N.Y. Environmental Conservation Law § 15-2121: Apportionment of cost

§ 15-2121. Apportionment of cost.

1. If proceedings to review the final order of the board determining

that such proposed reservoir shall be made have not been instituted

within sixty days from the date of the filing of the same, or upon the

filing of a modification thereof as directed by order of the court, the

board shall, as soon thereafter as practicable, prepare an estimate of

the total cost of such reservoir, including interest on certificates of

indebtedness issued prior to the effective date of the Local Finance

Law, or on notes, to the maturity thereof and compensation for real

estate and all damages suffered by reason thereof and all expenses

necessarily incurred or to be incurred in connection therewith, and make

a complete and verified statement thereof.

2. The board shall then apportion such cost, less the amount which may

be chargeable to the state, among the public corporations and parcels of

real estate benefited, in proportion to the amount of benefit which will

inure to each such public corporation and parcel of real estate by

reason of such reservoir. Such apportionment shall be made in writing

and shall show the name of each public corporation and a brief

description of each parcel of real estate benefited; the name of the

owner, or owners, of each such parcel of real estate, so far as can be

ascertained; the proportion of such cost less the amount which may be

chargeable to the state to be borne by each, expressed in decimals; and

the amount to be paid by each such public corporation or the owner or

owners of each such parcel of real estate.

3. Such amount shall be determined by multiplying the total cost less

the amount which may be chargeable to the state by the decimal

representing the proportion thereof to be borne by each public

corporation or parcel of real estate.

4. The board, or a majority of the members thereof, before making such

apportionment shall view the premises and public corporations benefited.

Such apportionment shall be approved by the board and certified to the

department for its approval. Upon the approval thereof by the

department, the board shall cause a copy thereof to be served upon the

chairman or other presiding officer of the county legislative body of

each county, the mayor of each city, the supervisor of each town, and

the mayor of each village, named in the apportionment, or if service

cannot be had upon such chairman, mayor, or supervisor, then upon a

member of the county legislative body of the county, an alderman of the

city or member of the governing board thereof, a member of the town

board of the town, or a trustee of the village, and to be filed in the

office of the county clerk of each county in which any public

corporation or real property thereby affected is located. After such

service and filing of such apportionment and determination, notice shall

be given by the board, of publication of a time and place where the

board will meet to hear any public corporation or person aggrieved by

the same. The affidavit of the person serving or publishing such notice

shall be evidence of such service or publication.

5. The board shall meet at the time and place specified and hear all

persons and public corporations interested in or aggrieved by such

apportionment and may approve of or modify the same. If such

apportionment and determination be modified by the board it shall not

become effective until approved by the department and a copy thereof

served and filed in the same manner as upon the completion of the same

in the first instance. Any public corporation or any person deeming it

or himself aggrieved may upon notice to the board review the

determination of the board in the same manner as a review is had of the

determination of a board of assessors in making an assessment. Such

apportionments as so modified and as further modified by any final

judgment or order made in proceedings to review the same as herein

provided shall be final and conclusive.

6. The amount of the total cost and expense of such reservoir and the

maintenance and operation thereof including the amount of a reasonable

return to the state as herein provided for, which each such public

corporation and each such parcel of real estate is to pay and bear shall

be based upon the proportion of cost as determined in the apportionment.

If the total cost of such reservoir shall exceed the estimate made and

apportioned as hereinbefore provided, the amount of such excess cost,

less the amount which may be chargeable to the state, shall be

apportioned among the public corporations and parcels of real estate

benefited, by an additional apportionment to be made in the same manner

and by the same procedure as the original apportionment, and shall be

levied, assessed and collected in the manner provided in section 15-2123

hereof. Such apportionment and determination, when finally made, also

shall be deemed to fix and determine the apportionment and the basis of

apportionment of all subsequent expenses to be incurred in the

maintenance and operation of such reservoir, including the amount of a

reasonable return to the state, if any, as provided for in title 21 of

this article.

7. If powers be developed after such apportionment has been made or if

for any other reason any public corporation or any parcel of real estate

becomes liable equitably for such subsequent expenses, a subsequent

apportionment may be made in the same manner and subject to the same

review as the original apportionment. Provided, however, that before any

such apportionment of costs or any assessment is made by the board,

public corporations or owners of property liable for the same may

execute and deliver to the board a consent, executed and acknowledged in

like manner as a deed, by which they acknowledge that they are the

public corporations and owners of property benefited by the improvement

and consent to bear the cost thereof, less any sum previously

appropriated by the state therefor, together with charges provided for

in section 15-2125 of title 21 of this article, and to have the same

assessed against them or their property as in this article provided.

Such consent may also provide, as a condition of its acceptance by the

board, for the basis on which the assessment for the improvement shall

be made upon the parties consenting.

8. The board may accept or reject such consent. If it accepts the same

it must be by resolution providing for the levy of the entire assessment

upon the public corporations and property of the parties filing such

consent, on the basis of benefits received, if any, determined by the

terms of the consent, or if no basis of assessment be fixed by the

consent, on the basis of the benefits shared by such parties in the

manner provided in title 21 of this article. If such consent be accepted

by the board, a certified copy thereof shall be filed by the board in

the office of the county clerk of each county in which any public

corporation or real property affected by the assessment is located. Such

a consent, when executed by a public corporation, must be authorized by

the governing body thereof.