Opinion 93-14


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

COUNTIES -- Improvement Districts (extension of service within a sewer district)

IMPROVEMENT DISTRICTS -- Powers and Duties (extension of service within a county sewer district)

SEWER DISTRICTS -- Construction (extension of service within county district)

COUNTY LAW, §§256, 266, 268, 270, 271: It appears that, except in circumstances involving principles of equal protection or detrimental reliance on the part of a property owner, a county may not be compelled to construct sewer extensions.

This is in reply to your inquiry concerning the obligation of a county sewer district to extend the sewer system to serve additional properties within the district. The district, which was established in 1984, includes two villages and a portion of a town between the two villages. In 1985, the existing village sewer systems were conveyed to the county on behalf of the district. You indicate that the owners of two properties in one of the villages, not currently served by the district sewer system, have requested that the system be extended to serve their properties. You also indicate that while these properties do not pay the sewer rents imposed to finance the cost of operation and maintenance, they are assessed for the capital costs of the district. You ask whether the property owners have the right to compel the county to extend the sewer system to serve their properties.

In establishing the district, it was necessary for the board of supervisors to determine that the proposed facilities were satisfactory and sufficient, that all the property and property owners within the district were benefited thereby, that all property and property owners benefited were included in the district, and that it was in the public interest to establish the district (County Law, §256). The courts in this state have held that in determining whether a particular parcel is benefited by a public improvement, the test to be applied is whether the improvement generally enhances the value of the property (Sheldon v Town of Highlands, 153 AD2d 733, 545 NYS2d 199; Pokoik v Incorporated Village of Ocean Beach, 143 AD2d 1021, 533 NYS2d 749, lv to app den 73 NY2d 706, 539 NYS2d 299; DWS v County of Dutchess, 110 AD2d 837, 487 NYS2d 879; Wright v Town Board of the Town of Carlton, 41 AD2d 290, 342 NYS2d 577, affd 33 NY2d 977, 353 NYS2d 739). Determinations of benefit have been upheld even where certain of the owners deemed benefited are not served by the improvements (Sheldon, supra; Pokoik, supra; DWS, supra; Wright, supra; Koston v Town of Newburgh, 59 Misc 2d 540, 299 NYS2d 1007; In re Assessment of Water Tax In Water District No. 3 of the Town ofNiskayuna, Schenectady County, 235 AD 566, 258 NYS 690; see also 1988 Opns St Comp No. 88-30, p 56; 1987 Opns St Comp, No. 87-64, p 96; 1979 Opns St Comp No. 79-521, unreported; 10 Opns St Comp, 1954, p 46; 6 Opns St Comp, 1950, p 334; but see Landmark Colony v Town of Oyster Bay, 145 AD2d 542, 536 NYS2d 96; Applebaum v Town of Oyster Bay, 176 AD2d 773, 575 NYS2d 100; Sperry Rand v Town of North Hempstead, 53 Misc 2d 970, 280 NYS2d 600, affd 29 AD2d 968, 290 NYS2d 864, affd 23 NY2d 666, 295 NYS2d 490, involving property owners who are precluded from receiving services paid for with ad valorem levies).

Once a county sewer district has been established and the improvements have been acquired or completed, the construction of additional trunk and lateral sewers in the district may be authorized pursuant to the provisions of section 268 of the County Law. Section 268 provides that "(w)henever the board of supervisors shall determine it necessary" to acquire or construct additional facilities, the board shall, after a public hearing, determine whether the construction or acquisition of additional facilities is in the public interest. No provision of the County Law expressly requires the board of supervisors to extend the sewer system within a sewer district upon request and no procedure is provided by which property owners within such a district may petition the board of supervisors for the construction of lateral sewers (cf. Town Law, §199, prescribing such a petition procedure for town districts).

Further, it is a general rule that, since the construction of sewers involves the exercise of the discretion of the governing board of a municipality, the municipality is not obligated to extend a sewer system to every property owner who requests it (Charles v Diamond, 41 NY2d 318, 392 NYS2d 594; see also O'Donnell v Syracuse, 184 NY 1; 54 NY Jur, Sewers and Sewage §2; 13 McQullin, Municipal Corporations, §37.27). We note, however, that several courts have, in relation to the construction or extension of municipal water systems, indicated that a municipality could be compelled to construct particular facilities in certain circumstances.

In People ex rel. Hilliker v Pierce, 1909, 64 Misc 627, 119 NYS 21, the court granted mandamus relief in relation to the extension of a village water system financed in part with general village taxes. The Pierce court concluded that apparently discretionary language found in the provisions of the former Village Law actually required a village to extend its water system upon the request of a property owner, "(c)onsidering the injustice a water board might perpetuate upon a bare minority of property holders in the village, considering that all property in the village is liable for the expense of the construction and maintenance of the system, and considering that the cost of extensions is not usually violently out of proportion to the pro rata cost of original installation" (119 NYS at p 26; see also 1979 Opns St Comp No. 79-453, unreported; 24 Opns St Comp, 1968, p 368; 7 Opns St Comp, 1951, p 394). The court further stated that "[i]t was the intent of the Legislature to make this kind of an extension compulsory on the village and if any village establishes a waterworks system it may not rest when it has supplied a chosen few" (119 NYS at p 26). Thus, the court appears to be applying, in effect, an equal protection argument to construe the statute as mandating extensions of the water line to taxpayers who are similarly situated to those who previously received service (see also 2 Antieau, Municipal Corporation Law, §19 D.02; Juleah Co. v Incorp. Village of Roslyn, 56 AD2d 483, 392 NYS2d 926 affd 44 NY2d 845, 406 NYS 2d 760).

In Bethpage Federal Credit Union v Greco, 1988, 137 AD2d 816, 525 NYS2d 279, the Appellate Division, Second Department, reversed a lower court's order compelling a town water district to provide a water distribution system to a new development and remitted the matter for a new hearing. Despite the reversal of the lower court's order, it appears from the discussion of the facts, including the recitation of the developer's actions in reliance upon representations by the district, and the direction that the cost of the necessary facilities be considered at the new hearing, that the court was not foreclosing the possibility that the district could be compelled to provide water service to the development (cf. Robert v Town of Amenia, 127 AD2d 637, 504 NYS2d 40; see also 1972 Opns St Comp No. 72-1062, unreported). Apart from instances such as those found in Pierce and Bethpage, however, involving the application of principles of equal protection and detrimental reliance on the part of a property owner, it appears to be the prevailing view that a municipality may not be compelled to construct sewer extensions.

We are not in a position to make the factual determinations necessary to determine whether the Pierce or Bethpage rationales are applicable here. We note, however, that the board of supervisors, in establishing the criteria upon which the determination of benefit required for the preparation of the annual assessment roll is to be based, may wish to consider the inclusion of factors which would reduce the proportion of the cost of the district assessed on properties not served by the district. The board of supervisors may also wish to consider increasing the proportion of the cost of the district which is financed through the imposition of user fees (see County Law, §266).

March 19, 1993
Lawrence E. Corbett, Jr., Esq.
Washington County Sewer District No. II