NY Town L § 209-Q (2021)
2021 New York Laws TWN - Town Article 12-C - Sewer or Water Improvements 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.