N.Y. Town Law § 209-q: Sewer, drainage or water improvements

§ 209-q. Sewer, drainage or water improvements. 1. Definition and

application. (a) The terms "sewer improvement" and/or "drainage

improvement", as used in this section, shall mean any facility, service,

function, activity or physical public betterment which may be provided

by the establishment of a sewer district, wastewater disposal district

and/or drainage district pursuant to article twelve or twelve-A of this

chapter.

(b) The term "water improvement", as used in this section, shall mean

any facility, service, function, activity or physical public betterment

which may be provided by the establishment of a water district pursuant

to article twelve or twelve-A of this chapter.

(c) The powers provided by this section shall be deemed to be in

addition to those provided in article twelve or article twelve-A of this

chapter and shall not be deemed to limit or supersede any powers

provided in either of such articles; provided, however, that nothing in

this section shall be deemed to authorize the providing of a sewer,

drainage or water improvement in, or the charging of the costs thereof

against any area of the town located in any village.

2. Plans, reports and maps. The town board may adopt a resolution

appropriating a specific amount to pay the cost of preparing a general

plan, report and map for providing a sewer, drainage or water

improvement in the area of the town outside of any villages, or in any

portion of such area. All such plans, reports and maps shall conform

with the requirements of section two hundred nine-c of this chapter. The

town board may determine that such plans, reports and maps shall be

prepared by or under the supervision of town officers and employees to

be designated by the town board, or by persons to be employed for the

purpose, or the town board may contract for the preparation thereof

within the limitations of the amount appropriated. Except as otherwise

provided herein, the expense incurred for the preparation of such plans,

reports and maps shall be a charge on the area of the town outside of

any villages, and shall be assessed, levied and collected in the same

manner as other town charges. If the town board shall thereafter make

such sewer, drainage or water improvement, the expense incurred by the

town for the preparation of the plans, reports and maps therefor shall

be deemed to be part of the cost of such sewer, drainage or water

improvement and the town shall be reimbursed for such portion of that

amount, if any, which the town board, at the public hearing held

pursuant to subdivision three of this section, shall allocate against

such benefited area, if any.

3. Hearing. Subsequent to the date of filing of the plan, report and

map in the office of the town clerk, as required by section two hundred

nine-c of this chapter, the town board may adopt an order and enter the

same in the minutes of its proceedings reciting the proposed sewer,

drainage or water improvement, a description of the boundaries of the

proposed benefited area, if any, the maximum amount proposed to be

expended for the proposed sewer, drainage or water improvement, the

proposed method of apportioning the costs of such sewer, drainage or

water improvement, the proposed method of financing to be employed, the

fact that a plan, report and map describing the same are on file in the

town clerk's office for public inspection and specifying the time when

and the place where such board will meet and hold a public hearing at

which all persons interested in the subject thereof may be heard

concerning the same. The board shall cause a copy of such order to be

published at least once in a newspaper or newspapers designated pursuant

to subdivision eleven of section sixty-four of this chapter, the first

publication thereof to be not less than ten nor more than twenty days

before the day set therein for the hearing, and shall also cause a copy

thereof to be posted upon the bulletin board in the office of the town

clerk.

4. Change in boundaries or apportionment of costs. If the town board

shall determine, after the hearing, on notice as provided in subdivision

three hereof and upon the evidence given thereat, that any of the

property in a proposed benefited area, if any, is not benefited by the

sewer, drainage or water improvement, or that any property benefited by

the sewer, drainage or water improvement is not included in the proposed

benefited area and that the boundaries of the benefited area should be

changed accordingly, or that the proposed method of apportioning the

costs of such sewer, drainage or water improvement should be changed,

the board shall specify the changes and shall call a further public

hearing at a definite time and place not less than fifteen nor more than

twenty-five days after such previous hearing. Notice of such further

hearing shall be published and posted in the manner provided in

subdivision three hereof except that such notice shall also specify the

manner in which it is proposed to alter the boundaries of the benefited

area or the method of apportioning the costs of the sewer, drainage or

water improvement.

5. Increase in maximum amount. At any time prior to the completion of

a sewer, drainage or water improvement, the maximum amount proposed to

be expended for such sewer, drainage or water improvement, as stated in

the notice of public hearing pursuant to subdivision three or four

hereof, may be increased by an order of the town board provided that the

town board shall, after a public hearing held in the manner prescribed

in subdivision three hereof, determine that it is in the public interest

to authorize the increase in such maximum amount. If it is proposed or

required that the town shall finance the increase in the maximum amount

proposed to be expended for the sewer, drainage or water improvement by

the issuance of bonds, notes, certificates or other evidences of

indebtedness and the total estimated expense of such improvement

including the increase in the maximum amount shall exceed one-tenth of

one per centum of the full valuation of the taxable real property in the

area of the town outside of villages, the town board may not make an

order pursuant to this subdivision unless the comptroller of the state

of New York shall have made, subsequent to the public hearing required

by this subdivision, an order approving the increase at such maximum

amount as stated in the notice of hearing required by this subdivision.

The order of the comptroller shall be prepared in duplicate and one copy

thereof filed in the office of the department of audit and control and

the other copy in the office of the town clerk of the town. If the

original authorization of the sewer, drainage or water improvement was

subject to a permissive referendum pursuant to paragraph (a) of

subdivision eleven of this section or made subject to a mandatory or

permissive referendum pursuant to paragraph (b) of subdivision eleven of

this section, any order of the town board increasing the maximum amount

to be expended shall be subject to the same type of referendum. The

provisions of this subdivision referring to a referendum, shall not be

applicable to any order increasing the maximum amount to be expended for

a sewer improvement adopted by the town board of any town which has been

ordered by the state commissioner of health or water resources

commission to provide sewage treatment facilities or directing

compliance with standards or determinations or orders promulgated

pursuant to article twelve of the public health law.

6. Authorization of improvement; judicial review. (a) After the

hearing on notice as provided in subdivision three or four hereof, and

upon the evidence given thereat, the town board shall determine by

resolution whether or not it is in the public interest to make such

sewer, drainage or water improvement.

(b) If the town board shall determine that it is not in the public

interest to make the proposed sewer, drainage or water improvement, the

board shall adopt a resolution to that effect.

(c) If the town board shall determine that it is in the public

interest, the board may adopt a resolution authorizing such sewer,

drainage or water improvement, subject to the approval of the state

comptroller where such approval is required by subdivision thirteen of

this section. Such resolution shall contain a statement of the manner

in which the costs of the sewer, drainage or water improvement are to be

apportioned, and a description of the boundaries of the benefited area,

if any, as finally determined by the town board where any part of the

cost is to be raised by special assessments upon benefited property.

(d) The town clerk shall cause a certified copy of any resolution or

order adopted pursuant to paragraph (c) of this subdivision, subdivision

five or paragraph (c) of subdivision eight of this section to be duly

recorded in the office of the clerk of the county in which the town is

located within ten days after the adoption of such resolution, or within

ten days of the receipt of notification of the approval of the state

comptroller where such approval is required by subdivision five or

subdivision thirteen of this section. When so recorded, such resolution

shall be presumptive evidence of the regularity of the proceedings and

actions taken by the town board in relation thereto.

(e) Any interested person aggrieved by any resolution or order adopted

pursuant to paragraph (c) of this subdivision, subdivision five or

paragraph (c) of subdivision eight of this section may review the same

by a proceeding pursuant to article seventy-eight of the civil practice

law and rules provided such proceeding is commenced within thirty days

from the date of the recording of the certified copy of the resolution

or order in the office of the county clerk. Any such resolution or order

shall be final and conclusive unless a proceeding pursuant to article

seventy-eight of the civil practice law and rules has been commenced

within thirty days from the date of recording thereof. No review shall

be had unless at the time the proceeding is commenced the interested

person seeking the review shall give an undertaking approved by the

supreme court, or a justice thereof, as to form, amount and sufficiency

of sureties, that, in the event of failure to modify such resolution or

order he or they will pay to the town board all costs and expenses as

are incurred by it on account of the said proceeding as shall be

determined by the court. In the event that upon such review there shall

be any modification by the court of such resolution the court shall

direct the modification thereof by order which shall be final and

conclusive and such town board shall cause such order to be recorded and

filed in the same place and manner as was the resolution or order

appealed from.

7. Performance of the work. After the resolution authorizing a sewer,

drainage or water improvement shall become effective, such sewer,

drainage or water improvement may be made and contracts therefor may be

let in the manner provided in section one hundred ninety-seven of this

chapter.

8. Apportionment of costs. (a) The cost of any such sewer, drainage or

water improvement shall be borne partly by the area of the town outside

of any village and partly by the lands benefited thereby; or by the area

of the town outside of any village; or entirely by the lands benefited

thereby, as the town board, in its discretion, shall provide. Where,

however, (1) any part of the cost of the sewer, drainage or water

improvement is to be borne by property in a described benefited area,

such costs shall be assessed, levied and collected from the several lots

or parcels of land within such benefited area either in the same manner

and at the same time as other town charges, or in just proportion to the

amount of benefit which the sewer, drainage or water improvement shall

confer upon such lots or parcels, or (2) any part of the cost of the

sewer, drainage or water improvement is to be borne by the entire area

of the town outside of any villages, and such area has not been

determined to be the benefited area, such costs shall be assessed,

levied and collected from the several lots and parcels of land in such

area in the same manner and at the same time as other town charges.

(b) In the event that a proposed sewer, drainage or water improvement

is not made, any expense incurred by the town in relation thereto,

including costs of publication of notices and of any referendum, shall

be a charge upon the area of the town outside of any villages, and shall

be assessed, levied and collected in the same manner as other town

charges.

(c) At any time after the completion of a sewer, drainage or water

improvement pursuant to the provisions of this section, the

apportionment of the costs thereof as between the benefited area and the

area of the town outside of any village, as stated in the notice of

public hearing pursuant to subdivision three or four hereof, may be

changed by resolution of the town board provided that the town board

shall, after a public hearing, determine that it is in the public

interest to authorize the change in such apportionment. The town board

shall give notice of such hearing by at least a single publication of a

notice in a newspaper or newspapers designated pursuant to subdivision

eleven of section sixty-four of this chapter at least ten but not more

than twenty days prior to the date specified for such hearing,

specifying the time when and place where such hearing will be held and

stating the change proposed in the apportionment of the costs of the

sewer, drainage or water improvement. The only change in the

apportionment of the costs of a sewer, drainage or water improvement

that may be authorized pursuant to this paragraph shall be an increase

in the share of such costs to be borne by the area of the town outside

of any village, with a corresponding decrease in the share of such costs

to be borne by the benefited area.

(d) The cost of any such improvement may include such portion of the

cost of existing or authorized improvements as the town board shall

determine. Such determination shall be based on a finding that there is

an equitable and reasonable relationship between such improvement and

the existing or authorized improvements.

9. Financing improvement. The funds necessary to pay the cost of any

sewer, drainage or water improvement made pursuant to this section shall

be raised in a manner provided in article fifteen of this chapter, as

determined by the town board, or pursuant to a local law adopted

pursuant to the municipal home rule law.

10. Petition. Five resident owners of taxable real property located

within the area of the town outside of any villages, may petition the

town board to acquire, provide or construct any sewer, drainage or water

improvement described in subdivision one of this section. Such petition

shall be signed by the petitioners, and acknowledged or proved in the

same manner as a deed to be recorded, or authenticated in the manner

provided by the election law for the authentication of nominating

petitions. When any such petition shall have been presented, the town

board may direct the preparation of a plan, report and map for such

sewer, drainage or water improvement and proceed in the manner provided

in this section, or it may adopt a resolution, reciting in general terms

the filing of such petition, the proposed sewer, drainage or water

improvement and specifying the time when and the place where such board

will meet to consider the petition and to hear all persons interested in

the subject. Notice of such meeting shall be published in the manner

provided in subdivision three of this section and shall state the time

and place of the meeting and the purpose thereof. The petitioners shall

be required to deposit with such petition the sum of one hundred dollars

to cover all cost of publishing and posting notices of meetings of the

town board to consider the petition. If the board determines to proceed,

pursuant to this subdivision, with further development of the proposed

sewer, drainage or water improvement, such deposit shall be returned in

full to the petitioners, but if the petition be denied, the surplus only

shall be so returned after paying the expenses mentioned in this

subdivision. If the town board shall determine after such hearing and

upon the evidence given thereat, that the proposed sewer, drainage or

water improvement is in the public interest and economically feasible,

the board shall direct the preparation of a general plan, report and map

for such improvement and proceed in the manner provided in this section.

11. Referendum. (a) Any resolution adopted pursuant to paragraph (c)

of subdivision six of this section authorizing a sewer, drainage or

water improvement, any part of the cost of which is to be borne by the

entire area of the town outside of any villages, and any resolution

adopted pursuant to paragraph (c) of subdivision eight of this section

which will result in an increase in the share of the costs of a sewer,

drainage or water improvement to be borne by the area of the town

outside of any villages in any one fiscal year of more than ten per

centum of the maximum amount proposed to be expended, as stated in the

last notice of public hearing for such sewer, drainage or water

improvement pursuant to subdivision three, four or five of this section,

shall be subject to a permissive referendum in the manner prescribed in

article seven of this chapter, as modified by paragraph (c) of this

subdivision.

(b) Except as provided in paragraph (a) of this subdivision, the town

board, in its discretion, may determine that any resolution adopted

pursuant to subdivision two, paragraph (c) of subdivision six or

paragraph (c) of subdivision eight of this section, shall be subject to

a mandatory or permissive referendum in the manner prescribed in article

six or seven of this chapter, as the case may be, as modified by

paragraph (c) of this subdivision. Such determination, if any, shall be

included in the resolution so adopted. Any such referendum shall be held

in the entire area of the town outside of any villages, except that, in

the case of a resolution adopted pursuant to subdivision two or

paragraph (c) of subdivision six of this section where any part of the

cost of the improvement is to be borne by an area of the town less than

the entire area of the town outside of any villages, the resolution may

provide that the referendum shall be held in such lesser area.

(c) Any resolution submitted to a referendum pursuant to this section

shall not become effective unless it is approved by the affirmative vote

of a majority of the owners of taxable real property voting thereon

whose property is situate in the area of the town outside of any

villages, or in such lesser area described in a resolution as authorized

in paragraph (b) of this subdivision, as shown on the latest completed

assessment roll of the town. A petition requesting a referendum shall be

sufficient if signed and acknowledged or proved by the owners of taxable

real property situate in the area of the town outside of any villages,

or in such lesser area described in the resolution as authorized in

paragraph (b) of this subdivision, as shown upon the latest completed

assessment roll of such town, in number equal to at least ten percent of

the total number of such owners. For the purposes of this subdivision, a

corporate owner of such taxable real property shall be considered one

owner for the purposes of a petition requesting a referendum and shall

be entitled to one vote to be cast by an officer or agent of the

corporation or other duly authorized person designated by appropriate

resolution of such corporation. The town clerk shall cause to be

prepared and have available for distribution proper forms for a petition

for a referendum under this section and shall distribute a supply to any

person requesting the same.

12. Town function. Any sewer, drainage or water improvement

constructed, acquired or provided pursuant to this section shall be a

town function and the town board shall be responsible for the necessary

management, maintenance, operation and repair thereof. The cost of such

management, maintenance, operation and repair shall be a charge upon the

area of the town outside of any villages and shall be levied and

collected in the same manner and at the same time as other town charges.

12-a. Sewer and/or drainage rents and water rates. The town board may

establish sewer and/or drainage rents and water rates as provided in

paragraph (l) of subdivision one and paragraph (d) of subdivision three

of section one hundred ninety-eight of this chapter.

13. Comptroller's approval. (a) Where it is proposed or required that

the town shall finance the cost of any sewer, drainage or water

improvement authorized by this section by the issuance of bonds, notes,

certificates or other evidences of indebtedness of the town therefor and

where the estimated expense of such improvement shall exceed one-tenth

of one per centum of the full valuation of the taxable real property in

the area of the town outside of villages, the permission of the state

comptroller shall be required for such sewer, drainage or water

improvement.

(b) Within ten days after the adoption of a resolution by the town

board pursuant to paragraph (c) of subdivision six of this section,

which requires the approval of the state comptroller pursuant to

paragraph (a) of this subdivision, the town clerk shall file a certified

copy of such resolution in the office of the state department of audit

and control at Albany, New York, together with an application for the

approval of the state comptroller to the providing of such sewer,

drainage or water improvement. The application shall be executed and

verified by the supervisor, or such other officer of the town as the

town board shall determine. Such application shall be in such form and

shall contain such information as shall be prescribed by the state

comptroller.

(c) Whenever such an application shall be filed in the office of the

department of audit and control, the state comptroller shall determine

whether the public interest will be served by providing such sewer,

drainage or water improvement in the manner proposed and also whether

the cost thereof will be an undue burden upon the property which is to

bear the cost of such sewer, drainage or water improvement. The state

comptroller may make such determinations upon the original or any

amended application, or in his discretion may require the submission of

additional information or data in such form and detail as he shall deem

sufficient, or may cause an investigation to be made to aid him in

making the determinations above mentioned.

(d) Upon the expiration of fifteen days from the date of the filing of

such application, the state comptroller shall make an order, in

duplicate, granting or denying approval for such sewer, drainage or

water improvement and shall file one copy of such order in the office of

the state department of audit and control at Albany, New York, and the

other in the office of the town clerk of the town in which the proposed

improvement is to be provided. The town clerk shall thereupon notify the

members of the town board of the receipt of such order and the contents

thereof.

14. Lease of improvements. (a) The town board may lease for a term not

to exceed forty years all or any part of the property or facility

constructed or operated as a town function under this article to a

county, a city, a village, a town, a public authority, a town on behalf

of an improvement district, a county on behalf of a county district, or

a joint water works system established pursuant to article five-B of the

general municipal law, provided, however, that such lease shall be

subject to a permissive referendum held in the manner prescribed in

article seven of this chapter, as modified by paragraph (c) of

subdivision eleven of this section except that a petition requesting a

referendum shall be sufficient if signed, and acknowledged or proved in

the same manner as a deed to be recorded, or authenticated in the manner

provided by the election law for the authentication of nominating

petitions, by the owners of taxable real property situate in the area of

the town outside of any villages, as shown upon the latest completed

assessment roll of such town, in a number equal to at least five percent

of the total number of said owners, or one hundred of said owners,

whichever is the lesser.

(b) The proceeds of the lease of all or part of such property or

facility shall be deposited in a reserve fund established for the

purpose of retiring outstanding obligations issued on behalf of the town

to finance the cost of the property or facility leased, and shall be

expended only for such purposes except that if the proceeds exceed the

sum of all installments of principal of and interest on such

indebtedness due or to become due, or if, when such obligations shall

have been retired, any proceeds of such reserve fund remain unexpended,

such excess monies may be used for any purpose which would be properly

charged against the area of the town outside of any villages.