Bill Text: NY S03526 | 2017-2018 | General Assembly | Amended
Bill Title: Authorizes the town of Bethlehem to establish community preservation funds; authorizes the town of Bethlehem to impose a real estate transfer tax with revenues therefrom to be deposited in said community preservation fund.
Spectrum: Moderate Partisan Bill (Democrat 28-7)
Status: (Introduced - Dead) 2018-06-20 - COMMITTED TO RULES [S03526 Detail]
Download: New_York-2017-S03526-Amended.html
STATE OF NEW YORK ________________________________________________________________________ S. 3526--B A. 3028--B Cal. No. 241 2017-2018 Regular Sessions SENATE - ASSEMBLY January 24, 2017 ___________ IN SENATE -- Introduced by Sens. BRESLIN, AVELLA, HOYLMAN -- 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 -- recommitted to the Committee on Local Government in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee IN ASSEMBLY -- Introduced by M. of A. FAHY, SEPULVEDA, QUART, CARROLL, L. ROSENTHAL, THIELE, HARRIS, MOSLEY, ORTIZ -- read once and referred to the Committee on Local Governments -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee -- ordered to a third reading, amended and ordered reprinted, retaining its place on the order of third reading AN ACT to amend the town law, in relation to authorizing the town of Bethlehem to establish community preservation funds; to amend the tax law, in relation to authorizing the town of Bethlehem to impose a real estate transfer tax with revenues therefrom to be deposited in said community preservation fund; and providing for the repeal of certain provisions upon expiration thereof The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The town law is amended by adding a new section 64-k to 2 read as follows: 3 § 64-k. Town of Bethlehem 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 Bethlehem. 7 (b) "Community preservation" shall mean and include any of the 8 purposes outlined in subdivision five of this section. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD06787-03-8S. 3526--B 2 A. 3028--B 1 (c) "Board" means the advisory board required pursuant to subdivision 2 six of this section. 3 (d) "Fund" means the community preservation fund created pursuant to 4 subdivision two of this section. 5 (e) "Tax" shall mean the real estate transfer tax imposed pursuant to 6 section fourteen hundred thirty-nine-bbb of the tax law or, if the 7 context clearly indicates, shall mean the real estate transfer tax 8 imposed pursuant to article thirty-one of the tax law. 9 2. The town board of the town of Bethlehem is authorized to establish 10 by local law a community preservation fund pursuant to the provisions of 11 this section. Deposits into the fund may include revenues of the local 12 government from whatever source and shall include, at a minimum, all 13 revenues from a tax imposed upon the transfer of real property interests 14 in such town pursuant to article thirty-one-A-four of the tax law. The 15 fund shall also be authorized to accept gifts of any such interests in 16 land or of funds. Interest accrued by monies deposited into the fund 17 shall be credited to the fund. In no event shall monies deposited in the 18 fund be transferred to any other account. Nothing contained in this 19 section shall be construed to prevent the financing in whole or in part, 20 pursuant to the local finance law, of any acquisition authorized pursu- 21 ant to this section. Monies from the fund may be utilized to repay any 22 indebtedness or obligations incurred pursuant to the local finance law 23 consistent with effectuating the purposes of this section. 24 3. The purposes of the fund shall be exclusively: (a) to implement a 25 plan for the preservation of community character as required by this 26 section, (b) to acquire interests or rights in real property for the 27 preservation of community character within the town including villages 28 therein in accordance with such plan and in cooperation with willing 29 sellers, (c) to establish a bank pursuant to a transfer of development 30 rights program consistent with section two hundred sixty-one-a of this 31 chapter, and (d) to provide a management and stewardship program for 32 such interests and rights consistent with subdivision ten of this 33 section and in accordance with such plan designed to preserve community 34 character. Not more than ten percent of the fund shall be utilized for 35 the management and stewardship program. 36 4. If the implementation of the community preservation project plan, 37 adopted by the town board, as provided in subdivision seven of this 38 section, has been completed, and funds are no longer needed for the 39 purposes outlined in this subdivision, then any remaining monies in the 40 fund shall be applied to reduce any bonded indebtedness or obligations 41 incurred to effectuate the purposes of this section. 42 5. Preservation of community character shall involve one or more of 43 the following: 44 (a) preservation of open space; 45 (b) establishment of parks, nature preserves, or recreation areas; 46 (c) preservation of land which is predominantly viable agricultural 47 land, as defined in subdivision seven of section three hundred one of 48 the agriculture and markets law, or unique and irreplaceable agricul- 49 tural land, as defined in subdivision six of section three hundred one 50 of the agriculture and markets law; 51 (d) preservation of lands of exceptional scenic value; 52 (e) preservation of freshwater marshes or other wetlands; 53 (f) preservation of aquifer recharge areas; 54 (g) preservation of undeveloped beach-lands or shoreline;S. 3526--B 3 A. 3028--B 1 (h) establishment of wildlife refuges for the purpose of maintaining 2 native animal species diversity, including the protection of habitat 3 essential to the recovery of rare, threatened or endangered species; 4 (i) preservation of unique or threatened ecological areas; 5 (j) preservation of rivers and river areas in a natural, free-flowing 6 condition; 7 (k) preservation of forested land; 8 (l) preservation of public access to lands for public use including 9 stream rights and waterways; 10 (m) preservation of historic places and properties listed on the New 11 York state register of historic places and/or protected under a munici- 12 pal historic preservation ordinance or law; and 13 (n) undertaking any of the purposes of this subdivision in furtherance 14 of the establishment of a greenbelt. 15 6. The town board which has established a community preservation fund 16 shall create an advisory board to review and make recommendations on 17 proposed acquisitions of interests in real property using monies from 18 the fund. Such board shall consist of five or seven legal residents of 19 the municipality who shall serve without compensation. No member of the 20 local legislative body shall serve on the board. A majority of the 21 members of the board shall have demonstrated experience with conserva- 22 tion or land preservation activities. The board shall act in an advisory 23 capacity to the town board. At least one member of the board shall be an 24 active farmer. Board members' terms shall be staggered. 25 7. The town board which has established a community preservation fund 26 shall, by local law, adopt a community preservation project plan. Such 27 plan shall list every project which the town plans to undertake pursuant 28 to the community preservation fund. Such plan shall provide for a 29 detailed evaluation of all available land use alternatives to protect 30 community character, including but not limited to: (a) fee simple acqui- 31 sition, (b) zoning regulations, including density reductions, cluster 32 development, and site plan and design requirements, (c) transfer of 33 development rights, (d) the purchase of development rights, and (e) 34 scenic and conservation easements. Said evaluation shall be as specific 35 as practicable as to each parcel selected for inclusion in such plan. 36 Such plan shall establish the priorities for preservation, and shall 37 include the preservation of farmland as its highest priority. Funds from 38 the community preservation fund may only be expended for projects which 39 have been included in such plan. Such plan shall be updated not less 40 than once every five years, but in no event until at least three years 41 after the adoption of the original plan. A copy of such plan shall be 42 filed with the town clerk, the commissioner of environmental conserva- 43 tion, the commissioner of agriculture and markets and the commissioner 44 of the office of parks, recreation and historic preservation. Such plan 45 shall be completed at least sixty days before the submission of the 46 mandatory referendum required by section fourteen hundred thirty-nine-bb 47 of the tax law. If at the time of referendum, the town shall have in 48 place an adopted open space plan, such plan shall be deemed sufficient 49 to waive the preservation plan requirements of this subdivision. Any 50 monies expended from the community preservation plan shall, however be 51 consistent with the purposes outlined in subdivisions three and five of 52 this section and with the open space plan for a period not to exceed 53 twelve months. 54 8. The town board which has established a community preservation fund 55 pursuant to this section may study and consider establishing a transfer 56 of development rights program to protect community character as providedS. 3526--B 4 A. 3028--B 1 for by section two hundred sixty-one-a of this chapter. All provisions 2 of such section two hundred sixty-one-a shall be complied with. If at 3 any time during the life of the community preservation fund a transfer 4 of development rights program is established, the town may utilize 5 monies from the community preservation fund in order to create and fund 6 a central bank of the transfer of development rights program. If at any 7 time during the life of the community preservation fund, a transfer of 8 development rights program is repealed by the town, all monies from the 9 central bank shall be returned to the community preservation fund. 10 9. No interests or rights in real property shall be acquired pursuant 11 to this section until a public hearing is held as required by section 12 two hundred forty-seven of the general municipal law; provided, however, 13 that nothing herein shall prevent the town board from entering into a 14 conditional purchase agreement before a public hearing is held. Any 15 resolution of the town board approving an acquisition of rights or 16 interest in real property pursuant to this section, shall find that 17 acquisition was the best alternative for the protection of community 18 character of all the reasonable alternatives available to the town. 19 10. Rights or interest in real property acquired pursuant to this 20 section shall be administered and managed in a manner which (a) allows 21 public use and enjoyment in a manner compatible with the natural, 22 scenic, historic and open space character of such lands; (b) preserves 23 the native biological diversity of such lands; (c) with regard to open 24 spaces, limits improvements to enhancing access for passive use of such 25 lands such as nature trails, boardwalks, bicycle paths, and peripheral 26 parking areas provided that such improvements do not degrade the ecolog- 27 ical value of the land or threaten essential wildlife habitat; and (d) 28 preserves cultural property consistent with accepted standards for 29 historic preservation. Notwithstanding any other provision of this 30 subdivision there shall be no right to public use and enjoyment of land 31 used in conjunction with a farm operation as defined by subdivision 32 eleven of section three hundred one of the agriculture and markets law. 33 In furthering the purposes of this section, the town may enter into 34 agreements with corporations organized under the not-for-profit corpo- 35 ration law and engage in land trust activities to manage lands including 36 less than fee interests acquired pursuant to the provisions of this 37 section, provided that any such agreement shall contain a provision that 38 such corporation shall keep the lands accessible to the public unless 39 such corporation shall demonstrate to the satisfaction of the town that 40 public accessibility would be detrimental to the lands or any natural 41 resources associated therewith. 42 11. Rights or interests in real property acquired with monies from 43 such fund shall not be sold, leased, exchanged, donated, or otherwise 44 disposed of or used for other than the purposes permitted by this 45 section without the express authority of an act of the state legisla- 46 ture, which shall provide for the substitution of other lands of equal 47 environmental value and fair market value and reasonably equivalent 48 usefulness and location to those to be discontinued, sold or disposed 49 of, and such other requirements as shall be approved by the state legis- 50 lature. Any conservation easements, created under title three of article 51 forty-nine of the environmental conservation law, which are acquired 52 with monies from such fund may only be modified or extinguished as 53 provided in section 49-0307 of such law. Nothing in this section shall 54 preclude the town, by local law, from establishing additional 55 restrictions to the alienation of lands acquired pursuant to this 56 section. This subdivision shall not apply to the sale of developmentS. 3526--B 5 A. 3028--B 1 rights by the town acquired pursuant to this section, where said sale is 2 made by a central bank created by the town, pursuant to a transfer of 3 development rights program established by the town pursuant to section 4 two hundred sixty-one-a of this chapter, provided, however that (a) the 5 lands from which said development rights were acquired shall remain 6 preserved in perpetuity by a permanent conservation easement or other 7 instrument that similarly preserves the community character referenced 8 in subdivision five of this section, and (b) the proceeds from such sale 9 shall be deposited in the community preservation fund. 10 § 2. The tax law is amended by adding a new article 31-A-4 to read as 11 follows: 12 ARTICLE 31-A-4 13 TAX ON REAL ESTATE TRANSFERS IN THE TOWN OF BETHLEHEM 14 Section 1439-aaa. Definitions. 15 1439-bbb. Imposition of tax. 16 1439-ccc. Payment of tax. 17 1439-ddd. Liability for tax. 18 1439-eee. Exemptions. 19 1439-fff. Credit. 20 1439-ggg. Cooperative housing corporation transfers. 21 1439-hhh. Designation of agents. 22 1439-iii. Liability of recording officer. 23 1439-jjj. Refunds. 24 1439-kkk. Deposit and disposition of revenue. 25 1439-lll. Judicial review. 26 1439-mmm. Apportionment. 27 1439-nnn. Miscellaneous. 28 1439-ooo. Returns to be secret. 29 § 1439-aaa. Definitions. When used in this article, unless otherwise 30 expressly stated, the following words and terms shall have the following 31 meanings: 32 1. "Person" means an individual, partnership, limited liability compa- 33 ny, society, association, joint stock company, corporation, estate, 34 receiver, trustee, assignee, referee or any other person acting in a 35 fiduciary or representative capacity, whether appointed by a court or 36 otherwise, any combination of individuals, and any other form of unin- 37 corporated enterprise owned or conducted by two or more persons. 38 2. "Controlling interest" means (a) in the case of a corporation, 39 either fifty percent or more of the total combined voting power of all 40 classes of stock of such corporation, or fifty percent or more of the 41 capital, profits or beneficial interest in such voting stock of such 42 corporation, and (b) in the case of a partnership, association, trust or 43 other entity, fifty percent or more of the capital, profits or benefi- 44 cial interest in such partnership, association, trust or other entity. 45 3. "Real property" means every estate or right, legal or equitable, 46 present or future, vested or contingent, in lands, tenements or heredi- 47 taments, including buildings, structures and other improvements thereon, 48 which are located in whole or in part within the town of Bethlehem. It 49 shall not include rights to sepulture. 50 4. "Consideration" means the price actually paid or required to be 51 paid for the real property or interest therein, including payment for an 52 option or contract to purchase real property, whether or not expressed 53 in the deed and whether paid or required to be paid by money, property, 54 or any other thing of value. It shall include the cancellation or 55 discharge of an indebtedness or obligation. It shall also include the 56 amount of any mortgage, purchase money mortgage, lien or other encum-S. 3526--B 6 A. 3028--B 1 brance, whether or not the underlying indebtedness is assumed or taken 2 subject to. 3 (a) In the case of a creation of a leasehold interest or the granting 4 of an option with use and occupancy of real property, consideration 5 shall include, but not be limited to, the value of the rental and other 6 payments attributable to the use and occupancy of the real property or 7 interest therein, the value of any amount paid for an option to purchase 8 or renew and the value of rental or other payments attributable to the 9 exercise of any option to renew. 10 (b) In the case of a creation of a subleasehold interest, consider- 11 ation shall include, but not be limited to, the value of the sublease 12 rental payments attributable to the use and occupancy of the real prop- 13 erty, the value of any amount paid for an option to renew and the value 14 of rental or other payments attributable to the exercise of any option 15 to renew less the value of the remaining prime lease rental payments 16 required to be made. 17 (c) In the case of a controlling interest in any entity that owns real 18 property, consideration shall mean the fair market value of the real 19 property or interest therein, apportioned based on the percentage of the 20 ownership interest transferred or acquired in the entity. 21 (d) In the case of an assignment or surrender of a leasehold interest 22 or the assignment or surrender of an option or contract to purchase real 23 property, consideration shall not include the value of the remaining 24 rental payments required to be made pursuant to the terms of such lease 25 or the amount to be paid for the real property pursuant to the terms of 26 the option or contract being assigned or surrendered. 27 (e) In the case of (1) the original conveyance of shares of stock in a 28 cooperative housing corporation in connection with the grant or transfer 29 of a proprietary leasehold by the cooperative corporation or cooperative 30 plan sponsor, and (2) the subsequent conveyance by the owner thereof of 31 such stock in a cooperative housing corporation in connection with the 32 grant or transfer of a proprietary leasehold for a cooperative unit 33 other than an individual residential unit, consideration shall include a 34 proportionate share of the unpaid principal of any mortgage on the real 35 property of the cooperative housing corporation comprising the cooper- 36 ative dwelling or dwellings. Such share shall be determined by multi- 37 plying the total unpaid principal of the mortgage by a fraction, the 38 numerator of which shall be the number of shares of stock being conveyed 39 in the cooperative housing corporation in connection with the grant or 40 transfer of a proprietary leasehold and the denominator of which shall 41 be the total number of shares of stock in the cooperative housing corpo- 42 ration. 43 5. "Conveyance" means the transfer or transfers of any interest in 44 real property by any method, including but not limited to, sale, 45 exchange, assignment, surrender, mortgage foreclosure, transfer in lieu 46 of foreclosure, option, trust indenture, taking by eminent domain, 47 conveyance upon liquidation or by a receiver, or transfer or acquisition 48 of a controlling interest in any entity with an interest in real proper- 49 ty. Transfer of an interest in real property shall include the creation 50 of a leasehold or sublease only where (a) the sum of the term of the 51 lease or sublease and any options for renewal exceeds forty-nine years, 52 (b) substantial capital improvements are or may be made by or for the 53 benefit of the lessee or sublessee, and (c) the lease or sublease is for 54 substantially all of the premises constituting the real property. 55 Notwithstanding the foregoing, conveyance of real property shall not 56 include a conveyance made pursuant to devise, bequest or inheritance;S. 3526--B 7 A. 3028--B 1 the creation, modification, extension, spreading, severance, consol- 2 idation, assignment, transfer, release or satisfaction of a mortgage; a 3 mortgage subordination agreement, a mortgage severance agreement, an 4 instrument given to perfect or correct a recorded mortgage; or a release 5 of lien of tax pursuant to this chapter or the internal revenue code. 6 6. "Interest in the real property" includes title in fee, a leasehold 7 interest, a beneficial interest, an encumbrance, development rights, air 8 space and air rights, or any other interest with the right to use or 9 occupancy of real property or the right to receive rents, profits or 10 other income derived from real property. It shall also include an option 11 or contract to purchase real property. It shall not include a right of 12 first refusal to purchase real property. 13 7. "Grantor" means the person making the conveyance of real property 14 or interest therein. Where the conveyance consists of a transfer or an 15 acquisition of a controlling interest in an entity with an interest in 16 real property, "grantor" means the entity with an interest in real prop- 17 erty or a shareholder or partner transferring stock or partnership 18 interest, respectively. 19 8. "Grantee" means the person who obtains real property or interest 20 therein as a result of a conveyance. 21 9. "Fund" means a community preservation fund created pursuant to 22 section sixty-four-k of the town law. 23 10. "Recording officer" means the county clerk of the county of Alba- 24 ny. 25 11. "Town" means the town of Bethlehem, county of Albany. 26 12. "Treasurer" means the treasurer of the county of Albany. 27 13. "Town supervisor" means the town supervisor of the town of Bethle- 28 hem. 29 14. "Tax" shall mean the real estate transfer tax imposed pursuant to 30 section fourteen hundred thirty-nine-bbb of this article or, if the 31 context clearly indicates, shall mean the real estate transfer tax 32 imposed pursuant to article thirty-one of this chapter. 33 15. "Residential real property" means property which satisfies at 34 least one of the following conditions: 35 (a) the property classification code assigned to the property on the 36 latest final assessment roll, as reported on the transfer report form, 37 indicates that the property is a one, two or three family home or a 38 rural residence; or 39 (b) the transfer report indicates that the property is a one, two or 40 three family residential property that has been newly constructed on 41 vacant land; or 42 (c) the transfer report form indicates that the property is a residen- 43 tial condominium. 44 § 1439-bbb. Imposition of tax. Notwithstanding any other provisions of 45 law to the contrary, the town of Bethlehem, acting through its town 46 board, is hereby authorized and empowered to adopt a local law imposing 47 in such town a tax on each conveyance of real property or interest ther- 48 ein not to exceed a maximum of two percent of the consideration for such 49 conveyance, subject to the exemptions set forth in section fourteen 50 hundred thirty-nine-eee of this article; any such local law shall fix 51 the rate of such tax. Provided, however, any such local law imposing, 52 repealing or reimposing such tax shall be subject to a mandatory refer- 53 endum pursuant to section twenty-three of the municipal home rule law. 54 Notwithstanding the foregoing, prior to adoption of such local law, the 55 town must establish a community preservation fund pursuant to section 56 sixty-four-k of the town law. Revenues from such tax shall be depositedS. 3526--B 8 A. 3028--B 1 in such fund and may be used solely for the purposes of such fund. Such 2 local law shall apply to any conveyance occurring on or after the first 3 day of a month to be designated by such town board, which is not less 4 than sixty days after the enactment of such local law, but shall not 5 apply to conveyances made on or after such date pursuant to binding 6 written contracts entered into prior to such date, provided that the 7 date of execution of such contract is confirmed by independent evidence 8 such as the recording of the contract, payment of a deposit or other 9 facts and circumstances as determined by the treasurer. 10 § 1439-ccc. Payment of tax. 1. The real estate transfer tax imposed 11 pursuant to this article shall be paid to the treasurer or the recording 12 officer acting as the agent of the treasurer upon designation as such 13 agent by the treasurer. Such tax shall be paid at the same time as the 14 real estate transfer tax imposed by article thirty-one of this chapter 15 is required to be paid. Such treasurer or recording officer shall 16 endorse upon each deed or instrument effecting a conveyance a receipt 17 for the amount of the tax so paid. 18 2. A return shall be required to be filed with such treasurer or 19 recording officer for purposes of the real estate transfer tax imposed 20 pursuant to this article at the same time as a return is required to be 21 filed for purposes of the real estate transfer tax imposed by article 22 thirty-one of this chapter. The treasurer shall prescribe the form of 23 return, the information which it shall contain, and the documentation 24 that shall accompany the return. Said form shall be identical to the 25 real estate transfer tax return required to be filed pursuant to section 26 fourteen hundred nine of this chapter, except that the treasurer shall 27 adapt said form to reflect the provisions in this chapter that are 28 inconsistent, different, or in addition to the provisions of article 29 thirty-one of this chapter. The real estate transfer tax returns 30 required to be filed pursuant to this section shall be preserved for 31 three years and thereafter until such treasurer or recording officer 32 orders them to be destroyed. 33 3. The recording officer shall not record an instrument effecting a 34 conveyance unless the return required by this section has been filed and 35 the tax imposed pursuant to this article shall have been paid as 36 required in this section. 37 § 1439-ddd. Liability for tax. 1. The real estate transfer tax shall 38 be paid by the grantee. If the grantee has failed to pay the tax imposed 39 pursuant to this article or if the grantee is exempt from such tax, the 40 grantor shall have the duty to pay the tax. Where the grantor has the 41 duty to pay the tax because the grantee has failed to pay the tax, such 42 tax shall be the joint and several liability of the grantee and the 43 grantor. 44 2. For the purpose of the proper administration of this article and to 45 prevent evasion of the tax hereby imposed, it shall be presumed that all 46 conveyances are subject to the tax. Where the consideration includes 47 property other than money, it shall be presumed that the consideration 48 is the fair market value of the real property or interest therein. These 49 presumptions shall prevail until the contrary is proven, and the burden 50 of proving the contrary shall be on the person liable for payment of the 51 tax. 52 § 1439-eee. Exemptions. 1. The following shall be exempt from the 53 payment of the real estate transfer tax imposed by this article: 54 (a) The state of New York, or any of its agencies, instrumentalities, 55 political subdivisions, or public corporations (including a publicS. 3526--B 9 A. 3028--B 1 corporation created pursuant to an agreement or compact with another 2 state or the Dominion of Canada); and 3 (b) The United Nations, the United States of America or any of its 4 agencies or instrumentalities. 5 2. The tax shall not apply to any of the following conveyances: 6 (a) Conveyances to the United Nations, the United States of America, 7 the state of New York, or any of their instrumentalities, agencies or 8 political subdivisions (or any public corporation, including a public 9 corporation created pursuant to agreement or compact with another state 10 or the Dominion of Canada); 11 (b) Conveyances which are or were used to secure a debt or other obli- 12 gation; 13 (c) Conveyances which, without additional consideration, confirm, 14 correct, modify or supplement a deed previously recorded; 15 (d) Conveyances of real property without consideration and otherwise 16 than in connection with a sale, including deeds conveying realty as bona 17 fide gifts; 18 (e) Conveyances given in connection with a tax sale; 19 (f) Conveyances to effectuate a mere change of identity or form of 20 ownership or organization where there is no change in beneficial owner- 21 ship, other than conveyances to a cooperative housing corporation of the 22 real property comprising the cooperative dwelling or dwellings; 23 (g) Conveyances which consist of a deed of partition; 24 (h) Conveyances given pursuant to the federal bankruptcy act; 25 (i) Conveyances of real property which consist of the execution of a 26 contract to sell real property without the use or occupancy of such 27 property or the granting of an option to purchase real property without 28 the use or occupancy of such property; 29 (j) Conveyances of real property or a portion or portions of real 30 property that are the subject of one or more of the following develop- 31 ment restrictions: 32 (1) agricultural, conservation, scenic, or an open space easement, 33 (2) covenants or restrictions prohibiting development where the prop- 34 erty or portion of property being conveyed has had its development 35 rights permanently removed, 36 (3) a purchase of development rights agreement where the property or 37 portion of property being conveyed has had its development rights perma- 38 nently removed, 39 (4) a transfer of development rights agreement, where the property 40 being conveyed has had its development rights removed, 41 (5) real property subject to any locally adopted land preservation 42 agreement, provided said exemption is included in the local law imposing 43 the tax authorized by this article; 44 (k) Conveyances of real property, where the property is viable agri- 45 cultural land as defined in subdivision seven of section three hundred 46 one of the agriculture and markets law and the entire property to be 47 conveyed is to be made subject to one of the development restrictions 48 provided for in subparagraph two of paragraph (j) of this subdivision 49 provided that said development restriction precludes the conversion of 50 the property to a non-agricultural use for at least eight years from the 51 date of transfer, and said development restriction is evidenced by an 52 easement, agreement, or other suitable instrument which is to be 53 conveyed to the town simultaneously with the conveyance of the real 54 property; orS. 3526--B 10 A. 3028--B 1 (l) Conveyances of real property for open space, parks, or historic 2 preservation purposes to any not-for-profit tax exempt corporation oper- 3 ated for conservation, environmental, or historic preservation purposes. 4 3. An exemption from the tax which is equal to the median sales price 5 of residential real property within the applicable county, as determined 6 by the office of real property services pursuant to section four hundred 7 twenty-five of the real property tax law, shall be allowed on the 8 consideration of the conveyance of improved or unimproved real property 9 or an interest therein. 10 § 1439-fff. Credit. A grantee shall be allowed a credit against the 11 tax due on a conveyance of real property to the extent tax was paid by 12 such grantee on a prior creation of a leasehold of all or a portion of 13 the same real property or on the granting of an option or contract to 14 purchase all or a portion of the same real property by such grantee. 15 Such credit shall be computed by multiplying the tax paid on the 16 creation of the leasehold or on the granting of the option or contract 17 by a fraction, the numerator of which is the value of the consideration 18 used to compute such tax paid which is not yet due to such grantor on 19 the date of the subsequent conveyance (and which such grantor will not 20 be entitled to receive after such date), and the denominator of which is 21 the total value of the consideration used to compute such tax paid. 22 § 1439-ggg. Cooperative housing corporation transfers. 1. Notwith- 23 standing the definition of "controlling interest" contained in subdivi- 24 sion two of section fourteen hundred thirty-nine-aaa of this article or 25 anything to the contrary contained in subdivision five of section four- 26 teen hundred thirty-nine-aaa of this article, the tax imposed pursuant 27 to this article shall apply to (a) the original conveyance of shares of 28 stock in a cooperative housing corporation in connection with the grant 29 or transfer of a proprietary leasehold by the cooperative corporation or 30 cooperative plan sponsor, and (b) the subsequent conveyance of such 31 stock in a cooperative housing corporation in connection with the grant 32 or transfer of a proprietary leasehold by the owner thereof. With 33 respect to any such subsequent conveyance where the property is an indi- 34 vidual residential unit, the consideration for the interest conveyed 35 shall exclude the value of any liens on certificates of stock or other 36 evidences of an ownership interest in and a proprietary lease from a 37 corporation or partnership formed for the purpose of cooperative owner- 38 ship of residential interest in real estate remaining thereon at the 39 time of conveyance. In determining the tax on a conveyance described in 40 paragraph (a) of this subdivision, a credit shall be allowed for a 41 proportionate part of the amount of any tax paid upon the conveyance to 42 the cooperative housing corporation of the real property comprising the 43 cooperative dwelling or dwellings to the extent that such conveyance 44 effectuated a mere change of identity or form of ownership of such prop- 45 erty and not a change in the beneficial ownership of such property. The 46 amount of the credit shall be determined by multiplying the amount of 47 tax paid upon the conveyance to the cooperative housing corporation by a 48 percentage representing the extent to which such conveyance effectuated 49 a mere change of identity or form of ownership and not a change in the 50 beneficial ownership of such property, and then multiplying the result- 51 ing product by a fraction, the numerator of which shall be the number of 52 shares of stock conveyed in a transaction described in paragraph (a) of 53 this subdivision, and the denominator of which shall be the total number 54 of shares of stock of the cooperative housing corporation (including any 55 stock held by the corporation). In no event, however, shall such credit 56 reduce the tax, on a conveyance described in paragraph (a) of thisS. 3526--B 11 A. 3028--B 1 subdivision, below zero, nor shall any such credit be allowed for a tax 2 paid more than twenty-four months prior to the date on which occurs the 3 first in a series of conveyances of shares of stock in an offering of 4 cooperative housing corporation shares described in paragraph (a) of 5 this subdivision. 6 2. Every cooperative housing corporation shall be required to file an 7 information return with the treasurer by July fifteenth of each year 8 covering the preceding period of January first through June thirtieth 9 and by January fifteenth of each year covering the preceding period of 10 July first through December thirty-first. The return shall contain such 11 information regarding the conveyance of shares of stock in the cooper- 12 ative housing corporation as the treasurer may deem necessary, includ- 13 ing, but not limited to, the names, addresses and employee identifica- 14 tion numbers or social security numbers of the grantor and the grantee, 15 the number of shares conveyed, the date of the conveyance and the 16 consideration paid for such conveyance. 17 § 1439-hhh. Designation of agents. The treasurer is authorized to 18 designate the recording officer to act as his or her agent for purposes 19 of collecting the tax authorized by this article. The treasurer shall 20 provide for the manner in which such person may be designated as his or 21 her agent subject to such terms and conditions as the treasurer shall 22 prescribe. The real estate transfer tax shall be paid to such agent as 23 provided in section fourteen hundred thirty-nine-ccc of this article. 24 § 1439-iii. Liability of recording officer. A recording officer shall 25 not be liable for any inaccuracy in the amount of tax imposed pursuant 26 to this article that he or she shall collect so long as he or she shall 27 compute and collect such tax on the amount of consideration or the value 28 of the interest conveyed as such amounts are provided to him or her by 29 the person paying the tax. 30 § 1439-jjj. Refunds. Whenever the treasurer shall determine that any 31 moneys received under the provisions of the local law enacted pursuant 32 to this article were paid in error, he or she may cause such moneys to 33 be refunded pursuant to such requirements as he or she may prescribe, 34 provided that any application for such refund is filed with the treasur- 35 er within two years from the date the erroneous payment was made. 36 § 1439-kkk. Deposit and disposition of revenue. 1. All taxes, penal- 37 ties and interest imposed by the town under the authority of section 38 fourteen hundred thirty-nine-bbb of this article, which are collected by 39 the treasurer or his or her agents, shall be deposited in a single trust 40 fund for the town and shall be kept in trust and separate and apart from 41 all other monies in possession of the treasurer. Moneys in such fund 42 shall be deposited and secured in the manner provided by section ten of 43 the general municipal law. Pending expenditure from such fund, moneys 44 therein may be invested in the manner provided in section eleven of the 45 general municipal law. Any interest earned or capital gain realized on 46 the moneys so deposited or invested shall accrue to and become part of 47 such fund. 48 2. The treasurer shall retain such amount as he or she may determine 49 to be necessary for refunds with respect to the tax imposed by the town, 50 under the authority of section fourteen hundred thirty-nine-bbb of this 51 article, out of which the treasurer shall pay any refunds of such taxes 52 to those taxpayers entitled to a refund pursuant to the provisions of 53 this article. 54 3. The treasurer, after reserving such refunds, shall on or before the 55 twelfth day of each month pay to the town supervisor the taxes, penal- 56 ties and interest imposed by the town under the authority of sectionS. 3526--B 12 A. 3028--B 1 fourteen hundred thirty-nine-bbb of this article, collected by the trea- 2 surer, pursuant to this article during the next preceding calendar 3 month. The amount so payable shall be certified to the town supervisor 4 by the treasurer, who shall not be held liable for any inaccuracy in 5 such certification. Provided, however, any such certification may be 6 based on such information as may be available to the treasurer at the 7 time such certification must be made under this section. Where the 8 amount so paid over to the town in any such distribution is more or less 9 than the amount due to the town, the amount of the overpayment or under- 10 payment shall be certified to the town supervisor by the treasurer, who 11 shall not be held liable for any inaccuracy in such certification. The 12 amount of the overpayment or underpayment shall be so certified to the 13 town supervisor as soon after the discovery of the overpayment or under- 14 payment as reasonably possible and subsequent payments and distributions 15 by the treasurer to the town shall be adjusted by subtracting the amount 16 of any such overpayment from or by adding the amount of any such under- 17 payment to such number of subsequent payments and distributions as the 18 treasurer and town supervisor shall consider reasonable in view of the 19 overpayment or underpayment and all other facts and circumstances. 20 4. All monies received from the treasurer shall be deposited in the 21 fund of the town, pursuant to section sixty-four-k of the town law. 22 § 1439-lll. Judicial review. 1. Any final determination of the amount 23 of any tax payable under section fourteen hundred thirty-nine-ccc of 24 this article shall be reviewable for error, illegality or unconstitu- 25 tionality or any other reason whatsoever by a proceeding under article 26 seventy-eight of the civil practice law and rules if application there- 27 for is made to the supreme court within four months after the giving of 28 the notice of such final determination, provided, however, that any such 29 proceeding under article seventy-eight of the civil practice law and 30 rules shall not be instituted unless (a) the amount of any tax sought to 31 be reviewed, with such interest and penalties thereon as may be provided 32 for by local law shall be first deposited and there is filed an under- 33 taking, issued by a surety company authorized to transact business in 34 this state and approved by the state superintendent of insurance as to 35 solvency and responsibility, in such amount as a justice of the supreme 36 court shall approve to the effect that if such proceeding be dismissed 37 or the tax confirmed the petitioner will pay all costs and charges which 38 may accrue in the prosecution of such proceeding or (b) at the option of 39 the petitioner, such undertaking may be in a sum sufficient to cover the 40 taxes, interest and penalties stated in such determination, plus the 41 costs and charges which may accrue against it in the prosecution of the 42 proceeding, in which event the petitioner shall not be required to pay 43 such taxes, interest or penalties as a condition precedent to the appli- 44 cation. 45 2. Where any tax imposed hereunder shall have been erroneously, ille- 46 gally or unconstitutionally assessed or collected and application for 47 the refund or revision thereof duly made to the proper fiscal officer or 48 officers, and such officer or officers shall have made a determination 49 denying such refund or revision, such determination shall be reviewable 50 by a proceeding under article seventy-eight of the civil practice law 51 and rules; provided, however, that (a) such proceeding is instituted 52 within four months after the giving of the notice of such denial, (b) a 53 final determination of tax due was not previously made, and (c) an 54 undertaking is filed with the proper fiscal officer or officers in such 55 amount and with such sureties as a justice of the supreme court shall 56 approve to the effect that if such proceeding be dismissed or the taxS. 3526--B 13 A. 3028--B 1 confirmed, the petitioner will pay all costs and charges which may 2 accrue in the prosecution of such proceeding. 3 § 1439-mmm. Apportionment. A local law adopted by the town of Bethle- 4 hem, pursuant to this article, shall provide for a method of apportion- 5 ment for determining the amount of tax due whenever the real property or 6 interest therein is situated within and without the town. 7 § 1439-nnn. Miscellaneous. A local law adopted by the town of Bethle- 8 hem, pursuant to this article, may contain such other provisions as the 9 town deems necessary for the proper administration of the tax imposed 10 pursuant to this article, including provisions concerning the determi- 11 nation of tax, the imposition of interest on underpayments and overpay- 12 ments and the imposition of civil penalties. Such provisions shall be 13 identical to the corresponding provisions of the real estate transfer 14 tax imposed by article thirty-one of this chapter, so far as such 15 provisions can be made applicable to the tax imposed pursuant to this 16 article. 17 § 1439-ooo. Returns to be secret. 1. Except in accordance with proper 18 judicial order or as otherwise provided by law, it shall be unlawful for 19 the treasurer or any officer or employee of the county or town, includ- 20 ing any person engaged or retained on an independent contract basis, to 21 divulge or make known in any manner the particulars set forth or 22 disclosed in any return required under a local law enacted pursuant to 23 this article. However, that nothing in this section shall prohibit the 24 recording officer from making a notation on an instrument effecting a 25 conveyance indicating the amount of tax paid. No recorded instrument 26 effecting a conveyance shall be considered a return for purposes of this 27 section. 28 2. The officers charged with the custody of such returns shall not be 29 required to produce any of them or evidence of anything contained in 30 them in any action or proceeding in any court, except on behalf of the 31 county or town in any action or proceeding involving the collection of a 32 tax due under a local law enacted pursuant to this article to which such 33 county or town is a party, or a claimant, or on behalf of any party to 34 any action or proceeding under the provisions of a local law enacted 35 pursuant to this article when the returns or facts shown thereby are 36 directly involved in such action or proceeding, in any of which events 37 the court may require the production of, and may admit in evidence, so 38 much of said returns or of the facts shown thereby, as are pertinent to 39 the action or proceeding and no more. 40 3. Nothing herein shall be construed to prohibit the delivery to a 41 grantor or grantee of an instrument effecting a conveyance or the duly 42 authorized representative of a grantor or grantee of a certified copy of 43 any return filed in connection with such instrument or to prohibit the 44 publication of statistics so classified as to prevent the identification 45 of particular returns and the items thereof, or the inspection by the 46 legal representatives of such county or town of the return of any 47 taxpayer who shall bring action to set aside or review the tax based 48 thereon. 49 4. Any officer or employee of such county or town who willfully 50 violates the provisions of this section shall be dismissed from office 51 and be incapable of holding any public office in this state for a period 52 of five years thereafter. 53 § 3. Severability. If any provision of this act or the application 54 thereof shall for any reason be adjudged by any court of competent 55 jurisdiction to be invalid, such judgment shall not affect, impair, or 56 invalidate the remainder of this act, but shall be confined in its oper-S. 3526--B 14 A. 3028--B 1 ation to the provision thereof directly involved in the controversy in 2 which such judgment shall have been rendered. 3 § 4. This act shall take effect immediately; provided, however, that 4 section two of this act shall take effect on the ninetieth day after it 5 shall have become a law and shall expire December 31, 2038 when upon 6 such date the provisions of such section shall be deemed repealed.
