Opinion 2004 - 7

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

LOCAL LAWS -- Taxes and Assessments (inclusion of delinquent water rents of outside users on tax roll)
REAL PROPERTY TAXES AND ASSESSMENTS -- Tax Levy (enforcement of delinquent water user fees against outside users with)
WATER RENTS -- Enforcement (of delinquent outside users by inclusion on tax roll)
WATER SUPPLY AND DISTRIBUTION -- Water Supply (enforcement of delinquent charges against outside users)

VILLAGE LAW 11-1118, 11-1120; STATE CONSTITUTION, ARTICLE XVI, 1; MUNICIPAL HOME RULE LAW 10(1)(ii)(a)(9): Delinquent water charges owed by users of the village water system who are located outside the village, may not be collected by the inclusion of such delinquent amounts on the village or town tax roll.

You ask whether a village may utilize the tax levy procedures set forth in Village Law 11-1118, for the enforcement of delinquent water user charges against properties located outside the village. If the village may not use those procedures, you ask whether the village may require the town in which the property is located to levy the delinquent amount on the town tax roll, or whether, at the request of the village, the town may levy such amount on the town tax roll.

Village Law 11-1120 authorizes a village to sell, to a corporation, individual or water district outside the village, the right to make connections with mains and reservoirs of the village for the purpose of drawing water therefrom, and "fix the prices and conditions therefor." Section 11-1120 provides that a village may not sell or permit the use of water under that section if the supply for the village and its inhabitants would thereby become insufficient. Pursuant to section 11-1122 of the Village Law, a village may extend its water mains outside the village. If such an extension is made, the village "shall adopt rules, regulations and rates to apply to all consumers outside of the village." Section 11-1116 also authorizes the adoption of rules, regulations and local laws not inconsistent with law for enforcing the collection of water rents and provides that a village "may enforce observance thereof by cutting off the supply of water".

Village Law 11-1118 authorizes villages to establish a scale of rents for use of water, to be paid at such times and in such manner as the prescribed by the village. Section 11-1118 provides that rents, together with penalties due for non-payment, "shall be a lien on the real property upon which or in connection with which the water is used ". In addition, section 11-1118 sets forth a procedure by which the amount of the delinquent water rent, plus penalties,
is included in the "annual village tax levy" and thereby levied "upon the real property in default". Since Village Law 11-1118 authorizes a village to include delinquent water rents only on the village tax roll, the tax levy enforcement procedure of that section may be used only for properties within the villages (see, e.g., 1981 Opns St Comp No. 81-369, p 405; 1975 Opns St Comp No. 75-1159, unreported; 12 Opns St Comp, 1956, p 17; Real Property Tax Law 1402[1], [3][c], 1420 [1], [2]; see also 24 Opns St Comp, 1968, p 411).

Further, there is no statutory authority for a village to require a town to levy such amounts on the town tax roll, or for the town to do so at the request of the village. In this regard, we note that Town Law 198(3)(d) sets forth a procedure for the enforcement of unpaid water charges imposed by a town board, on behalf a town water district, on property owners in adjoining towns who are permitted to use water from the district. Under section 198(3)(d), the county governing board is required to levy the amount of the delinquent water rents against the property liable as a tax in the annual tax rolls of the town in which the property is located. Town Law 198(3)(d), however, is limited in its application to users of a town water district whose property is located in an adjoining town. There is no similar statutory procedure for the levy on a town tax roll of delinquent water charges owed by outside users of a village water system.

It is also our opinion that it is not within the village's home rule authority to provide, by local law, for the levy of such delinquent charges on either the village or town tax roll. We have expressed the opinion that when delinquent user charges, such as water rents, are collected by inclusion in the tax levy, the charges become indistinguishable and inseparable from the taxes themselves (see, e.g., 1986 Opns St Comp No. 86-76, p 120). It is well-settled that the power to assess and collect taxes is vested exclusively in the State Legislature and that a municipal corporation may exercise the authority to tax only if expressly delegated to it by the Legislature (NY Const, art. XVI, 1; see, e.g., City of New York v State of New York, 94 NY2d 577, 709 NYS2d 122; Greater Poughkeepsie Library District v Town of Poughkeeepsie, 81 NY2d 574, 601 NYS2d 94; Sonmax v City of New York, 43 NY2d 253, 401 NYS2d 173; see also NY Const, article IX, 2[c][8]; Municipal Home Rule Law 10[1][ii][a][9]). Any tax imposed must be within the expressed limitations of the enabling statute (Castile Oil v City of New York, 89 NY2d 334, 653 NYS2d 86). Therefore, absent express State statutory authority, such as that contained in Town law 198(3)(d), delinquent water rents owed by users of the village water system who are located outside the village may not be collected by inclusion on the town or village tax roll.

Accordingly, delinquent water charges owed by users of the village water system who are located outside the village, may not be collected by the inclusion of such delinquent amounts on the village or town tax roll.1

September 30, 2004

Lynn E. Weinig, Esq., Attorney at Law
Village of Briarcliff Manor

1 With respect to other methods of collecting charges from outside users of a village water system, we have expressed the opinion that, pursuant to Village Law 11-1116 and 11-1120, a village has several options available, including requiring outside users to pay a deposit, to make a minimum payment in advance or to pay a reasonable collection charge to cover costs that are collected by means of a civil suit (see, e.g., 26 Opns St Comp, 1970, p 34; 11 Opns St Comp, 1955, p 195). In addition, should the town in which the outside properties are located form a water district (see, gen., Town Law, articles 12 and 12-A), the village, in lieu of providing water to individual outside users, may contract with the town for the provision of water to the district (Village Law 11-1120; Town Law 198[3][b]).