Torsoe Bro. Const. Corp. v. Board of Trustees of Inc. Village of Monroe
| Decision Date | 07 April 1975 |
| Citation | 366 N.Y.S.2d 810,81 Misc.2d 702 |
| Parties | Application of TORSOE BROTHERS CONSTRUCTION CORP., Petitioner, v. The BOARD OF TRUSTEES OF the INCORPORATED VILLAGE OF MONROE, New York, Respondent. For a judgment pursuant to Article 78 of the Civil Practice Law and Rules. |
| Court | New York Supreme Court |
Joseph Deutsch and Paul J. Levine, Spring Valley, for Torsoe Bro. const. corp.
Mishkin & Marshak, Monroe, for respondent.
The within Article 78 proceeding presents several interesting and, in certain respects, novel questions regarding the propriety of a municipal water tap-in charge. Petitioner moves for an order annulling respondent's determination that petitioner must pay a prescribed fee to tap into the Village water system. In case law, agency rulings and by statute, the tap-in fee has also been called a 'connection fee', an 'entrance fee', a 'privilege fee' and 'service charge' to distinguish it from other municipal water charges.
The property involved herein is subdivision property located within the corporate limits of the Village. Pursuant to Section 44--8 of the Village Code, pertaining to water rules and regulations, 'no taps shall be made . . . unless a permit to do so is first obtained . . . and a fee in accordance' with Section 44--9 is paid. Section 44--9, as amended August 14, 1973, sets forth a schedule of tap-in fee rates within the Village corporate limits. The rate varies according to the size of the tap, which, in this case, is ten inches and requires a $15,000.00 payment per tap.
Petitioner asserts that respondent has demanded a tapping charge of $30,000.00 to allow petitioner to reconnect a new ten-inch water line that it installed. Respondent, in its brief, has conceded that only one tap is involved and, therefore, has modified its position to request a $15,000.00 fee for the water connection.
Virtually all relevant facts are uncontroverted and may be set forth briefly. In June or July 1974 petitioner purchased certain subdivision property 1 upon which a map had been filed and accepted a year earlier. Petitioner agreed Inter alia to abide by respondent's lawful regulations, secure necessary permits and replace an existing Village water line (originally installed in 1895). Petitioner has replaced the water line but has not yet tapped into the Village water system. At all relevant times, petitioner was aware of respondent's water tap-in charge. Subsequent to the approval of the subdivision map, respondent imposed a moratorium on future tap-ins until its water supply capacity was improved to meet present and future needs of the municipality. On June 4, 1974, respondent authorized a bond issue in the sum of $1,840,000.00 for the purpose of financing the reconstruction of its water system.
Petitioner asserts the following contentions: the tap-in charge is unauthorized and is, in reality, a tax which the Village has not properly promulgated; if the charge can be imposed, it is disproportionate to the cost and constitutes a denial of due process; and finally, the charge does not apply to a mere relocation of an existing water pipe line. Respondent, in turn, argues that the tap-in fee is not a tax; is properly imposed in an attempt to recoup a small part of its water bond expenditure; the fee applies to all tap-ins; including relocations; and that petitioner is estopped to challenge the charge since, it agreed, expressly or impliedly, to pay same.
Prior to discussing these contentions it is necessary to determine the nature of this proceeding. In reality, the court is being asked to review the fixing of a municipal service charge, which is a legislative act, ordinarily not reviewable in an Article 78 proceeding (Mtr. Lakeland Dist. v. Onondaga Auth., 24 N.Y.2d 400, 301 N.Y.S.2d 1, 248 N.E.2d 855; Town Board v. City of Poughkeepsie, 22 A.D.2d 270, 255 N.Y.S.2d 549). However, since all necessary parties are before the court, the proceeding may continue as an action for a declaratory judgment (CPLR 103(c); Mtr. Lakeland Dist. v. Onondaga Auth., Supra).
Petitioner's first contention, that the tap-in charge is unauthorized and constitutes a tax by analogy to water rent cases, is without merit (see, passim, 6 Warren's Weed, N.Y. Real Property (Waters) §§ 9.01--9.09). Water rent charges not predicated upon consumption have been deemed a form of taxation which cannot be imposed in the absence of statutory authorization and adherence to certain fundamental tax procedural requisites (cf. State Univ. v. Patterson, 42 A.D.2d 328, 346 N.Y.S.2d 888; Town Board v. City of Poughkeepsie, Supra; see Mtr. of Buff v. Board of Trustees, 5 N.Y.2d 602, 186 N.Y.S.2d 619, 159 N.E.2d 176). However, the tap-in charge is a one-time fee wholly unrelated to consumption or the imposition of proper water rents. As such, respondent has been granted statutory authority to exact a fee for tap-ins (Village Law §§ 11--1112, 11--1114; see Town Law § 198(3)(a)). Pursuant to the relevant provisions, respondent may 'adopt such uniform service charges' (Village Law § 11--1114) as are necessary and condition connection to its mains upon reasonable 'rules and regulations' (Village Law § 11--1112(1)). Thus, a tap-in fee is a 'service charge' and, in any event, it is immaterial if labelled as a tax since direct statutory authority to impose same is granted.
Petitioner's next contention, that the fee is unjust requires elaboration. Strong presumptions of constitutionality attach to respondent's legislative fee resolution (Mtr. of Rosenthal v. Hartnett, 36 N.Y.2d 269, 367 N.Y.S.2d 247, 326 N.E.2d 811), particularly since it is presumed that respondent investigated the need for such legislation (ibid). The burden is upon the taxpayer-property-owner to prove that the fee is disproportionate (Henry B. Byors & Sons, Inc. v. Board of Water Commissioners, 358 Mass. 354, 264 N.E.2d 657; 94 C.J.S. Waters § 289(a)) and many factors enter into consideration with cost not necessarily the sole guidepost (94 C.J.S. Waters § 289(c)).
Municipalities, including Villages, have a duty to assure that their residents have an adequate water supply (Village Law § 7--704; 94 C.J.S. Waters §§ 242, 278; cf. Kennilworth Mgt. Co. v. City of Ithaca, 63 Misc.2d 617, 313 N.Y.S.2d 35; see Anno. 48 A.L.R.2d 1222 'Municipal Water Systems-Extensions'). Residents of a municipality cannot be denied access to the municipal water system where an adequate supply exists (cf. Toan v. Vill. of Perry, 297 N.Y. 710, 77 N.E.2d 15; Mtr. of Peer-A-Mid Bldrs. v. Coulter, 27 Misc.2d 660, 210 N.Y.S.2d 596). However, moratoriums may be imposed and permits refused where municipal services are inadequate and a comprehensive plan exists to remedy the situation (Mtr. of Golden v. Planning Board of Town of Ramapo, 30 N.Y.2d 359, 334 N.Y.S.2d 138, 285 N.E.2d 291, app. dismd. 409 U.S. 1003, 93 S.Ct. 436, 34 L.Ed.2d 294; Mtr. of Belle Harbor Realty Corp. v. Kerr, 43 A.D.2d 727, 350 N.Y.S.2d 698; Mtr. of Muscillo v. Town Board, Oyster Bay, 28 Misc.2d 79, 211 N.Y.S.2d 939; see 2 Anderson, N.Y. Zoning Law and Practice (2d ed.) § 19.19). Furthermore, while the rule may have been different at common law (Mtr. of Lake Secor Development Co. Inc., v. Ruge, 141 Misc. 913, 252 N.Y.S. 809 (Close, J.), affd. 235 App.Div. 627, 255 N.Y.S. 853), municipalities are empowered to condition approval of plat plans upon installation of water mains (Village Law § 7--730(1); Town Law § 277(1); Mtr. of Se-Frank Developers, Inc. v. Gibson, 5 A.D.2d 687, 169 N.Y.S.2d 136; see Public Health Law §§ 1115--1119; Maloco Realty Corp. v. Town of Brookhaven Plan. Board, 34 A.D.2d 999, 312 N.Y.S.2d 429).
Municipalities have the right to charge for use of their water and may fix water rents therefor (94 C.J.S. Waters §§ 285, 286(b)). Of course, the tap-in fee, as any other municipal charge, like water rents, must be commensurate with the service supplied, enforcement and maintenance thereof (Town of North Hempstead v. Colonial Co., 14 Misc.2d 727, 178 N.Y.S.2d 579; Adlerstein v. City of New York, 11 Misc.2d 754, 174 N.Y.S.2d 610, affd. 7 A.D.2d 717, 181 N.Y.S.2d 165, affd. 6 N.Y.2d 740, 185 N.Y.S.2d 821, 158 N.E.2d 512; Strahan v. City of Aurora, 38 Ohio Misc. 37, 311 N.E.2d 876; Englewood Hills, Inc. v. Village of Englewood, 14 Ohio App.2d 195, 237 N.E.2d 621; Henry B. Byors & Sons, Inc. v. Board of Water Comm'rs, 358 Mass. 354, 264 N.E.2d 657; Johnston, 'Constitutionality of Subdivision Control Exactions: The Quest For A Rationale' 52 Corn.L.Q. 871 (1967)). 'Municipalities may provide for tap-in charges for water subject only to the qualification that the fees established must be fair and reasonable and bear a substantial relationship to the cost involved in providing the service to the landowner' (12 McQuillan, Municipal Corporations (1970 rev. ed.) § 35.37, p. 480). As indicated earlier, the word 'cost' is to be interpreted broadly and has been so construed by sister-state jurisdictions, which shall be discussed Infra.
At bar, it is clear that the fee for connection into the Village water system is applicable to All potential users of the system, newly eligible and present subscribers, who seek a tap-in permit. Therefore, there is no classification problem nor is petitioner being discriminated against (Town Board v. City of Poughkeepsie, 22 A.D.2d 270, 255 N.Y.S.2d 549; see S.S. & O. Corp. v. Township of Bernards Sewage Auth., 62 N.J. 369, 301 A.2d 738; Opinion No. 69--408, 1969 Opn.St.Compt. p. 199). 2
Nevertheless, in this context petitioner returns to its initial argument that the fee is an unlawful tax in the guise of a municipal charge which is to be used as a means of financing an improved water system. The argument is unpersuasive especially since it has already been determined that whatever the classification, repondent can lawfully impose a 'service charge'. Yet petitioner contends that the fee is too high and the motive for fixing it at a high plateau is...
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