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Boening v. Nassau County Department of Assessment

Supreme Court of New York, Second Department

January 17, 2018

Donald Boening, et al., appellants,
v.
Nassau County Department of Assessment, et al., respondents.

          Cronin, Cronin, Harris & O'Brien, P.C., Uniondale, NY (Laureen Harris of counsel), for appellants.

          Rivkin Radler, LLP, Uniondale, NY (William M. Savino, Stephen J. Smirti, Jr., and M. Paul Gorfinkel of counsel), for respondents.

          WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL ROBERT J. MILLER VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         Appeal from a judgment of the Supreme Court, Nassau County (Anthony F. Marano, J.), entered July 3, 2015. The judgment, insofar as appealed from, upon an oral decision of that court dated January 8, 2015, declared that the defendants were authorized to enact and enforce Nassau County Local Law 8-2013.

         ORDERED that the judgment is affirmed insofar as appealed from, with costs.

         In 2013, the defendant Nassau County Legislature adopted Nassau County Local Law 8-2013 (see Nassau County Administrative Code § 6-30.0; hereinafter Local Law 8-2013), which requires owners of designated income-producing properties in Nassau County to file a statement setting forth "all income derived from and all expenses attributable to the operation of such property" (Nassau County Administrative Code § 6-30.0[b]).

         These income and expense statements are intended to be used by the defendant Nassau County Department of Assessment (hereinafter the Department of Assessment) to assess the value of income-producing property for the purposes of taxation. Under Local Law 8-2013, landowners who fail to file a required income and expense statement are subject to certain enumerated penalties (see Nassau County Administrative Code § 6-30.0[f]).

         The plaintiffs commenced this action against the County of Nassau, the Department of Assessment, and the Nassau County Legislature, arguing that the New York State Legislature had not delegated the authority to prepare assessment rolls to counties. The plaintiffs sought a declaration that Local Law 8-2013 was a "nullity" because the County lacked the authority to pass local laws pertaining to the preparation of assessment rolls.

         In an oral decision issued on January 8, 2015, the Supreme Court stated that "[u]nder the County Charter the County has an obligation to assess all property situated in [Nassau] County and liable to taxation." The court found that "the Nassau County Charter provides that it's the duty of the assessor to prepare the assessment rol[l]."

         The Supreme Court determined that the County had the authority to require owners to file income and expense statements pursuant to "both... the Municipal Home Rule Law and the Nassau County Charter." The court concluded that Local Law 8-2013 was "not inconsistent with the New York State Constitution [or] with any general law" and that it was "a valid exercise of authority given to the County from the [S]tate."

         In a judgment entered July 3, 2015, upon the oral decision, the Supreme Court declared, among other things, that the defendants were authorized to enact and enforce Local Law 8-2013. The plaintiffs appeal, arguing that the State Legislature had not expressly delegated to the County the power to prepare assessments.

         "As limited by the State and Federal Constitutions' protection of individual rights and restriction of state power, the State Constitution establishes the state government as the preeminent sovereign of New York, and the three coordinate branches of the state government may exercise the entire legislative, executive and judicial power of the State" (Matter of Baldwin Union Free Sch. Dist. v County of Nassau, 22 N.Y.3d 606, 619; see NY Const, art III, § 1; art IV, § 1; art VI).

         "Given that the authority of political subdivisions flows from the state government and is, in a sense, an exception to the state government's otherwise plenary power, the lawmaking power of a county or other political subdivision can be exercised only to the extent it has been delegated by the State'" (Matter of Baldwin Union Free Sch. Dist. v County of Nassau, 22 N.Y.3d at 619, quoting Albany Area Bldrs. Assn. v Town of Guilderland, 74 N.Y.2d 372, 376; see Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 N.Y.2d 395, 399-401).

         "Perhaps the most significant delegation of state legislative authority is embodied in article IX of the Constitution, the home rule article" (Matter of Baldwin Union Free Sch. Dist. v County of Nassau, 22 N.Y.3d at 620). That article provides for the creation of local governmental entities and grants certain powers to local governments ...


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