N.Y. Town Law § 54: Special improvements

§ 54. Special improvements. 1. Definition and application. (a) The

term "improvement" or "special 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 an improvement

district pursuant to article twelve or twelve-a of this chapter, but not

including water quality treatment districts.

(b) 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 special

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, where appropriate, a map for providing an 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 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 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, if any, 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

improvement, a description of the boundaries of the proposed benefited

area, if any, the maximum amount proposed to be expended for the

proposed improvement, the proposed method of apportioning the costs of

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

fact that a plan, report and map, if any, 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

improvement, or that any property benefited by the 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 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 improvement.

5. Increase in maximum amount. (a) At any time prior to the completion

of an improvement, the maximum amount proposed to be expended for such

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 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 in 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 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.

(b) If the notice of public hearing held pursuant to subdivision three

or four hereof proposes only the performance or supplying of certain

services and states the maximum amount to be expended annually for such

services, the maximum amount to be expended annually may be increased by

an order of the town board, provided the town board shall, after a

public hearing, determine that it is in the public interest to authorize

the increase in such maximum amount. 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 increase

proposed in the maximum amount to be expended annually.

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

improvement.

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

interest to make the proposed improvement, the board shall adopt a

resolution stating the reasons for its determination not to make the

proposed improvement and enter the same in the minutes of its

proceedings.

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

interest, the board may adopt a resolution authorizing such 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 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 this subdivision, subdivision five or

paragraph (c) of subdivision eight of this section, or section

fifty-seven of this chapter 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 this subdivision, subdivision five or paragraph (c) of

subdivision eight of this section, or section fifty-seven of this

chapter may review the same by a proceeding pursuant to article

seventy-eight of the civil practice act 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 act

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 an

improvement shall become effective, such 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 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 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

improvement shall confer upon such lots or parcels, or (2) any part of

the cost of the 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 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 an 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 improvement. The only change in the

apportionment of the costs of an 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

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 section

fifty-one-a of this article.

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 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, where appropriate, a map for such 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 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 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 improvement is in the

public interest and economically feasible, the board shall direct the

preparation of a general plan, report, and where appropriate, a 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, sewage disposal,

water or drainage 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 an 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 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 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, 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 per cent 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 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; provided, however, that, where

the improvement is only the providing of a service at a stated annual

cost, such annual cost shall be charged in the manner prescribed in the

provisions of the resolution adopted pursuant to paragraph c of

subdivision six of this section or in modifications thereof, if any,

adopted pursuant to paragraph c of subdivision eight of this section.

12-a. Sewer rents and water rates. The town board may establish sewer

rents and water rates as provided in paragraph (l) of subdivision 1 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 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 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 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 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

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 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 section 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 per

cent 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 a 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 purpose 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.