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Volume 2 - Opinions of Counsel SBEA No. 18

Opinions of Counsel index

Farm structures and buildings exemption (hydroponic garden) - Real Property Tax Law, §§ 102(12)(b), 483:

Specially constructed buildings which are to be used as a hydroponic garden for the growing of vegetables are real property, and would be eligible for the exemption provided by section 483 of the Real Property Tax Law if the other statutory requirements are met.

Our opinion has been required as to the taxable status of certain property owned by an oil company to be used as a hydroponic garden.

It is our opinion that the structures which are described in the material provided to us should be classified as real property. To quote from that material, the owners describe the structures (“Magic Gardens”) as follows:

“The site is developed by leveling off and covering it with about four inches of washed gravel, then about 12 inches of coarse sand. The process is done for each unit. The area is about 120' by about 40'. Concrete slabs, 4 inches thick and about 30 inches wide, are placed on top of the sand around the perimeter of the building and down through the center 28 inches apart. The building, constructed of a steel frame with corrugated fiberglass covering, is then placed on the concrete slab. Approximately every 6 feet along each side are anchors driven into the ground, and a quarter inch steel cable goes over the building with a turnbuckle on each side to make it tight and to keep the building anchored. The buildings are heated by overhead blowers and kept to a temperature of 85 degrees.”

It seems apparent that these are buildings which are intended to be permanent structures, and as such, they are within the definition of real property as contained in section 102, subdivision 12(b) of the Real Property Tax Law:

“(b) Buildings and other articles and structures, substructures and superstructures erected upon, under or above the land, or affixed thereto, including bridges and wharves and piers and the value of the right to collect wharfage, cranage or dockage thereon, but shall not include bulk milk tanks or coolers installed upon a farm to hold milk awaiting shipment to market;”

And pursuant to section 300 of the Real Property Tax Law, all real property within New York State is subject to taxation, special ad valorem levies and special assessments unless specifically exempted by law.

This brings us to the second question posed, namely, whether the real property in question is eligible for the exemption contained in section 483 of the Real Property Tax Law.

The information supplied to us indicates that the structures in question will be used to produce vegetables, and that approximately 50 to 100 acres of land will be utilized in this operation. Section 483 provides a five-year exemption for any increase in assessed value which results from the construction or reconstruction of certain types of farm buildings. These buildings must be necessary to the operation of lands which have been actively devoted to bona fide agricultural and horticultural production for a period of not less than two consecutive years prior to the date of application, and there must be at least five acres of such land in actual productive use. The buildings must be constructed or reconstructed subsequent to January 1, 1969 and prior to January 1, 1979.

It is our opinion that if the buildings in question are constructed and used as described in the material supplied to us, then they will be eligible for the exemption authorized by section 483 at such time as they satisfy the two-year use requirement.

June 2, 1972