46 N.Y.2d 613, Suffolk County Builders Ass'n, Inc. v. Suffolk County

Citation:46 N.Y.2d 613, 415 N.Y.S.2d 821
Party Name:Suffolk County Builders Ass'n, Inc. v. Suffolk County
Case Date:April 05, 1979
Court:New York Court of Appeals
 
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Page 613

46 N.Y.2d 613

415 N.Y.S.2d 821

SUFFOLK COUNTY BUILDERS ASSOCIATION, INC., et al., Appellants,

v.

COUNTY OF SUFFOLK et al., Respondents.

New York Court of Appeals

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 [415 N.Y.S.2d 822] 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...

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