§ 209-Q — Sewer, drainage or water improvements

§ 209-q. Sewer, drainage or water improvements. 1. Definition and\napplication. (a) The terms "sewer improvement" and/or "drainage\nimprovement", as used in this section, shall mean any facility, service,\nfunction, activity or physical public betterment which may be provided\nby the establishment of a sewer district, wastewater disposal district\nand/or drainage district pursuant to article twelve or twelve-A of this\nchapter.\n (b) The term "water improvement", as used in this section, shall mean\nany facility, service, function, activity or physical public betterment\nwhich may be provided by the establishment of a water district pursuant\nto article twelve or twelve-A of this chapter.\n (c) The powers provided by this section shall be deemed to be in\naddition to those provided in article twelve or article twelve-A of this\nchapter and shall not be deemed to limit or supersede any powers\nprovided in either of such articles; provided, however, that nothing in\nthis section shall be deemed to authorize the providing of a sewer,\ndrainage or water improvement in, or the charging of the costs thereof\nagainst any area of the town located in any village.\n 2. Plans, reports and maps. The town board may adopt a resolution\nappropriating a specific amount to pay the cost of preparing a general\nplan, report and map for providing a sewer, drainage or water\nimprovement in the area of the town outside of any villages, or in any\nportion of such area. All such plans, reports and maps shall conform\nwith the requirements of section two hundred nine-c of this chapter. The\ntown board may determine that such plans, reports and maps shall be\nprepared by or under the supervision of town officers and employees to\nbe designated by the town board, or by persons to be employed for the\npurpose, or the town board may contract for the preparation thereof\nwithin the limitations of the amount appropriated. Except as otherwise\nprovided herein, the expense incurred for the preparation of such plans,\nreports and maps shall be a charge on the area of the town outside of\nany villages, and shall be assessed, levied and collected in the same\nmanner as other town charges. If the town board shall thereafter make\nsuch sewer, drainage or water improvement, the expense incurred by the\ntown for the preparation of the plans, reports and maps therefor shall\nbe deemed to be part of the cost of such sewer, drainage or water\nimprovement and the town shall be reimbursed for such portion of that\namount, if any, which the town board, at the public hearing held\npursuant to subdivision three of this section, shall allocate against\nsuch benefited area, if any.\n 3. Hearing. Subsequent to the date of filing of the plan, report and\nmap in the office of the town clerk, as required by section two hundred\nnine-c of this chapter, the town board may adopt an order and enter the\nsame in the minutes of its proceedings reciting the proposed sewer,\ndrainage or water improvement, a description of the boundaries of the\nproposed benefited area, if any, the maximum amount proposed to be\nexpended for the proposed sewer, drainage or water improvement, the\nproposed method of apportioning the costs of such sewer, drainage or\nwater improvement, the proposed method of financing to be employed, the\nfact that a plan, report and map describing the same are on file in the\ntown clerk's office for public inspection and specifying the time when\nand the place where such board will meet and hold a public hearing at\nwhich all persons interested in the subject thereof may be heard\nconcerning the same. The board shall cause a copy of such order to be\npublished at least once in a newspaper or newspapers designated pursuant\nto subdivision eleven of section sixty-four of this chapter, the first\npublication thereof to be not less than ten nor more than twenty days\nbefore the day set therein for the hearing, and shall also cause a copy\nthereof to be posted upon the bulletin board in the office of the town\nclerk.\n 4. Change in boundaries or apportionment of costs. If the town board\nshall determine, after the hearing, on notice as provided in subdivision\nthree hereof and upon the evidence given thereat, that any of the\nproperty in a proposed benefited area, if any, is not benefited by the\nsewer, drainage or water improvement, or that any property benefited by\nthe sewer, drainage or water improvement is not included in the proposed\nbenefited area and that the boundaries of the benefited area should be\nchanged accordingly, or that the proposed method of apportioning the\ncosts of such sewer, drainage or water improvement should be changed,\nthe board shall specify the changes and shall call a further public\nhearing at a definite time and place not less than fifteen nor more than\ntwenty-five days after such previous hearing. Notice of such further\nhearing shall be published and posted in the manner provided in\nsubdivision three hereof except that such notice shall also specify the\nmanner in which it is proposed to alter the boundaries of the benefited\narea or the method of apportioning the costs of the sewer, drainage or\nwater improvement.\n 5. Increase in maximum amount. At any time prior to the completion of\na sewer, drainage or water improvement, the maximum amount proposed to\nbe expended for such sewer, drainage or water improvement, as stated in\nthe notice of public hearing pursuant to subdivision three or four\nhereof, may be increased by an order of the town board provided that the\ntown board shall, after a public hearing held in the manner prescribed\nin subdivision three hereof, determine that it is in the public interest\nto authorize the increase in such maximum amount. If it is proposed or\nrequired that the town shall finance the increase in the maximum amount\nproposed to be expended for the sewer, drainage or water improvement by\nthe issuance of bonds, notes, certificates or other evidences of\nindebtedness and the total estimated expense of such improvement\nincluding the increase in the maximum amount shall exceed one-tenth of\none per centum of the full valuation of the taxable real property in the\narea of the town outside of villages, the town board may not make an\norder pursuant to this subdivision unless the comptroller of the state\nof New York shall have made, subsequent to the public hearing required\nby this subdivision, an order approving the increase at such maximum\namount as stated in the notice of hearing required by this subdivision.\nThe order of the comptroller shall be prepared in duplicate and one copy\nthereof filed in the office of the department of audit and control and\nthe other copy in the office of the town clerk of the town. If the\noriginal authorization of the sewer, drainage or water improvement was\nsubject to a permissive referendum pursuant to paragraph (a) of\nsubdivision eleven of this section or made subject to a mandatory or\npermissive referendum pursuant to paragraph (b) of subdivision eleven of\nthis section, any order of the town board increasing the maximum amount\nto be expended shall be subject to the same type of referendum. The\nprovisions of this subdivision referring to a referendum, shall not be\napplicable to any order increasing the maximum amount to be expended for\na sewer improvement adopted by the town board of any town which has been\nordered by the state commissioner of health or water resources\ncommission to provide sewage treatment facilities or directing\ncompliance with standards or determinations or orders promulgated\npursuant to article twelve of the public health law.\n 6. Authorization of improvement; judicial review. (a) After the\nhearing on notice as provided in subdivision three or four hereof, and\nupon the evidence given thereat, the town board shall determine by\nresolution whether or not it is in the public interest to make such\nsewer, drainage or water improvement.\n (b) If the town board shall determine that it is not in the public\ninterest to make the proposed sewer, drainage or water improvement, the\nboard shall adopt a resolution to that effect.\n (c) If the town board shall determine that it is in the public\ninterest, the board may adopt a resolution authorizing such sewer,\ndrainage or water improvement, subject to the approval of the state\ncomptroller where such approval is required by subdivision thirteen of\nthis section. Such resolution shall contain a statement of the manner\nin which the costs of the sewer, drainage or water improvement are to be\napportioned, and a description of the boundaries of the benefited area,\nif any, as finally determined by the town board where any part of the\ncost is to be raised by special assessments upon benefited property.\n (d) The town clerk shall cause a certified copy of any resolution or\norder adopted pursuant to paragraph (c) of this subdivision, subdivision\nfive or paragraph (c) of subdivision eight of this section to be duly\nrecorded in the office of the clerk of the county in which the town is\nlocated within ten days after the adoption of such resolution, or within\nten days of the receipt of notification of the approval of the state\ncomptroller where such approval is required by subdivision five or\nsubdivision thirteen of this section. When so recorded, such resolution\nshall be presumptive evidence of the regularity of the proceedings and\nactions taken by the town board in relation thereto.\n (e) Any interested person aggrieved by any resolution or order adopted\npursuant to paragraph (c) of this subdivision, subdivision five or\nparagraph (c) of subdivision eight of this section may review the same\nby a proceeding pursuant to article seventy-eight of the civil practice\nlaw and rules provided such proceeding is commenced within thirty days\nfrom the date of the recording of the certified copy of the resolution\nor order in the office of the county clerk. Any such resolution or order\nshall be final and conclusive unless a proceeding pursuant to article\nseventy-eight of the civil practice law and rules has been commenced\nwithin thirty days from the date of recording thereof. No review shall\nbe had unless at the time the proceeding is commenced the interested\nperson seeking the review shall give an undertaking approved by the\nsupreme court, or a justice thereof, as to form, amount and sufficiency\nof sureties, that, in the event of failure to modify such resolution or\norder he or they will pay to the town board all costs and expenses as\nare incurred by it on account of the said proceeding as shall be\ndetermined by the court. In the event that upon such review there shall\nbe any modification by the court of such resolution the court shall\ndirect the modification thereof by order which shall be final and\nconclusive and such town board shall cause such order to be recorded and\nfiled in the same place and manner as was the resolution or order\nappealed from.\n 7. Performance of the work. After the resolution authorizing a sewer,\ndrainage or water improvement shall become effective, such sewer,\ndrainage or water improvement may be made and contracts therefor may be\nlet in the manner provided in section one hundred ninety-seven of this\nchapter.\n 8. Apportionment of costs. (a) The cost of any such sewer, drainage or\nwater improvement shall be borne partly by the area of the town outside\nof any village and partly by the lands benefited thereby; or by the area\nof the town outside of any village; or entirely by the lands benefited\nthereby, as the town board, in its discretion, shall provide. Where,\nhowever, (1) any part of the cost of the sewer, drainage or water\nimprovement is to be borne by property in a described benefited area,\nsuch costs shall be assessed, levied and collected from the several lots\nor parcels of land within such benefited area either in the same manner\nand at the same time as other town charges, or in just proportion to the\namount of benefit which the sewer, drainage or water improvement shall\nconfer upon such lots or parcels, or (2) any part of the cost of the\nsewer, drainage or water improvement is to be borne by the entire area\nof the town outside of any villages, and such area has not been\ndetermined to be the benefited area, such costs shall be assessed,\nlevied and collected from the several lots and parcels of land in such\narea in the same manner and at the same time as other town charges.\n (b) In the event that a proposed sewer, drainage or water improvement\nis not made, any expense incurred by the town in relation thereto,\nincluding costs of publication of notices and of any referendum, shall\nbe a charge upon the area of the town outside of any villages, and shall\nbe assessed, levied and collected in the same manner as other town\ncharges.\n (c) At any time after the completion of a sewer, drainage or water\nimprovement pursuant to the provisions of this section, the\napportionment of the costs thereof as between the benefited area and the\narea of the town outside of any village, as stated in the notice of\npublic hearing pursuant to subdivision three or four hereof, may be\nchanged by resolution of the town board provided that the town board\nshall, after a public hearing, determine that it is in the public\ninterest to authorize the change in such apportionment. The town board\nshall give notice of such hearing by at least a single publication of a\nnotice in a newspaper or newspapers designated pursuant to subdivision\neleven of section sixty-four of this chapter at least ten but not more\nthan twenty days prior to the date specified for such hearing,\nspecifying the time when and place where such hearing will be held and\nstating the change proposed in the apportionment of the costs of the\nsewer, drainage or water improvement. The only change in the\napportionment of the costs of a sewer, drainage or water improvement\nthat may be authorized pursuant to this paragraph shall be an increase\nin the share of such costs to be borne by the area of the town outside\nof any village, with a corresponding decrease in the share of such costs\nto be borne by the benefited area.\n (d) The cost of any such improvement may include such portion of the\ncost of existing or authorized improvements as the town board shall\ndetermine. Such determination shall be based on a finding that there is\nan equitable and reasonable relationship between such improvement and\nthe existing or authorized improvements.\n 9. Financing improvement. The funds necessary to pay the cost of any\nsewer, drainage or water improvement made pursuant to this section shall\nbe raised in a manner provided in article fifteen of this chapter, as\ndetermined by the town board, or pursuant to a local law adopted\npursuant to the municipal home rule law.\n 10. Petition. Five resident owners of taxable real property located\nwithin the area of the town outside of any villages, may petition the\ntown board to acquire, provide or construct any sewer, drainage or water\nimprovement described in subdivision one of this section. Such petition\nshall be signed by the petitioners, and acknowledged or proved in the\nsame manner as a deed to be recorded, or authenticated in the manner\nprovided by the election law for the authentication of nominating\npetitions. When any such petition shall have been presented, the town\nboard may direct the preparation of a plan, report and map for such\nsewer, drainage or water improvement and proceed in the manner provided\nin this section, or it may adopt a resolution, reciting in general terms\nthe filing of such petition, the proposed sewer, drainage or water\nimprovement and specifying the time when and the place where such board\nwill meet to consider the petition and to hear all persons interested in\nthe subject. Notice of such meeting shall be published in the manner\nprovided in subdivision three of this section and shall state the time\nand place of the meeting and the purpose thereof. The petitioners shall\nbe required to deposit with such petition the sum of one hundred dollars\nto cover all cost of publishing and posting notices of meetings of the\ntown board to consider the petition. If the board determines to proceed,\npursuant to this subdivision, with further development of the proposed\nsewer, drainage or water improvement, such deposit shall be returned in\nfull to the petitioners, but if the petition be denied, the surplus only\nshall be so returned after paying the expenses mentioned in this\nsubdivision. If the town board shall determine after such hearing and\nupon the evidence given thereat, that the proposed sewer, drainage or\nwater improvement is in the public interest and economically feasible,\nthe board shall direct the preparation of a general plan, report and map\nfor such improvement and proceed in the manner provided in this section.\n 11. Referendum. (a) Any resolution adopted pursuant to paragraph (c)\nof subdivision six of this section authorizing a sewer, drainage or\nwater improvement, any part of the cost of which is to be borne by the\nentire area of the town outside of any villages, and any resolution\nadopted pursuant to paragraph (c) of subdivision eight of this section\nwhich will result in an increase in the share of the costs of a sewer,\ndrainage or water improvement to be borne by the area of the town\noutside of any villages in any one fiscal year of more than ten per\ncentum of the maximum amount proposed to be expended, as stated in the\nlast notice of public hearing for such sewer, drainage or water\nimprovement pursuant to subdivision three, four or five of this section,\nshall be subject to a permissive referendum in the manner prescribed in\narticle seven of this chapter, as modified by paragraph (c) of this\nsubdivision.\n (b) Except as provided in paragraph (a) of this subdivision, the town\nboard, in its discretion, may determine that any resolution adopted\npursuant to subdivision two, paragraph (c) of subdivision six or\nparagraph (c) of subdivision eight of this section, shall be subject to\na mandatory or permissive referendum in the manner prescribed in article\nsix or seven of this chapter, as the case may be, as modified by\nparagraph (c) of this subdivision. Such determination, if any, shall be\nincluded in the resolution so adopted. Any such referendum shall be held\nin the entire area of the town outside of any villages, except that, in\nthe case of a resolution adopted pursuant to subdivision two or\nparagraph (c) of subdivision six of this section where any part of the\ncost of the improvement is to be borne by an area of the town less than\nthe entire area of the town outside of any villages, the resolution may\nprovide that the referendum shall be held in such lesser area.\n (c) Any resolution submitted to a referendum pursuant to this section\nshall not become effective unless it is approved by the affirmative vote\nof a majority of the owners of taxable real property voting thereon\nwhose property is situate in the area of the town outside of any\nvillages, or in such lesser area described in a resolution as authorized\nin paragraph (b) of this subdivision, as shown on the latest completed\nassessment roll of the town. A petition requesting a referendum shall be\nsufficient if signed and acknowledged or proved by the owners of taxable\nreal property situate in the area of the town outside of any villages,\nor in such lesser area described in the resolution as authorized in\nparagraph (b) of this subdivision, as shown upon the latest completed\nassessment roll of such town, in number equal to at least ten percent of\nthe total number of such owners. For the purposes of this subdivision, a\ncorporate owner of such taxable real property shall be considered one\nowner for the purposes of a petition requesting a referendum and shall\nbe entitled to one vote to be cast by an officer or agent of the\ncorporation or other duly authorized person designated by appropriate\nresolution of such corporation. The town clerk shall cause to be\nprepared and have available for distribution proper forms for a petition\nfor a referendum under this section and shall distribute a supply to any\nperson requesting the same.\n 12. Town function. Any sewer, drainage or water improvement\nconstructed, acquired or provided pursuant to this section shall be a\ntown function and the town board shall be responsible for the necessary\nmanagement, maintenance, operation and repair thereof. The cost of such\nmanagement, maintenance, operation and repair shall be a charge upon the\narea of the town outside of any villages and shall be levied and\ncollected in the same manner and at the same time as other town charges.\n 12-a. Sewer and/or drainage rents and water rates. The town board may\nestablish sewer and/or drainage rents and water rates as provided in\nparagraph (l) of subdivision one and paragraph (d) of subdivision three\nof section one hundred ninety-eight of this chapter.\n 13. Comptroller's approval. (a) Where it is proposed or required that\nthe town shall finance the cost of any sewer, drainage or water\nimprovement authorized by this section by the issuance of bonds, notes,\ncertificates or other evidences of indebtedness of the town therefor and\nwhere the estimated expense of such improvement shall exceed one-tenth\nof one per centum of the full valuation of the taxable real property in\nthe area of the town outside of villages, the permission of the state\ncomptroller shall be required for such sewer, drainage or water\nimprovement.\n (b) Within ten days after the adoption of a resolution by the town\nboard pursuant to paragraph (c) of subdivision six of this section,\nwhich requires the approval of the state comptroller pursuant to\nparagraph (a) of this subdivision, the town clerk shall file a certified\ncopy of such resolution in the office of the state department of audit\nand control at Albany, New York, together with an application for the\napproval of the state comptroller to the providing of such sewer,\ndrainage or water improvement. The application shall be executed and\nverified by the supervisor, or such other officer of the town as the\ntown board shall determine. Such application shall be in such form and\nshall contain such information as shall be prescribed by the state\ncomptroller.\n (c) Whenever such an application shall be filed in the office of the\ndepartment of audit and control, the state comptroller shall determine\nwhether the public interest will be served by providing such sewer,\ndrainage or water improvement in the manner proposed and also whether\nthe cost thereof will be an undue burden upon the property which is to\nbear the cost of such sewer, drainage or water improvement. The state\ncomptroller may make such determinations upon the original or any\namended application, or in his discretion may require the submission of\nadditional information or data in such form and detail as he shall deem\nsufficient, or may cause an investigation to be made to aid him in\nmaking the determinations above mentioned.\n (d) Upon the expiration of fifteen days from the date of the filing of\nsuch application, the state comptroller shall make an order, in\nduplicate, granting or denying approval for such sewer, drainage or\nwater improvement and shall file one copy of such order in the office of\nthe state department of audit and control at Albany, New York, and the\nother in the office of the town clerk of the town in which the proposed\nimprovement is to be provided. The town clerk shall thereupon notify the\nmembers of the town board of the receipt of such order and the contents\nthereof.\n 14. Lease of improvements. (a) The town board may lease for a term not\nto exceed forty years all or any part of the property or facility\nconstructed or operated as a town function under this article to a\ncounty, a city, a village, a town, a public authority, a town on behalf\nof an improvement district, a county on behalf of a county district, or\na joint water works system established pursuant to article five-B of the\ngeneral municipal law, provided, however, that such lease shall be\nsubject to a permissive referendum held in the manner prescribed in\narticle seven of this chapter, as modified by paragraph (c) of\nsubdivision eleven of this section except that a petition requesting a\nreferendum shall be sufficient if signed, and acknowledged or proved in\nthe same manner as a deed to be recorded, or authenticated in the manner\nprovided by the election law for the authentication of nominating\npetitions, by the owners of taxable real property situate in the area of\nthe town outside of any villages, as shown upon the latest completed\nassessment roll of such town, in a number equal to at least five percent\nof the total number of said owners, or one hundred of said owners,\nwhichever is the lesser.\n (b) The proceeds of the lease of all or part of such property or\nfacility shall be deposited in a reserve fund established for the\npurpose of retiring outstanding obligations issued on behalf of the town\nto finance the cost of the property or facility leased, and shall be\nexpended only for such purposes except that if the proceeds exceed the\nsum of all installments of principal of and interest on such\nindebtedness due or to become due, or if, when such obligations shall\nhave been retired, any proceeds of such reserve fund remain unexpended,\nsuch excess monies may be used for any purpose which would be properly\ncharged against the area of the town outside of any villages.\n