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S01810 Summary:

S01810 Actions:

S01810 Committee Votes:

S01810 Floor Votes:

S01810 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1810--A
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                    January 15, 2021
                                       ___________
 
        Introduced  by  Sen. SKOUFIS -- read twice and ordered printed, and when
          printed to be committed to the Committee on Local Government -- recom-
          mitted to the Committee on Local Government in accordance with  Senate
          Rule  6,  sec.  8  --  committee  discharged,  bill  amended,  ordered
          reprinted as amended and recommitted to said committee

        AN ACT to amend the town law, in relation to  authorizing  the  town  of
          Chester,  county  of Orange to establish community preservation funds;
          to amend the tax law, in relation to authorizing the town  of  Chester
          to  impose  a  real  estate transfer tax with revenues therefrom to be
          deposited in said community preservation fund; and providing  for  the
          repeal of certain provisions upon expiration thereof
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The town law is amended by adding a  new  section  64-l  to
     2  read as follows:
     3    §  64-l.  Town  of  Chester  preservation  funds.  1.  As used in this
     4  section, the following words and terms shall have  the  following  mean-
     5  ings:
     6    (a) "Town" means the town of Chester.
     7    (b)  "Community  preservation"  shall  mean  and  include  any  of the
     8  purposes outlined in subdivision five of this section.
     9    (c) "Board" means the advisory board required pursuant to  subdivision
    10  six of this section.
    11    (d)  "Fund"  means the community preservation fund created pursuant to
    12  subdivision two of this section.
    13    (e) "Tax" shall mean the real estate transfer tax imposed pursuant  to
    14  section  fourteen  hundred  thirty-nine-bbb  of  the  tax law or, if the
    15  context clearly indicates, shall  mean  the  real  estate  transfer  tax
    16  imposed pursuant to article thirty-one of the tax law.
    17    2. The town board of the town of Chester is authorized to establish by
    18  local  law  a  community preservation fund pursuant to the provisions of
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06404-03-2
        S. 1810--A                          2
 
     1  this section. Deposits into the fund may include revenues of  the  local
     2  government  from  whatever  source  and shall include, at a minimum, all
     3  revenues from a tax imposed upon the transfer of real property interests
     4  in  such  town pursuant to article thirty-one-A-four of the tax law. The
     5  fund shall also be authorized to accept gifts of any such  interests  in
     6  land  or  of  funds.  Interest accrued by monies deposited into the fund
     7  shall be credited to the fund. In no event shall monies deposited in the
     8  fund be transferred to any other  account.  Nothing  contained  in  this
     9  section shall be construed to prevent the financing in whole or in part,
    10  pursuant  to the local finance law, of any acquisition authorized pursu-
    11  ant to this section. Monies from the fund may be utilized to  repay  any
    12  indebtedness  or  obligations incurred pursuant to the local finance law
    13  consistent with effectuating the purposes of this section.
    14    3. The purposes of the fund shall be exclusively: (a) to  implement  a
    15  plan  for  the  preservation  of community character as required by this
    16  section, (b) to acquire interests or rights in  real  property  for  the
    17  preservation  of  community character within the town including villages
    18  therein in accordance with such plan and  in  cooperation  with  willing
    19  sellers,  (c)  to establish a bank pursuant to a transfer of development
    20  rights program consistent with section two hundred sixty-one-a  of  this
    21  chapter,  and  (d)  to  provide a management and stewardship program for
    22  such interests and  rights  consistent  with  subdivision  ten  of  this
    23  section  and in accordance with such plan designed to preserve community
    24  character. Not more than ten percent of the fund shall be  utilized  for
    25  the management and stewardship program.
    26    4.  If  the implementation of the community preservation project plan,
    27  adopted by the town board, as provided  in  subdivision  seven  of  this
    28  section,  has  been  completed,  and  funds are no longer needed for the
    29  purposes outlined in this subdivision, then any remaining monies in  the
    30  fund  shall  be applied to reduce any bonded indebtedness or obligations
    31  incurred to effectuate the purposes of this section.
    32    5. Preservation of community character shall involve one  or  more  of
    33  the following:
    34    (a) preservation of open space;
    35    (b) establishment of parks, nature preserves, or recreation areas;
    36    (c)  preservation  of  land which is predominantly viable agricultural
    37  land, as defined in subdivision seven of section three  hundred  one  of
    38  the  agriculture  and  markets law, or unique and irreplaceable agricul-
    39  tural land, as defined in subdivision six of section three  hundred  one
    40  of the agriculture and markets law;
    41    (d) preservation of lands of exceptional scenic value;
    42    (e) preservation of freshwater marshes or other wetlands;
    43    (f) preservation of aquifer recharge areas;
    44    (g) preservation of undeveloped beach-lands or shoreline;
    45    (h)  establishment  of wildlife refuges for the purpose of maintaining
    46  native animal species diversity, including  the  protection  of  habitat
    47  essential to the recovery of rare, threatened or endangered species;
    48    (i) preservation of unique or threatened ecological areas;
    49    (j)  preservation of rivers and river areas in a natural, free-flowing
    50  condition;
    51    (k) preservation of forested land;
    52    (l) preservation of public access to lands for  public  use  including
    53  stream rights and waterways;
    54    (m)  preservation  of historic places and properties listed on the New
    55  York state register of historic places and/or protected under a  munici-
    56  pal historic preservation ordinance or law; and
        S. 1810--A                          3
 
     1    (n) undertaking any of the purposes of this subdivision in furtherance
     2  of the establishment of a greenbelt.
     3    6.  The town board which has established a community preservation fund
     4  shall create an advisory board to review  and  make  recommendations  on
     5  proposed  acquisitions  of  interests in real property using monies from
     6  the fund. Such board shall consist of five or seven legal  residents  of
     7  the  municipality who shall serve without compensation. No member of the
     8  local legislative body shall serve on  the  board.  A  majority  of  the
     9  members  of  the board shall have demonstrated experience with conserva-
    10  tion or land preservation activities. The board shall act in an advisory
    11  capacity to the town board. At least one member of the board shall be an
    12  active farmer. Board members' terms shall be staggered.
    13    7. The town board which has established a community preservation  fund
    14  shall,  by  local law, adopt a community preservation project plan. Such
    15  plan shall list every project which the town plans to undertake pursuant
    16  to the community preservation fund.   Such  plan  shall  provide  for  a
    17  detailed  evaluation  of  all available land use alternatives to protect
    18  community character, including but not limited to: (a) fee simple acqui-
    19  sition, (b) zoning regulations, including  density  reductions,  cluster
    20  development,  and  site  plan  and  design requirements, (c) transfer of
    21  development rights, (d) the purchase  of  development  rights,  and  (e)
    22  scenic  and conservation easements. Said evaluation shall be as specific
    23  as practicable as to each parcel selected for inclusion  in  such  plan.
    24  Such  plan  shall  establish  the priorities for preservation, and shall
    25  include the preservation of farmland as its highest priority. Funds from
    26  the community preservation fund may only be expended for projects  which
    27  have  been  included  in  such plan. Such plan shall be updated not less
    28  than once every five years, but in no event until at least  three  years
    29  after  the  adoption  of the original plan. A copy of such plan shall be
    30  filed with the town clerk, the commissioner of  environmental  conserva-
    31  tion,  the  commissioner of agriculture and markets and the commissioner
    32  of the office of parks, recreation and historic preservation. Such  plan
    33  shall  be  completed  at  least  sixty days before the submission of the
    34  mandatory referendum required by section fourteen  hundred  thirty-nine-
    35  bbb of the tax law. If at the time of referendum, the town shall have in
    36  place  an  adopted open space plan, such plan shall be deemed sufficient
    37  to waive the preservation plan requirements  of  this  subdivision.  Any
    38  monies  expended  from the community preservation plan shall, however be
    39  consistent with the purposes outlined in subdivisions three and five  of
    40  this  section  and  with  the open space plan for a period not to exceed
    41  twelve months.
    42    8. The town board which has established a community preservation  fund
    43  pursuant  to this section may study and consider establishing a transfer
    44  of development rights program to protect community character as provided
    45  for by section two hundred sixty-one-a of this chapter.  All  provisions
    46  of  such  section  two hundred sixty-one-a shall be complied with. If at
    47  any time during the life of the community preservation fund  a  transfer
    48  of  development  rights  program  is  established,  the town may utilize
    49  monies from the community preservation fund in order to create and  fund
    50  a  central bank of the transfer of development rights program. If at any
    51  time during the life of the community preservation fund, a  transfer  of
    52  development  rights program is repealed by the town, all monies from the
    53  central bank shall be returned to the community preservation fund.
    54    9. No interests or rights in real property shall be acquired  pursuant
    55  to  this  section  until a public hearing is held as required by section
    56  two hundred forty-seven of the general municipal law; provided, however,
        S. 1810--A                          4
 
     1  that nothing herein shall prevent the town board from  entering  into  a
     2  conditional  purchase  agreement  before  a  public hearing is held. Any
     3  resolution of the town board  approving  an  acquisition  of  rights  or
     4  interest  in  real  property  pursuant  to this section, shall find that
     5  acquisition was the best alternative for  the  protection  of  community
     6  character of all the reasonable alternatives available to the town.
     7    10.  Rights  or  interest  in  real property acquired pursuant to this
     8  section shall be administered and managed in a manner which  (a)  allows
     9  public  use  and  enjoyment  in  a  manner  compatible with the natural,
    10  scenic, historic and open space character of such lands;  (b)  preserves
    11  the  native  biological diversity of such lands; (c) with regard to open
    12  spaces, limits improvements to enhancing access for passive use of  such
    13  lands  such  as nature trails, boardwalks, bicycle paths, and peripheral
    14  parking areas provided that such improvements do not degrade the ecolog-
    15  ical value of the land or threaten essential wildlife habitat;  and  (d)
    16  preserves  cultural  property  consistent  with  accepted  standards for
    17  historic preservation.  Notwithstanding  any  other  provision  of  this
    18  subdivision  there shall be no right to public use and enjoyment of land
    19  used in conjunction with a farm  operation  as  defined  by  subdivision
    20  eleven  of section three hundred one of the agriculture and markets law.
    21  In furthering the purposes of this section,  the  town  may  enter  into
    22  agreements  with  corporations organized under the not-for-profit corpo-
    23  ration law and engage in land trust activities to manage lands including
    24  less than fee interests acquired pursuant  to  the  provisions  of  this
    25  section, provided that any such agreement shall contain a provision that
    26  such  corporation  shall  keep the lands accessible to the public unless
    27  such corporation shall demonstrate to the satisfaction of the town  that
    28  public  accessibility  would  be detrimental to the lands or any natural
    29  resources associated therewith.
    30    11. Rights or interests in real property  acquired  with  monies  from
    31  such  fund  shall  not be sold, leased, exchanged, donated, or otherwise
    32  disposed of or used for  other  than  the  purposes  permitted  by  this
    33  section  without  the  express authority of an act of the state legisla-
    34  ture, which shall provide for the substitution of other lands  of  equal
    35  environmental  value  and  fair  market  value and reasonably equivalent
    36  usefulness and location to those to be discontinued,  sold  or  disposed
    37  of, and such other requirements as shall be approved by the state legis-
    38  lature. Any conservation easements, created under title three of article
    39  forty-nine  of  the  environmental  conservation law, which are acquired
    40  with monies from such fund may  only  be  modified  or  extinguished  as
    41  provided  in section 49-0307 of such law.  Nothing in this section shall
    42  preclude  the  town,  by  local  law,   from   establishing   additional
    43  restrictions  to  the  alienation  of  lands  acquired  pursuant to this
    44  section. This subdivision shall not apply to  the  sale  of  development
    45  rights by the town acquired pursuant to this section, where said sale is
    46  made  by  a  central bank created by the town, pursuant to a transfer of
    47  development rights program established by the town pursuant  to  section
    48  two  hundred sixty-one-a of this chapter, provided, however that (a) the
    49  lands from which said development  rights  were  acquired  shall  remain
    50  preserved  in  perpetuity  by a permanent conservation easement or other
    51  instrument that similarly preserves the community  character  referenced
    52  in subdivision five of this section, and (b) the proceeds from such sale
    53  shall be deposited in the community preservation fund.
    54    §  2. The tax law is amended by adding a new article 31-A-4 to read as
    55  follows:
        S. 1810--A                          5
 
     1                               ARTICLE 31-A-4
     2             TAX ON REAL ESTATE TRANSFERS IN THE TOWN OF CHESTER
     3  Section 1439-aaa. Definitions.
     4          1439-bbb. Imposition of tax.
     5          1439-ccc. Payment of tax.
     6          1439-ddd. Liability for tax.
     7          1439-eee. Exemptions.
     8          1439-fff. Credit.
     9          1439-ggg. Cooperative housing corporation transfers.
    10          1439-hhh. Designation of agents.
    11          1439-iii. Liability of recording officer.
    12          1439-jjj. Refunds.
    13          1439-kkk. Deposit and disposition of revenue.
    14          1439-lll. Judicial review.
    15          1439-mmm. Apportionment.
    16          1439-nnn. Miscellaneous.
    17          1439-ooo. Returns to be secret.
    18          1439-ppp. Foreclosure proceedings.
    19    §  1439-aaa.  Definitions. When used in this article, unless otherwise
    20  expressly stated, the following words and terms shall have the following
    21  meanings:
    22    1. "Person" means an individual, partnership, limited liability compa-
    23  ny, society, association,  joint  stock  company,  corporation,  estate,
    24  receiver,  trustee,  assignee,  referee  or any other person acting in a
    25  fiduciary or representative capacity, whether appointed by  a  court  or
    26  otherwise,  any  combination of individuals, and any other form of unin-
    27  corporated enterprise owned or conducted by two or more persons.
    28    2. "Controlling interest" means (a) in  the  case  of  a  corporation,
    29  either  fifty  percent or more of the total combined voting power of all
    30  classes of stock of such corporation, or fifty percent or  more  of  the
    31  capital,  profits  or  beneficial  interest in such voting stock of such
    32  corporation, and (b) in the case of a partnership, association, trust or
    33  other entity, fifty percent or more of the capital, profits  or  benefi-
    34  cial interest in such partnership, association, trust or other entity.
    35    3.  "Real  property"  means every estate or right, legal or equitable,
    36  present or future, vested or contingent, in lands, tenements or  heredi-
    37  taments, including buildings, structures and other improvements thereon,
    38  which  are  located  in  whole or in part within the town of Chester. It
    39  shall not include rights to sepulture.
    40    4. "Consideration" means the price actually paid  or  required  to  be
    41  paid for the real property or interest therein, including payment for an
    42  option  or  contract to purchase real property, whether or not expressed
    43  in the deed and whether paid or required to be paid by money,  property,
    44  or  any  other  thing  of  value.  It  shall include the cancellation or
    45  discharge of an indebtedness or obligation. It shall  also  include  the
    46  amount  of  any  mortgage, purchase money mortgage, lien or other encum-
    47  brance, whether or not the underlying indebtedness is assumed  or  taken
    48  subject to.
    49    (a)  In the case of a creation of a leasehold interest or the granting
    50  of an option with use and  occupancy  of  real  property,  consideration
    51  shall  include, but not be limited to, the value of the rental and other
    52  payments attributable to the use and occupancy of the real  property  or
    53  interest therein, the value of any amount paid for an option to purchase
    54  or  renew  and the value of rental or other payments attributable to the
    55  exercise of any option to renew.
        S. 1810--A                          6
 
     1    (b) In the case of a creation of a  subleasehold  interest,  consider-
     2  ation  shall  include,  but not be limited to, the value of the sublease
     3  rental payments attributable to the use and occupancy of the real  prop-
     4  erty,  the value of any amount paid for an option to renew and the value
     5  of  rental  or other payments attributable to the exercise of any option
     6  to renew less the value of the remaining  prime  lease  rental  payments
     7  required to be made.
     8    (c) In the case of a controlling interest in any entity that owns real
     9  property,  consideration  shall  mean  the fair market value of the real
    10  property or interest therein, apportioned based on the percentage of the
    11  ownership interest transferred or acquired in the entity.
    12    (d) In the case of an assignment or surrender of a leasehold  interest
    13  or the assignment or surrender of an option or contract to purchase real
    14  property,  consideration  shall  not  include the value of the remaining
    15  rental payments required to be made pursuant to the terms of such  lease
    16  or  the amount to be paid for the real property pursuant to the terms of
    17  the option or contract being assigned or surrendered.
    18    (e) In the case of (1) the original conveyance of shares of stock in a
    19  cooperative housing corporation in connection with the grant or transfer
    20  of a proprietary leasehold by the cooperative corporation or cooperative
    21  plan sponsor, and (2) the subsequent conveyance by the owner thereof  of
    22  such  stock  in a cooperative housing corporation in connection with the
    23  grant or transfer of a proprietary  leasehold  for  a  cooperative  unit
    24  other than an individual residential unit, consideration shall include a
    25  proportionate  share of the unpaid principal of any mortgage on the real
    26  property of the cooperative housing corporation comprising  the  cooper-
    27  ative  dwelling  or dwellings.  Such share shall be determined by multi-
    28  plying the total unpaid principal of the mortgage  by  a  fraction,  the
    29  numerator of which shall be the number of shares of stock being conveyed
    30  in  the  cooperative housing corporation in connection with the grant or
    31  transfer of a proprietary leasehold and the denominator of  which  shall
    32  be the total number of shares of stock in the cooperative housing corpo-
    33  ration.
    34    5.  "Conveyance"  means  the  transfer or transfers of any interest in
    35  real property by  any  method,  including  but  not  limited  to,  sale,
    36  exchange,  assignment, surrender, mortgage foreclosure, transfer in lieu
    37  of foreclosure, option,  trust  indenture,  taking  by  eminent  domain,
    38  conveyance upon liquidation or by a receiver, or transfer or acquisition
    39  of a controlling interest in any entity with an interest in real proper-
    40  ty.  Transfer of an interest in real property shall include the creation
    41  of a leasehold or sublease only where (a) the sum of  the  term  of  the
    42  lease  or sublease and any options for renewal exceeds forty-nine years,
    43  (b) substantial capital improvements are or may be made by  or  for  the
    44  benefit of the lessee or sublessee, and (c) the lease or sublease is for
    45  substantially  all  of  the  premises  constituting  the  real property.
    46  Notwithstanding the foregoing, conveyance of  real  property  shall  not
    47  include  a  conveyance  made pursuant to devise, bequest or inheritance;
    48  the creation, modification,  extension,  spreading,  severance,  consol-
    49  idation,  assignment, transfer, release or satisfaction of a mortgage; a
    50  mortgage subordination agreement, a  mortgage  severance  agreement,  an
    51  instrument given to perfect or correct a recorded mortgage; or a release
    52  of lien of tax pursuant to this chapter or the internal revenue code.
    53    6.  "Interest in the real property" includes title in fee, a leasehold
    54  interest, a beneficial interest, an encumbrance, development rights, air
    55  space and air rights, or any other interest with the  right  to  use  or
    56  occupancy  of  real  property  or the right to receive rents, profits or
        S. 1810--A                          7

     1  other income derived from real property. It shall also include an option
     2  or contract to purchase real property. It shall not include a  right  of
     3  first refusal to purchase real property.
     4    7.  "Grantor"  means the person making the conveyance of real property
     5  or interest therein. Where the conveyance consists of a transfer  or  an
     6  acquisition  of  a controlling interest in an entity with an interest in
     7  real property, "grantor" means the entity with an interest in real prop-
     8  erty or a shareholder  or  partner  transferring  stock  or  partnership
     9  interest, respectively.
    10    8.  "Grantee"  means  the person who obtains real property or interest
    11  therein as a result of a conveyance.
    12    9. "Fund" means a community  preservation  fund  created  pursuant  to
    13  section sixty-four-l of the town law.
    14    10.  "Recording  officer"  means  the  county  clerk  of the county of
    15  Orange.
    16    11. "Town" means the town of Chester, county of Orange.
    17    12. "Treasurer" means the treasurer of the county of Orange.
    18    13. "Town supervisor" means the town supervisor of the town  of  Ches-
    19  ter.
    20    14.  "Tax" shall mean the real estate transfer tax imposed pursuant to
    21  section fourteen hundred thirty-nine-bbb of  this  article  or,  if  the
    22  context  clearly  indicates,  shall  mean  the  real estate transfer tax
    23  imposed pursuant to article thirty-one of this chapter.
    24    15. "Residential real property"  means  property  which  satisfies  at
    25  least one of the following conditions:
    26    (a)  the  property classification code assigned to the property on the
    27  latest final assessment roll, as reported on the transfer  report  form,
    28  indicates  that  the  property  is  a one, two or three family home or a
    29  rural residence; or
    30    (b) the transfer report indicates that the property is a one,  two  or
    31  three  family  residential  property  that has been newly constructed on
    32  vacant land; or
    33    (c) the transfer report form indicates that the property is a residen-
    34  tial condominium.
    35    § 1439-bbb. Imposition of tax. Notwithstanding any other provisions of
    36  law to the contrary, the town of Chester, acting through its town board,
    37  is hereby authorized and empowered to adopt a local law imposing in such
    38  town a tax on each conveyance of real property or interest  therein  not
    39  to  exceed  a  maximum of three-quarters of one percent of the consider-
    40  ation for such conveyance,  subject  to  the  exemptions  set  forth  in
    41  section fourteen hundred thirty-nine-eee of this article; any such local
    42  law  shall  fix  the rate of such tax. Provided, however, any such local
    43  law imposing, repealing or reimposing such tax shall  be  subject  to  a
    44  mandatory  referendum  pursuant to section twenty-three of the municipal
    45  home rule law. Notwithstanding the foregoing, prior to adoption of  such
    46  local  law, the town must establish a community preservation fund pursu-
    47  ant to section sixty-four-l of the town  law.  Revenues  from  such  tax
    48  shall  be deposited in such fund and may be used solely for the purposes
    49  of such fund. Such local law shall apply to any conveyance occurring  on
    50  or  after  the first day of a month to be designated by such town board,
    51  which is not less than sixty days after the enactment of such local law,
    52  but shall not apply to conveyances made on or after such  date  pursuant
    53  to  binding  written contracts entered into prior to such date, provided
    54  that the date of execution of such contract is confirmed by  independent
    55  evidence  such as the recording of the contract, payment of a deposit or
    56  other facts and circumstances as determined by the treasurer.
        S. 1810--A                          8
 
     1    § 1439-ccc. Payment of tax. 1. The real estate  transfer  tax  imposed
     2  pursuant to this article shall be paid to the treasurer or the recording
     3  officer  acting  as  the agent of the treasurer upon designation as such
     4  agent by the treasurer. Such tax shall be paid at the same time  as  the
     5  real  estate  transfer tax imposed by article thirty-one of this chapter
     6  is required to be  paid.  Such  treasurer  or  recording  officer  shall
     7  endorse  upon  each  deed or instrument effecting a conveyance a receipt
     8  for the amount of the tax so paid.
     9    2. A return shall be required to  be  filed  with  such  treasurer  or
    10  recording  officer  for purposes of the real estate transfer tax imposed
    11  pursuant to this article at the same time as a return is required to  be
    12  filed  for  purposes  of the real estate transfer tax imposed by article
    13  thirty-one of this chapter. The treasurer shall prescribe  the  form  of
    14  return,  the  information  which it shall contain, and the documentation
    15  that shall accompany the return. Said form shall  be  identical  to  the
    16  real estate transfer tax return required to be filed pursuant to section
    17  fourteen  hundred  nine of this chapter, except that the treasurer shall
    18  adapt said form to reflect the  provisions  in  this  chapter  that  are
    19  inconsistent,  different,  or  in  addition to the provisions of article
    20  thirty-one of this chapter.    The  real  estate  transfer  tax  returns
    21  required  to  be  filed  pursuant to this section shall be preserved for
    22  three years and thereafter until such  treasurer  or  recording  officer
    23  orders them to be destroyed.
    24    3.  The  recording  officer shall not record an instrument effecting a
    25  conveyance unless the return required by this section has been filed and
    26  the tax imposed pursuant  to  this  article  shall  have  been  paid  as
    27  required in this section.
    28    §  1439-ddd.  Liability for tax. 1. The real estate transfer tax shall
    29  be paid by the grantee. If the grantee has failed to pay the tax imposed
    30  pursuant to this article or if the grantee is exempt from such tax,  the
    31  grantor  shall  have  the duty to pay the tax. Where the grantor has the
    32  duty to pay the tax because the grantee has failed to pay the tax,  such
    33  tax  shall  be  the  joint  and several liability of the grantee and the
    34  grantor.
    35    2. For the purpose of the proper administration of this article and to
    36  prevent evasion of the tax hereby imposed, it shall be presumed that all
    37  conveyances are subject to the tax.  Where  the  consideration  includes
    38  property  other  than money, it shall be presumed that the consideration
    39  is the fair market value of the real property or interest therein. These
    40  presumptions shall prevail until the contrary is proven, and the  burden
    41  of proving the contrary shall be on the person liable for payment of the
    42  tax.
    43    §  1439-eee.  Exemptions.  1.  The  following shall be exempt from the
    44  payment of the real estate transfer tax imposed by this article:
    45    (a) The state of New York, or any of its agencies,  instrumentalities,
    46  political  subdivisions,  or  public  corporations  (including  a public
    47  corporation created pursuant to an agreement  or  compact  with  another
    48  state or the Dominion of Canada); and
    49    (b)  The  United  Nations,  the United States of America or any of its
    50  agencies or instrumentalities.
    51    2. The tax shall not apply to any of the following conveyances:
    52    (a) Conveyances to the United Nations, the United States  of  America,
    53  the  state  of  New York, or any of their instrumentalities, agencies or
    54  political subdivisions (or any public corporation,  including  a  public
    55  corporation  created pursuant to agreement or compact with another state
    56  or the Dominion of Canada);
        S. 1810--A                          9
 
     1    (b) Conveyances which are or were used to secure a debt or other obli-
     2  gation;
     3    (c)  Conveyances  which,  without  additional  consideration, confirm,
     4  correct, modify or supplement a deed previously recorded;
     5    (d) Conveyances of real property without consideration  and  otherwise
     6  than in connection with a sale, including deeds conveying realty as bona
     7  fide gifts;
     8    (e) Conveyances given in connection with a tax sale;
     9    (f)  Conveyances  to  effectuate  a mere change of identity or form of
    10  ownership or organization where there is no change in beneficial  owner-
    11  ship, other than conveyances to a cooperative housing corporation of the
    12  real property comprising the cooperative dwelling or dwellings;
    13    (g) Conveyances which consist of a deed of partition;
    14    (h) Conveyances given pursuant to the federal bankruptcy act;
    15    (i)  Conveyances  of real property which consist of the execution of a
    16  contract to sell real property without the  use  or  occupancy  of  such
    17  property  or the granting of an option to purchase real property without
    18  the use or occupancy of such property;
    19    (j) Conveyances of real property or a  portion  or  portions  of  real
    20  property  that  are the subject of one or more of the following develop-
    21  ment restrictions:
    22    (1) agricultural, conservation, scenic, or an open space easement,
    23    (2) covenants or restrictions prohibiting development where the  prop-
    24  erty  or  portion  of  property  being  conveyed has had its development
    25  rights permanently removed,
    26    (3) a purchase of development rights agreement where the  property  or
    27  portion of property being conveyed has had its development rights perma-
    28  nently removed,
    29    (4)  a  transfer  of  development rights agreement, where the property
    30  being conveyed has had its development rights removed,
    31    (5) real property subject to any  locally  adopted  land  preservation
    32  agreement, provided said exemption is included in the local law imposing
    33  the tax authorized by this article;
    34    (k)  Conveyances  of real property, where the property is viable agri-
    35  cultural land as defined in subdivision seven of section  three  hundred
    36  one  of  the  agriculture  and markets law and the entire property to be
    37  conveyed is to be made subject to one of  the  development  restrictions
    38  provided  for  in  subparagraph two of paragraph (j) of this subdivision
    39  provided that said development restriction precludes the  conversion  of
    40  the property to a non-agricultural use for at least eight years from the
    41  date  of  transfer,  and said development restriction is evidenced by an
    42  easement, agreement,  or  other  suitable  instrument  which  is  to  be
    43  conveyed  to  the  town  simultaneously  with the conveyance of the real
    44  property; or
    45    (l) Conveyances of real property for open space,  parks,  or  historic
    46  preservation purposes to any not-for-profit tax exempt corporation oper-
    47  ated for conservation, environmental, or historic preservation purposes.
    48    3.  An  exemption  of one hundred thousand dollars shall be allowed on
    49  the consideration of the conveyance of  improved  real  property  or  an
    50  interest  therein,  and  an exemption of fifty thousand dollars shall be
    51  allowed on the consideration of the conveyance of unimproved real  prop-
    52  erty.
    53    §  1439-fff.  Credit.  A grantee shall be allowed a credit against the
    54  tax due on a conveyance of real property to the extent tax was  paid  by
    55  such  grantee  on a prior creation of a leasehold of all or a portion of
    56  the same real property or on the granting of an option  or  contract  to
        S. 1810--A                         10
 
     1  purchase  all  or  a  portion of the same real property by such grantee.
     2  Such credit shall be  computed  by  multiplying  the  tax  paid  on  the
     3  creation  of  the leasehold or on the granting of the option or contract
     4  by  a fraction, the numerator of which is the value of the consideration
     5  used to compute such tax paid which is not yet due to  such  grantor  on
     6  the  date  of the subsequent conveyance (and which such grantor will not
     7  be entitled to receive after such date), and the denominator of which is
     8  the total value of the consideration used to compute such tax paid.
     9    § 1439-ggg. Cooperative housing corporation transfers.  1.    Notwith-
    10  standing  the definition of "controlling interest" contained in subdivi-
    11  sion two of section fourteen hundred thirty-nine-aaa of this article  or
    12  anything  to the contrary contained in subdivision five of section four-
    13  teen hundred thirty-nine-aaa of this article, the tax  imposed  pursuant
    14  to  this article shall apply to (a) the original conveyance of shares of
    15  stock in a cooperative housing corporation in connection with the  grant
    16  or transfer of a proprietary leasehold by the cooperative corporation or
    17  cooperative  plan  sponsor,  and  (b)  the subsequent conveyance of such
    18  stock in a cooperative housing corporation in connection with the  grant
    19  or  transfer  of  a  proprietary  leasehold  by  the owner thereof. With
    20  respect to any such subsequent conveyance where the property is an indi-
    21  vidual residential unit, the consideration  for  the  interest  conveyed
    22  shall  exclude  the value of any liens on certificates of stock or other
    23  evidences of an ownership interest in and a  proprietary  lease  from  a
    24  corporation  or partnership formed for the purpose of cooperative owner-
    25  ship of residential interest in real estate  remaining  thereon  at  the
    26  time  of conveyance. In determining the tax on a conveyance described in
    27  paragraph (a) of this subdivision, a  credit  shall  be  allowed  for  a
    28  proportionate  part of the amount of any tax paid upon the conveyance to
    29  the cooperative housing corporation of the real property comprising  the
    30  cooperative  dwelling  or  dwellings  to the extent that such conveyance
    31  effectuated a mere change of identity or form of ownership of such prop-
    32  erty and not a change in the beneficial ownership of such property.  The
    33  amount  of  the  credit shall be determined by multiplying the amount of
    34  tax paid upon the conveyance to the cooperative housing corporation by a
    35  percentage representing the extent to which such conveyance  effectuated
    36  a  mere  change of identity or form of ownership and not a change in the
    37  beneficial ownership of such property, and then multiplying the  result-
    38  ing product by a fraction, the numerator of which shall be the number of
    39  shares  of stock conveyed in a transaction described in paragraph (a) of
    40  this subdivision, and the denominator of which shall be the total number
    41  of shares of stock of the cooperative housing corporation (including any
    42  stock held by the corporation). In no event, however, shall such  credit
    43  reduce  the  tax,  on  a  conveyance  described in paragraph (a) of this
    44  subdivision, below zero, nor shall any such credit be allowed for a  tax
    45  paid  more than twenty-four months prior to the date on which occurs the
    46  first in a series of conveyances of shares of stock in  an  offering  of
    47  cooperative  housing  corporation  shares  described in paragraph (a) of
    48  this subdivision.
    49    2. Every cooperative housing corporation shall be required to file  an
    50  information  return  with  the  treasurer by July fifteenth of each year
    51  covering the preceding period of January first  through  June  thirtieth
    52  and  by  January fifteenth of each year covering the preceding period of
    53  July first through December thirty-first. The return shall contain  such
    54  information  regarding  the conveyance of shares of stock in the cooper-
    55  ative housing corporation as the treasurer may deem  necessary,  includ-
    56  ing,  but  not limited to, the names, addresses and employee identifica-
        S. 1810--A                         11
 
     1  tion numbers or social security numbers of the grantor and the  grantee,
     2  the  number  of  shares  conveyed,  the  date  of the conveyance and the
     3  consideration paid for such conveyance.
     4    §  1439-hhh.  Designation  of  agents.  The treasurer is authorized to
     5  designate the recording officer to act as his or her agent for  purposes
     6  of  collecting  the  tax authorized by this article. The treasurer shall
     7  provide for the manner in which such person may be designated as his  or
     8  her  agent  subject  to such terms and conditions as the treasurer shall
     9  prescribe.  The real estate transfer tax shall be paid to such agent  as
    10  provided in section fourteen hundred thirty-nine-ccc of this article.
    11    §  1439-iii. Liability of recording officer. A recording officer shall
    12  not be liable for any inaccuracy in the amount of tax  imposed  pursuant
    13  to  this article that he or she shall collect so long as he or she shall
    14  compute and collect such tax on the amount of consideration or the value
    15  of the interest conveyed as such amounts are provided to him or  her  by
    16  the person paying the tax.
    17    §  1439-jjj.  Refunds. Whenever the treasurer shall determine that any
    18  moneys received under the provisions of the local law  enacted  pursuant
    19  to  this  article were paid in error, he or she may cause such moneys to
    20  be refunded pursuant to such requirements as he or  she  may  prescribe,
    21  provided that any application for such refund is filed with the treasur-
    22  er within two years from the date the erroneous payment was made.
    23    §  1439-kkk.  Deposit and disposition of revenue. 1. All taxes, penal-
    24  ties and interest imposed by the town under  the  authority  of  section
    25  fourteen hundred thirty-nine-bbb of this article, which are collected by
    26  the treasurer or his or her agents, shall be deposited in a single trust
    27  fund for the town and shall be kept in trust and separate and apart from
    28  all  other  monies  in  possession of the treasurer. Moneys in such fund
    29  shall be deposited and secured in the manner provided by section ten  of
    30  the  general  municipal law.  Pending expenditure from such fund, moneys
    31  therein may be invested in the manner provided in section eleven of  the
    32  general  municipal  law. Any interest earned or capital gain realized on
    33  the moneys so deposited or invested shall accrue to and become  part  of
    34  such fund.
    35    2.  The  treasurer shall retain such amount as he or she may determine
    36  to be necessary for refunds with respect to the tax imposed by the town,
    37  under the authority of section fourteen hundred thirty-nine-bbb of  this
    38  article,  out of which the treasurer shall pay any refunds of such taxes
    39  to those taxpayers entitled to a refund pursuant to  the  provisions  of
    40  this article.
    41    3. The treasurer, after reserving such refunds, shall on or before the
    42  twelfth  day  of each month pay to the town supervisor the taxes, penal-
    43  ties and interest imposed by the town under  the  authority  of  section
    44  fourteen hundred thirty-nine-bbb of this article, collected by the trea-
    45  surer,  pursuant  to  this  article  during  the next preceding calendar
    46  month. The amount so payable shall be certified to the  town  supervisor
    47  by  the  treasurer,  who  shall not be held liable for any inaccuracy in
    48  such certification. Provided, however, any  such  certification  may  be
    49  based  on  such  information as may be available to the treasurer at the
    50  time such certification must be made under  this  section.    Where  the
    51  amount so paid over to the town in any such distribution is more or less
    52  than the amount due to the town, the amount of the overpayment or under-
    53  payment  shall be certified to the town supervisor by the treasurer, who
    54  shall not be held liable for any inaccuracy in such  certification.  The
    55  amount  of  the overpayment or underpayment shall be so certified to the
    56  town supervisor as soon after the discovery of the overpayment or under-
        S. 1810--A                         12
 
     1  payment as reasonably possible and subsequent payments and distributions
     2  by the treasurer to the town shall be adjusted by subtracting the amount
     3  of any such overpayment from or by adding the amount of any such  under-
     4  payment  to  such number of subsequent payments and distributions as the
     5  treasurer and town supervisor shall consider reasonable in view  of  the
     6  overpayment or underpayment and all other facts and circumstances.
     7    4.  All  monies  received from the treasurer shall be deposited in the
     8  fund of the town, pursuant to section sixty-four-l of the town law.
     9    § 1439-lll. Judicial review. 1. Any final determination of the  amount
    10  of  any  tax  payable  under section fourteen hundred thirty-nine-ccc of
    11  this article shall be reviewable for error,  illegality  or  unconstitu-
    12  tionality  or  any other reason whatsoever by a proceeding under article
    13  seventy-eight of the civil practice law and rules if application  there-
    14  for  is made to the supreme court within four months after the giving of
    15  the notice of such final determination, provided, however, that any such
    16  proceeding under article seventy-eight of the  civil  practice  law  and
    17  rules shall not be instituted unless (a) the amount of any tax sought to
    18  be reviewed, with such interest and penalties thereon as may be provided
    19  for  by  local law shall be first deposited and there is filed an under-
    20  taking, issued by a surety company authorized to  transact  business  in
    21  this  state  and  approved  by  the  state  superintendent  of financial
    22  services as to solvency and responsibility, in such amount as a  justice
    23  of the supreme court shall approve to the effect that if such proceeding
    24  be  dismissed or the tax confirmed the petitioner will pay all costs and
    25  charges which may accrue in the prosecution of such proceeding or (b) at
    26  the option of the petitioner, such undertaking may be in  a  sum  suffi-
    27  cient to cover the taxes, interest and penalties stated in such determi-
    28  nation,  plus  the  costs and charges which may accrue against it in the
    29  prosecution of the proceeding, in which event the petitioner  shall  not
    30  be  required  to  pay  such  taxes, interest or penalties as a condition
    31  precedent to the application.
    32    2. Where any tax imposed hereunder shall have been erroneously,  ille-
    33  gally  or  unconstitutionally  assessed or collected and application for
    34  the refund or revision thereof duly made to the proper fiscal officer or
    35  officers, and such officer or officers shall have made  a  determination
    36  denying  such refund or revision, such determination shall be reviewable
    37  by a proceeding under article seventy-eight of the  civil  practice  law
    38  and  rules;  provided,  however,  that (a) such proceeding is instituted
    39  within four months after the giving of the notice of such denial, (b)  a
    40  final  determination  of  tax  due  was  not previously made, and (c) an
    41  undertaking is filed with the proper fiscal officer or officers in  such
    42  amount  and  with  such sureties as a justice of the supreme court shall
    43  approve to the effect that if such proceeding be dismissed  or  the  tax
    44  confirmed,  the  petitioner  will  pay  all  costs and charges which may
    45  accrue in the prosecution of such proceeding.
    46    § 1439-mmm. Apportionment. A local law adopted by the town of Chester,
    47  pursuant to this article, shall provide for a  method  of  apportionment
    48  for  determining  the  amount  of  tax due whenever the real property or
    49  interest therein is situated within and without the town.
    50    § 1439-nnn. Miscellaneous. A local law adopted by the town of Chester,
    51  pursuant to this article, may contain such other provisions as the  town
    52  deems  necessary for the proper administration of the tax imposed pursu-
    53  ant to this article, including provisions concerning  the  determination
    54  of tax, the imposition of interest on underpayments and overpayments and
    55  the imposition of civil penalties. Such provisions shall be identical to
    56  the  corresponding provisions of the real estate transfer tax imposed by
        S. 1810--A                         13
 
     1  article thirty-one of this chapter, so far as  such  provisions  can  be
     2  made applicable to the tax imposed pursuant to this article.
     3    §  1439-ooo. Returns to be secret. 1. Except in accordance with proper
     4  judicial order or as otherwise provided by law, it shall be unlawful for
     5  the treasurer or any officer or employee of the county or town,  includ-
     6  ing  any person engaged or retained on an independent contract basis, to
     7  divulge or make known  in  any  manner  the  particulars  set  forth  or
     8  disclosed  in  any return required under a local law enacted pursuant to
     9  this article. However, that nothing in this section shall  prohibit  the
    10  recording  officer  from  making a notation on an instrument effecting a
    11  conveyance indicating the amount of tax  paid.  No  recorded  instrument
    12  effecting a conveyance shall be considered a return for purposes of this
    13  section.
    14    2.  The officers charged with the custody of such returns shall not be
    15  required to produce any of them or evidence  of  anything  contained  in
    16  them  in  any action or proceeding in any court, except on behalf of the
    17  county or town in any action or proceeding involving the collection of a
    18  tax due under a local law enacted pursuant to this article to which such
    19  county or town is a party, or a claimant, or on behalf of any  party  to
    20  any  action  or  proceeding  under the provisions of a local law enacted
    21  pursuant to this article when the returns or  facts  shown  thereby  are
    22  directly  involved  in such action or proceeding, in any of which events
    23  the court may require the production of, and may admit in  evidence,  so
    24  much  of said returns or of the facts shown thereby, as are pertinent to
    25  the action or proceeding and no more.
    26    3. Nothing herein shall be construed to prohibit  the  delivery  to  a
    27  grantor  or  grantee of an instrument effecting a conveyance or the duly
    28  authorized representative of a grantor or grantee of a certified copy of
    29  any return filed in connection with such instrument or to  prohibit  the
    30  publication of statistics so classified as to prevent the identification
    31  of  particular  returns  and the items thereof, or the inspection by the
    32  legal representatives of such county  or  town  of  the  return  of  any
    33  taxpayer  who  shall  bring  action to set aside or review the tax based
    34  thereon.
    35    4. Any officer or employee  of  such  county  or  town  who  willfully
    36  violates  the  provisions of this section shall be dismissed from office
    37  and be incapable of holding any public office in this state for a period
    38  of five years thereafter.
    39    § 1439-ppp. Foreclosure proceedings. Where the conveyance consists  of
    40  a  transfer  of  property made as a result of an order of the court in a
    41  foreclosure proceeding ordering the sale of such property,  the  referee
    42  or sheriff effectuating such transfer shall not be liable for any inter-
    43  est or penalties that are authorized pursuant to this article or article
    44  thirty-seven of this chapter.
    45    §  3.  Severability.  If  any provision of this act or the application
    46  thereof shall for any reason be  adjudged  by  any  court  of  competent
    47  jurisdiction  to  be invalid, such judgment shall not affect, impair, or
    48  invalidate the remainder of this act, but shall be confined in its oper-
    49  ation to the provision thereof directly involved in the  controversy  in
    50  which such judgment shall have been rendered.
    51    §  4.  This act shall take effect immediately; provided, however, that
    52  section two of this act shall take effect on the ninetieth day after  it
    53  shall  have  become  a  law and shall expire December 31, 2041 when upon
    54  such date the provisions of such section shall be deemed repealed.