Wright v. Town Board

41 A.D.2d 290, 342 N.Y.S.2d 577, 1973 N.Y. App. Div. LEXIS 4731

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 1973
• Status: Published

Opinions

Cardamone, J.

The Town of Carlton in Orleans County is located on the south shore of Lake Ontario. It neither has an incorporated village within its boundaries, nor any industry, but it does have many large acreage fruit farms included amongst its 1,937 parcels of taxable property. More importantly, because of its location on the lake, it contains a proportionately large number of summer cottage owners relative to the permanent population. During the 14-month period from July, 1970 to September, 1971 the Town Board created a water district pursuant to the provisions of article 12-A of the Town Law whose boundaries included'the entire township.

A brief summary of the actions taken by the Town Board follows: On July 20, 1970 Wendell Associates, consulting engineers, were retained to prepare a plan. On February 4, 1971 a map, plan and report were submitted suggesting that the water district serve the most populated areas of the town. The benefit method was recommended as being more equitable for charging the costs of the district than by use of assessed valuation. The map reveals 27 miles of water mains (covering about half of the town) directly benefiting 1,006 developed tax parcels of which 422 are seasonal or summer properties, and 157 directly benefited but unimproved tax parcels, and 774 indirectly benefited tax parcels. A public hearing was held on March 10, 1971 regarding the formation of the water district. Approximately 250 persons attended. Following the hearing the board met and determined that all property and property owners within the proposed district are benefited by it; that it was in the public interest to establish the district; that the report, map and plan as filed be approved; and that the cost of construction be assessed in proportion to the benefit derived by each tax parcel. Thereafter a petition was submitted to the Town Board requesting a referendum which was ordered to be held on April 29, 1971 and at which all duly qualified electors were permitted to vote as well as “ owners of taxable real property situate in the proposed district ”, in contravention of subdivision 3 of section 209-e of the Town Law which limits the franchise to the latter. The proposition creating the water district was approved — 713 “for” to 586 “against”. Following the referendum, the results were certified to the New York State Department of Audit and Control, and an order was entered by the State Comptroller granting permission to establish the district thereafter ordered created by the Town Board, a certified copy of which, was filed with the Department of Audit and Control and the Orleans County Clerk on September 14, 1971.

Appellants instituted this article 78 proceeding to review the actions of the Town Board and to have them rescinded and annulled! Special Term denied the petition in an opinion (70 Mise 2d 1). Appellants have appealed from the judgment entered thereon.

Three issues are raised for our determination: (1) the constitutionality of subdivision 3 of section 209-e of the Town Law; (2) whether the creation of the water district with boundary lines coterminous with the town lines was arbitrary and capricious; and (3) whether a challenge of the method and amounts of the proposed assessments was premature.

Subdivision 3 of section 209-e provides that “ When the town board shall determine in the affirmative all of the questions set forth in subdivision one * * * the board may adopt a resolution approving the establishment * * * of the district # # * which resolution shall be subject to a permissive referendum ’ ’. Then follows the portion under attack which reads: “ The proposition submitted must be approved by the affirmative vote of a majority of the owners of taxable real property situate ip the proposed district or proposed extended district as shown upon the latest completed assessment-roll of the town, voting on such proposition.” Under the proposed district in this case, the statute would permit any owner of taxable real property resident in the Town of Carlton to vote. In order for voters who do not own real property to be denied the franchise it must appear that: (1) they were substantially less interested in the outcome of the election than those authorized to vote by the property ownership qualification, and (2) the interest promoted by limiting the franchise constitutes a compelling State interest and the exclusion from the franchise does effectuate this State interest (Kramer v. Union Free School Dist., 395 U. S. 621). If those sought to be excluded will be substantially affected by the result of the election (Phoenix v. Kolodziejski, 399 U. S. 204, 209) the restriction is unconstitutional. Property owners ’ and nonproperty owners ’ interests may differ, but both have the same vital concern in the availability of good drinking water, sufficient water to run their homes and businesses and to protect their property from fire. Nonproperty owners of a proposed water district have, prima facie, a substantial interest in the outcome of the proposal (Police Jury of Parish of Vermilion v. Hebert, 404 U. S. 807 [rural roads] ; Phoenix v. Kolodziejski, supra, p. 209 [public facilities and services]; Cipriano v. City of Houma, 395 U. S. 701, 705 [water and utilities]). The fact that the improvements voted on may be paid initially through real property taxes does not necessarily effect a reduction in the interest of those who do not own property because they pay increased taxes thróugh increases in rent and the prices of goods and services (Cipriano v. City of Houma, supra, p. 705). Further, it is not certain that all the funds needed to establish the water district will be derived solely from real property taxes (Phoenix v. Kolodziejski, supra, p. 209). Surplus moneys of the town not otherwise allocated may be utilized to pay off the maturing bonds (Town Law, § 231), and water rents may legally be used for such purpose (24 Op. St. Comp., 1968, 390). Thus, we conclude, that voters who do not own real property are equally, and not less, interested in the outcome of the referendum as those authorized to vote by the property ownership qualification.

As stated, any restriction on the right to vote must be necessary to promote a compelling State interest (Kramer v. Union Free School Dist., supra; Atkin v. Onondaga County Bd. of Elections, 30 N Y 2d 401, 404). The general presumption of constitutionality afforded State statutes and classifications if the court can perceive of a “ rational basis ” for the distinctians made is not applicable to those statutes .which deny some resident electors the right to vote (Kramer v. Union Free School Dist., supra, pp. 627-628). No individual may be denied access to the ballot solely by virtue of his tax status (see Gordon v. Lance, 403 U. S. 1).

Appellants have failed to demonstrate that: (1) qualified electors who are resident nonowners of property in the Town of Carlton were substantially less interested in the outcome of the election than those authorized to vote' by the property ownership qualification portion of subdivision 3 of section 209-e of the Town Law; and (2) appellants have also failed to show that ■the exclusion of resident nonproperty owners who are electors in the Town of Carlton is necessary to promote any compelling State interest. We must conclude, therefore, that subdivision 3 of section 209-e insofar .as it limits the franchise at the referendum to the ‘ ‘ owners of taxable real property situate in the proposed district” is unconstitutional.

The recent case of Salyer Land Co. v. Tulare Water Dist. (410 U. S. 719) is not here controlling. In that case the Supreme Court concluded that the storage district’s primary purpose was to provide for farming and not for general public services ordinarily financed by a municipal body. Further, the costs of the district were assessed against the land and were going to be passed on to the farmers’ customers in distant metropolitan areas thereby eliminating any claim of direct or indirect economic burdens on the local residents. The Supreme Court concluded that the water storage district, 1‘ by reason of its special limited purpose and of the disproportionate effect of its activities on landowners as a group ” was the sort of exception to the rule laid down in Reynolds v. Sims (377 U. S. 533) contemplated in Hadley v. Junior Coll. Dist. (397 U. S. 50). Salyer did not purport to change the guidelines laid down in Phoenix, Cipriano and Kramer, previously cited in this opinion, and under those guidelines subdivision 3 of section 209-e of the Town Law is unconstitutional.

We turn to the argument raised respecting the creation of this water district whose boundary lines are coterminous with those of the township. The Town Board has the power to create a water district comprising the area it deems benefited, and, .since this is a legislative function, the courts should not interfere unless the boundary lines established are ‘ ‘ palpably unjust ” (Gaynor v. Marohn, 268 N. Y. 417, 428). “ Whether or not a particular parcel has been benefited by a particular improvement is ordinarily a question of fact. The test is not whether as now used "by its present owner any advantage is received but whether its general value has been enhanced ” (Matter of City of New York [Juniper Ave.], 233 U. Y. 387, 392). Unless it can be said as a matter of law that the improvement will not under any circumstances increase the value of the parcels deemed benefited, we must spstain the determination of the Town Board (Matter of Brewster-Mill Park Realty v, Town Bd. of North Elba, 17 A D 2d 467, 468). The burden is on the appellants to show that their properties were not in fact benefited (Matter of Nolan v. Bureau of Assessors, 31 N Y 2d 90, 93). While initially the entire water district will not be serviced by the 27 miles of water mains, there is no reason to suppose that service will not eventually be extendedithroughout the toWn. Appellants’ contention that such future extension is precluded by the town’s debt limits is not persuasive because as the debt is paid, new debt could be incurred, and more' significantly, such an argument is based on a static tax báse while experience shows that the availability of water increases the value of taxable parcels, affording a larger tax base and a higher debt ceiling. Appellants’ claim thatf they should be exempt from inclusion in the water district because they have privately arranged to provide themselves with potable water services is without merit. The existence of wells on appellants’ property is not controlling on the issue of “benefit ” (O’Flynn v. Village of East Rochester, 292 N. Y. 156). We find therefore that appellants have failed to show that the creation by the Town Board of Carlton of boundary lines of the water district coterminous with the town lines was an abuse of legislative power and discretion.

Finally, we consider whether the challenge to the methods and amounts of the proposed assessments was premature. Special Term correctly concluded that any attack on the actual amount of the assessment of property within the district is premature. Contrary to appellants ’ contention, the Town Board is not bound by the suggested¹ assessments as set forth in the Wankel Associates, consulting engineers’ proposal. Appellants have misconstrued both the Town Law and the Board’s actions. The Town Law permits a town board to adopt an order reciting the proposal including “ The proposed method of financing ” prior to the holding of a public hearing (Town Law, § 209-d [Notice of hearing]). This order reciting the proposal was adopted by the Town Board at its meeting of February 9,1971. Its purpose is to inform the public of what the proposal contains and not to bind the Town Board to the actual amount of asssessment eontained in it. Practically these will, in the final analysis, depend primarily on the amount of the contracts let for construction of the system and the costs of debt service. Further, the Town Law clearly provides a format for when (§ 236) and how (§ 237) the assessment shall be made, how it shall be published and how" it can be challenged (§ 239). The Town Board was bound to act pursuant to these provisions of the statute and did so in this case. The action of the Town Board establishing the water district at its meeting of September 8,1971, specifying that payments to finance the improvement be made in the first instance from parcels especially benefited, is not an adoption of the assessment charges recited in the consulting engineers’ prpposal. Bather it represents compliance with section 209-q (subd. 6, par. [c]) of the Town Law which requires that: ‘1 such resolution shall contain a statement of the manner in which the costs of the * * * water improvement are to be apportioned”. Insofar as the proposed amount of the assessments is challenged, therefore, that challenge is premature.

To the, extent that the “ benefit method ” was adopted rather than the “ front-foot ” or “ assessed valuation ’’basis for assessment, Special Term incorrectly concluded that an attack on this method of payment was premature. It may be properly challenged at this time (Town Law, § 209-q, subd. 6, par. [e]). The record, as previously related, reveals that this method of financing was contained in the proposal of Wankel Associates, approved by the voters at the public referendum, adopted by the Town Board in its order creating the water district and approved by the State Comptroller by order dated August 31, 1971. The proof does not show that the “ benefit method ”, a prima facie fair method, was adopted in an arbitrary or capricious manner. Absent such evidence, the benefit method as adopted and approved should be upheld.

The judgment appealed from should be modified only insofar as appellants’ challenge to the “ benefit method ” of assessment was determined to be premature and in all other respects it should be affirmed.

1 . Annual service charge for:

(A) 584 directly benefited developed properties (permanently

occupied) ............................................ $110.00

(B) 422 directly benefited developed properties (seasonably

occupied) .............................. $110.00

(C) 157 directly benefited underdeveloped properties.......... 10.00

(D) 774 indirectly benefited (not on the Water main) properties 1.00