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I.                   Overview

A.                 The Legislature’s goal in enacting the provisions contained in the Small Claims Assessment Review (“SCAR”) was to provide speedy and inexpensive relief for wrongly assessed homeowners utilizing a Judicial Hearing Officer (“JHO”) in such a manner as to do substantial justice between the parties according to the rules of substantive law, in an attempt to minimize bureaucracy, reduce litigation costs and reduce the backlog of court cases by allowing a quasi-judicial proceeding in the form of SCAR.

B.                 The proposed legislation promulgated by Harvey Levinson, Chairman of the Board of Assessors of Nassau County, relating to Small Claims Assessment Review (“SCAR”) proceedings will have a disastrous effect on New York State residents, especially the residents of Nassau County.  In fact, the proposed legislation effectively repeals RPTL § 729.4(a)(b) and contravenes RPTL § 732 in SCAR hearings.  This bill will not ensure the continued integrity and effectiveness of the Small Claims program because the results allow excessive and unequal assessments, resulting in costly litigation in an already clogged court system, and delays resolution for wrongfully assessed homeowners — mocking the Legislature’s intent in enacting SCAR by not furthering the goal of providing speedy and inexpensive relief to wrongly assessed Petitioners in such a manner as to do substantial justice. 

C.                 The discussion that follows analyzes the proposed legislation and the rebuttals thereto. 

II.                Barring evidence based on assessments of other properties is against public policy because it effectively repeals RPTL § 729.4(a)(b) and contravenes RPTL § 732 for SCAR Petitioners.

A.                 At present, the law provides that a petitioner may grieve their “assessment” by proving that it is “unequal” or “excessive” in a SCAR proceeding.   (RPTL § 730.)  In addition, a JHO may, as part of the evidence presented, allow the assessments of comparable properties in a SCAR proceeding in order to ensure “substantial justice.”  (RPTL § 732.)

B.                 The proposed legislation seeks to “disallow evidence based on assessments of other properties or assessments of the same property for other tax years and prohibits disclosure of prior settlement offers.” 

C.                 Contrary to the Legislature’s intent, this bill will make it impossible for a Petitioner to assert an “unequal assessment” claim at a SCAR proceeding under RPTL § 729.4(a)(b) because without the introduction of other assessments to be used as a comparison against Petitioner’s assessment, a claim cannot be made.   Instead, a Petitioner with a claim of “unequal assessment” will be forced to pursue Title 1 of Article 7 and commence litigation in the courts, a costly and time-consuming proposition for the Petitioner, as well as for other residents and businesses of the County whose taxes fund the Assessor’s defense.  Moreover, these measures would undoubtedly increase the burden placed on an already clogged court system.  The Legislature in enacting the provisions of SCAR envisioned a “speedy and inexpensive remedy” for the Petitioner to grieve property taxes.  This proposed bill has the opposite effect.

III.             Extending the period for completion of hearings from 45 to 90 days after the expiration of the statute of limitations does not the afford a Petitioner the remedy of a “speedy” resolution intended by the Legislature.

A.                 At present, cases required to be filed in Nassau County must be filed between April 1 through April 30.  Thereafter, a hearing is scheduled, with a hearing date approximately six to seven months later, with the JHO’s decision to be made in writing within 30 days.  (RPTL §730.3)

B.                 The proposed legislation extends the period for completion of hearings from 45 to 90 days after the expiration of the statute of limitations.

C.                 Contrary to the Legislature’s intent, wrongly assessed homeowners will not be afforded the “speedy relief” envisioned by the Legislature when it enacted SCAR should this bill be passed.   Instead, wrongly assessed homeowners will have to wait even longer, indeed doubling the amount of time for “substantial justice” to occur.   These measures will cause frustration amongst the wrongfully assessed homeowners and confusion for residents of Nassau County, who are burdened with Nassau County’s fourteen month lag under RPTL § 523.  

IV.              Barring introduction of new evidence at the SCAR hearing that was not presented to the administrative review body denies a petitioner the chance to rebut the Assessor’s presumption that the assessment is correct. 

A.                 At present, the law provides in part, “[t]he petitioner shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence” in a quasi-judicial proceeding such as SCAR. (§ 732.)

B.                 The proposed legislation bars introduction of new evidence at the SCAR hearing that was not presented to the administrative review body at the time of the initial application.  In addition, the proposed legislation allows the Assessor to present petitioner with proof of market value no more than 45 days after receipt from the clerk scheduling the hearing, but if such notice is less than 45 days, then the Assessor’s proof of market value would be presented at the hearing.

C.                 Contrary to the Legislature’s intent allowing wrongfully assessed homeowner the opportunity to present their case without being burdened by the rules of discovery, evidence or other rules of practice in a quasi-judicial proceeding, this bill will result in homeowners barred from presenting new or rebuttal evidence overcoming the Assessor’s presumption that the assessment is correct simply for procedural reasons.   These measures will result in a tax roll that is unfair, discriminatory, non-scientific and inequitable.

V.                 Allowing audio or other recording of the hearing defeats the Legislature’s intent of providing an “inexpensive” quasi-judicial proceeding for wrongfully assessed homeowners.

A.                 At present, the law does not require a recordation of evidence in a SCAR quasi-judicial proceeding, because the hearing is to be conducted in “an informal manner.”  (RPTL § 732.)

B.                 The proposed legislation will allow audio, video, transcripts  or other recordings of the hearing. 

C.                 Contrary to the Legislature’s intent of providing a wrongfully assessed homeowner the opportunity to participate in an “inexpensive” quasi-judicial proceeding to be conducted “in an informal manner,” to achieve substantial justice, this bill will require all taxpayers (whether or not they are homeowners) to incur substantial costs for recordation of these hearings, including the costs of personnel involved, the methods where they will be stored, the bureaucracy involved in manning this sort of system and the retrieval of obtaining such transcripts in an appeal.  The residents of the State of New York, especially the residents of Nassau County, are already duly burdened with some of the highest property taxes in the nation.  Moreover, this will turn a quasi-judicial proceeding into a trial. 

VI.              Allowing only attorneys, spouses, adult children, parents or guardians to represent a petitioner at a SCAR Hearing places an undue burden on the residents of New York and is against public policy.

A.                 At present, the law allows that a “[P]etition may be made by a person who has knowledge of the facts stated therein and who is authorized in writing by the property owner to file such petition.” (RPTL §730(6).)

B.                 The proposed legislation would allow only attorneys, spouses, adult children, parents or guardians to appear for a Petitioner at a hearing.  

C.                 Contrary to the Legislature’s intent, this bill will not allow persons who have knowledge of the facts to represent a wrongfully assessed homeowner, at a quasi-judicial proceeding.  Moreover, this bill excludes (i) translators, who are needed to interpret a wrongfully assessed homeowner’s claim; and (ii) friends and/or family who have knowledge of the facts, placing an undue burden on the residents of New York State.  If the bill was designed as a remedy to overcome the numerous “tax-grieving” agencies, then the legislation should have written in such a manner as to exclude remuneration. 

VII.           Authorizing the supervising justice to approve or modify decisions or order a new hearing and/or to assign judicial hearing officers to review decisions of other hearing officers and make recommendations thereto, does not promote the “speedy and inexpensive relief” intended by the Legislature and violates the principles of res judica.

A.                 The current law allows that the hearing officer shall make a decision in writing within thirty days after conclusion of the hearing and that the decision of the hearing officer shall state the findings of fact and the evidence upon which it is based.  (RPTL § 733.)

B.                 The proposed legislation will require that a supervising justice approve or modify decisions or order a new hearing and/or to assign judicial hearing officers to review decisions of other officers and make recommendations thereof. 

C.                 Contrary to the Legislature’s intent, this bill will result in making a JHO’s “decision” simply a recommendation.   The Legislature did not intend when they created the SCAR program to have a case heard, and heard again (allowing the Assessor “two bites of the apple”) and to frustrate the “speedy resolution” accorded to a wrongfully assessed homeowner.  In addition, the Legislature did not intend to increase bureacracy and its associated costs; its intent was just the opposite.  Moreover, this bill violates the common law principles of res judicata, the doctrine holding that to prevent injustice to the parties of a case already decided, re-litigation of a case already decided is barred. 

VIII.        Limiting SCAR to homes with a full value of one million dollars or less is discriminatory and against public policy. 

A.                 At present, the law allows all wrongly assessed homeowners the opportunity to have their case heard under a SCAR proceeding, with homes with an equalized value of $450,000 or more limited in the amount of their assessment reduction to .25%.  (RPTL § 730.1.)

B.                 The proposed litigation would limit SCAR to homes with a full value of one million dollars or less. 

C.                 Contrary to the Legislature’s intent of having SCAR to apply to all Petitioners, this bill results in a discriminatory process, where Petitioners are treated differently simply because of an artificial cap being placed on their property under the guise of “market value.”  All homeowners should be allowed to avail themselves in a proceeding ensuring a “speedy and inexpensive” resolution which is being afforded to others.   These methods serve only to promote inequity among different classes of Petitioners, and results in increased burdens upon the courts and litigation costs associated therewith. 

IX.              Barring a Petitioner who avails other legal remedies, including a proceeding before Title 1-A,  from utilizing SCAR, deprives the residents of New York of the ability to heard and is against public policy.

A.                 At present, the law allows a Petitioner who is in a proceeding before Title 1-A to avail themselves of the remedies provided under SCAR.  (RPTL § 730.)

B.                 The proposed legislation would limit SCAR to cases where no proceeding is commenced under Title 1 of Article 7.  

C.                 Contrary to the Legislature’s intent, which allows a Petitioner to grieve either through a SCAR proceeding, or Title 1-A proceeding, with full access to the courts for relief to which they may be granted, this bill deprives wrongfully assessed residents of their ability to access courts for relief.   Indeed, the wrongfully assessed homeowner is “punished” for commencing a Title 1-A proceeding, by barred from grieving under a SCAR proceeding, which denies them the benefit of a “speedy and inexpensive” proceeding in which to ensure substantial justice.

X.                 Allowing the parties to appeal a decision of the hearing officer to the supervising justice and to appeal issues of law decided by the supervising justice to the Appellate Division invites the Assessor to “Get Two Bites of the Apple,” violates the principles of res judica and is against public policy.

A.                 At present, the decision of a JHO is final, unless the decision was based on findings that are arbitrary, capricious or illegal, allowing a Petitioner to commence an Article 78 Petition to the Supreme Court Judge in the Petitioner’s County.  An Assessor is not allowed to appeal the decision of the JHO. (RPTL § 736.) 

B.                 The proposed legislation would allow not just the Petitioner, but also the Assessor, to appeal the decision of the JHO, thus making the SCAR decision only a recommendation. 

C.                 Contrary to the Legislature’s intent of providing a “speedy and inexpensive” resolution using a quasi-judicial proceeding, this bill will make a JHO’s decision simply a recommendation.  Indeed, should the JHO not agree with the Assessor, the Assessor will undoubtedly appeal the decision.  However, since the Assessor’s determination of a property is assumed to be correct, and it is the petitioner who must rebut the Assessor’s determination by evidence to the contrary at a hearing, if an Assessor is allowed to appeal a decision of the hearing officer, the Assessor would get “two bites of the apple,” making the decision rendered by the JHO a recommendation rather than a decision.   Indeed, the Legislature did not intend to have the courts saddled with undue costs, and Petitioners who expect a “speedy and inexpensive” resolution will find that the opposite to be true when a JHO decides on their behalf because of the Assessor’s appeal to overturn the decision.  Moreover, since the Legislature intended SCAR as a quasi-judicial remedy, allowing appeals of decisions circumvents the entire process. 

XI.              Allowing a wrongfully assessed homeowner’s refund to appear as a credit on the next billing cycle without interest, is tantamount to stealing and is against public policy.

A.                 At present, if a JHO finds that an assessment reviewed was excessive or unequal, then any amount at any time collected upon such excessive or unequal assessments shall be refunded within ninety days, and if such refund is not issued within the ninety days, interest in the amount of one percent per month shall be added to the amount to be refunded.  (RPTL § 734.) 

B.                 The proposed legislation would make payment of refund due to a wrongfully assessed homeowner as a credit on the next billing cycle without interest. 

C.                 Contrary to the Legislature’s intent to have a Petitioners receive the refunds applicable to them within a reasonable amount of time, this bill has the opposite effect.  The Assessor has no right to take money which they received in good faith from a Petitioner pending the results of a SCAR decision, and, then, adding insult to injury, and tantamount to stealing, to allow the Assessor to decide where the wrongfully assessed homeowners monies can be spent – and all without interest.  Indeed, it is the role of the Assessor to have a correct tax roll; a wrongfully assessed homeowner who has been grieved by rebutting the Assessor’s excessive or unequal assessment becomes the “piggy bank” for the Assessor – at no interest.  The Assessor is not punished or aggrieved by these measures; rather the Assessor is rewarded.   This was not the goal of the Legislature when they enacted SCAR.