Forest Tax Laws

Joint Report of the New York State Department of Environmental Conservation and Board of Equalization and Assessment on THE FOREST TAX LAWS (Sections 480 and 480A of the Real Property Tax Law)

December 8, 1993 

The Honorable Mario M. Cuomo, Governor
Executive Chamber, 2nd Floor, Capitol 

The Honorable Ralph J. Marino, Majority Leader 
NYS Senate, Rm. 330, Capitol 

The Honorable Saul Weprin, Speaker 
NYS Assembly, Rm. 349, Capitol 

Gentlemen:

Pursuant to the Environmental Protection Act, which was enacted as Chapters 610 and 611 of the Laws of 1993, we are submitting this report on the implementation of New York's forest tax laws, together with our recommendations for improvement of this important program area. We respectfully urge your action on the recommendations we have developed. Our suggestions are based on an extensive review of the present status of exemptions granted under Sections 480 and 480-a of the Real Property Tax Law and analysis of the considerable comment received from interested parties during the hearing process.

As indicated in the report, there is a continuing need for some type of preferential property tax treatment of forest lands. However, a number of significant problems with the existing programs have been identified. Therefore, several major reforms are proposed herein. We believe that the proposals strike an appropriate balance between the many concerns and the often competing interests that have surfaced.

One of the central recommendations is a commitment of State resources to offset partially the fiscal burden these programs place on certain local governments. However, we urge that those resources be used only in areas where the need is greatest, and that safeguards be provided against excessive payments. Similarly, while we are proposing a broadening of the scope of program objectives, including some relaxation of timber management requirements, we have also proposed measures to safeguard the full range of forest resource values in accordance with sound forest stewardship principles. In keeping with other State efforts to maintain a viable multiple-use forest resource, we have proposed an additional incentive to encourage the provision of public access to enrolled lands, and the establishment of limits on the degree of structural development that may occur on lands enjoying publicly supported tax benefits.

We have also recommended consolidating Sections 480 and 480-a into a single forest tax program. This would solve a number of the current difficulties in administration and it would achieve a considerable improvement over the status quo without abandonment of the most important aspects of these longstanding programs.

Sincerely,

Thomas C. Jorling, Commissioner
Department of Environmental Conservation

David Gaskell, Secretary
Board of Equalization and Assessment

INTRODUCTION

The Environmental Protection Act, Chapters 610 and 611 of 1993, required the Department of Environmental Conservation (DEC) and the State Board of Equalization and Assessment (SBEA) to study the implementation of Real Property Tax Law Sections 480 and 480-a, relating to the taxation of forest lands. The purpose of the study is to evaluate the impacts of these programs on the local real property tax base, and on open space and natural resource protection concerns. In fulfillment of the statutory requirement, public hearings were conducted in five locations throughout New York. Following the hearings, a public comment period was provided to allow further public input on the part of persons and organizations unable to attend the hearings. The next section of this report presents background information on the forest taxation statutes and their fiscal consequences for local governments. Subsequent sections discuss the outcome of the hearings and present recommendations. An appendix includes summaries of hearing testimony and the written material received.

SUMMARY OF EXISTING FOREST TAX LAWS

Background

Some form of tax exemption for certified forests has been in effect in New York since 1912. Section 480 of the Real Property Tax Law became effective October 1, 1959 as an amended version of the Fisher Forest Tax Law of 1926. The program was closed to new applicants in 1974. However, tracts certified prior to September of 1974 were allowed to continue to receive the tax benefits of Section 480.

Under Section 480, owners of 15 acres or more of forest land were eligible to apply for partial exemption. The Department of Environmental Conservation was responsible for determining whether the tract was eligible for certification. Ultimately, 311 tracts were certified by the Department, containing a total of 815,503 acres.

Section 480 provided for assessment based on the 'bare land" only, with exemption of the value of the timber. Assessments on the bare land were also frozen at the time the land was placed in the program, and could he altered only when and if a townwide reassessment occurred. Such alteration is achieved by applying a factor representing the overall increase in the level of assessment to the existing Section 480 assessment. Due to the variety of program entry dates, reassessment cycles, and other factors, participants in Section 480 may receive major or minor tax reductions, and some may even pay more taxes than other private forest lands in the same municipality.

Sale of a Section 480 property has no effect on its tax exempt status, but conversion from forest use to another use requires payment of a six percent tax on the value of timber stumpage. Participants must also pay this yield tax at the time of any harvest, and the assessor is responsible for determining the value of the harvest. The Department of Environmental Conservation may direct an owner to conduct a harvest when the tract has 20,000 board feet of hardwood or 40,000 board feet of softwood per acre; however, no such harvest has been mandated to date. An owner may withdraw land from Section 480 at any time by paying the six percent stumpage tax. Fees collected under Section 480 are allocated to affected taxing jurisdictions according to a formula fixed in statute.

Section 480-a of the Real Property Tax Law was enacted in 1974, and took effect in 1976. Under this program, owners of 50 or more contiguous acres of forest may apply for exemption, provided that the owner commits to managing the forest in accordance with an approved management plan for a ten-year period. The management plan must he prepared by a professional forester and meet certain standards. Once approved, the management plan must be adhered to, but amendments can be made through written request. Failure to follow the plan, or conversion of the committed land from continued forest crop production, results in the imposition of tax penalties (see below). As of June 1, 1993, DEC had certified 963 tracts containing 339,562 acres. The Department estimates that a total of 9,000,000 acres in New York could ultimately be eligible for enrollment.

In the first year of participation in the 480-a program, the owner must commit the land to continued forest crop production for ten years by filing a commitment form with the clerk of the county and with the assessor. In each subsequent year the owner must file another ten-year commitment to retain the exemption. The exemption allowed under Section 480-a is either 80 percent of the assessed value of the eligible land, or any assessed value in excess of $40/acre (equalized), whichever is less.

Section 480-a participants also pay a six percent yield tax at the time of harvest. However, the procedure for determination, collection, and distribution of this tax is different than the one used for Section 480. Section 480-a provides that DEC, rather than the local assessor, determines the value of the timber harvest and notifies the chief county fiscal officer of that value. The county fiscal officer collects the fee due and then distributes the revenue to the affected jurisdictions in proportion to their tax rates. The ten-year commitment required by Section 480-a runs with the property and passes on to the owner's heirs and assigns. To withdraw the property from the program, the owner can cease filing the annual commitment form, thus losing eligibility for tax benefits. If the management plan is adhered to for the remainder of the commitment period, i.e., up to nine additional years, the commitment expires and there is no penalty. The owner can request to withdraw the land immediately, which has the same effect as failure to follow the approved management plan, or change of use: payment of the penalty tax is required. The normal penalty tax is 2.5 times the tax savings received in up to ten prior years, including compound interest over the period. If only a portion of the tract is withdrawn or converted to another use, the penalty is 5 times the tax savings on the portion for the years in question, plus interest.

New York State's forest tax laws were put in place in recognition of the important public economic, recreational and natural values of long term forest management on private lands. From the outset of such legislation more than 80 years ago, it was understood that it takes many years to obtain a return on an investment in growing trees and that if lands are taxed at their development value, the accumulated taxes over the long term are likely to remove all profit for the landowner and, thus, the incentive to maintain and manage forest land. High property taxes may push land toward development and encourage destructive short term forest management practices.

To address these issues all of the New England states, New York and many other states around the country have adopted forest tax laws directed at taxing forest land at values which more closely reflect the use of the land for forest purposes rather than for its development potential. A recent detailed study of forest tax laws in New York and northern New England conducted by the Northern Forest Lands Council confirmed the importance of these measures in encouraging the long term conservation and management of privately held timberland.

Fiscal Impact

Neither of the existing forest tax laws allows localities any option in terms of granting exemptions. Rather, these programs require the granting of tax benefits to all owners that have been certified as eligible by the Department. At present, the local costs associated with the tax exemptions are borne entirely by owners of taxable property in the jurisdictions where the certified lands are located. The degree to which a municipality's tax base is reduced depends upon the number of non-exempt parcels and the extent of other property types in the community. Municipalities having primarily forest land typically have narrow tax bases, and comparatively high levels of tax levy absorption by non-exempt parcels.

The fiscal impact of Section 480 can not be determined accurately. No good data for this older program are available, and there is anecdotal evidence that its provisions are not applied consistently by assessors. This is not surprising, given its emphasis on assessments determined many years ago, the separation of land and timber value, etc. Also, the Section 480 exemptions have been modified over time, in the context of changes in the local level of assessment. By today's standards of assessment administration, Section 480 is archaic and the source of much confusion and administrative difficulty.

Despite the lack of detailed exemption data, the Section 480 program is likely to involve a significantly large exempt value, given that over 800,000 acres are enrolled, nearly 2.5 times the total acreage enrolled in Section 480-a (see Table 1). Moreover, given that Section 480 has heavy participation in many municipalities in the Adirondack region, where local tax bases tend to be narrow, the resulting tax base erosion is likely to be significant for these jurisdictions.

A series of five hearings were conducted during the first week of October 1993. They were held in Ray Brook, Schenectady, Sherburne, New York City, and Monticello. In addition, written public comments were accepted until October 25th. Approximately 160 people attended the hearings, and nearly one hundred offered comments, criticisms, or suggestions. Total attendance was highest in Monticello, with about 90 people, and lowest in New York City, where only one person appeared. A brief characterization of the comments made by each person during the hearing process may be found in the appendix to this report.

On the basis of the comments received, there appears to be strong support for continuation of some sort of forest tax exemption program in New York. As might be expected, beneficiaries strongly endorsed the programs, and few, if any, attendees suggested outright repeal. Local government officials were inclined to discuss the local fiscal impact of the exemptions. Several people also expressed concerns about perceived inconsistencies in administration and program requirements and the differences in benefits received under Sections 480 and 480-a.

The majority of comments made related to the fact that good forest stewardship benefits the state as a whole, and that there should therefore be a statewide sharing of program costs. In other words, it was seen as unfair to impose the cost of securing these statewide benefits on the smaller rural municipalities where the land is located. Examples of the benefits accruing to society as a whole that were cited included wood products and the resulting jobs provided, clean filtered water and air, aesthetics, wildlife habitat, rare plant and animal communities and outdoor recreation.

Concern was expressed over administration of both programs, and especially with the level of DEC oversight of Section 480-a properties. Several people discussed broadening the scope of the program to include forest stewardship activities beyond the present timber production orientation. Concern was also expressed over infringement of private property tights and the issue of public access to enrolled lands.

Another theme that emerged in the hearings was the fiscal burden the programs impose on the relatively few communities throughout the State where they are especially prevalent. The greatest impacts cited by local officials occurred in a few towns in the Catskill area, primarily in Sullivan County, and a few Adirondack-area towns, primarily in Essex County. It was frequently pointed out that since the exemptions are not local-option, the residents of these heavily-impacted communities had no voice in determining whether or not they are desirable.

Some local officials also expressed frustration over administering the Section 480 program, and about the general lack of accountability associated with this exemption. Although current beneficiaries tended to argue for continuance of Section 480, there was a general attitude among local officials that this program is really obsolete and should be phased out. A few program participants also cited anomalies in terms of their current assessments and it became apparent that some Section 480 properties are assessed at higher levels than similar property which is not in the program. This means that the owners must pay stumpage taxes at the time of harvest although they are not receiving any property tax benefits.

A few hearing participants advocated development of a "current use" assessment scheme for arriving at taxable forest land values, but when questioned further on how such a scheme would work, or what current use values actually were, they could not provide any concrete details. Instead, they offered discussion of practices in other states as examples of how such a program might work. Other participants in the hearings suggested use of a flat tax per acre for forest lands. While such an approach makes sense from the standpoint of simplicity and predictability, local officials have cited fiscal concerns that would make its adoption difficult. Because the property tax is the most flexible local tax, it is the revenue source that local governments use to balance, their budgets. Once other sources of revenue are estimated, property tax rates are set at the appropriate level to yield the remaining revenue needed to cover projected expenditures. To the extent that the property tax base would become less flexible through adoption of a flat tax for forest land, local governments would lose some of their ability to generate the revenues necessary to fill budget gaps. Moreover, any imposition of a flat tax would effectively eliminate all future growth in the property's tax liability, further handicapping local governments.

Also raised was the issue of residential development on or adjacent to lands currently or previously receiving exemptions. In particular, instances were cited where landowners were leasing sites for construction of hunting-cabins or vacation homes in locations surrounded or bordered by exempt forest land. Such sites can be excluded by the owner during the initial application to the 480-a program, so no penalty would be imposed as a result of construction. Some respondents argued that there is a need to prevent abuse of the program by landowners who seek to maximize returns from recreational development at the expense of forest and open space values.

The next section of the report presents recommendations for program changes that would appear to remedy existing deficiencies. While some are straightforward and require little or no further elaboration, others are presented in the form of general concepts and will require further definition and refinement in terms of setting key parameters and devising detailed administrative measures.

Program Consistency

It is recommended that Sections 480 and 480-a be merged, to form a single exemption program which provides consistent benefits and eligibility/participation requirements. Section 480 currently provides widely variable benefits to similarly situated taxpayers and presents major administrative problems which can not be fixed without significant changes. For example, some participants may receive a large tax reduction and others may experience a liability, depending on the assessment level at the time they placed their land in the program and subsequent reassessment activity. Further, assessors have the responsibility for determining stumpage values for Section 480 timber harvests, but most lack the expertise to do so. And, because Section 480 provides no revocation procedure and the withdrawal penalty (paying a stumpage tax) is too small, there is little to deter conversions.

Upon merger of the two programs, current Section 480 participants should be granted eligibility even if they can not satisfy the minimum tract size of fifty acres now required by Section 480-a. To further assure protection of existing participants, Section 480 should not be fully repealed until two years after the revised forest tax law takes effect. This would allow time for the development of plans and the filing of applications necessary for participation in this program.

State Assumption of Program Costs

It is recommended that a program of State reimbursement be instituted to offset the local tax shifts caused by forest land exemptions in those taxing jurisdictions whose tax bases are significantly impacted by the programs. In this way, assistance be targeted on those taxing jurisdictions most severely affected; where the effect is minor or inconsequential, there is no need for state payments.

Some threshold measures, based on the percentage of the tax base and/or the total land area affected, need to be established to help identify those jurisdictions most in need of assistance. In addition, a mechanism for limiting the maximum amount of reimbursement per acre needs to be devised in order to preclude the possibility of local exploitation of assistance payments by placing unrealistically high assessments on the eligible lands. Use of these approaches would result in the state assuming responsibility for program costs only in certain instances, and to a predictable and limited extent. Consequently, the projected cost to the state would be lower than the total local tax shift caused by the programs at the present time.

The appropriate threshold eligibility level should be one percent of the local tax base. For the 480-a program, this would result in compensation of approximately twenty towns (see Table 2) plus the counties and school districts in question. No good data are available for the Section 480 (Fisher) program, but it is reasonable to expect that a similar number of municipalities would be affected, mostly in the Adirondack area. This will resolve the most pressing existing tax shift problems and will avoid significant local impacts should the new program result in participation by additional property owners.

Level of Program Benefits

It is recommended that the current level of exemption provided in Section 480-a (80 percent of the assessed value of the eligible land) be retained, and the alternative exemption formula (allowing exemption of any assessment in excess of $40 of equalized value) be deleted from the revised law. Under this recommendation, all enrolled lands would be taxed on the same percentage basis. Presently, the alternative exemption formula is only relevant where eligible lands are worth less than $200 per acre, a relatively unusual occurrence. In all other instances, including the vast majority of enrolled lands, the 80 percent formula now applies. However, as recommended below, those owners voluntarily granting meaningful public access to their lands should be eligible for some additional percentage tax relief (see Public Access to Enrolled Lands recommendation).

We do not see the "current use" approach as a viable means of determining reliable forest values and fear that it would result in both considerable controversy and additional administrative costs. Experience with assessment of forest land indicates that, although several states claim to have "current use" tax programs, these programs are no less arbitrary than New York's in arriving at a value for property tax purposes. Moreover, New York has had first hand experience with the problems associated with calculating 'use values" for agricultural lands since 1971. Notwithstanding the fact that there is a basis for this concept in economic and valuation theory, finding a practical methodology has proven to be impossible. As a result, the procedure used has been substantially revised on two occasions and it has been the subject of much controversy over the past two decades. Thus, there appear to be no real advantages and several serious drawbacks to the "use value" approach.

Program Management Objectives

It is recommended, based on considerable testimony received, that the present level of management oversight currently exercised by DEC under Section 480-a be lowered to avoid "micromanagement" of property enrolled in the revised forest tax law. Participants should be allowed to manage for a broader array of forest values rather than just for timber production, and the current level of management plan oversight should be reduced. Instead, participants should be required to have forest management plans that are similar to those developed under the Forest Stewardship Program. Under this program, a management plan is developed which focuses on a variety of landowner goals and addresses the interrelationship of and impacts of management on soil, water, wildlife, fisheries, rare species, recreation, aesthetics, riparian and wetland areas, as well as timber production. Timber production would thus no longer be required to be the primary focus; rather, participants could choose wildlife management, recreation, or other management goals which are not inconsistent with good forestry practices.

Pre-commercial forest stand improvement would no longer be a requirement under the forest tax law, but would be both allowed and encouraged. At the time of harvest, cutting should be in accord with best management practices and the silvicultural standards and prescriptions approved by DEC foresters (and agreed to by the land owner). Failure to follow these standards would result in a notice of violation followed by possible fines, temporary loss of exemption, full revocation of exemption, and/or associated penalties depending on the severity of the violation of the agreed-to standards. This approach would insure that forest resources are protected at the time of harvest, when damage is most likely to occur, while at the same time giving landowners much more flexibility than the current requirements allow.

Lands Eligible for Enrollment

It is recommended that rock outcrops, swamps, ponds, non-agricultural openings, protection forest, Christmas tree plantations, maple sugar bushes and similar areas which are not currently eligible for participation should become eligible for enrollment under the revised forest tax law. These areas offer resource features and values which are compatible with the broader forest stewardship concept espoused above and thus should be included. However, other aspects of program eligibility, including tract size and length of commitment, are not in need of revision at this time.

Program Administration

It is recommended the present 480-a filing procedures should be retained. Various modifications to the existing administrative procedures were discussed and considered; however, the need to reduce red tape must be balanced with the need to keep the participant informed and involved and the scope of the continuing commitment clear for the owners' own protection. Under the revised forest tax law, amendments, revocations and voluntary withdrawals would thus follow the present Section 480-a procedures, but the Department would perform random inspections of certified tracts to assure ongoing compliance with program objectives. Work schedules, except for timber harvesting, would be optional, but conversion of land to another use or management in conflict with agreed-to standards and goals would trigger the fine, penalty and/or revocation process based on the scope of the violation.

It is also recommended that changes be made to the stumpage tax and penalty administration procedures. The stumpage tax and penalties should be maintained at current levels, and a schedule of fines added for more minor violations. However, all such monies should be collected by the state rather than by local governments, and used to help offset the cost of the proposed reimbursement program. This approach would overcome administrative confusion in the existing forest tax laws regarding responsibility for determining, collecting, and distributing stumpage taxes and penalties.

Public Access to Enrolled Lands

It is recommended that the granting of public access to enrolled forest lands be encouraged through an additional tax incentive (i.e., an exemption of more than 80 percent), as opposed to being a requirement for program eligibility. Considerable testimony received in the hearings related to the need for private property rights to be protected and the potential for public access to result in damage to land and timber. However, an additional level of exemption could be granted to those participants who would willingly allow a significant degree of free public access to their property. The arrangements for 'meaningful" access should insure that such participants retain a reasonable level of control so as to protect both the resource and the landowner. Such access to a given property could, for example, include hunting, fishing, hiking, and cross-country skiing and exclude camping, all terrain vehicles or similar activities. The use could be controlled as a part of the management plan, which would he individually negotiated based on the resources present on the subject property and the owner's needs.

Structural Development

It is recommended that the issue of structural development be carefully examined to address the possible proliferation of structures (cabins and home sites) within and adjacent to certified tracts. This "pockmarking" of open space can have significant impacts on wildlife habitat, timber production and other open space values. At present, landowners can create this type of situation if they place some of their land in the forest tax program while excluding additional land in key locations which they subsequently develop or allow others to develop. Since the minimum tract size under the 480-a program is fifty acres, it is clear that many home sites could be reserved in this way on a large parcel, allowing the owner to receive tax benefits even though forest and open space values are being compromised.

One means of controlling such development would be to allow only one contiguous compound for structures, with a sliding scale to designate the number of structures allowed based on tract size. In other words, the number of allowable structures should not be determined simply as the total ownership divided by the minimum tract size of fifty acres. For larger tracts, one structure per 100, 200, or even 500 acres is more realistic. This concept should be built into a restructured forest tax program, with provision for loss of eligibility if residential construction exceeds the stated norms.

There also should be accommodation of owners who wish to retain the right to build a home or two for themselves or family members, provided that such activity is of limited scope and does not limit forest management. Many people purchase a rural property to retire to, planning to build a home at some time in the future, or they decide to build a home for a child who may be involved with the management of the property. In such instances, the entire property should be eligible for exemption and managed accordingly until such time as the residence is needed, whereupon the current procedure for dealing with partial withdrawal and conversion would be followed. Situations of this type must be distinguished clearly from development activity involving construction of multiple residences, multiple locations on the property, and leasing or selling lots to others.

It is important that all future structural development on lands that have previously received forest tax exemptions be monitored to determine the effects of such development on the program's objectives. Ongoing monitoring is essential both to foster accountability in expenditures of public funds for promotion of silvicultural and environmental objectives and to insure that the development activities in question do not violate the spirit and intent of the forest tax law.