§ 54 — Special improvements

§ 54. Special improvements. 1. Definition and application. (a) The\nterm "improvement" or "special improvement", as used in this section,\nshall mean any facility, service, function, activity or physical public\nbetterment which may be provided by the establishment of an improvement\ndistrict pursuant to article twelve or twelve-a of this chapter, but not\nincluding water quality treatment districts.\n (b) 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 special\nimprovement in, or the charging of the costs thereof against any area of\nthe 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, where appropriate, a map for providing an improvement\nin the area of the town outside of any villages, or in any portion of\nsuch area. All such plans, reports and maps shall conform with the\nrequirements of section two hundred nine-c of this chapter. The town\nboard may determine that such plans, reports and maps shall be prepared\nby or under the supervision of town officers and employees to be\ndesignated 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 improvement, the expense incurred by the town for the preparation\nof the plans, reports and maps therefor shall be deemed to be part of\nthe cost of such improvement and the town shall be reimbursed for such\nportion of that amount, if any, which the town board, at the public\nhearing held pursuant to subdivision three of this section, shall\nallocate against such benefited area, if any.\n 3. Hearing. Subsequent to the date of filing of the plan, report and\nmap, if any, in the office of the town clerk, as required by section two\nhundred nine-c of this chapter, the town board may adopt an order and\nenter the same in the minutes of its proceedings reciting the proposed\nimprovement, a description of the boundaries of the proposed benefited\narea, if any, the maximum amount proposed to be expended for the\nproposed improvement, the proposed method of apportioning the costs of\nsuch improvement, the proposed method of financing to be employed, the\nfact that a plan, report and map, if any, describing the same are on\nfile in the town clerk's office for public inspection and specifying the\ntime when and the place where such board will meet and hold a public\nhearing at which all persons interested in the subject thereof may be\nheard concerning the same. The board shall cause a copy of such order to\nbe published at least once in a newspaper or newspapers designated\npursuant to subdivision eleven of section sixty-four of this chapter,\nthe first publication thereof to be not less than ten nor more than\ntwenty days before the day set therein for the hearing, and shall also\ncause a copy thereof to be posted upon the bulletin board in the office\nof the town clerk.\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\nimprovement, or that any property benefited by the improvement is not\nincluded in the proposed benefited area and that the boundaries of the\nbenefited area should be changed accordingly, or that the proposed\nmethod of apportioning the costs of such 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 improvement.\n 5. Increase in maximum amount. (a) At any time prior to the completion\nof an improvement, the maximum amount proposed to be expended for such\nimprovement, as stated in the notice of public hearing pursuant to\nsubdivision three or four hereof, may be increased by an order of the\ntown board provided that the town board shall, after a public hearing\nheld in the manner prescribed in subdivision three hereof, determine\nthat it is in the public interest to authorize the increase in such\nmaximum amount. If it is proposed or required that the town shall\nfinance the increase in the maximum amount proposed to be expended for\nthe improvement by the issuance of bonds, notes, certificates or other\nevidences of indebtedness and the total estimated expense of such\nimprovement including the increase in the maximum amount shall exceed\none-tenth of one per centum of the full valuation of the taxable real\nproperty in the area of the town outside of villages, the town board may\nnot make an order pursuant to this subdivision unless the comptroller of\nthe state of New York shall have made, subsequent to the public hearing\nrequired by this subdivision, an order approving the increase in such\nmaximum amount as stated in the notice of hearing required by this\nsubdivision. The order of the comptroller shall be prepared in duplicate\nand one copy thereof filed in the office of the department of audit and\ncontrol and the other copy in the office of the town clerk of the town.\nIf the original authorization of the improvement was subject to a\npermissive referendum pursuant to paragraph (a) of subdivision eleven of\nthis section or made subject to a mandatory or permissive referendum\npursuant to paragraph (b) of subdivision eleven of this section, any\norder of the town board increasing the maximum amount to be expended\nshall be subject to the same type of referendum.\n (b) If the notice of public hearing held pursuant to subdivision three\nor four hereof proposes only the performance or supplying of certain\nservices and states the maximum amount to be expended annually for such\nservices, the maximum amount to be expended annually may be increased by\nan order of the town board, provided the town board shall, after a\npublic hearing, determine that it is in the public interest to authorize\nthe increase in such maximum amount. The town board shall give notice of\nsuch hearing by at least a single publication of a notice in a newspaper\nor newspapers designated pursuant to subdivision eleven of section\nsixty-four of this chapter at least ten but not more than twenty days\nprior to the date specified for such hearing, specifying the time when\nand place where such hearing will be held and stating the increase\nproposed in the maximum amount to be expended annually.\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\nimprovement.\n (b) If the town board shall determine that it is not in the public\ninterest to make the proposed improvement, the board shall adopt a\nresolution stating the reasons for its determination not to make the\nproposed improvement and enter the same in the minutes of its\nproceedings.\n (c) If the town board shall determine that it is in the public\ninterest, the board may adopt a resolution authorizing such improvement,\nsubject to the approval of the state comptroller where such approval is\nrequired by subdivision thirteen of this section. Such resolution shall\ncontain a statement of the manner in which the costs of the improvement\nare to be apportioned, and a description of the boundaries of the\nbenefited area, if any, as finally determined by the town board where\nany part of the cost is to be raised by special assessments upon\nbenefited property.\n (d) The town clerk shall cause a certified copy of any resolution or\norder adopted pursuant to this subdivision, subdivision five or\nparagraph (c) of subdivision eight of this section, or section\nfifty-seven of this chapter to be duly recorded in the office of the\nclerk of the county in which the town is located within ten days after\nthe adoption of such resolution, or within ten days of the receipt of\nnotification of the approval of the state comptroller where such\napproval is required by subdivision five or subdivision thirteen of this\nsection. When so recorded, such resolution shall be presumptive evidence\nof the regularity of the proceedings and actions taken by the town board\nin relation thereto.\n (e) Any interested person aggrieved by any resolution or order adopted\npursuant to this subdivision, subdivision five or paragraph (c) of\nsubdivision eight of this section, or section fifty-seven of this\nchapter may review the same by a proceeding pursuant to article\nseventy-eight of the civil practice act provided such proceeding is\ncommenced within thirty days from the date of the recording of the\ncertified copy of the resolution or order in the office of the county\nclerk. Any such resolution or order shall be final and conclusive unless\na proceeding pursuant to article seventy-eight of the civil practice act\nhas been commenced within thirty days from the date of recording\nthereof. No review shall be had unless at the time the proceeding is\ncommenced the interested person seeking the review shall give an\nundertaking approved by the supreme court, or a justice thereof, as to\nform, amount and sufficiency of sureties, that, in the event of failure\nto modify such resolution or order he or they will pay to the town board\nall costs and expenses as are incurred by it on account of the said\nproceeding as shall be determined by the court. In the event that upon\nsuch review there shall be any modification by the court of such\nresolution the court shall direct the modification thereof by order\nwhich shall be final and conclusive and such town board shall cause such\norder to be recorded and filed in the same place and manner as was the\nresolution or order appealed from.\n 7. Performance of the work. After the resolution authorizing an\nimprovement shall become effective, such improvement may be made and\ncontracts therefor may be let in the manner provided in section one\nhundred ninety-seven of this chapter.\n 8. Apportionment of costs. (a) The cost of any such improvement shall\nbe borne partly by the area of the town outside of any village and\npartly by the lands benefited thereby; or by the area of the town\noutside of any village; or entirely by the lands benefited thereby, as\nthe town board, in its discretion, shall provide. Where, however, (1)\nany part of the cost of the improvement is to be borne by property in a\ndescribed benefited area, such costs shall be assessed, levied and\ncollected from the several lots or parcels of land within such benefited\narea either in the same manner and at the same time as other town\ncharges, or in just proportion to the amount of benefit which the\nimprovement shall confer upon such lots or parcels, or (2) any part of\nthe cost of the improvement is to be borne by the entire area of the\ntown outside of any villages, and such area has not been determined to\nbe the benefited area, such costs shall be assessed, levied and\ncollected from the several lots and parcels of land in such area in the\nsame manner and at the same time as other town charges.\n (b) In the event that a proposed improvement is not made, any expense\nincurred by the town in relation thereto, including costs of publication\nof notices and of any referendum, shall be a charge upon the area of the\ntown outside of any villages, and shall be assessed, levied and\ncollected in the same manner as other town charges.\n (c) At any time after the completion of an improvement pursuant to the\nprovisions of this section, the apportionment of the costs thereof as\nbetween the benefited area and the area of the town outside of any\nvillage, as stated in the notice of public hearing pursuant to\nsubdivision three or four hereof, may be changed by resolution of the\ntown board provided that the town board shall, after a public hearing,\ndetermine that it is in the public interest to authorize the change in\nsuch apportionment. The town board shall give notice of such hearing by\nat least a single publication of a notice in a newspaper or newspapers\ndesignated pursuant to subdivision eleven of section sixty-four of this\nchapter at least ten but not more than twenty days prior to the date\nspecified for such hearing, specifying the time when and place where\nsuch hearing will be held and stating the change proposed in the\napportionment of the costs of the improvement. The only change in the\napportionment of the costs of an improvement that may be authorized\npursuant to this paragraph shall be an increase in the share of such\ncosts to be borne by the area of the town outside of any village, with a\ncorresponding decrease in the share of such costs to be borne by the\nbenefited 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\nimprovement made pursuant to this section shall be raised in a manner\nprovided in article fifteen of this chapter, as determined by the town\nboard, or pursuant to a local law adopted pursuant to section\nfifty-one-a of this article.\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 improvement described in\nsubdivision one of this section. Such petition shall be signed by the\npetitioners, and acknowledged or proved in the same manner as a deed to\nbe recorded, or authenticated in the manner provided by the election law\nfor the authentication of nominating petitions. When any such petition\nshall have been presented, the town board may direct the preparation of\na plan, report and, where appropriate, a map for such improvement and\nproceed in the manner provided in this section, or it may adopt a\nresolution, reciting in general terms the filing of such petition, the\nproposed improvement and specifying the time when and the place where\nsuch board will meet to consider the petition and to hear all persons\ninterested in the subject. Notice of such meeting shall be published in\nthe manner provided in subdivision three of this section and shall state\nthe time and place of the meeting and the purpose thereof. The\npetitioners shall be required to deposit with such petition the sum of\none hundred dollars to cover all cost of publishing and posting notices\nof meetings of the town board to consider the petition. If the board\ndetermines to proceed, pursuant to this subdivision, with further\ndevelopment of the proposed improvement, such deposit shall be returned\nin full to the petitioners, but if the petition be denied, the surplus\nonly shall 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 improvement is in the\npublic interest and economically feasible, the board shall direct the\npreparation of a general plan, report, and where appropriate, a map for\nsuch 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, sewage disposal,\nwater or drainage improvement, any part of the cost of which is to be\nborne by the entire area of the town outside of any villages, and any\nresolution adopted pursuant to paragraph (c) of subdivision eight of\nthis section which will result in an increase in the share of the costs\nof an improvement to be borne by the area of the town outside of any\nvillages in any one fiscal year of more than ten per centum of the\nmaximum amount proposed to be expended, as stated in the last notice of\npublic hearing for such improvement pursuant to subdivision three, four\nor five of this section, shall be subject to a permissive referendum in\nthe manner prescribed in article seven of this chapter, as modified by\nparagraph (c) of this subdivision.\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 in the same manner as a\ndeed to be recorded, or authenticated in the manner provided by the\nelection law for the authentication of nominating petitions, by the\nowners of taxable real property situate in the area of the town outside\nof any villages, or in such lesser area described in the resolution as\nauthorized in paragraph (b) of this subdivision, as shown upon the\nlatest completed assessment roll of such town, in number equal to at\nleast ten per cent of the total number of such owners. For the purposes\nof this subdivision, a corporate owner of such taxable real property\nshall be considered one owner for the purposes of a petition requesting\na referendum and shall be entitled to one vote to be cast by an officer\nor agent of the corporation or other duly authorized person designated\nby appropriate resolution of such corporation. The town clerk shall\ncause to be prepared and have available for distribution proper forms\nfor a petition for a referendum under this section and shall distribute\na supply to any person requesting the same.\n 12. Town function. Any improvement constructed, acquired or provided\npursuant to this section shall be a town function and the town board\nshall be responsible for the necessary management, maintenance,\noperation and repair thereof. The cost of such management, maintenance,\noperation and repair shall be a charge upon the area of the town outside\nof any villages and shall be levied and collected in the same manner and\nat the same time as other town charges; provided, however, that, where\nthe improvement is only the providing of a service at a stated annual\ncost, such annual cost shall be charged in the manner prescribed in the\nprovisions of the resolution adopted pursuant to paragraph c of\nsubdivision six of this section or in modifications thereof, if any,\nadopted pursuant to paragraph c of subdivision eight of this section.\n 12-a. Sewer rents and water rates. The town board may establish sewer\nrents and water rates as provided in paragraph (l) of subdivision 1 and\nparagraph (d) of subdivision three of section one hundred ninety-eight\nof this chapter.\n 13. Comptroller's approval. a. Where it is proposed or required that\nthe town shall finance the cost of any improvement authorized by this\nsection by the issuance of bonds, notes, certificates or other evidences\nof indebtedness of the town therefor and where the estimated expense of\nsuch improvement shall exceed one-tenth of one per centum of the full\nvaluation of the taxable real property in the area of the town outside\nof villages, the permission of the state comptroller shall be required\nfor such improvement.\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 improvement.\nThe application shall be executed and verified by the supervisor, or\nsuch other officer of the town as the town board shall determine. Such\napplication shall be in such form and shall contain such information as\nshall be prescribed by the state comptroller.\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 improvement\nin the manner proposed and also whether the cost thereof will be an\nundue burden upon the property which is to bear the cost of such\nimprovement. The state comptroller may make such determinations upon the\noriginal or any amended application, or in his discretion may require\nthe submission of additional information or data in such form and detail\nas he shall deem sufficient, or may cause an investigation to be made to\naid him in making 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 improvement and shall\nfile one copy of such order in the office of the state department of\naudit and control at Albany, New York, and the other in the office of\nthe town clerk of the town in which the proposed improvement is to be\nprovided. The town clerk shall thereupon notify the members of the town\nboard of the receipt of such order and the contents thereof.\n 14. Lease of improvements. (a) The town board may lease for a term\nnot to exceed forty years all or any part of the property or facility\nconstructed or operated as a town function under this section 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 per\ncent of 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 a 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 purpose 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