the conclusion of the he

The petitioner at the hearing bears the burden of proof to prove the case by substantial evidence.

aring. The decision may order the following: (1) grant of the petition in full, (2) grant of the petition in part, (3) deny the petition, OR (4) dismiss the petition on jurisdictional grounds. The decision must state the findings of fact and evidence upon which it was reached and it must be filed with the clerk of the Court. Once the decision is filed it is final. Once the decision is final the hearing officer shall provide notice to the various governmental parties and if a reduction is granted it cannot be increased on the next assessment role unless (1) the property is subject to a class wide revaluation, (2) the property has been improved or altered, (3) there is a zoning or governmental change which impacts value, (4) the property has been reclassified OR (5) an exemption affecting the property has changed. Moreover, a property owner may not file a petition while this freeze provision is applicable.

While we strongly believe that a property owner’s rights will be best safeguarded by having legal representation at a Small Claims Assessment Review, the process is designed to be accessible to property owners who wish to represent themselves.

A copy of the petition designed for use in the Small Claims Assessment Review program is available below (this petition is for New York Counties not including those within New York City. In addition to the copy of the petition below one may click on the second link to read the applicable Real Property Tax Law section (RPTL 730).

Please note that should a assessment be changed by way of Small Claims Assessment Review it may not be changed again in the assessment year which follows without due cause.  To read more about this prohibition please click the below link for RPTL - 739.

 

 

REAL PROPERTY TAX CERTIORARI

Certiorari is a Latin word meaning “to be informed of” or made “certa.” It also is the name to certain appellate proceedings for review of decisions by inferior courts. Since cases of first impression in the property tax sphere have already been reviewed on an Administrative level, they have been dubbed “Certiorari cases.” 

Aside from Small Claims Assessment Review there, aggrieved owners can seek review by way of a Real Property Tax Certiorari petition in State Supreme Court in the judicial district to be reviewed was made. "Such a proceeding shall be commenced within 30 days after the final completion and filing of the assessment role containing such assessment" (RPTL 702).  Of course for certain types of property a certiorari review is the judicial avenue available.  Below we provide links to various portions of the Real Property Tax Law and provide other pertinent information for those contemplating a certiorari proceeding.

Tax Certiorari petitions may be filed with the County Clerk of the County where the index number is purchased. These so-called Article 7 petitions do not appear on the calendar for appearance unless and until Request for Judicial Intervention and a Note of Issue are filed.

· Calendar Calls for new matters in Westchester County are held the first Thursday of every month. Calendar call listing may be viewed on the court website.

· Calendar calls for new matters Dutchess, Orange, Putnam and Rockland are held twice a year, usually on the 2nd Thursday in April and 2nd Thursday in October.

All conferences from the calendar call are called preliminary conferences. At any time after the preliminary conference a party may request a Trial Scheduling Conference and unlike Small Claims Assessment Review Discovery is part and parcel of the Certiorari process.

 

CERTIORARI LAW FINDINGS.

While property tax law may seem to be staid it has been evolving continually. Below is a selection of Certiorari Law findings that as of this writing are believed to be up-to-date.

1. The policy of selective reassessment has been found by the United States Supreme Court and the New York Courts to be a violation of equal protection of both the United States Constitution and the New York State Constitution.

2. Recently, the NYS Court of Appeals granted a real property tax exemption to an adult home since the property was being used to provide housing for people at below market rates (See Adult Home at Erie Station v. Assessor of the City of Newburgh.)

3. In United Church Residences of Freedonia v. Newel. the Court of Appeals held that it was an error to determine that petitioner’s receipt of HUD subsidies was tantamount to removal of an exemption.

Recent tax certiorari and condemnation proceedings can be viewed and read on the New York State Unified Court System website at the below address.

http://www.nycourts.gov/courts/9jd/taxcertdecisions.shtml

 

The below links provide access to sections of the Real Property Tax Law which are applicable to the grievance process.