Opinion 94 - 17

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

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[1][c], [2]; 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[9][b]; County Law, §226- b[2]), it is our opinion that such fees may be imposed pursuant to local law (see Municipal Home Rule Law, §10[1][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[9][c]). Subdivision 3 of section 120-cc prescribes the procedures for implementing this enforcement process, as follows:

In any year in which such unpaid fees and penalties will be included in the annual tax levy, the governing board shall cause a statement to be prepared setting forth each amount of solid waste disposal and/or collection fees in arrears as of thirty days prior to the last date prescribed by law for the annexation of the warrant to the assessment roll, a brief description of the property for which or in connection with which such solid waste services were provided, and the name and address of the person or corporation liable to pay such amount. Such statement shall be presented to the board empowered to levy taxes, and such board shall levy such amounts remaining unpaid on the date taxes are levied against the real property for which or in connection with which such solid waste services were provided.

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
Joseph A. Mazzariello, City Comptroller
City of Troy