Add §6-t, Gen Muni L; add Art 33-C §§1575 - 1588, Tax L
Authorizes designated cities and towns, beyond those in Putnam and Westchester counties, to establish community preservation funds and expands preservation of community character to include open space and water resources.
STATE OF NEW YORK
________________________________________________________________________
3990--A
2017-2018 Regular Sessions
IN ASSEMBLY
January 30, 2017
___________
Introduced by M. of A. THIELE -- read once and referred to the Committee
on Local Governments -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the general municipal law, in relation to authorizing
designated cities and towns to establish community preservation funds;
and to amend the tax law, in relation to authorizing towns to impose a
real estate transfer tax with revenues therefrom to be deposited in
such community preservation funds
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The general municipal law is amended by adding a new
2 section 6-t to read as follows:
3 § 6-t. Community preservation funds. 1. As used in this section, the
4 following words and terms shall have the following meanings:
5 (a) "Community preservation" shall mean and include any of the
6 purposes outlined in subdivision four of this section.
7 (b) "Board" means the advisory board required pursuant to subdivision
8 five of this section.
9 (c) "Designated city or town" means a city outside of a city with a
10 population of one million or more, or a town.
11 (d) "Governing body" or "local governing body" means a city council,
12 town board, or other similar group of officials elected to administer
13 local laws.
14 (e) "Fund" means the community preservation fund created pursuant to
15 subdivision two of this section.
16 (f) "Water quality improvement project" means: (1) wastewater treat-
17 ment improvement projects; (2) non-point source abatement and control
18 program projects developed pursuant to section eleven-b of the soil and
19 water conservation districts law, title fourteen of article seventeen of
20 the environmental conservation law, section 1455b of the federal coastal
21 zone management act, or article forty-two of the executive law; (3)
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04582-02-7
A. 3990--A 2
1 aquatic habitat restoration projects; or (4) pollution prevention
2 projects. Such projects shall have as their purpose the improvement of
3 existing water quality to meet existing specific water quality stand-
4 ards. Projects which have as a purpose to permit or accommodate new
5 growth shall not be included within this definition.
6 (g) "Wastewater treatment improvement project" means the planning,
7 design, construction, acquisition, enlargement, extension, or alteration
8 of a wastewater treatment facility, including alternative systems to a
9 sewage treatment plant or traditional septic system, to treat, neutral-
10 ize, stabilize, eliminate or partially eliminate sewage or reduce pollu-
11 tants in treatment facility effluent, including permanent or pilot
12 demonstration wastewater treatment projects, or equipment or furnishings
13 thereof. Stormwater collecting systems and vessel pumpout stations shall
14 also be included within the definition of a wastewater improvement
15 project.
16 (h) "Aquatic habitat restoration project" means the planning, design,
17 construction, management, maintenance, reconstruction, revitalization,
18 or rejuvenation activities intended to improve waters of the state of
19 ecological significance or any part thereof, including, but not limited
20 to ponds, bogs, wetlands, bays, sounds, streams, rivers, or lakes and
21 shorelines thereof, to support a spawning, nursery, wintering, migrato-
22 ry, nesting, breeding, feeding, or foraging environment for fish and
23 wildlife and other biota.
24 (i) "Pollution prevention project" means the planning, design,
25 construction, improvement, maintenance or acquisition of facilities,
26 production processes, equipment or buildings owned or operated by muni-
27 cipalities for the reduction, avoidance, or elimination of the use of
28 toxic or hazardous substances or the generation of such substances or
29 pollutants so as to reduce risks to public health or the environment,
30 including changes in production processes or raw materials; such
31 projects shall not include incineration, transfer from one medium of
32 release or discharge to another medium, off-site or out-of-production
33 recycling, end-of-pipe treatment or pollution control.
34 (j) "Stormwater collecting system" means systems of conduits and all
35 other construction, devices, and appliances appurtenant thereto,
36 designed and used to collect and carry stormwater and surface water,
37 street wash, and other wash and drainage waters to a point source for
38 discharge.
39 (k) "Vessel pumpout station" means a project for the planning, design,
40 acquisition or construction of a permanent or portable device capable of
41 removing human sewage from a marine holding tank.
42 2. The local governing body of any designated city or town is author-
43 ized to establish by local law a community preservation fund pursuant to
44 the provisions of this section. Deposits into the fund may include
45 revenues of the local government from whatever source and shall include,
46 at a minimum, all revenues from a tax imposed upon the transfer of real
47 property interests in such city or town pursuant to article thirty-
48 three-C of the tax law. The fund shall also be authorized to accept
49 gifts of any such interests in land or of funds. Interest accrued by
50 monies deposited into the fund shall be credited to the fund. In no
51 event shall monies deposited in the fund be transferred to any other
52 account. Nothing contained in this section shall be construed to prevent
53 the financing in whole or in part, pursuant to the local finance law, of
54 any acquisition authorized pursuant to this section. Monies from the
55 fund may be utilized to repay any indebtedness or obligations incurred
A. 3990--A 3
1 pursuant to the local finance law consistent with effectuating the
2 purposes of this section.
3 3. The purposes of the fund shall be exclusively, (a) to implement a
4 plan for the preservation of community character as required by this
5 section, (b) to acquire interests or rights in real property for the
6 preservation of community character within the designated city or town
7 including villages therein in accordance with such plan and in cooper-
8 ation with willing sellers, (c) to establish a bank pursuant to a trans-
9 fer of development rights program consistent with section two hundred
10 sixty-one-a of the town law, (d) to provide a management and stewardship
11 program for such interests and rights consistent with subdivision nine
12 of this section and in accordance with such plan designed to preserve
13 community character; provided that not more than ten percent of the fund
14 shall be utilized for the management and stewardship program, and (e) to
15 implement water quality improvement projects in accordance with a plan
16 to preserve community character. If the implementation of the community
17 preservation project plan, adopted by a local governing body, as
18 provided in subdivision six of this section, has been completed, and
19 funds are no longer needed for the purposes outlined in this subdivi-
20 sion, then any remaining monies in the fund shall be applied to reduce
21 any bonded indebtedness or obligations incurred to effectuate the
22 purposes of this section. Preliminary and incidental costs in connection
23 with the acquisition of interests or rights in real property, pursuant
24 to this subdivision, shall be deemed part of the cost of the acquisition
25 for which they were incurred. Such expenditures may include any adminis-
26 trative or other expenditures directly arising therefrom. No expenditure
27 shall be charged to the fund, unless authorized by law. A full account-
28 ing of such costs for each acquisition of land shall be provided to the
29 local governing body.
30 4. Preservation of community character shall involve one or more of
31 the following: (a) establishment of parks, nature preserves, or recre-
32 ation areas; (b) preservation of open space, including agricultural
33 lands provided, however, that farm buildings and structures used for the
34 marketing of farm products produced on such agricultural lands where at
35 least fifty percent of the gross annual income results from sales of
36 products produced on such lands and, in addition the sale of any other
37 locally sourced and/or produced food and plant products shall be permit-
38 ted; (c) preservation of lands of exceptional scenic value; (d) preser-
39 vation of fresh and saltwater marshes or other wetlands; (e) preserva-
40 tion of aquifer recharge areas; (f) preservation of undeveloped
41 beachlands or shoreline including those at significant risk of coastal
42 flooding due to projected sea level rise and future storms; (g) estab-
43 lishment of wildlife refuges for the purpose of maintaining native
44 animal species diversity, including the protection of habitat essential
45 to the recovery of rare, threatened or endangered species; (h) preserva-
46 tion of pine barrens consisting of such biota as pitch pine and scrub
47 oak; (i) preservation of unique or threatened ecological areas; (j)
48 preservation of rivers and river areas in a natural, free-flowing condi-
49 tion; (k) preservation of forested land; (l) preservation of public
50 access to lands for public use including stream rights and waterways;
51 (m) preservation of historic places and properties listed on the New
52 York state register of historic places and/or protected under a munici-
53 pal historic preservation ordinance or law; and (n) undertaking any of
54 the aforementioned in furtherance of the establishment of a greenbelt.
55 Preservation of community character shall also include the protection
56 and improvement of the quality of all water resources.
A. 3990--A 4
1 5. The governing body of any designated city or town which has estab-
2 lished a community preservation fund shall create an advisory board to
3 review and make recommendations on proposed acquisitions of interests in
4 real property or water quality improvement projects using monies from
5 the fund. Such board shall consist of five or seven legal residents of
6 the municipality who shall serve without compensation. No member of the
7 local legislative body shall serve on the board. A majority of the
8 members of the board shall have demonstrated experience with conserva-
9 tion and land preservation activities or water quality improvement
10 activities. The board shall act in an advisory capacity to the local
11 governing body.
12 6. The governing body of any designated city or town which has estab-
13 lished a community preservation fund shall, by local law, adopt a commu-
14 nity preservation project plan. This plan shall list every project which
15 the city or town plans to undertake pursuant to the community preserva-
16 tion fund. It shall include every parcel which is necessary to be
17 acquired in the city or town in order to protect community character.
18 Such plan shall provide for a detailed evaluation of all available land
19 use alternatives to protect community character, including but not
20 limited to: (a) fee simple acquisition, (b) zoning regulations, includ-
21 ing density reductions, cluster development, and site plan and design
22 requirements, (c) transfer of development rights, (d) the purchase of
23 development rights, and (e) scenic and conservation easements. Said
24 evaluation shall be as specific as practicable as to each parcel
25 selected for inclusion in the plan. The plan shall establish the priori-
26 ties for preservation. Said plan shall also list every water quality
27 improvement project which the city or town plans to undertake pursuant
28 to the community preservation fund and shall state how such project
29 would improve existing water quality. Projects which have as their
30 purpose the accommodation of new growth as opposed to the remediation of
31 water quality shall not qualify for funding under this section. Funds
32 from the community preservation fund may only be expended for projects
33 which have been included in said plan. Said plan shall be updated not
34 less than once every five years. Said plan shall be completed at least
35 sixty days before the submission of the mandatory referendum required by
36 section fifteen hundred seventy-six of the tax law. As part of, or in
37 addition, to said community preservation fund project plan, each local
38 governing body may also adopt a management and stewardship plan for
39 interests or rights in real property acquired pursuant to this section.
40 No monies from the fund shall be expended for management and steward-
41 ship, except as approved in said plan. Said plan may provide management
42 and stewardship projects for up to a three year period and shall provide
43 a description and estimated cost for each project. Said plan shall be
44 approved and adopted by local law and may be updated from time to time
45 at the discretion of the local governing body. Only management and
46 stewardship projects permitted pursuant to subdivision nine of this
47 section shall be eligible to be included in the plan.
48 7. The governing body of any designated city or town which has estab-
49 lished a community preservation fund pursuant to this section shall
50 study and consider establishing a transfer of development rights program
51 to protect community character as provided for by section two hundred
52 sixty-one-a of the town law. All provisions of such section two hundred
53 sixty-one-a shall be complied with. If at any time during the life of
54 the community preservation fund a transfer of development rights program
55 is established, the city or town may utilize monies from the community
56 preservation fund in order to create and fund a central bank of the
A. 3990--A 5
1 transfer of development rights program. If at any time during the life
2 of the community preservation fund, a transfer of development rights
3 program is repealed by the city or town, all monies from the central
4 bank shall be returned to the community preservation fund.
5 8. No interests or rights in real property shall be acquired pursuant
6 to this section until a public hearing is held as required by section
7 two hundred forty-seven of this chapter; provided, however, that nothing
8 in this section shall prevent the local governing body from entering
9 into a conditional purchase agreement before a public hearing is held.
10 Any resolution of a local governing body approving an acquisition of
11 land pursuant to this section, shall find that acquisition was the best
12 alternative for the protection of community character of all the reason-
13 able alternatives available to the city or town.
14 9. Lands acquired pursuant to this section shall be administered and
15 managed in a manner which (a) allows public use and enjoyment in a
16 manner compatible with the natural, scenic, historic and open space
17 character of such lands; (b) preserves the native biological diversity
18 of such lands; (c) with regard to open spaces, limits improvements to
19 enhancing access for passive use of such lands such as nature trails,
20 boardwalks, bicycle paths, and peripheral parking areas provided that
21 such improvements do not degrade the ecological value of the land or
22 threaten essential wildlife habitat; and (d) preserves cultural property
23 consistent with accepted standards for historic preservation. In
24 furthering the purposes of this section, the city or town may enter into
25 agreements with corporations organized under the not-for-profit corpo-
26 ration law and engage in land trust activities to manage lands including
27 less than fee interests acquired pursuant to the provisions of this
28 section, provided that any such agreement shall contain a provision that
29 such corporation shall keep the lands accessible to the public unless
30 such corporation shall demonstrate to the satisfaction of the city or
31 town that public accessibility would be detrimental to the lands or any
32 natural resources associated therewith. Except for interests or rights
33 in real property acquired for historic preservation purposes, management
34 and stewardship projects shall be only expended for (1) projects which
35 promote the protection or enhancement of the natural, scenic, and open
36 space character for which the interests or rights in real property were
37 acquired, or (2) accessory uses related to the purpose for which the
38 interests or rights in real property were acquired consistent with this
39 subdivision, or (3) restoration of acquired real property to its natural
40 state including the demolition of existing buildings and structures. In
41 the case of interests or rights in real property acquired for historic
42 preservation purposes, funds may be expended only for the restoration
43 and rehabilitation of buildings and structures consistent with accepted
44 standards for historic preservation. Expenses related to the customary
45 operation and maintenance of acquired interests or rights in real prop-
46 erty shall not be permitted from the fund. Any expenditure from the fund
47 for a purpose other than that permitted, herein, shall be deemed to be
48 prohibited.
49 10. Rights or interests in real property acquired with monies from
50 such fund shall not be sold, leased, exchanged, donated, or otherwise
51 disposed of or used for other than the purposes permitted by this
52 section without the express authority of an act of the legislature,
53 which shall provide for the substitution of other lands of equal envi-
54 ronmental value and fair market value and reasonably equivalent useful-
55 ness and location to those to be discontinued, sold or disposed of, and
56 such other requirements as shall be approved by the legislature. Noth-
A. 3990--A 6
1 ing in this section shall preclude a designated city or town, by local
2 law, from establishing additional restrictions to the alienation of
3 lands acquired pursuant to this section. This subdivision shall not
4 apply to the sale of development rights by a city or town acquired
5 pursuant to this section, where said sale is made by a central bank
6 created by a city or town, pursuant to a transfer of development rights
7 program established by a town pursuant to section two hundred
8 sixty-one-a of the town law, provided, however (a) that the lands from
9 which said development rights were acquired shall remain preserved in
10 perpetuity by a permanent conservation easement or other instrument that
11 similarly preserves the community character referenced in subdivision
12 four of this section, and (b) the proceeds from such sale shall be
13 deposited in the community preservation fund.
14 11. Notwithstanding any provision of law to the contrary, designated
15 cities or towns may enter into inter-municipal agreements pursuant to
16 article five-G of this chapter for the following purposes: (a) to joint-
17 ly acquire interests or rights in real property, consistent with the
18 purposes of this section, where the acquisition of such interests or
19 rights promotes a regional public benefit for two or more towns pursuant
20 to a regional plan, (b) to establish an office or department to render
21 legal opinions and interpretations to facilitate the efficient and
22 consistent administration of each fund created under this section, (c)
23 to provide for an independent financial audit of each city's or town's
24 fund, and (d) to hire employees necessary to implement the provisions of
25 this section.
26 12. Each designated city or town which has established a community
27 preservation fund shall annually commission an independent audit of the
28 fund. The audit shall be conducted by an independent certified public
29 accountant or an independent public accountant. Said audit shall be
30 performed by a certified public accountant or an independent public
31 accountant other than the one that performs the general audit of each
32 city's or town's finances. Such audit shall be an examination of the
33 fund and shall determine whether the fund has been administered consist-
34 ent with the provisions of this section and all other applicable
35 provisions of state law. Said audit shall be initiated within sixty days
36 of the close of the fiscal year of each city or town and shall be
37 completed within one hundred twenty days of the close of the fiscal
38 year. A copy of the audit shall be submitted annually to the state comp-
39 troller and the city or town clerk. A copy of the audit shall be made
40 available to the public within thirty days of its completion. A notice
41 of the completion of the audit shall be published in the official news-
42 paper of the city or town and posted on the official sign board of the
43 city or town within ten days of its filing with the town clerk. Said
44 audit and notice shall also be posted on the internet site for the city
45 or town. The cost of the audit may be a charge to the fund.
46 13. The cost of employees and independent contractors to implement the
47 provisions of this section may only be paid for by the fund where the
48 duties and responsibilities of said employees and independent contrac-
49 tors are directly dedicated to implementing the provisions of this
50 section. Where such employees and independent contractors are not
51 exclusively dedicated to implementing the provisions of this section, no
52 more than the cost of the actual time expended directly dedicated to
53 implementing the provisions of this section may be charged. Such costs
54 shall be expressly identified in the city or town budget and any plan
55 adopted pursuant to this section before funds for such costs may be
56 expended. In addition, such costs must be documented by a time account-
A. 3990--A 7
1 ing system, subject to audit. Costs relating to the activities of
2 elected officials implementing the purposes of this section may not be a
3 charge to the fund.
4 § 2. The tax law is amended by adding a new article 33-C to read as
5 follows:
6 ARTICLE 33-C
7 TAX ON REAL ESTATE TRANSFERS IN CITIES OR TOWNS
8 Section 1575. Definitions.
9 1576. Imposition of tax.
10 1577. Payment of tax.
11 1578. Liability for tax.
12 1579. Exemptions.
13 1580. Credit.
14 1581. Cooperative housing corporation transfers.
15 1582. Designation of agents.
16 1583. Liability of recording officer.
17 1584. Deposit and disposition of revenue.
18 1585. Judicial review.
19 1586. Apportionment.
20 1587. Miscellaneous.
21 1588. Returns to be secret.
22 § 1575. Definitions. When used in this article, unless otherwise
23 expressly stated, the following words and terms shall have the following
24 meanings:
25 1. "Person" means an individual, partnership, limited liability compa-
26 ny, society, association, joint stock company, corporation, estate,
27 receiver, trustee, assignee, referee or any other person acting in a
28 fiduciary or representative capacity, whether appointed by a court or
29 otherwise, any combination of individuals, and any other form of unin-
30 corporated enterprise owned or conducted by two or more persons.
31 2. "Controlling interest" means (a) in the case of a corporation,
32 either fifty percent or more of the total combined voting power of all
33 classes of stock of such corporation, or fifty percent or more of the
34 capital, profits or beneficial interest in such voting stock of such
35 corporation, and (b) in the case of a partnership, association, trust or
36 other entity, fifty percent or more of the capital, profits or benefi-
37 cial interest in such partnership, association, trust or other entity.
38 3. "Real property" means every estate or right, legal or equitable,
39 present or future, vested or contingent, in lands, tenements or heredi-
40 taments, including buildings, structures and other improvements thereon,
41 which are located in whole or in part within any city or town. It shall
42 not include rights to sepulture.
43 4. "Consideration" means the price actually paid or required to be
44 paid for the real property or interest therein, including payment for an
45 option or contract to purchase real property, whether or not expressed
46 in the deed and whether paid or required to be paid by money, property,
47 or any other thing of value. It shall include the cancellation or
48 discharge of an indebtedness or obligation. It shall also include the
49 amount of any mortgage, purchase money mortgage, lien or other encum-
50 brance, whether or not the underlying indebtedness is assumed or taken
51 subject to.
52 (a) In the case of a creation of a leasehold interest or the granting
53 of an option with use and occupancy of real property, consideration
54 shall include, but not be limited to, the value of the rental and other
55 payments attributable to the use and occupancy of the real property or
56 interest therein, the value of any amount paid for an option to purchase
A. 3990--A 8
1 or renew and the value of rental or other payments attributable to the
2 exercise of any option to renew.
3 (b) In the case of a creation of a subleasehold interest, consider-
4 ation shall include, but not be limited to, the value of the sublease
5 rental payments attributable to the use and occupancy of the real prop-
6 erty, the value of any amount paid for an option to renew and the value
7 of rental or other payments attributable to the exercise of any option
8 to renew less the value of the remaining prime lease rental payments
9 required to be made.
10 (c) In the case of a controlling interest in any entity that owns real
11 property, consideration shall mean the fair market value of the real
12 property or interest therein, apportioned based on the percentage of the
13 ownership interest transferred or acquired in the entity.
14 (d) In the case of an assignment or surrender of a leasehold interest
15 or the assignment or surrender of an option or contract to purchase real
16 property, consideration shall not include the value of the remaining
17 rental payments required to be made pursuant to the terms of such lease
18 or the amount to be paid for the real property pursuant to the terms of
19 the option or contract being assigned or surrendered.
20 (e) In the case of (1) the original conveyance of shares of stock in a
21 cooperative housing corporation in connection with the grant or transfer
22 of a proprietary leasehold by the cooperative corporation or cooperative
23 plan sponsor, and (2) the subsequent conveyance by the owner thereof of
24 such stock in a cooperative housing corporation in connection with the
25 grant or transfer of a proprietary leasehold for a cooperative unit
26 other than an individual residential unit, consideration shall include a
27 proportionate share of the unpaid principal of any mortgage on the real
28 property of the cooperative housing corporation comprising the cooper-
29 ative dwelling or dwellings. Such share shall be determined by multiply-
30 ing the total unpaid principal of the mortgage by a fraction, the numer-
31 ator of which shall be the number of shares of stock being conveyed in
32 the cooperative housing corporation in connection with the grant or
33 transfer of a proprietary leasehold and the denominator of which shall
34 be the total number of shares of stock in the cooperative housing corpo-
35 ration.
36 5. "Conveyance" means the transfer or transfers of any interest in
37 real property by any method, including but not limited to, sale,
38 exchange, assignment, surrender, mortgage foreclosure, transfer in lieu
39 of foreclosure, option, trust indenture, taking by eminent domain,
40 conveyance upon liquidation or by a receiver, or transfer or acquisition
41 of a controlling interest in any entity with an interest in real proper-
42 ty. Transfer of an interest in real property shall include the creation
43 of a leasehold or sublease only where (a) the sum of the term of the
44 lease or sublease and any options for renewal exceeds forty-nine years,
45 (b) substantial capital improvements are or may be made by or for the
46 benefit of the lessee or sublessee, and (c) the lease or sublease is for
47 substantially all of the premises constituting the real property.
48 Notwithstanding the foregoing, conveyance of real property shall not
49 include a conveyance made pursuant to devise, bequest or inheritance;
50 the creation, modification, extension, spreading, severance, consol-
51 idation, assignment, transfer, release or satisfaction of a mortgage; a
52 mortgage subordination agreement, a mortgage severance agreement, an
53 instrument given to perfect or correct a recorded mortgage; or a release
54 of lien of tax pursuant to this chapter or the internal revenue code.
55 6. "Interest in the real property" includes title in fee, a leasehold
56 interest, a beneficial interest, an encumbrance, development rights, air
A. 3990--A 9
1 space and air rights, or any other interest with the right to use or
2 occupancy of real property or the right to receive rents, profits or
3 other income derived from real property. It shall also include an option
4 or contract to purchase real property. It shall not include a right of
5 first refusal to purchase real property.
6 7. "Grantor" means the person making the conveyance of real property
7 or interest therein. Where the conveyance consists of a transfer or an
8 acquisition of a controlling interest in an entity with an interest in
9 real property, "grantor" means the entity with an interest in real prop-
10 erty or a shareholder or partner transferring stock or partnership
11 interest, respectively.
12 8. "Grantee" means the person who obtains real property or interest
13 therein as a result of a conveyance.
14 9. "Fund" means a community preservation fund created pursuant to
15 section six-t of the general municipal law.
16 10. "Recording officer" means the county clerk.
17 11. "City or town" means a municipal corporation comprising the inhab-
18 itants within its boundaries, and formed for the purpose of exercising
19 such powers and discharging such duties of local government and adminis-
20 tration of public affairs as have been, or, may be conferred or imposed
21 upon it by law and has a population of one million or fewer persons.
22 12. "Treasurer" means the county treasurer.
23 § 1576. Imposition of tax. Notwithstanding any other provisions of law
24 to the contrary, any city or town, acting through its local governing
25 body, is hereby authorized and empowered to adopt a local law imposing
26 in such city or town a tax on each conveyance of real property or inter-
27 est therein where the consideration exceeds five hundred dollars, at the
28 rate of up to two percent of the consideration for such conveyance.
29 Provided, however, any such local law imposing, repealing or reimposing
30 such tax shall be subject to a mandatory referendum pursuant to section
31 twenty-three of the municipal home rule law. Such local law shall only
32 be submitted for the approval of the electors at a general election.
33 Notwithstanding the foregoing, prior to adoption of such local law, the
34 city or town must establish a community preservation fund pursuant to
35 section six-t of the general municipal law. Revenues from such tax shall
36 be deposited in such fund and may be used solely for the purposes of
37 such fund. Such local law shall apply to any conveyance occurring on or
38 after the first day of a month to be designated by such local governing
39 body, which is not less than sixty days after the enactment of such
40 local law, but shall not apply to conveyances made on or after such date
41 pursuant to binding written contracts entered into prior to such date,
42 provided that the date of execution of such contract is confirmed by
43 independent evidence such as the recording of the contract, payment of a
44 deposit or other facts and circumstances as determined by the treasurer.
45 § 1577. Payment of tax. 1. The real estate transfer tax imposed pursu-
46 ant to this article shall be paid to the treasurer or the recording
47 officer acting as the agent of the treasurer upon designation as such
48 agent by the treasurer. Such tax shall be paid at the same time as the
49 real estate transfer tax imposed by article thirty-one of this chapter
50 is required to be paid. Such treasurer or recording officer shall
51 endorse upon each deed or instrument effecting a conveyance a receipt
52 for the amount of the tax so paid.
53 2. A return shall be required to be filed with such treasurer or
54 recording officer for purposes of the real estate transfer tax imposed
55 pursuant to this article at the same time as a return is required to be
56 filed for purposes of the real estate transfer tax imposed by article
A. 3990--A 10
1 thirty-one of this chapter. The treasurer shall prescribe the form of
2 return, the information which it shall contain, and the documentation
3 that shall accompany the return. Said form shall be identical to the
4 real estate transfer tax return required to be filed pursuant to section
5 fourteen hundred nine of this chapter, except that the treasurer shall
6 adapt said form to reflect the provisions in this chapter that are
7 inconsistent, different, or in addition to the provisions of article
8 thirty-one of this chapter. The real estate transfer tax returns
9 required to be filed pursuant to this section shall be preserved for
10 three years and thereafter until such treasurer or recording officer
11 orders them to be destroyed.
12 3. The recording officer shall not record an instrument effecting a
13 conveyance unless the return required by this section has been filed and
14 the tax imposed pursuant to this article shall have been paid as
15 required in this section.
16 § 1578. Liability for tax. 1. The real estate transfer tax shall be
17 paid by the grantee. If the grantee has failed to pay the tax imposed
18 pursuant to this article or if the grantee is exempt from such tax, the
19 grantor shall have the duty to pay the tax. Where the grantor has the
20 duty to pay the tax because the grantee has failed to pay the tax, such
21 tax shall be the joint and several liability of the grantee and the
22 grantor.
23 2. For the purpose of the proper administration of this article and to
24 prevent evasion of the tax hereby imposed, it shall be presumed that all
25 conveyances are taxable. Where the consideration includes property other
26 than money, it shall be presumed that the consideration is the fair
27 market value of the real property or interest therein. These presump-
28 tions shall prevail until the contrary is proven, and the burden of
29 proving the contrary shall be on the person liable for payment of the
30 tax.
31 § 1579. Exemptions. 1. The following shall be exempt from the payment
32 of the real estate transfer tax: (a) the state of New York, or any of
33 its agencies, instrumentalities, political subdivisions, or public
34 corporations (including a public corporation created pursuant to an
35 agreement or compact with another state or Dominion of Canada); and (b)
36 the United Nations, the United States of America or any of its agencies
37 or instrumentalities.
38 2. The tax shall not apply to any of the following conveyances: (a)
39 conveyances to the United Nations, the United States of America, the
40 state of New York, or any of their instrumentalities, agencies or poli-
41 tical subdivisions (or any public corporation, including a public corpo-
42 ration created pursuant to agreement or compact with another state or
43 the Dominion of Canada); (b) conveyances which are or were used to
44 secure a debt or other obligation; (c) conveyances which, without addi-
45 tional consideration, confirm, correct, modify or supplement a deed
46 previously recorded; (d) conveyances of real property without consider-
47 ation and otherwise than in connection with a sale, including deeds
48 conveying realty as bona fide gifts; (e) conveyances given in connection
49 with a tax sale; (f) conveyances to effectuate a mere change of identity
50 or form of ownership or organization where there is no change in benefi-
51 cial ownership, other than conveyances to a cooperative housing corpo-
52 ration of the real property comprising the cooperative dwelling or
53 dwellings; (g) conveyances which consist of a deed of partition; (h)
54 conveyances given pursuant to the federal bankruptcy act; (i) conveyanc-
55 es of real property which consist of the execution of a contract to sell
56 real property without the use or occupancy of such property or the
A. 3990--A 11
1 granting of an option to purchase real property without the use or occu-
2 pancy of such property; (j) conveyances of real property, where the
3 entire parcel of real property to be conveyed is the subject of one or
4 more of the following development restrictions: (1) agricultural,
5 conservation, scenic, or an open space easement, (2) covenants or
6 restrictions prohibiting development, (3) a purchase of development
7 rights agreement, (4) a transfer of development rights agreement, where
8 the property being conveyed has had its development rights removed, (5)
9 said real property is subject to the development restriction of an agri-
10 cultural district or individual commitment, pursuant to article twenty-
11 five-AA of the agriculture and markets law, (6) real property subject to
12 any locally adopted land preservation agreement, provided said exemption
13 is included in the local law imposing the tax authorized by this arti-
14 cle; (k) conveyances of real property, where the property is viable
15 agricultural land as defined in subdivision seven of section three
16 hundred one of the agriculture and markets law and the entire property
17 to be conveyed is to be made subject to one of the development
18 restrictions provided for in subparagraph two of paragraph (j) of this
19 subdivision provided that said development restriction precludes the
20 conversion of the property to a non-agricultural use for at least three
21 years from the date of transfer, and said development restriction is
22 evidenced by an easement, agreement, or other suitable instrument which
23 is to be conveyed to the city or town simultaneously with the conveyance
24 of the real property; or (l) conveyances of real property for open
25 space, parks, or historic preservation purposes to any not-for-profit
26 tax exempt corporation operated for conservation, environmental, or
27 historic preservation purposes.
28 3. An exemption which is equal in value to the residential median sale
29 price of the county in which the city or town is located according to
30 the office of real property services, shall be allowed on the consider-
31 ation of the conveyance of improved real property or an interest there-
32 in.
33 § 1580. Credit. A grantee shall be allowed a credit against the tax
34 due on a conveyance of real property to the extent tax was paid by such
35 grantee on a prior creation of a leasehold of all or a portion of the
36 same real property or on the granting of an option or contract to
37 purchase all or a portion of the same real property by such grantee.
38 Such credit shall be computed by multiplying the tax paid on the
39 creation of the leasehold or on the granting of the option or contract
40 by a fraction, the numerator of which is the value of the consideration
41 used to compute such tax paid which is not yet due to such grantor on
42 the date of the subsequent conveyance (and which such grantor will not
43 be entitled to receive after such date), and the denominator of which is
44 the total value of the consideration used to compute such tax paid.
45 § 1581. Cooperative housing corporation transfers. 1. Notwithstanding
46 the definition of "controlling interest" contained in subdivision two of
47 section fifteen hundred seventy-five of this article or anything to the
48 contrary contained in subdivision five of section fifteen hundred seven-
49 ty-five of this article, the tax imposed pursuant to this article shall
50 apply to (a) the original conveyance of shares of stock in a cooperative
51 housing corporation in connection with the grant or transfer of a
52 proprietary leasehold by the cooperative corporation or cooperative plan
53 sponsor, and (b) the subsequent conveyance of such stock in a cooper-
54 ative housing corporation in connection with the grant or transfer of a
55 proprietary leasehold by the owner thereof. With respect to any such
56 subsequent conveyance where the property is an individual residential
A. 3990--A 12
1 unit, the consideration for the interest conveyed shall exclude the
2 value of any liens on certificates of stock or other evidences of an
3 ownership interest in and a proprietary lease from a corporation or
4 partnership formed for the purpose of cooperative ownership of residen-
5 tial interest in real estate remaining thereon at the time of convey-
6 ance. In determining the tax on a conveyance described in paragraph (a)
7 of this subdivision, a credit shall be allowed for a proportionate part
8 of the amount of any tax paid upon the conveyance to the cooperative
9 housing corporation of the real property comprising the cooperative
10 dwelling or dwellings to the extent that such conveyance effectuated a
11 mere change of identity or form of ownership of such property and not a
12 change in the beneficial ownership of such property. The amount of the
13 credit shall be determined by multiplying the amount of tax paid upon
14 the conveyance to the cooperative housing corporation by a percentage
15 representing the extent to which such conveyance effectuated a mere
16 change of identity or form of ownership and not a change in the benefi-
17 cial ownership of such property, and then multiplying the resulting
18 product by a fraction, the numerator of which shall be the number of
19 shares of stock conveyed in a transaction described in paragraph (a) of
20 this subdivision, and the denominator of which shall be the total number
21 of shares of stock of the cooperative housing corporation (including any
22 stock held by the corporation). In no event, however, shall such credit
23 reduce the tax, on a conveyance described in paragraph (a) of this
24 subdivision, below zero, nor shall any such credit be allowed for a tax
25 paid more than twenty-four months prior to the date on which occurs the
26 first in a series of conveyances of shares of stock in an offering of
27 cooperative housing corporation shares described in paragraph (a) of
28 this subdivision.
29 2. Every cooperative housing corporation shall be required to file an
30 information return with the treasurer by July fifteenth of each year
31 covering the preceding period of January first through June thirtieth
32 and by January fifteenth of each year covering the preceding period of
33 July first through December thirty-first. The return shall contain such
34 information regarding the conveyance of shares of stock in the cooper-
35 ative housing corporation as the treasurer may deem necessary, includ-
36 ing, but not limited to, the names, addresses and employee identifica-
37 tion numbers or social security numbers of the grantor and the grantee,
38 the number of shares conveyed, the date of the conveyance and the
39 consideration paid for such conveyance.
40 § 1582. Designation of agents. The treasurer is authorized to desig-
41 nate the recording officer to act as his or her agent for purposes of
42 collecting the tax authorized by this article. The treasurer shall
43 provide for the manner in which such person may be designated as his or
44 her agent subject to such terms and conditions as the treasurer shall
45 prescribe. The real estate transfer tax shall be paid to such agent as
46 provided in section fifteen hundred seventy-seven of this article.
47 § 1583. Liability of recording officer. A recording officer shall not
48 be liable for any inaccuracy in the amount of tax imposed pursuant to
49 this article that he or she shall collect so long as he or she shall
50 compute and collect such tax on the amount of consideration or the value
51 of the interest conveyed as such amounts are provided to him or her by
52 the person paying the tax.
53 § 1584. Deposit and disposition of revenue. 1. All taxes, penalties
54 and interest imposed by the city or town under the authority of section
55 fifteen hundred seventy-six of this article, which are collected by the
56 treasurer or his or her agents, shall be deposited in a single trust
A. 3990--A 13
1 fund for the city or town and shall be kept in trust and separate and
2 apart from all other monies in possession of the treasurer. Moneys in
3 such fund shall be deposited and secured in the manner provided by
4 section ten of the general municipal law. Pending expenditure from such
5 fund, moneys therein may be invested in the manner provided in section
6 eleven of the general municipal law. Any interest earned or capital gain
7 realized on the moneys so deposited or invested shall accrue to and
8 become part of such fund.
9 2. The treasurer shall retain such amount as he or she may determine
10 to be necessary for refunds with respect to the tax imposed by the city
11 or town, under the authority of section fifteen hundred seventy-six of
12 this article, out of which the treasurer shall pay any refunds of such
13 taxes to those taxpayers entitled to a refund pursuant to the provisions
14 of this article.
15 3. The treasurer, after reserving such refunds, shall on or before the
16 twelfth day of each month pay to the city comptroller or the town super-
17 visor the taxes, penalties and interest imposed by the town under the
18 authority of section fifteen hundred seventy-six of this article,
19 collected by the treasurer, pursuant to this article during the next
20 preceding calendar month. The amount so payable shall be certified to
21 the city comptroller or the town supervisor by the treasurer, who shall
22 not be held liable for any inaccuracy in such certification. Provided,
23 however, any such certification may be based on such information as may
24 be available to the treasurer at the time such certification must be
25 made under this section. Where the amount so paid over to the city or
26 town in any such distribution is more or less than the amount due to the
27 city or town, the amount of the overpayment or underpayment shall be
28 certified to the city comptroller or the town supervisor by the treasur-
29 er, who shall not be held liable for any inaccuracy in such certif-
30 ication. The amount of the overpayment or underpayment shall be so
31 certified to the city comptroller or the town supervisor as soon after
32 the discovery of the overpayment or underpayment as reasonably possible
33 and subsequent payments and distributions by the treasurer to such city
34 or town shall be adjusted by subtracting the amount of any such overpay-
35 ment from or by adding the amount of any such underpayment to such
36 number of subsequent payments and distributions as the treasurer and
37 city comptroller or town supervisor shall consider reasonable in view of
38 the overpayment or underpayment and all other facts and circumstances.
39 4. All monies received from the treasurer shall be deposited in the
40 fund of the city or town, pursuant to section six-t of the general
41 municipal law.
42 § 1585. Judicial review. 1. Any final determination of the amount of
43 any tax payable under section fifteen hundred seventy-eight of this
44 article shall be reviewable for error, illegality or unconstitutionality
45 or any other reason whatsoever by a proceeding under article seventy-
46 eight of the civil practice law and rules if application therefor is
47 made to the supreme court within four months after the giving of the
48 notice of such final determination, provided, however, that any such
49 proceeding under article seventy-eight of the civil practice law and
50 rules shall not be instituted unless (a) the amount of any tax sought to
51 be reviewed, with such interest and penalties thereon as may be provided
52 for by local law shall be first deposited and there is filed an under-
53 taking, issued by a surety company authorized to transact business in
54 this state and approved by the state superintendent of insurance as to
55 solvency and responsibility, in such amount as a justice of the supreme
56 court shall approve to the effect that if such proceeding be dismissed
A. 3990--A 14
1 or the tax confirmed the petitioner will pay all costs and charges which
2 may accrue in the prosecution of such proceeding or (b) at the option of
3 the petitioner, such undertaking may be in a sum sufficient to cover the
4 taxes, interest and penalties stated in such determination, plus the
5 costs and charges which may accrue against it in the prosecution of the
6 proceeding, in which event the petitioner shall not be required to pay
7 such taxes, interest or penalties as a condition precedent to the appli-
8 cation.
9 2. Where any tax imposed hereunder shall have been erroneously, ille-
10 gally or unconstitutionally assessed or collected and application for
11 the refund or revision thereof duly made to the proper fiscal officer or
12 officers, and such officer or officers shall have made a determination
13 denying such refund or revision, such determination shall be reviewable
14 by a proceeding under article seventy-eight of the civil practice law
15 and rules; provided, however, that (a) such proceeding is instituted
16 within four months after the giving of the notice of such denial, (b) a
17 final determination of tax due was not previously made, and (c) an
18 undertaking is filed with the proper fiscal officer or officers in such
19 amount and with such sureties as a justice of the supreme court shall
20 approve to the effect that if such proceeding be dismissed or the tax
21 confirmed, the petitioner will pay all costs and charges which may
22 accrue in the prosecution of such proceeding.
23 § 1586. Apportionment. A local law adopted by any city or town, pursu-
24 ant to this article, shall provide for a method of apportionment for
25 determining the amount of tax due whenever the real property or interest
26 therein is situated within and without the city or town.
27 § 1587. Miscellaneous. A local law adopted by any city or town, pursu-
28 ant to this article, may contain such other provisions as the city or
29 town deems necessary for the proper administration of the tax imposed
30 pursuant to this article, including provisions concerning the determi-
31 nation of tax, the imposition of interest on underpayments and overpay-
32 ments and the imposition of civil penalties. Such provisions shall be
33 identical to the corresponding provisions of the real estate transfer
34 tax imposed by article thirty-one of this chapter, so far as such
35 provisions can be made applicable to the tax imposed pursuant to this
36 article.
37 § 1588. Returns to be secret. 1. Except in accordance with proper
38 judicial order or as otherwise provided by law, it shall be unlawful for
39 the treasurer or any officer or employee of the county, city or town,
40 including any person engaged or retained on an independent contract
41 basis, to divulge or make known in any manner the particulars set forth
42 or disclosed in any return required under a local law enacted pursuant
43 to this article. Provided, however, that nothing in this section shall
44 prohibit the recording officer from making a notation on an instrument
45 affecting a conveyance indicating the amount of tax paid. No recorded
46 instrument affecting a conveyance shall be considered a return for
47 purposes of this section.
48 2. The officers charged with the custody of such returns shall not be
49 required to produce any of them or evidence of anything contained in
50 them in any action or proceeding in any court, except on behalf of the
51 county, city, or town in any action or proceeding involving the
52 collection of a tax due under a local law enacted pursuant to this arti-
53 cle to which such county, city, or town is a party, or a claimant, or on
54 behalf of any party to any action or proceeding under the provisions of
55 a local law enacted pursuant to this article when the returns or facts
56 shown thereby are directly involved in such action or proceeding, in any
A. 3990--A 15
1 of which events the court may require the production of, and may admit
2 in evidence, so much of said returns or of the facts shown thereby, as
3 are pertinent to the action or proceeding and no more.
4 3. Nothing in this section shall be construed to prohibit the delivery
5 to a grantor or grantee of an instrument effecting a conveyance or the
6 duly authorized representative of a grantor or grantee of a certified
7 copy of any return filed in connection with such instrument or to
8 prohibit the publication of statistics so classified as to prevent the
9 identification of particular returns and the items thereof, or the
10 inspection by the legal representatives of such county, city, or town of
11 the return of any taxpayer who shall bring action to set aside or review
12 the tax based thereon.
13 § 3. Severability. If any provision of this act or the application
14 thereof shall for any reason be adjudged by any court of competent
15 jurisdiction to be invalid, such judgment shall not affect, impair, or
16 invalidate the remainder of this act, but shall be confined in its oper-
17 ation to the provision thereof directly involved in the controversy in
18 which such judgment shall have been rendered.
19 § 4. This act shall take effect immediately.
