46 N.Y.2d 613 | NY | 1979
OPINION OF THE COURT
In a declaratory judgment action, plaintiffs Suffolk County Builders Association and certain individual builders challenge the validity of a schedule of site inspection charges promulgated by the defendant Suffolk County Department of Health Services. The regulation in question, section 301 (subd 1, par [a]) of the Suffolk County Sanitary Code, was adopted by the County Board of Health in September, 1975 pursuant to the
Shortly after section 301 was adopted, under the commissioner’s direction, the health department undertook a study of the expenses the county incurred incident to the issuance of health permits for water service and sanitary facilities for new construction. The factors that the study took into account consisted of approximations of the actual cost of performing the related services by the department’s general engineering unit in 1974 (the last full year before the section was enacted), the number of actual inspections of both commercial and residential construction projects for that year, and an estimation of the time required for inspecting and processing the various applications. Candidly conceding that the end result was only a "rough estimate” of the cost of the entire permit issuance program, the commissioner arrived at a figure indicating that the total cost to the county in 1974 was $545,000.
Finally established by the commissioner in February, 1976, the schedule that eventuated from the cost study imposed fees ranging from $25 to $140 for the issuance of a health department permit for residential construction, depending on whether the particular plot was serviced by public or private water and sanitary facilities and, in the instance of a parcel serviced by both private water (wells) and private sanitary facilities (cesspools), upon the size of the parcel. A separate, higher fee schedule was applicable to commercial construction. Based on an annualized projection of revenue for 1976, a total of almost $500,000 was collected in permit fees; the cost of issuing permits for 1975, however, had risen to $585,000.
Plaintiffs’ attack is three-pronged. Two of their grounds rest on an ultra vires theory, namely, that the County Board of Health lacked either express or implied statutory authority to impose the fees, and that, even if the board did have such authority, it was improperly delegated to the commissioner and the department, a unit of local government never invested with any such powers by the Legislature. The third, a
The Supreme Court, agreeing with the first two contentions and, under its approach, apparently finding it unnecessary to reach the third, declared the section under attack invalid. The Appellate Division, in a conclusory memorandum reversing, rejected all three of plaintiffs’ arguments. We agree with its determination.
We deal first with plaintiffs’ claim that the board lacked the power to levy fees for health permits. Subdivision
However, plaintiffs argue that there exists no valid basis for
The power to regulate subsumes the concomitant power to license and to set fees reasonably related to the cost of licensing (see City of Buffalo v Stevenson, supra, p 262; Matter of Torsoe Bros. Constr. Corp. v Board of Trustees of Inc. Vil. of Monroe, 49 AD2d 461, 464; 9 McQuillin, Municipal Corporations [3d ed rev], §§ 26.27, 26.28). For, without the power to do so, a local governmental agency might well find itself without the means to fulfill its statutory imperative. Thus the power to enact fees may be implied, though, because its provision is then not spelled out in so many words, it must be regarded as circumscribed by a similarly implied limitation that the fees charged be reasonably necessary to the accomplishment of the regulatory program (Jewish Reconstructionist Synagogue of North Shore v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158, 163, supra).
Nor, as plaintiffs urge, is this implied power to set fees peculiar to municipalities. In this regard, given that agencies and municipal corporations both derive their authority from the Legislature, we reject any attempt to base a distinction in the implied powers that each is permitted to wield on whether they are exercisable by one of these governmental entities or the other.
We pass next to plaintiffs’ contention that the board’s delegation to the commissioner and, hence, to the health department of the power to establish the fee schedule was
The present case offers a variant of the traditional problem in that the issue is the validity of the subdelegation from the board to the commissioner and then in turn from the commissioner to the department, a creature of local government charged with implementing, among other things, the directives of the County Sanitary Code. But this distinction does not supply a sufficient reason to depart from the rules pertaining to legislative delegations, especially since the orderly functioning of an administrative body might otherwise be frustrated (see 1 Davis, Administrative Law Treatise, § 9.01; cf. Matter of McGovern v Patterson, 273 App Div 35, 38-39, affd 298 NY 530). It is a commonsense proposition that subdelegation is an inevitable incident of hierarchical organization; the issue then is one of degree. In our view, the board acted well within the parameters of its discretion in appointing the commissioner — its presiding officer and the one charged with powers of investigation and enforcement through the local health agency — to administer the permit fee program. Thus, the initial grant of authority to the board having encompassed the power to levy fees, the board did no more than take the reasonable step of commending the responsibility to the officer and department most capable of effectively performing that task.
We turn now to the point that the fees imposed by the commissioner were not, in fact, "consistent with the cost of examination and field inspections” because the cost figures on which the fee schedule was based were drawn in part from rough estimates of the previous year’s expenses rather than from more precise statistical formulae. To support it, plaintiffs place much reliance on the fact that judgments and estimates rather than numerically accurate calculations alone led to the fees proclaimed by the schedule. Doing so, they fail to recognize that bare numbers may be more deceptive than words. To be sure, things stated in terms of decimal points and fractions
This is not to scoff at exact figures — when they are to be had. It is merely to observe that they are not necessarily the only means by which to arrive at a fair judgment of cost, all the more so when, as here, the department’s aim was not to record past experience but to predict what it would be in the future. Yet, here, the available cost figures were not ignored. The commissioner took those that were most recent and, where no time studies separating commercial from noncommercial inspections had been made in the past, almost necessarily placed reliance on estimates instead. Judgmental exercise was also unavoidable in apportioning departmental costs between this program and the other functions jointly served by the health department.
In short, this was a situation in which both statistical information and human experience played a part. Together, they were calculated to attain a reasonable correspondence between costs and fees. Exact congruence between total expenses and total permit charges was not required (see Bon Air Estates v Village of Suffern, 32 AD2d 921, 922-923; McQuillin, Municipal Corporations, § 26.36; cf. Gannett Co. v City of Rochester, 69 Misc 2d 619, 629).
For all these reasons, the order of the Appellate Division should be affirmed.
Order affirmed, with costs.
. There was no State aid granted to the department as such.
. We note that, though the propriety of the method thus employed was therefore sufficient to permit its utilization when adopted, even as tested by hindsight the total cost of the fee program came in at a figure within 10% of the one on which the schedule was based — interestingly, a percentile by which licensees, not the county, were favored.