2006 New York Code - Special Improvements

 
    §  54.  Special  improvements.  1. Definition and application. (a) The
  term "improvement" or "special improvement", as used  in  this  section,
  shall  mean any facility, service, function, activity or physical public
  betterment which may be provided by the establishment of an  improvement
  district pursuant to article twelve or twelve-a of this chapter, but not
  including water quality treatment districts.
    (b)  The  powers  provided  by  this  section shall be deemed to be in
  addition to those provided in article twelve or article twelve-a of this
  chapter and shall not  be  deemed  to  limit  or  supersede  any  powers
  provided  in either of such articles; provided, however, that nothing in
  this section shall be deemed to authorize the  providing  of  a  special
  improvement in, or the charging of the costs thereof against any area of
  the town located in any village.
    2.  Plans,  reports  and  maps.  The town board may adopt a resolution
  appropriating a specific amount to pay the cost of preparing  a  general
  plan,  report and, where appropriate, a map for providing an improvement
  in the area of the town outside of any villages, or in  any  portion  of
  such  area.  All  such  plans,  reports  and maps shall conform with the
  requirements of section two hundred nine-c of  this  chapter.  The  town
  board  may determine that such plans, reports and maps shall be prepared
  by or under the  supervision  of  town  officers  and  employees  to  be
  designated  by  the  town  board,  or  by persons to be employed for the
  purpose, or the town board may  contract  for  the  preparation  thereof
  within  the  limitations of the amount appropriated. Except as otherwise
  provided herein, the expense incurred for the preparation of such plans,
  reports and maps shall be a charge on the area of the  town  outside  of
  any  villages,  and  shall be assessed, levied and collected in the same
  manner as other town charges. If the town board  shall  thereafter  make
  such  improvement,  the expense incurred by the town for the preparation
  of the plans, reports and maps therefor shall be deemed to  be  part  of
  the  cost  of such improvement and the town shall be reimbursed for such
  portion of that amount, if any, which the  town  board,  at  the  public
  hearing  held  pursuant  to  subdivision  three  of  this section, shall
  allocate against such benefited area, if any.
    3. Hearing. Subsequent to the date of filing of the plan,  report  and
  map, if any, in the office of the town clerk, as required by section two
  hundred  nine-c  of  this chapter, the town board may adopt an order and
  enter the same in the minutes of its proceedings reciting  the  proposed
  improvement,  a  description of the boundaries of the proposed benefited
  area, if any, the  maximum  amount  proposed  to  be  expended  for  the
  proposed  improvement,  the proposed method of apportioning the costs of
  such improvement, the proposed method of financing to be  employed,  the
  fact  that  a  plan,  report and map, if any, describing the same are on
  file in the town clerk's office for public inspection and specifying the
  time when and the place where such board will meet  and  hold  a  public
  hearing  at  which  all persons interested in the subject thereof may be
  heard concerning the same. The board shall cause a copy of such order to
  be published at least once  in  a  newspaper  or  newspapers  designated
  pursuant  to  subdivision  eleven of section sixty-four of this chapter,
  the first publication thereof to be not less  than  ten  nor  more  than
  twenty  days  before the day set therein for the hearing, and shall also
  cause a copy thereof to be posted upon the bulletin board in the  office
  of the town clerk.
    4.  Change  in boundaries or apportionment of costs. If the town board
  shall determine, after the hearing, on notice as provided in subdivision
  three hereof and upon the  evidence  given  thereat,  that  any  of  the
  property  in  a proposed benefited area, if any, is not benefited by the
  improvement, or that any property benefited by the  improvement  is  not
  included  in  the proposed benefited area and that the boundaries of the
  benefited area should be  changed  accordingly,  or  that  the  proposed
  method  of apportioning the costs of such improvement should be changed,
  the  board  shall  specify  the  changes and shall call a further public
  hearing at a definite time and place not less than fifteen nor more than
  twenty-five days after such previous hearing.   Notice of  such  further
  hearing  shall  be  published  and  posted  in  the  manner  provided in
  subdivision three hereof except that such notice shall also specify  the
  manner  in which it is proposed to alter the boundaries of the benefited
  area or the method of apportioning the costs of the improvement.
    5. Increase in maximum amount. (a) At any time prior to the completion
  of an improvement, the maximum amount proposed to be expended  for  such
  improvement,  as  stated  in  the  notice  of public hearing pursuant to
  subdivision three or four hereof, may be increased by an  order  of  the
  town  board  provided  that the town board shall, after a public hearing
  held in the manner prescribed in  subdivision  three  hereof,  determine
  that  it  is  in  the  public interest to authorize the increase in such
  maximum amount. If it is  proposed  or  required  that  the  town  shall
  finance  the  increase in the maximum amount proposed to be expended for
  the improvement by the issuance of bonds, notes, certificates  or  other
  evidences  of  indebtedness  and  the  total  estimated  expense of such
  improvement including the increase in the maximum  amount  shall  exceed
  one-tenth  of  one  per centum of the full valuation of the taxable real
  property in the area of the town outside of villages, the town board may
  not make an order pursuant to this subdivision unless the comptroller of
  the state of New York shall have made, subsequent to the public  hearing
  required  by  this  subdivision, an order approving the increase in such
  maximum amount as stated in the  notice  of  hearing  required  by  this
  subdivision. The order of the comptroller shall be prepared in duplicate
  and  one copy thereof filed in the office of the department of audit and
  control and the other copy in the office of the town clerk of the  town.
  If  the  original  authorization  of  the  improvement  was subject to a
  permissive referendum pursuant to paragraph (a) of subdivision eleven of
  this section or made subject to a  mandatory  or  permissive  referendum
  pursuant  to  paragraph  (b)  of subdivision eleven of this section, any
  order of the town board increasing the maximum  amount  to  be  expended
  shall be subject to the same type of referendum.
    (b) If the notice of public hearing held pursuant to subdivision three
  or  four  hereof  proposes  only the performance or supplying of certain
  services and states the maximum amount to be expended annually for  such
  services, the maximum amount to be expended annually may be increased by
  an  order  of  the  town  board,  provided the town board shall, after a
  public hearing, determine that it is in the public interest to authorize
  the increase in such maximum amount. The town board shall give notice of
  such hearing by at least a single publication of a notice in a newspaper
  or newspapers designated  pursuant  to  subdivision  eleven  of  section
  sixty-four  of  this  chapter at least ten but not more than twenty days
  prior to the date specified for such hearing, specifying the  time  when
  and  place  where  such  hearing  will  be held and stating the increase
  proposed in the maximum amount to be expended annually.
    6. Authorization  of  improvement;  judicial  review.  (a)  After  the
  hearing  on  notice as provided in subdivision three or four hereof, and
  upon the evidence given thereat,  the  town  board  shall  determine  by
  resolution  whether  or  not  it  is in the public interest to make such
  improvement.
    (b) If the town board shall determine that it is  not  in  the  public
  interest  to  make  the  proposed  improvement,  the board shall adopt a
  resolution stating the reasons for its determination  not  to  make  the
  proposed   improvement  and  enter  the  same  in  the  minutes  of  its
  proceedings.
    (c)  If  the  town  board  shall  determine  that  it is in the public
  interest, the board may adopt a resolution authorizing such improvement,
  subject to the approval of the state comptroller where such approval  is
  required  by subdivision thirteen of this section. Such resolution shall
  contain a statement of the manner in which the costs of the  improvement
  are  to  be  apportioned,  and  a  description  of the boundaries of the
  benefited area, if any, as finally determined by the  town  board  where
  any  part  of  the  cost  is  to  be  raised by special assessments upon
  benefited property.
    (d) The town clerk shall cause a certified copy of any  resolution  or
  order   adopted  pursuant  to  this  subdivision,  subdivision  five  or
  paragraph  (c)  of  subdivision  eight  of  this  section,  or   section
  fifty-seven  of  this  chapter  to be duly recorded in the office of the
  clerk of the county in which the town is located within ten  days  after
  the  adoption  of  such resolution, or within ten days of the receipt of
  notification of  the  approval  of  the  state  comptroller  where  such
  approval is required by subdivision five or subdivision thirteen of this
  section. When so recorded, such resolution shall be presumptive evidence
  of the regularity of the proceedings and actions taken by the town board
  in relation thereto.
    (e) Any interested person aggrieved by any resolution or order adopted
  pursuant  to  this  subdivision,  subdivision  five  or paragraph (c) of
  subdivision eight of  this  section,  or  section  fifty-seven  of  this
  chapter  may  review  the  same  by  a  proceeding  pursuant  to article
  seventy-eight of the civil practice  act  provided  such  proceeding  is
  commenced  within  thirty  days  from  the  date of the recording of the
  certified copy of the resolution or order in the office  of  the  county
  clerk. Any such resolution or order shall be final and conclusive unless
  a proceeding pursuant to article seventy-eight of the civil practice act
  has  been  commenced  within  thirty  days  from  the  date of recording
  thereof. No review shall be had unless at the  time  the  proceeding  is
  commenced  the  interested  person  seeking  the  review  shall  give an
  undertaking approved by the supreme court, or a justice thereof,  as  to
  form,  amount and sufficiency of sureties, that, in the event of failure
  to modify such resolution or order he or they will pay to the town board
  all costs and expenses as are incurred by it  on  account  of  the  said
  proceeding  as  shall be determined by the court. In the event that upon
  such review there shall  be  any  modification  by  the  court  of  such
  resolution  the  court  shall  direct  the modification thereof by order
  which shall be final and conclusive and such town board shall cause such
  order to be recorded and filed in the same place and manner as  was  the
  resolution or order appealed from.
    7.  Performance  of  the  work.  After  the  resolution authorizing an
  improvement shall become effective, such improvement  may  be  made  and
  contracts  therefor  may  be  let  in the manner provided in section one
  hundred ninety-seven of this chapter.
    8. Apportionment of costs. (a) The cost of any such improvement  shall
  be  borne  partly  by  the  area  of the town outside of any village and
  partly by the lands benefited thereby;  or  by  the  area  of  the  town
  outside  of  any village; or entirely by the lands benefited thereby, as
  the town board, in its discretion, shall provide.  Where,  however,  (1)
  any  part of the cost of the improvement is to be borne by property in a
  described benefited area, such  costs  shall  be  assessed,  levied  and
  collected from the several lots or parcels of land within such benefited
  area  either  in  the  same  manner  and  at the same time as other town
  charges, or in just proportion  to  the  amount  of  benefit  which  the
  improvement  shall  confer upon such lots or parcels, or (2) any part of
  the cost of the improvement is to be borne by the  entire  area  of  the
  town  outside  of any villages, and such area has not been determined to
  be  the  benefited  area,  such  costs  shall  be  assessed,  levied and
  collected from the several lots and parcels of land in such area in  the
  same manner and at the same time as other town charges.
    (b)  In the event that a proposed improvement is not made, any expense
  incurred by the town in relation thereto, including costs of publication
  of notices and of any referendum, shall be a charge upon the area of the
  town outside  of  any  villages,  and  shall  be  assessed,  levied  and
  collected in the same manner as other town charges.
    (c) At any time after the completion of an improvement pursuant to the
  provisions  of  this  section, the apportionment of the costs thereof as
  between the benefited area and the area  of  the  town  outside  of  any
  village,  as  stated  in  the  notice  of  public  hearing  pursuant  to
  subdivision three or four hereof, may be changed by  resolution  of  the
  town  board  provided that the town board shall, after a public hearing,
  determine that it is in the public interest to authorize the  change  in
  such  apportionment. The town board shall give notice of such hearing by
  at least a single publication of a notice in a newspaper  or  newspapers
  designated  pursuant to subdivision eleven of section sixty-four of this
  chapter at least ten but not more than twenty days  prior  to  the  date
  specified  for  such  hearing,  specifying the time when and place where
  such hearing will be  held  and  stating  the  change  proposed  in  the
  apportionment  of  the  costs of the improvement. The only change in the
  apportionment of the costs of an  improvement  that  may  be  authorized
  pursuant  to  this  paragraph  shall be an increase in the share of such
  costs to be borne by the area of the town outside of any village, with a
  corresponding decrease in the share of such costs to  be  borne  by  the
  benefited area.
    (d)  The  cost of any such improvement may include such portion of the
  cost of existing or authorized improvements  as  the  town  board  shall
  determine.  Such determination shall be based on a finding that there is
  an equitable and reasonable relationship between  such  improvement  and
  the existing or authorized improvements.
    9.  Financing  improvement. The funds necessary to pay the cost of any
  improvement made pursuant to this section shall be raised  in  a  manner
  provided  in  article fifteen of this chapter, as determined by the town
  board,  or  pursuant  to  a  local  law  adopted  pursuant  to   section
  fifty-one-a of this article.
    10.  Petition.  Five  resident owners of taxable real property located
  within the area of the town outside of any villages,  may  petition  the
  town board to acquire, provide or construct any improvement described in
  subdivision  one  of  this section. Such petition shall be signed by the
  petitioners, and acknowledged or proved in the same manner as a deed  to
  be recorded, or authenticated in the manner provided by the election law
  for  the  authentication of nominating petitions. When any such petition
  shall have been presented, the town board may direct the preparation  of
  a  plan,  report  and, where appropriate, a map for such improvement and
  proceed in the manner provided in  this  section,  or  it  may  adopt  a
  resolution,  reciting  in general terms the filing of such petition, the
  proposed improvement and specifying the time when and  the  place  where
  such  board  will  meet to consider the petition and to hear all persons
  interested in the subject. Notice of such meeting shall be published  in
  the manner provided in subdivision three of this section and shall state
  the  time  and  place  of  the  meeting  and  the  purpose  thereof. The
  petitioners shall be required to deposit with such petition the  sum  of
  one  hundred dollars to cover all cost of publishing and posting notices
  of meetings of the town board to consider the  petition.  If  the  board
  determines  to  proceed,  pursuant  to  this  subdivision,  with further
  development of the proposed improvement, such deposit shall be  returned
  in  full  to the petitioners, but if the petition be denied, the surplus
  only shall be so returned after paying the expenses  mentioned  in  this
  subdivision.  If  the  town board shall determine after such hearing and
  upon the evidence given thereat, that the proposed improvement is in the
  public interest and economically feasible, the board  shall  direct  the
  preparation  of a general plan, report, and where appropriate, a map for
  such improvement and proceed in the manner provided in this section.
    11. Referendum. (a) Any resolution adopted pursuant to  paragraph  (c)
  of subdivision six of this section authorizing a sewer, sewage disposal,
  water  or  drainage  improvement, any part of the cost of which is to be
  borne by the entire area of the town outside of any  villages,  and  any
  resolution  adopted  pursuant  to  paragraph (c) of subdivision eight of
  this section which will result in an increase in the share of the  costs
  of  an  improvement  to  be borne by the area of the town outside of any
  villages in any one fiscal year of more  than  ten  per  centum  of  the
  maximum  amount proposed to be expended, as stated in the last notice of
  public hearing for such improvement pursuant to subdivision three,  four
  or  five of this section, shall be subject to a permissive referendum in
  the manner prescribed in article seven of this chapter, as  modified  by
  paragraph (c) of this subdivision.
    (b)  Except as provided in paragraph (a) of this subdivision, the town
  board, in its discretion, may  determine  that  any  resolution  adopted
  pursuant  to  subdivision  two,  paragraph  (c)  of  subdivision  six or
  paragraph (c) of subdivision eight of this section, shall be subject  to
  a mandatory or permissive referendum in the manner prescribed in article
  six  or  seven  of  this  chapter,  as  the  case may be, as modified by
  paragraph (c) of this subdivision. Such determination, if any, shall  be
  included in the resolution so adopted. Any such referendum shall be held
  in  the entire area of the town outside of any villages, except that, in
  the case  of  a  resolution  adopted  pursuant  to  subdivision  two  or
  paragraph  (c)  of subdivision six of this section where any part of the
  cost of the improvement is to be borne by an area of the town less  than
  the  entire area of the town outside of any villages, the resolution may
  provide that the referendum shall be held in such lesser area.
    (c) Any resolution submitted to a referendum pursuant to this  section
  shall not become effective unless it is approved by the affirmative vote
  of  a  majority  of  the  owners of taxable real property voting thereon
  whose property is situate in  the  area  of  the  town  outside  of  any
  villages, or in such lesser area described in a resolution as authorized
  in  paragraph  (b) of this subdivision, as shown on the latest completed
  assessment roll of the town. A petition requesting a referendum shall be
  sufficient if signed, and acknowledged or proved in the same manner as a
  deed to be recorded, or authenticated in  the  manner  provided  by  the
  election  law  for  the  authentication  of nominating petitions, by the
  owners of taxable real property situate in the area of the town  outside
  of  any  villages, or in such lesser area described in the resolution as
  authorized in paragraph (b) of  this  subdivision,  as  shown  upon  the
  latest  completed  assessment  roll  of such town, in number equal to at
  least ten per cent of the total number of such owners. For the  purposes
  of  this  subdivision,  a  corporate owner of such taxable real property
  shall be considered one owner for the purposes of a petition  requesting
  a  referendum and shall be entitled to one vote to be cast by an officer
  or agent of the corporation or other duly authorized  person  designated
  by  appropriate  resolution  of  such  corporation. The town clerk shall
  cause to be prepared and have available for  distribution  proper  forms
  for  a petition for a referendum under this section and shall distribute
  a supply to any person requesting the same.
    12.  Town  function. Any improvement constructed, acquired or provided
  pursuant to this section shall be a town function  and  the  town  board
  shall   be   responsible  for  the  necessary  management,  maintenance,
  operation and repair thereof. The cost of such management,  maintenance,
  operation and repair shall be a charge upon the area of the town outside
  of any villages and shall be levied and collected in the same manner and
  at  the  same time as other town charges; provided, however, that, where
  the improvement is only the providing of a service at  a  stated  annual
  cost,  such annual cost shall be charged in the manner prescribed in the
  provisions  of  the  resolution  adopted  pursuant  to  paragraph  c  of
  subdivision  six  of  this  section or in modifications thereof, if any,
  adopted pursuant to paragraph c of subdivision eight of this section.
    12-a. Sewer rents and water rates. The town board may establish  sewer
  rents  and water rates as provided in paragraph (l) of subdivision 1 and
  paragraph (d) of subdivision three of section one  hundred  ninety-eight
  of this chapter.
    13.  Comptroller's  approval. a. Where it is proposed or required that
  the town shall finance the cost of any improvement  authorized  by  this
  section by the issuance of bonds, notes, certificates or other evidences
  of  indebtedness of the town therefor and where the estimated expense of
  such improvement shall exceed one-tenth of one per centum  of  the  full
  valuation  of  the taxable real property in the area of the town outside
  of villages, the permission of the state comptroller shall  be  required
  for such improvement.
    b.  Within  ten  days  after  the adoption of a resolution by the town
  board pursuant to paragraph (c) of  subdivision  six  of  this  section,
  which  requires  the  approval  of  the  state  comptroller  pursuant to
  paragraph (a) of this subdivision, the town clerk shall file a certified
  copy of such resolution in the office of the state department  of  audit
  and  control  at  Albany, New York, together with an application for the
  approval of the state comptroller to the providing of such  improvement.
  The  application  shall  be  executed and verified by the supervisor, or
  such other officer of the town as the town board shall  determine.  Such
  application  shall be in such form and shall contain such information as
  shall be prescribed by the state comptroller.
    c. Whenever such an application shall be filed in the  office  of  the
  department  of  audit and control, the state comptroller shall determine
  whether the public interest will be served by providing such improvement
  in the manner proposed and also whether the  cost  thereof  will  be  an
  undue  burden  upon  the  property  which  is  to  bear the cost of such
  improvement. The state comptroller may make such determinations upon the
  original or any amended application, or in his  discretion  may  require
  the submission of additional information or data in such form and detail
  as he shall deem sufficient, or may cause an investigation to be made to
  aid him in making the determinations above mentioned.
    d.  Upon the expiration of fifteen days from the date of the filing of
  such  application,  the  state  comptroller  shall  make  an  order,  in
  duplicate,  granting  or denying approval for such improvement and shall
  file one copy of such order in the office of  the  state  department  of
  audit  and  control  at Albany, New York, and the other in the office of
  the town clerk of the town in which the proposed improvement  is  to  be
  provided.  The town clerk shall thereupon notify the members of the town
  board of the receipt of such order and the contents thereof.
    14. Lease of improvements.  (a) The town board may lease  for  a  term
  not  to  exceed  forty years all or any part of the property or facility
  constructed or operated as a town  function  under  this  section  to  a
  county,  a city, a village, a town, a public authority, a town on behalf
  of an improvement district, a county on behalf of a county district,  or
  a joint water works system established pursuant to article five-B of the
  general  municipal  law,  provided,  however,  that  such lease shall be
  subject to a permissive referendum held  in  the  manner  prescribed  in
  article  seven  of  this  chapter,  as  modified  by  paragraph  (c)  of
  subdivision eleven of this section except that a petition  requesting  a
  referendum  shall be sufficient if signed, and acknowledged or proved in
  the same manner as a deed to be recorded, or authenticated in the manner
  provided by the  election  law  for  the  authentication  of  nominating
  petitions, by the owners of taxable real property situate in the area of
  the  town  outside  of  any villages, as shown upon the latest completed
  assessment roll of such town, in a number equal to  at  least  five  per
  cent  of the total number of said owners, or one hundred of said owners,
  whichever is the lesser.
    (b) The proceeds of the lease of all or a part  of  such  property  or
  facility  shall  be  deposited  in  a  reserve  fund established for the
  purpose of retiring outstanding obligations issued on behalf of the town
  to finance the cost of the property or facility  leased,  and  shall  be
  expended  only  for  such purpose except that if the proceeds exceed the
  sum  of  all  installments  of  principal  of  and  interest   on   such
  indebtedness  due  or  to become due, or if, when such obligations shall
  have been retired, any proceeds of such reserve fund remain  unexpended,
  such  excess  monies may be used for any purpose which would be properly
  charged against the area of the town outside of any villages.