Tuesday, February 13, 2018

Dave Gibson: Forever Wild and Forever Taxable

Wilcox Lake in the AdirondacksRecent Adirondack Almanack posts by Anthony Hall and Peter Bauer broke the news that Governor Andrew Cuomo has stuck a provision in his 2018-19 State budget to cap the annual State Land taxes we all share with towns and school districts in the Adirondack and Catskill Parks.  Furthermore, the Governor proposes to convert the long tradition of full payment of taxes on the Forest Preserve into (capped) payments in lieu of taxes (PILOT).

The approximately three-million acre, publicly-owned and “forever wild” NYS Forest Preserve in the Adirondack and Catskill Parks (and a small amount outside the Parks) is taxable for all purposes. Since 1886 the law has required that Forest Preserve lands must be valued for tax purposes as if privately owned (today’s Section 532a of the Real Property Tax Law, or RPTL).

Late 19th century lawmakers recognized that downstate economic and other benefits of protecting upstate watersheds in the Adirondacks and Catskills more than justified waiving the State’s exemption from being taxed. And thus it has been ever since.

Today, these are still the State’s greatest watersheds, filtering billions of gallons of water each day for practically nothing, and preventing flooding. New York City is, thus far, spared $5 billion in water treatment costs by the Catskill “forever wild” watersheds. The smallest Adirondack stream flows year-round because of the stable base flow guaranteed by forever wild policies. The recreational, wildlife, spiritual and other benefits of our wilderness, monetary and non-monetary, are enormous.

Therefore, spreading State land taxes across every New York taxpayer who benefits from these wild forests, whether or not they actually hike, paddle, snowshoe, snowmobile or simply gaze upon them, still makes the greatest possible sense.

However, the broad consensus and inviolable commitment to pay full taxes on the NYS Forest Preserve among our elected leaders has been fraying for years, and there are reasons for it.

Longstanding tensions exist over who does the assessing of State Land. After nearly a century of practice, the NYS Court of Appeals ruled in its so-called Shandaken decision of 1984 that the State is not legally entitled to assess State Lands. The local assessor is. Ever since then, each spring the State’s tax experts check the local assessors work. They may grieve the assessment like any other landowner. Ultimately the NYS Office of Real Property Services presents the State Comptroller with taxable assessed values on all Forest Preserve parcels in each and every taxing district. After applying a State equalization rate, the Comptroller sends out the checks to Adirondack and Catskill counties who distribute to the towns and school districts. I believe that in recent years the State pays a total of roughly $75-80 million in local taxes on all taxable Forest Preserve, or less than one one-hundredth of one percent of the total State budget.

As I understand it, local assessors vary widely in their application of the law. They are supposed to assess all lands in their jurisdiction at the same percentage of full, or market value. That uniformity does not exist. When State lands are assessed at lower percentage of full value than comparable private lands, the State must apply an equalization rate to the State Lands. By law, that rate must be the weighted average assessment ratio across all property types, which can force up the State equalization rate. State Land assessments can therefore rise faster than comparable private lands. Timber values and shorelines of lakes are also fully assessed at the local level, despite the fact that the forests and shorelines in the Forest Preserve cannot be sold, removed or developed as per Article XIV of the NYS Constitution. The State’s older forests have greater timber values, helping to boost State assessments.

While the State can grieve their assessments, it is politically tempting, especially in tough economic times, to do more than that by freezing or capping the State’s taxable assessed value or actual payments. This is especially true this year given the federal tax cut legislation and the limits that legislation imposes on deduction of State and local taxes. Governor Mario Cuomo tried the freezing approach in 1990, and Governor Paterson tried the State Land tax capping approach in 2009. Fortunately, neither action was successful.

Now, it’s Governor Andrew Cuomo’s turn to try and cap these tax payments and, instead of paying full taxes, issue only payments in lieu of taxes (PILOT) to Adirondack and Catskill localities. While this change might not make too much of a dent on towns and school districts this year, it’s bound to affect their tax base in future years, shifting more of the tax burden onto private Adirondack and Catskill landowners.

The Governor’s 2018 budget proposal reads as follows (from his Budget Briefing Book):

Simplify the Taxation of StateOwned Land. Certain lands owned by the State, such as in the downstate watershed and in the Adirondack and Catskill Parks, are taxable, reflecting the benefit to a significant portion of the citizenry beyond the local level. Locally determined assessments of taxable State land are reviewed by the Office of Real Property Tax Services annually, encumbering agency resources. The Executive Budget converts the existing ad valorem tax on State‐owned lands into a Payment in Lieu of Taxes (PILOT) at existing amounts, to be increased each year by the allowable levy growth factor for the property tax cap (the lesser of prior year inflation or two percent).

The 2009 cap effort led to one of the strangest but most effective coalitions in my memory. Supervisors, counties, school superintendents and conservation organizations all saw common ground. Governor Paterson walked into a meeting that year on the topic and got an earful from the coalition. The Governor said he didn’t realize how much local governments relied on State tax payments. Forest Preserve constitutes more than 90% of the acreage in some towns, and very frequently more than 50% (the Adirondack Atlas has a new map of acreage by town). The entire planet was interested in the future of the Adirondack Park, including how to pay for it, said Dan Plumley who participated in that meeting with the Governor. The Governor’s efforts to cap tax payments would, said Plumley, give the State a black eye locally, nationally and internationally. That gubernatorial tax cap disappeared and the coalition cheered a hard won victory.

I predict a similar coalition will re-form this budget season and demand that the Governor’s Tax Cap be stricken from the budget and related legislation to change, for the first time since the late 19th century, ad valorem taxes into PILOTs.

Town supervisors might sleep sounder if the same State Constitution that protects the Forest Preserve also obliged the State to pay full taxes on it, so that Governors could not do what Governor Cuomo is trying to do. Forever wild should also mean fully taxable, forever. The immediate response to such an idea is that the State constitution cannot bind Governors and Legislatures with respect to future spending commitments.

Perhaps the best answer to the current uncertainty is to once more ensure that the State, and not the local assessor, determines Forest Preserve assessed values. Overturning the Court of Appeals 1984 Shandaken decision may be extremely difficult, but a successful challenge might help to ease creeping equalization rates and political pressure in Albany to cap these taxes.

Meanwhile, the State Senate and Assembly this session will probably be hearing strong objection to the tax cap from Catskill and Adirondack local governments, constituents and organizations. Adirondack Wild: Friends of the Forest Preserve will be among them.

For background on this subject, I recommend Jim Dunne, State Economist with the Commission on the Adirondacks in the 21st Century, from his technical report 29 titled “Significant Issues in Real Property Taxation in the Adirondack Park” (The Adirondack Park in the 21st Century, Technical Reports, Volume 2, 1989 by the Commission)

Editor’s note: you can read Anthony Hall’s piece that broke the news here; Peter Bauer’s piece is located here.

Photo: Wilcox Lake in the Adirondacks.

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Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for over 30 years as executive director of the Association for the Protection of the Adirondacks, executive director of Protect the Adirondacks and currently as managing partner with Adirondack Wild: Friends of the Forest PreserveDuring Dave's tenure at the Association, the organization completed the Center for the Forest Preserve including the Adirondack Research Library at Paul Schaefer’s home. The library has the finest Adirondack collection outside the Blue Line, specializing in Adirondack conservation and recreation history. Currently, Dave is managing partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.

2 Responses

  1. adkDreamer says:

    Conservation easements are taxed also: NY RP TAX § 533

  2. Charlie S says:

    “The smallest Adirondack stream flows year-round because of the stable base flow guaranteed by forever wild policies.”

    Yes sir. Put this same stream anywhere developers have their financial reach upon our erected leaders (per example Clifton Park) and it will disappear as soon as the woods start coming down. This is science!

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