Suffolk County Builders Ass'n, Inc. v. Suffolk County

• Decision Date: 05 April 1979
• Citation: 389 N.E.2d 133,415 N.Y.S.2d 821,46 N.Y.2d 613
• Parties: , 389 N.E.2d 133 SUFFOLK COUNTY BUILDERS ASSOCIATION, INC., et al., Appellants, v. COUNTY OF SUFFOLK et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 821

415 N.Y.S.2d 821

46 N.Y.2d 613, 389 N.E.2d 133

SUFFOLK COUNTY BUILDERS ASSOCIATION, INC., et al., Appellants, v. COUNTY OF SUFFOLK et al., Respondents.

Court of Appeals of New York.

April 5, 1979.

Sol Horenstein and John E. Lander, Babylon, for appellants.

Howard E. Pachman, County Atty. (Alfred Jackson, Jr., West Islip, and Leonard J. Shore, Amityville, of counsel), for respondents.

OPINION OF THE COURT

FUCHSBERG, Judge.

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 authority delegated in section 347 of the Public Health Law. It purports to empower the Commissioner of Health Services, the presiding member of the board and the head of the county health department, to "establish a schedule of and impose fees for the consideration of applications for the issuance of licenses, approvals or permits consistent with the cost of examination and field inspections". Essentially at issue is the power of the commissioner to impose any charges at all and the propriety of those here established.

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 fallback position, concerns the method by which the commissioner computed the schedule. In scattershot manner, the plaintiffs complain of things as disparate as a claim that the study bunched the time periods spent in inspecting commercial parcels with those for single-family residential sites, that too much of the inspectors' working time was wasted and that State aid grants to the local government had not been proportionately credited against the cost of running the department in computing the cost of the permit issuance procedure. ¹ Overall, displaying a rather excessive confidence in the infallibility of statistics, plaintiffs argue that the schedule was arrived at by a process too heavily dependent on subjective estimates to form a sufficient basis for fixing the costs. They further would have us conclude that, as a consequence, the amounts permit applicants are required to pay are in tribute under an unauthorized revenue-producing measure.

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 1 of section 347 of the Public Health Law delegates a broadly framed grant of authority to all county boards of health to "formulate, promulgate, adopt and publish rules, regulations, orders and directions for the security of life and health * * * not * * * inconsistent with the provisions of this chapter and the sanitary code". Though the statute nowhere provides explicitly for the imposition of permit fees by the board, in other contexts the power to impose reasonable fees in connection with effective regulation has been implied from similarly broad delegations (see Jewish Reconstructionist Synagogue of North Shore v. Incorporated Vil. of Roslyn Harbor, 40 N.Y.2d 158, 163-165, 386 N.Y.S.2d 198, 200-202, 352 N.E.2d 115, 117-119 (upholding ordinance imposing set fees of $60 for a variance and $50 for a permit plus actual costs of zoning appeals board's consideration of application); City of Buffalo v. Stevenson, 207 N.Y. 258, 262-263, 100 N.E. 798, 800 (validating a city's power to levy fees for opening of pavement)).

However, plaintiffs argue that there exists no valid basis for implying such power because explicit authorization for the health commissioner's collection of a fee is found in another section of the statute (Public Health Law, § 352, subd. 4 (fees collectible from patients or from person or agency responsible for their care for services rendered by county-operated institutions)). We hardly think that the expansive mandate conferred by section 347 should be negated on the strength of so ambiguous an inference as might be drawn from this single instance of express legislative authorization. Moreover, local authorities traditionally have been accorded latitude in adopting regulations directly affecting the health of those within their province (see Lang's Creamery v. City of Niagara Falls, 251 N.Y....