Opinion 90-41

SEWERS AND SEWERS SYSTEMS -- Sewer Lines (authority of village to assess entire cost against benefited properties)

VILLAGE LAW, §§14-1400, 14-1416, 14-1428: A village board of trustees may construct sewers and determine that the cost of such construction be borne wholly by the benefited properties.

This is in reply to your inquiry concerning the propriety of a village assessing the cost of an extension to an existing sewer system wholly against benefited properties. You indicate that the existing village sewer system was constructed approximately 20 years ago on petition of property owners pursuant to the provisions of section 264 of the former Village Law (Village Law of 1909). Section 264 provided for the entire cost of constructing the sewer system to be assessed against the property benefited. The substance of section 264 was transferred to section 14-1412 of the current Village Law in 1972 (L 1972, ch 892) and, as you note, section 14-1412 was repealed in 1973 (L 1973, ch 976). You indicate that the village is now considering extending the sewer system and you ask whether the village board of trustees may determine, on its own motion, to construct the extension wholly at the expense of the property benefited.

Article 14 of the Village Law (§14-1400 et seq.) contains provisions relative to the construction of sewerage systems in villages. Section 14-1406 provides that the village board of trustees may, by resolution, determine to construct the whole or any part of the sewerage system at the expense of the village. Village Law, §14-1410 authorizes the board, by resolution, to determine to construct the whole or part of a sewerage system at the joint expense of the village and the property benefited.

As previously noted, Village Law, §14-1412, which set forth a procedure whereby fronting owners could petition for the construction of a sewer wholly at the expense of the benefited properties, was repealed by chapter 976 of the Laws of 1973. Further, there is no clear, express statement of a village board's authority, on its own motion, to assess the entire expense of a sewerage system or extension thereto against the properties benefited. Nonetheless, we believe there is a basis to conclude that a village may determine, under article 14, to finance the construction of a sewer system wholly at the expense of benefited properties.

A review of the legislative history of chapter 976 of the Laws of 1973, which, in addition to repealing section 14-1412, made numerous other amendments to the Village Law, indicates an intent to provide village boards authority to assess the cost wholly against benefited properties on their own motion. Chapter 976 of the Laws of 1973 amended section 14-1410 by inserting the phrase "as a general village charge or as a local assessment on property benefited or" after the word "system" in the second sentence of that section. Had the phrase been inserted after the word "system" in the first sentence of the section rather than the second, however, section 14-1410 would provide clear authority for a village board, by resolution, to determine to construct "the whole or any part of a sewerage system as a general village charge, as a local assessment on benefited property or at the joint expense of the village and of the property benefited." In this regard, we note that the bill jacket includes a letter, dated June 11, 1973, from the Office for Local Government to the Counsel to the Governor which supports this interpretation of legislative intent. That letter states, in part, as follows:

The amendment to §14-1410 is misplaced. What was intended was to clarify the authority of the village board to determine the method of raising the expenses of construction of a sewer as either a general village charge or as a local assessment against benefitted property. The authorization for a benefit assessment is contained in Article 22. We suggest that this amendment be corrected during the 1974 Legislative Session. Also, the amendment to §14-1410 and to §22-2200 made by this bill obviated the necessity for §14-1412, since the board of trustees has the power to make a determination with or without a petition on the method of allocating the cost for construction of the sewer.

The above contemporaneous statement from the legislative history plainly states that the bill was intended to clarify the village board's authority to raise the expense of constructing a sewer system entirely by local assessment against benefited property. Further, nothing in the legislative history suggests a contrary intent on the part of the legislature. Therefore, while the 1973 amendment to section 14-1410 could have been clearer, we believe that the Legislature intended to permit a village to finance the construction of a sewer system wholly at the expense of the benefited properties on board motion.

Further, notwithstanding the repeal of the petition procedure provided in section 14-1412, two references to assessment of the entire cost of a sewer system upon property benefited remain in article 14. Section 14-1416, which provides for the apportionment of local assessment of the cost of a sewer system, states that:

[i]f the whole or any part of the expense of constructing a sewerage system is to be assessed upon the lands benefited, the board of sewer commissioners shall prepare and file in the office of the village clerk a map and plan of the proposed area of local assessment. (Emphasis added)

In addition, section 14-1428, which relates to the manner in which the expense of constructing a sewer system is to be raised, provides that:

[i]f such expense or any part thereof is to be assessed upon property benefited, the board may assess the same, or the installment to be raised, on the several benefited lots or parcels pursuant to the provisions of article twenty-two of this chapter. (Emphasis added)

We also note that the Court of Appeals, subsequent to the repeal of section 14-1412, has, in dicta, summarized a village's authority under article 14 as follows:

Article 14 of the Village Law provides for the optional construction of sewers in a village, with the cost to be borne entirely by the village, entirely by the owners of the property benefited or by the village and the property owners jointly, at the option of the village. (Emphasis added; Charles v Diamond, 1977, 41 NY2d 318, 324, 352 NYS2d 594, 599).

This statement also supports the conclusion that a village board, on its own motion, is authorized, under article 14, to finance the construction of a sewerage system wholly at the expense of the benefited property in accordance with the procedural requirements of Village Law, §22-2200 (see also, e.g., 1983 Opns St Comp No. 83-156, p 196).

Given that you indicate that the village wishes to finance the entire cost of the extension wholly at the expense of the benefited properties and having reached the above conclusion, we need not discuss whether the equal protection guaranties of the Federal and State Constitutions would require a village which has assessed the cost of an existing sewer system wholly against benefited properties to also assess the cost of an extension to the system wholly against the benefited properties even in the absence of statutory or home rule authority (see 1979 Opns St Comp No. 79-453, unreported; 1971 Opns St Comp No. 71-958, unreported; 20 Opns St Comp, 1964, p 356; 10 Opns St Comp, 1954, p 30).

October 16, 1990
Donald E. Todd, Esq., Village Attorney
Village of Pulaski