Bill Text: NY S04712 | 2023-2024 | General Assembly | Amended
Bill Title: Authorizes the town of Orangetown to establish community preservation funds; establishes a real estate transfer tax with revenues therefrom to be deposited in said community preservation fund; provides for the repeal of such provisions upon the expiration thereof.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Vetoed) 2023-12-08 - VETOED MEMO.103 [S04712 Detail]
Download: New_York-2023-S04712-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 4712--B 2023-2024 Regular Sessions IN SENATE February 13, 2023 ___________ Introduced by Sen. WEBER -- read twice and ordered printed, and when printed to be committed to the Committee on Local Government -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- 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 Orangetown, county of Rockland to establish community preservation funds; to amend the tax law, in relation to authorizing the town of Orangetown to impose a real estate transfer tax with revenues there- from to be deposited in said community preservation fund; and provid- ing 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 Orangetown 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 Orangetown. 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 Orangetown is authorized to establish 18 by 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. LBD09270-05-3S. 4712--B 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 freshwater marshes or other wetlands; 42 (e) preservation of aquifer recharge areas; 43 (f) preservation of undeveloped beach-lands or shoreline; 44 (g) establishment of wildlife refuges for the purpose of maintaining 45 native animal species diversity, including the protection of habitat 46 essential to the recovery of rare, threatened or endangered species; 47 (h) preservation of unique or threatened ecological areas; 48 (i) preservation of rivers and river areas in a natural, free-flowing 49 condition; 50 (j) preservation of forested land; 51 (k) preservation of public access to lands for public use including 52 stream rights and waterways; 53 (l) preservation of historic places and properties listed on the New 54 York state register of historic places and/or protected under a munici- 55 pal historic preservation ordinance or law;S. 4712--B 3 1 (m) undertaking any of the purposes of this subdivision in furtherance 2 of the establishment of a greenbelt; and 3 (n) preservation of land of exceptional scenic value. 4 6. The town board which has established a community preservation fund 5 shall create an advisory board to review and make recommendations on 6 proposed acquisitions of interests in real property using monies from 7 the fund. Such board shall consist of five or seven legal residents of 8 the municipality who shall serve without compensation. No member of the 9 local legislative body shall serve on the board. A majority of the 10 members of the board shall have demonstrated experience with conserva- 11 tion or land preservation activities. The board shall act in an advisory 12 capacity to the town board. At least one member of the board shall be 13 an active farmer. Board members' terms shall be staggered. 14 7. The town board which has established a community preservation fund 15 shall, by local law, adopt a community preservation project plan. Such 16 plan shall list every project which the town plans to undertake pursuant 17 to the community preservation fund. Such plan shall provide for a 18 detailed evaluation of all available land use alternatives to protect 19 community character, including but not limited to: (a) fee simple acqui- 20 sition, (b) zoning regulations, including density reductions, cluster 21 development, and site plan and design requirements, (c) transfer of 22 development rights, (d) the purchase of development rights, and (e) 23 scenic and conservation easements. Said evaluation shall be as specific 24 as practicable as to each parcel selected for inclusion in such plan. 25 Such plan shall establish the priorities for preservation, and shall 26 include the preservation of farmland as its highest priority. Funds 27 from the community preservation fund may only be expended for projects 28 which have been included in such plan. Such plan shall be updated not 29 less than once every five years, but in no event until at least three 30 years after the adoption of the original plan. A copy of such plan shall 31 be filed with the town clerk, the commissioner of environmental conser- 32 vation, the commissioner of agriculture and markets and the commissioner 33 of the office of parks, recreation and historic preservation. Such plan 34 shall be completed at least sixty days before the submission of the 35 mandatory referendum required by section fourteen hundred thirty-nine- 36 bbb of the tax law. If at the time of referendum, the town shall have in 37 place an adopted open space plan, such plan shall be deemed sufficient 38 to waive the preservation plan requirements of this subdivision. Any 39 monies expended from the community preservation plan shall, however be 40 consistent with the purposes outlined in subdivisions three and five of 41 this section and with the open space plan for a period not to exceed 42 twelve months. 43 8. The town board which has established a community preservation fund 44 pursuant to this section may study and consider establishing a transfer 45 of development rights program to protect community character as provided 46 for by section two hundred sixty-one-a of this chapter. All provisions 47 of such section two hundred sixty-one-a shall be complied with. If at 48 any time during the life of the community preservation fund a transfer 49 of development rights program is established, the town may utilize 50 monies from the community preservation fund in order to create and fund 51 a central bank of the transfer of development rights program. If at any 52 time during the life of the community preservation fund, a transfer of 53 development rights program is repealed by the town, all monies from the 54 central bank shall be returned to the community preservation fund. 55 9. No interests or rights in real property shall be acquired pursuant 56 to this section until a public hearing is held as required by sectionS. 4712--B 4 1 two hundred forty-seven of the general municipal law; provided, however, 2 that nothing herein shall prevent the town board from entering into a 3 conditional purchase agreement before a public hearing is held. Any 4 resolution of the town board approving an acquisition of rights or 5 interest in real property pursuant to this section, shall find that 6 acquisition was the best alternative for the protection of community 7 character of all the reasonable alternatives available to the town. 8 10. Rights or interest in real property acquired pursuant to this 9 section shall be administered and managed in a manner which (a) allows 10 public use and enjoyment in a manner compatible with the natural, 11 scenic, historic and open space character of such lands; (b) preserves 12 the native biological diversity of such lands; (c) with regard to open 13 spaces, limits improvements to enhancing access for passive use of such 14 lands such as nature trails, boardwalks, bicycle paths, and peripheral 15 parking areas provided that such improvements do not degrade the ecolog- 16 ical value of the land or threaten essential wildlife habitat; and (d) 17 preserves cultural property consistent with accepted standards for 18 historic preservation. Notwithstanding any other provision of this 19 subdivision there shall be no right to public use and enjoyment of land 20 used in conjunction with a farm operation as defined by subdivision 21 eleven of section three hundred one of the agriculture and markets law. 22 In furthering the purposes of this section, the town may enter into 23 agreements with corporations organized under the not-for-profit corpo- 24 ration law and engage in land trust activities to manage lands including 25 less than fee interests acquired pursuant to the provisions of this 26 section, provided that any such agreement shall contain a provision that 27 such corporation shall keep the lands accessible to the public unless 28 such corporation shall demonstrate to the satisfaction of the town that 29 public accessibility would be detrimental to the lands or any natural 30 resources associated therewith. 31 11. Rights or interests in real property acquired with monies from 32 such fund shall not be sold, leased, exchanged, donated, or otherwise 33 disposed of or used for other than the purposes permitted by this 34 section without the express authority of an act of the state legisla- 35 ture, which shall provide for the substitution of other lands of equal 36 environmental value and fair market value and reasonably equivalent 37 usefulness and location to those to be discontinued, sold or disposed 38 of, and such other requirements as shall be approved by the state legis- 39 lature. Any conservation easements, created under title three of article 40 forty-nine of the environmental conservation law, which are acquired 41 with monies from such fund may only be modified or extinguished as 42 provided in section 49-0307 of such law. Nothing in this section shall 43 preclude the town, by local law, from establishing additional 44 restrictions to the alienation of lands acquired pursuant to this 45 section. This subdivision shall not apply to the sale of development 46 rights by the town acquired pursuant to this section, where said sale is 47 made by a central bank created by the town, pursuant to a transfer of 48 development rights program established by the town pursuant to section 49 two hundred sixty-one-a of this chapter, provided, however that (a) the 50 lands from which said development rights were acquired shall remain 51 preserved in perpetuity by a permanent conservation easement or other 52 instrument that similarly preserves the community character referenced 53 in subdivision five of this section, and (b) the proceeds from such sale 54 shall be deposited in the community preservation fund. 55 § 2. The tax law is amended by adding a new article 31-A-4 to read as 56 follows:S. 4712--B 5 1 ARTICLE 31-A-4 2 TAX ON REAL ESTATE TRANSFERS IN THE TOWN OF ORANGETOWN 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 Orangetown. 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. 4712--B 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 orS. 4712--B 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 Rock- 15 land. 16 11. "Town" means the town of Orangetown, county of Rockland. 17 12. "Treasurer" means the treasurer of the county of Rockland. 18 13. "Town supervisor" means the town supervisor of the town of Orange- 19 town. 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 Orangetown, acting through its town 37 board, is hereby authorized and empowered to adopt a local law imposing 38 in such town a tax on each conveyance of real property or interest ther- 39 ein not to exceed a maximum of three-quarters of one percent of the 40 consideration for such conveyance, subject to the exemptions set forth 41 in section fourteen hundred thirty-nine-eee of this article; any such 42 local law shall fix the rate of such tax. Provided, however, any such 43 local law imposing, repealing or reimposing such tax shall be subject to 44 a 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. 4712--B 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. 4712--B 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 toS. 4712--B 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. 4712--B 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. 4712--B 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 Orange- 47 town, pursuant to this article, shall provide for a method of apportion- 48 ment 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 Orange- 51 town, pursuant to this article, may contain such other provisions as the 52 town deems necessary for the proper administration of the tax imposed 53 pursuant to this article, including provisions concerning the determi- 54 nation of tax, the imposition of interest on underpayments and overpay- 55 ments and the imposition of civil penalties. Such provisions shall be 56 identical to the corresponding provisions of the real estate transferS. 4712--B 13 1 tax imposed by article thirty-one of this chapter, so far as such 2 provisions can be made applicable to the tax imposed pursuant to this 3 article. 4 § 1439-ooo. Returns to be secret. 1. Except in accordance with proper 5 judicial order or as otherwise provided by law, it shall be unlawful for 6 the treasurer or any officer or employee of the county or town, includ- 7 ing any person engaged or retained on an independent contract basis, to 8 divulge or make known in any manner the particulars set forth or 9 disclosed in any return required under a local law enacted pursuant to 10 this article. However, that nothing in this section shall prohibit the 11 recording officer from making a notation on an instrument effecting a 12 conveyance indicating the amount of tax paid. No recorded instrument 13 effecting a conveyance shall be considered a return for purposes of this 14 section. 15 2. The officers charged with the custody of such returns shall not be 16 required to produce any of them or evidence of anything contained in 17 them in any action or proceeding in any court, except on behalf of the 18 county or town in any action or proceeding involving the collection of a 19 tax due under a local law enacted pursuant to this article to which such 20 county or town is a party, or a claimant, or on behalf of any party to 21 any action or proceeding under the provisions of a local law enacted 22 pursuant to this article when the returns or facts shown thereby are 23 directly involved in such action or proceeding, in any of which events 24 the court may require the production of, and may admit in evidence, so 25 much of said returns or of the facts shown thereby, as are pertinent to 26 the action or proceeding and no more. 27 3. Nothing herein shall be construed to prohibit the delivery to a 28 grantor or grantee of an instrument effecting a conveyance or the duly 29 authorized representative of a grantor or grantee of a certified copy of 30 any return filed in connection with such instrument or to prohibit the 31 publication of statistics so classified as to prevent the identification 32 of particular returns and the items thereof, or the inspection by the 33 legal representatives of such county or town of the return of any 34 taxpayer who shall bring action to set aside or review the tax based 35 thereon. 36 4. Any officer or employee of such county or town who willfully 37 violates the provisions of this section shall be dismissed from office 38 and be incapable of holding any public office in this state for a period 39 of five years thereafter. 40 § 1439-ppp. Foreclosure proceedings. Where the conveyance consists of 41 a transfer of property made as a result of an order of the court in a 42 foreclosure proceeding ordering the sale of such property, the referee 43 or sheriff effectuating such transfer shall not be liable for any inter- 44 est or penalties that are authorized pursuant to this article or article 45 thirty-seven of this chapter. 46 § 3. Severability. If any provision of this act or the application 47 thereof shall for any reason be adjudged by any court of competent 48 jurisdiction to be invalid, such judgment shall not affect, impair, or 49 invalidate the remainder of this act, but shall be confined in its oper- 50 ation to the provision thereof directly involved in the controversy in 51 which such judgment shall have been rendered. 52 § 4. This act shall take effect immediately; provided, however, that 53 section two of this act shall take effect on the ninetieth day after it 54 shall have become a law and shall expire December 31, 2043 when upon 55 such date the provisions of such section shall be deemed repealed.
