South Ferry St. Project v. City of Schenectady

• Decision Date: 13 December 1972
• Citation: 72 Misc.2d 134,338 N.Y.S.2d 730
• Parties: In the Matter of the SOUTH FERRY STREET PROJECT Including the Widening and Improvement of South Ferry Street between State Street and Erie Boulevard, and the Acquisition of Lands therefor, by the City of Schenectady, New York, ex rel. Rodojo, Inc., Petitioner, v. CITY OF SCHENECTADY, Respondent. (And 27 Other Proceedings.)
• Court: New York Supreme Court

Page 730

338 N.Y.S.2d 730

72 Misc.2d 134

In the Matter of the SOUTH FERRY STREET PROJECT Including

the Widening and Improvement of South Ferry Street between

State Street and Erie Boulevard, and the Acquisition of

Lands therefor, by the City of Schenectady, New York, ex

rel. Rodojo, Inc., Petitioner, v. CITY OF SCHENECTADY, Respondent. (And 27 Other Proceedings.)

Supreme Court, Special Term, Schenectady County.

Dec. 13, 1972.

Max H. Hershkowitz, Schenectady, for petitioners in Nos. 1--9, and of counsel in Nos. 10, 11, 20, 21, 22.

Raymond G. Smith, Schenectady, for petitioner in No. 10.

Fairlee, Armstrong & Smith, Schenectady, for petitioner in No. 11.

Borst, Smith, O'Loughlin, Smith & Abbey, Schenectady, for petitioners in Nos. 12--16 (James E. O'Loughlin, Schenectady, of counsel).

Morris Marshall Cohn, Schenectady, for petitioners in Nos. 17--19.

Edward E. Weber, Schenectady, for petitioners in Nos. 20--22.

Coplon & Cohen, Schenectady, for petitioners in Nos. 23--28; (Ernest A. R. Cohen, Schenectady, of counsel), for petitioners.

Leonard J. Litz, Corporation Counsel, Schenectady (Michael J. Palmiotto, Schenectady, of counsel), for respondent.

ROBERT W. BASCOM, Justice.

By ordinance No. 12738 the Common Council of the city of Schenectady, on February 27, 1956, authorized and directed the widening and grading to 42 feet of South Ferry Street from State Street to Erie Boulevard, together with the acquisition of necessary lands therefor, the paving of the roadway to the width of 32 feet, and the construction of curbing, sidewalks, and sewers, with the realignment of poles and hydrants, all in accordance with plans and specifications prepared by the city engineer. Upon completion and acceptance of the work, the expense thereof, including overhead, was, by the ordinance, to be 'apportioned and assessed in proportion to benefits derived', as follows: sidewalk costs directly to properties benefited on the improved portion of South Ferry Street; sewer construction, curbing, grading, and replacement of existing pavement to be paid by the city at large, and all other costs, including new pavement in excess of existing width, and land acquisition to be charged against a district of assessment described and delineated in the ordinance, the perimeter of which was roughly one and one-half to two blocks northerly, easterly, and westerly of the improved portion of South Ferry Street. The assessments of the costs attributed to said district were to be based on the assessed value of land and improvements therein at the date of the adoption of the ordinance, and were payable in 10 equal annual installments. The authority for such ordinance is found in Article III of the charter of the city (Chap. 411, Laws of 1931, as superseded in part by Local Laws, 1947, No. 3 of City of Schenectady).

Following completion of the work, the city engineer furnished the assessor the requisite district map, together with itemized cost figures on April 4, 1964, showing a total cost of $323,525.85, including $10,417.05 overhead expense, of which $112,887.24 was chargeable to the city at large, leaving $210,638.61 to be assessed against the properties in the district of assessment. The last stated amount was thereupon apportioned among such properties by the assessor, and a notice thereof and of its availability for inspection, was duly published in May 1964 as required by Article III, § 47 of the charter.

The rate of apportionment was determined by the assessor according to 'zones of influence' or 'zone benefit schedule'; that is, so much of the expense as was chargeable to the district was allocated as to any given parcel according to the degree which, in the judgment, opinion, and discretion of the assessor, it was benefited. The degrees of benefit varied according to proximity to the improvement, with other factors considered, such as traffic flow, ingress and egress, the elimination of aged buildings that were depreciating the area and on which side of an intersecting street the parcel was located. As a result, properties directly fronting the improvement were deemed to have benefited 100 percent, those in the next zone 75 percent, those in the third zone 50 percent, and so on in diminishing percentages until the properties at the perimeter were rated a 10 percent benefit.

Petitioners, in these consolidated proceedings, all owners of property within the assessment district, duly filed written objections to the apportionment and assessment on the grounds the said charter had not been complied with, the cost of the improvement had been improperly computed and, as computed, had been improperly allocated. A hearing on these grievances was afforded petitioners on June 10, 1964. Following adjournment of the hearing the assessor, on April 22, 1965, adhered to his original decision and confirmed the assessments as originally fixed, and certified the same to the appropriate fiscal officer who, in August 1965, published notice of the apportionment and assessments as confirmed, with the requirement for payment thereof, for the period required by the charter. Thereupon petitioners timely commenced these proceedings (Matter of Mohawk National Bank v. Schenectady, 31 A.D.2d 874, 297 N.Y.S.2d 445) for a determination that the assessments are void, a direction that they be vacated and canceled, and for other appropriate relief.

The petitions, in addition to urging the objections made at the 1964 hearing thereon, further alleged that the assessments were unconstitutional as violative of the due process clauses of the state and federal constitutions; that they were illegal and discriminatory in not being applicable to all properties benefited; that the city officials involved acted in excess of jurisdiction, and made arbitrary and capricious determinations; that the land acquisition costs should have been a general city charge rather than a district charge; that the city was guilty of laches and unreasonable delay in not assessing promptly upon completion of the work, whereby properties had changed hands without notice to purchasers that a tax was thereafter to be assessed, with a resultant failure to take the same into account in adjusting equities on title transfers.

It may well be that an inquisition into some of these latter allegations is precluded by section 165 of the Second Class Cities Law (Cons.Laws, Ch. 53, Art. 10) which limits the same to the grounds specified in the originally filed objections. Nevertheless, the court will consider them on the theory that they are allegations of either the fraud or substantial error referred to in that section and in the two sections immediately preceding it.

Addressing the inquiry first to the question of constitutionality, it may be observed that statutes, such as the city charter here, authorizing a municipality to improve streets and assess the expense among the owners of land benefited in proportion to amount of benefit, were held to be...