STAFF CONTACT :
This bill would allow tax districts to recover damages from persons whose negligent or intentional conduct resulted in a violation of the Environmental Conservation Law (ECL) or Public Health Law (PHL), and where such violations were wholly or partially the basis for the reduced valuation of real property.
The intent of this bill is to assure that persons whose violations of the Environmental Conservation Law or Public Health Law cause actual environmental damage will not benefit financially from such actions through lower real property tax assessments.
The Business Council opposes A.4856, because its impact would extend well beyond its intended purpose, and raises a number of legal and practical concerns.
The following analysis illustrates the potential impact of this bills, and significant concerns about its potential implementation.
- Under New York State court decisions (City of Amsterdam
v. Board of Assessment, Katz Buffalo Realty v. Anderson), assessors
cannot be required to testify in court as to how they arrived at
an assessed value. Given this case law, it would be difficult if
not impossible for a defendant to disprove that a reevaluation was
based on ECL or PHL violations. This places the burden of defense
on a party who would be legally barred from discovering the reason
for an assessment change.
- Damage claims could not brought
under this bill in response to actions that occurred before the state's
hazardous waste or hazardous material management laws were enacted,
since in most cases those releases did not represent a violation
of law. However, persons who take ownership of such sites with 'historic" contamination
could still be subject to damage claims under this bill, even though
they did not cause the environmental harm. For example, enforcement
cases have been brought for Clean Water Act violations against releases
to surface water from "historic" contamination sites, and
such cases have been brought against property owners who purchased
the property after the contamination occurred. This illustrates one
example of how A.4856, as presently drafted, could result in lawsuits
against persons who did not cause environmental contamination that
results in property devaluation.
- An assessor may devalue a parcel
due to its proximity to an regulated "environmental facility" (e.g.,
a manufacturing plant or a solid waste incinerator.) The assessor could
then seek damages under this bill in response to any environmental
violation at such facility, claiming that such devaluations were at
least partially to blame for the reduced property value. Again, considering
case law, it would be difficult if not impossible for facilities to
defend against such claims. Further, under this type of scenario, it
is unclear whether A.997 would apply an apportioned or a "joint
and several" liability
standard in awarding damages relative to environmental violations.
the valuation of an active manufacturing site could be reduced due
to the demolition of structures on the site. (In at least one instances,
a Business Council member demolished a structure in order to conduct
state mandated soil and groundwater remediation under the former building.)
Under this bill, the tax district could retaliate by seeking damages
claiming that any devaluation is partially attributable to existing
environmental contamination on the site. Again, the defendant could
not call the assessor to testify as the reasons for the devaluation.
is unclear whether a tax district could seek damages in instances where
the DEC has taken no enforcement action in response to an alleged violation,
or in instances where the DEC has determined that no violation occurred.
For example, under federal citizen suit provisions, a defendant can
go to the courts to enforce against alleged environmental violations
even after the EPA or DEC determines that no violation exists. The
Business Council is concerned that, under A.4856, the courts could
supersede the DEC's authority to assess
the legal and technical interpretation of the ECL.
- Under the state's Environmental Conservation Law, most unpermitted environmental releases are considered a violation. This includes leaks from chemical or petroleum bulk storage tanks, and air or wastewater discharges that exceed permit limits. While most releases are not considered by the DEC as the result of negligence, this bill would place such determinations in the hands of tax districts and the courts.
Based on these concerns, The Business Council respectfully opposes adoption of A.4856.