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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

SEWER DISTRICTS -- Establishment (of town district within county district)

COUNTY LAW, §250; TOWN LAW, §§190, 209: The establishment of a county sewer district would not necessarily preclude the subsequent establishment of a town sewer district within the county district.

This is in reply to your inquiry regarding the formation of a town sewer district within the boundaries of an existing county sewer district.

You indicate that a portion of the town is within the boundaries of a county sewer district. You state that the county district does not serve all the residents of the portion of the town within the district and that a number of town residents within the district are under orders from the county health department to remedy problems with their septic systems. These residents have requested that the county district extend its lines to serve them, but the county district has refused to do so. The residents have now approached the town with a proposal for the establishment of a town sewer district that would connect with facilities in a nearby city. You ask whether it is permissible for the town to establish a sewer district within an existing county sewer district.

Although the provisions of Articles 12 and 12-A of the Town Law and Article 5-A of the County Law do not specifically provide for the establishment of town districts within county districts, in our opinion these articles clearly contemplate the existence of town districts within county districts. In this connection, we note that under the County Law, a county sewer district may be established for the purpose of conveying, collecting, treating, and disposing of the sewage of other municipalities and districts within the county (County Law, §250[2]). Additionally, the procedures for the establishment of a county district include a provision that if the county district includes the whole or any part of a district furnishing a similar service, the district so included may be represented at the public hearing on the establishment of the county district (County Law, §255). Also, a county sewer district may not provide service to individual properties within a town sewer district without the consent of the town district (County Law, §266[1]). These provisions all indicate that a county sewer district and a town sewer district may serve the same areas.

In light of the above, it appears that the establishment of a county sewer district would not necessarily affect an existing town sewer district or preclude subsequent establishment of a town sewer district. We note, however, that although it is possible for a town to establish a town sewer district within an existing county sewer district, the town board, in determining whether the establishment of the district is in the public interest, should be aware of the possibility that the residents of such a district may be assessed by both districts even though they receive service only from the town district.

September 9, 1988
Robert W. Van Every, Esq., Town Attorney
Town of Ellicott