Opinion 94 - 17
REFUSE AND GARBAGE -- Recycling Services (imposition and collection of fees for)
REAL PROPERTY TAXES AND ASSESSMENTS -- Tax Levy (inclusion of delinquent solid waste services fees with)
GENERAL MUNICIPAL LAW, §§120-w, 120-cc; MUNICIPAL HOME RULE LAW,
§10(1)(ii)(9-a): A city, by local law, may provide that unpaid
user fees imposed to finance the cost of recycling services,
including any interest or penalties, may be relevied with the
next annual real property tax in accordance with the procedures
prescribed in General Municipal Law, §120-cc.
You ask whether a city may include in the next succeeding real property tax levy the amount of unpaid fees imposed upon property owners for recycling services provided by the city under a contract with a refuse hauler.
It is clear that cities are authorized to enter into contracts to provide for a system of collection and disposal of solid waste through, among other means, resource recovery (General Municipal Law, §§120-w[c], ; see also General Municipal Law, §120-aa; Second Class Cities Law, §79). Although we are aware of no State statute which authorizes a city to impose a system of user fees to finance solid waste collection or disposal services (cf. Town Law, §§198[b]; County Law, §226- b), it is our opinion that such fees may be imposed pursuant to local law (see Municipal Home Rule Law, §10[ii][9-a]; see 1992 Opns St Comp No. 92-18, p 3; 1988 Opns St Comp No. 88-2, p 3; 1986 Opns St Comp No. 86-88, p 135; 1979 Opns St Comp No. 79- 307, p 52). The fees, however, may be imposed only upon users of the service (see Opn No. 92-18, supra). In addition, the amounts charged must be reasonably related to the cost of providing the service to users of the service (1992 Opns St Comp No. 92-40, p 103; see also New York Telephone v City of Amsterdam, 200 AD2d 315, 613 NYS2d 993) and the fee schedule must be consistent with constitutional equal protection guarantees (see NY Const, art I, §11; Elmwood-Utica Houses v Buffalo Sewer Authority, 65 NY2d 489, 492 NYS2d 931).
Except as provided by State statute, a municipality may not levy and collect delinquent user charges as part of the annual general taxes (1986 Opns St Comp No. 86-76, p 120; see also Opn No. 92-18, supra; Opn No. 86-88, supra). General Municipal Law, §120-cc expressly authorizes municipal corporations to adopt local laws providing that unpaid fees or charges for municipal solid waste collection and/or disposal services be included with the annual tax levy, together with any interest or penalties thereon (see also Town Law, §198[c]). Subdivision 3 of section 120-cc prescribes the procedures for implementing this enforcement process, as follows:
Accordingly, a city, by local law, may provide that unpaid user fees imposed to finance the cost of recycling services, including any interest or penalties, may be relevied with the next annual real property tax in accordance with the procedures prescribed in General Municipal Law, §120-cc.
October 27, 1994