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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.
SEWERS AND SEWER SYSTEMS -- Contracts (to provide service outside town district)
SEWER DISTRICTS -- Contracts (between town and county districts); (to provide service outside district); (with village)
COUNTY LAW, §265; TOWN LAW, §§198(1)(f), 202(5), 209; VILLAGE LAW, §14-1436: A town, on behalf of a town sewer district, may contract with a county to provide sewer service to properties within a county sewer district. The cost of such a contract would be financed by the county in the same manner as other operation and maintenance costs incurred by the district.
This is in reply to your inquiry concerning the authority of a town sewer district to provide service outside the district and the manner in which the outside users may be charged for that service. You indicate that, some years ago, a trunk line was constructed to serve the town's consolidated sewer district. This line passes through a village and connects to a sewage treatment plant operated by a county sewer district. The properties through which the trunk line passes in the village are within the boundaries of the county district. You also indicate that after the construction of the town's trunk line, a development located within the village and within the boundaries of the county sewer district connected its sewers to the trunk line without the approval or knowledge of the town. After this connection was discovered, the town began to seek the appropriate means of charging the properties within the development a proportionate share of the indebtedness incurred by the town in constructing the trunk line. You ask whether the town, on behalf of the town district, and the county, on behalf of the county district, may enter into an agreement under which the cost of serving the properties in the development would be raised through assessments by the county district.
Pursuant to Town Law, §198(1)(f), the town board has the power, on behalf of a sewer district, to:
enter into a contract or contracts with another sewer district or with any incorporated city or village or with one or more corporations or individuals for the joint disposal of sewage, and the expense of such joint disposal of sewage shall be apportioned between the contracting parties in proportion to the areas served, volumes of sewage disposed of or the benefits received by each contracting party.
This Office has previously expressed the opinion that this section authorizes a town board, on behalf of a sewer district, to enter into contracts to provide sewer services to other sewer districts, cities villages, corporations or individuals outside the district (1971 Opns St Comp No. 71-358, unreported; 10 Opns St Comp, 1954, p 52; 4 Opns St Comp, 1948, p 83). The provision of service to outside users is in the nature of a contractual transaction and the terms and conditions of the contract, including the consideration to be paid, are matters which, in the first instance, must be determined by the contracting parties (see 1986 Opns St Comp No. 86-33, p 54). Amounts paid by outside users, including other sewer districts, pursuant to contracts may properly include those capital and operation and maintenance costs attributable to the provision of the outside service (1973 Opns St Comp No. 73-776, unreported; 1971 Opns St Comp No. 71-358, supra; 4 Opns St Comp, 1948, supra).
A county, on behalf of a county sewer district, is authorized to contract "... for the collection, conveyance, treatment or disposal of sewage ... with any public corporation or any county or town on behalf of any improvement district and also with any other sewer district, or private corporation" (County Law, §265[a]). The cost of any such contract would be financed in the same manner as the other operation and maintenance costs incurred by the district (County Law, §§266, 267, 270, 271; see also Y.M.C.A. v Rochester Pure Waters District, 44 AD2d 219, 354 NYS2d 201, affd 37 NY2d 371, 372 NYS2d 633).
Based on the foregoing, it is our opinion that the town, on behalf of the town sewer district, may contract with the county, on behalf of the county sewer district, to provide sewer service to the development located within the boundaries of the county district. The consideration stated in the contract, which, as noted above, may include both the capital and operation and maintenance costs attributable to the town sewer district's provision of the outside service, would be financed by the county in the same manner as the other operation and maintenance costs of the county district.
In the absence of a contract with the county, there are several methods available to the town in seeking to impose an equitable share of the town district's costs on the properties in the development. The town, on behalf of the district, may charge the properties individually for the use of the trunk line (Town Law, §198[f]). As discussed above, the charges paid by the outside users are contractual and collection thereof may be enforced by, among other means, action on the contract (see 26 Opns St Comp, 1970, p 272). There is, however, no authority to levy the amount of the unpaid charges on the town tax roll (see 12 Opns St Comp, 1956, p 17; cf. Town Law, §198[k]). Alternatively, the town sewer district, with the consent of the village, could be extended to include the properties in the development which are connected to the trunk line (see Town Law, §§190, 209; see also 1988 Opns St Comp No. 88-72, p 140, in relation to the establishment of a town sewer district within a county sewer district). If the town district is extended, the town board may attribute a portion of the cost of the trunk line to the extension and assess that amount against the properties in the extension on the same basis as in the parent district (see Town Law, §202). Also, if it is determined that the village has primary responsibility to provide sewer service to the properties in question (see Village Law, §14-1400; 1983 Opns St Comp No. 83-16, p 16; 9 Opns St Comp, 1953, p 99), the town, on behalf of the sewer district, could contract with the village for the district to provide sewer service to the properties in the development (Village Law, §14-1436). The consideration stated in such a contract would be raised by the village in the same manner as the other costs of the village sewers are raised (see Village Law, §§14-1406, 14-1410; see also 1990 Opns St Comp No. 90-41, p 92).
July 2, 1991
Thomas J. Egan, Esq., Town Attorney
Town of Woodbury