Bill Text: NY A03990 | 2017-2018 | General Assembly | Amended
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-01-03 - referred to local governments [A03990 Detail]
Download: New_York-2017-A03990-Amended.html
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. LBD04582-02-7A. 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 incurredA. 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 theA. 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 purchaseA. 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, airA. 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 articleA. 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 theA. 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 residentialA. 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 trustA. 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 dismissedA. 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 anyA. 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.