41 A.D.2d 290 | N.Y. App. Div. | 1973
Lead Opinion
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
Appellants instituted this article 78 proceeding to review the actions of the Town Board and to have them rescinded and annulled!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 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 distinc
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
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 suggested
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.
. 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
Dissenting Opinion
(dissenting). The appellants attack a proposition which established a water improvement district passed by the resppndent Town Board and approved, by the voters at a refer
The majority of this court has approved the creation of the district in this manner, determining that subdivision 3 of section 209-e of the Town Law unconstitutionally restricts the franchise. I disagree. The .statute is constitutional and the Town Board illegally exceeded the powers delegated to it by the State Legislature when it allowed nonproperty owners to vote. Its action should be declared void.
The district created had the limited purpose of obtaining and maintaining the supply of water throughout the town. It had no other function and performed no other service. The estimated cost was $1,600,000 which was to be raised by general obligation bonds of the district to be paid for entirely by assessments against the real property benefited. The cost of maintaining the system was to be paid partly by benefit assessments and partly by use charges. Properties not actually using the service, but declared benefited, nevertheless were required to pay the assessment. Any unpaid debts of the district would be liens upon the realty in the district.
In districts such as this, formed for a special limited purpose and in which a disproportionate effect of the districts’ activities fall upon the landowners as a group as opposed to residents qua residents, the right to vote may be limited to landowners. (Salyer Land Co. v. Tulare Water Dist., 410 U. S. 719; Associated Enterprises v. Toltec Dist., 410 U. S. 743.)
Exercising its legislative powers, the Town Board created this district coterminous with the town lines because it assumed that all property in the town was benefited. Those developed properties adjacent to the water main are to be assessed $110 per year for the capital cost and in addition, an estimated charge of $75 per year if they use the water. Fully benefited undeveloped property is to be assessed $10 per year for capital cost. There are 1,163 properties in these two categories. The board also declared that the other 774 properties in the town, those not adjacent to the water main, are indirectly benefited. They are to be assessed only $1 per year. These payments are not real property taxes, as the majority suggests. They are additional
It is argued that residents generally are affected by this improvement even though they are not users themselves (nor are many of them ever likely to be, because they live miles remote from the line). The residents’ interest must consist of some financial responsibility and more than a broad general civic interest in fire prevention or such things. In the absence of such involvement, the State may properly limit their participation in the vote and it is unrealistic to say that nonowner residents under these circumstances are affected in a “ substantial way ”, that their interests are not “ disproportionately less ” than the property owners in the district who must pay for the improvement. (Salyer Land Co. v. Tulare Water Dist., supra; and cf. Phoenix v. Kolodzieiski, 399 U. S. 204, 209-210; Cipriano v. City of Houma, 395 U. S. 701, 705-706.) These residents have no significant or measurable stake in the project. Their interest in it is not even roughly equivalent to that of the property owners who must bear its cost. Including them in the vote served only to dilute the voting strength of those who did have a substantial interest in the improvement. The limited franchise of the statute had a discernible valid basis. It should not be declared unconstitutional by searching for some illusory interest that is not represented at the ballot box.
If the case involved a problem of representational democracy calling for the election of officeholders to serve a governmental unit in a broad spectrum of public activities, the principle of
To the extent that there is some fallout benefit to residents of the town generally, this case is not different from the incidental benefit to nonproperty owners in the flood control and soil conservation project performed by the district in Associated Enterprises v. Toltec Watershed Improvement Dist. (supra). Furthermore, even this limited interest is represented. It is the Town Board, chosen at a general election, which prepares and administers the proposal through its formative stages, determining the size, cost and detail of the district. Indeed, the Town Board may finally establish the district in the absence of a permissive referendum sought by the property owners.
The majority relies upon the rulings stated in Phoenix v. Kolodziejski (supra); Cipriano v. City of Houma (supra) and Kramer v. Union Free School Dist. (395 U. S. 621). They are distinguishable. Kramer relates to school district elections and its facts are not applicable to this case. In Phoenix v. Kolodziejslci, the proposition voted upon sought to finance multiple civic improvements including sewers, playgrounds, a library, a police station and parks. The improvements were to be paid for by general obligation bonds backed by the credit of the municipality and to be retired by the proceeds of property taxes and any other municipal revenues. In Cipriano v. City of Houma, the legislation sought to authorize extension of a city-owned gas, electric and water utility service to be paid for by revenue bonds backed by the city’s general credit. The bonds were retired from use revenues paid by utility customers. In each case, the object contemplated was a multiple public service available to all residents within the city. The financial burden of the improvements fell upon property owners and nonproperty owners alike and their interests in the improvements were not substantially different. In this case, quite the opposite is true. The property owner is solely responsible for the cost of building the project and for its fiscal integrity.
Courts should not lightly upset legislative acts. In Salyer Land Co. v. Tulare Water Dist. (supra, p. 725) the court quoted with approval from Williams v. Rhodes (393 U. S. 23, 30): “ ‘ In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protect
Subdivision 3 of section 209-e of the Town Law contains a valid voting restriction in favor of property owners who pay for the improvement as opposed to those whose only connection with it is that they happen to reside within the district. The economic burden of the improvement cannot fall upon them as residents and unless they are property owners they are affected minimally, if at all, by the project’s development. The Legislature has not infringed on any Federal constitutional right of equal protection when it declared that in cases such as this, if there is an objection to the Town Board’s plan, a majority of the taxable landowners must willingly assume the financial burden before the enterprise may be undertaken.
Goldman, P. J., Marsh and Henry, JJ., concur with Cardamons, J.; Simons, J., dissents and votes to reverse the judgment and grant the petition in an opinion.
Judgment modified on the law and facts in accordance with opinion by Cardamons, J., and as so modified affirmed, without costs.
. It is claimed, and not denied that residents were qualified as electors up to the day before the election.