Opinion 2001 - 7

IMPROVEMENT DISTRICTS -- Expenses (authority to charge "entry fee" to properties within an extension to a public parking district) -- Extensions (authority to charge "entry fee" to properties within an extension to a public parking district) -- Public Parking Districts (authority to charge "entry fee" to properties within extension)
LOCAL LAWS -- Fees (authority to charge "entry fee" to properties within an extension to a public parking district) -- Improvement Districts (authority to charge "entry fee" to properties within an extension to a public parking district)
PARKING FACILITIES -- Public Parking Districts (authority to charge "entry fee" to properties within extension)

TOWN LAW §§198(5), 202(5); MUNICIPAL HOME RULE LAW §10(1)(ii)(d)(3): A town may not impose, upon properties within a new extension to a public parking district, a one-time "entry fee" in an amount equivalent to the assessments that would have been imposed on the properties for the five previous years, had they been in the parent district.

You ask whether a town may impose, upon properties within a new extension to a public parking district, a one-time "entry fee" in an amount equivalent to the assessments that would have been imposed on the properties for the five previous years had they been in the parent district. The apparent purpose of the "entry fee" is to recover capital costs of the district.

Towns are authorized to establish public parking districts for the acquisition, improvement and maintenance of property for parking vehicles (Town Law §198[5]). The expense of the establishment of a public parking district is assessed, levied and collected from the properties within the district on an ad valorem basis, unless the petition requesting establishment of a district under Town Law, article 12 (§190 et seq.), or the order calling the public hearing on the establishment of a district under Town Law, article 12-A (§209 et seq.), provides for assessing the expense on a benefit basis (see Town Law §202[3]). In addition, the town board, on behalf of a public parking district, may fix reasonable charges for use of public parking spaces within the district (Town Law §198[5]).

Pursuant to Town Law §202(5), the expense of an extension to a public parking district is charged against the properties within the extension on the same basis (ad valorem or benefit) as expenses of the parent district (see, e.g., 1981 Opns St Comp No. 81-4, p 3). Similarly, the cost
of operating and maintaining the district as extended must be assessed on the same basis as the cost of establishment of the district (see Town Law §202-a[1],[2]).

Town Law §202(5) provides that the expense of any extension to an existing water, sewer, wastewater disposal or drainage district may include a proportion of the cost of certain facilities of the parent district as determined by the town board. There is no similar authority, however, to charge back to an extension to a public parking district prior costs of construction of facilities of the parent parking district 1, or to otherwise charge a one-time "entry fee" to properties within an extension to a public parking district 2. Therefore, unless permitted pursuant to the town's home rule authority, it is our opinion that the town may not impose, upon properties within a new extension to a public parking district, a one-time "entry fee" in an amount equivalent to the assessments that would have been imposed on the properties for the five previous years, had they been in the parent district.

With regard to the town's home rule powers, we note that articles 12 and 12-A of the Town Law establish a comprehensive legislative scheme evincing an intent to pre-empt local laws relating to the establishment, financing and operation of town improvement districts (see Coconato, supra; 2000 Opns St Comp No. 2000-17, p 44; 1992 Opns St Comp No. 92-33, p 84). In addition, Municipal Home Rule Law §10(1)(ii)(d)(3) expressly excludes from the authorization for towns to supersede the Town Law, local laws relating to special districts. Accordingly, it is our opinion that the town may not, by local law, impose the proposed "entry fee".

July 25, 2001

Sean M. Walter, Esq., Deputy Town Attorney
Town of Riverhead

1 Although apparently not at issue here, we note that Town Law §206-a sets forth a procedure whereby a town board may determine to spread the cost of all existing and future debt of a district over the entire district, including all existing and future extensions. The determination may be made only in connection with a proceeding to extend a district or to consolidate districts (Town Law §206-a[1]; see State Comptroller's Report to the Governor on Laws of 1987, ch 781, July 31, 1987). Section 206-a also sets forth procedures for changing the basis of assessment of a district from ad valorem to benefit in certain circumstances (Town Law §206-a[2][b],[c], [3],[4]).

2 Compare Town Law §198(1)(h), (3)(a), authorizing the imposition of one-time "hook up" or "connection" fees, sometimes referred to as "entrance" fees (see, e.g., Coconato v Town of Esopus, 152 AD2d 39, 547 NYS2d 953 lv den 76 NY2d 701, 558 NYS2d 891). Even when such fees are authorized, however, it has been held that these one-time fees are limited to the amount of certain costs incurred by the town with respect to the connection of users to the water or sewer system, and may not defray costs of capital improvements to the water or sewer system (Video Aid v Town of Wallkill, 203 AD2d 554, 610 NYS2d 610 revd on other grnds 85 NY2d 663, 628 NYS2d 18; cf. Coconato v Town of Esopus, supra; see also Mark IV Construction v County of Monroe, 187 AD2d 985, 590 NYS2d 335, discussing Hamburg Associates v Board of Managers, 129 AD2d 990, 514 NYS2d 298 lv dsmd 70 NY2d 694, 518 NYS2d 1030; Home Builders Association v County of Onondaga, 151 Misc 2d 886, 573 NYS2d 863).