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CORBALLY, GARTLAND AND RAPPLEYEA
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a...RO...VOlol BUILDING
35 ......RKET STREET
CHARLES .I. CORBALLY (966)
.I0HIol .I. GARTLANO, .IA.
AICHARD v. COABALLY
ALLAN E.RAPPLEYEA
DANIEL F. CUATINiII
FRED W.SCHAEFFEA
.ION HOLDEN ADAMS
MICHAEL G. GARTLAND
VINCENT L. DEBIASE
PAUL O. SULLIVAN*
POUGHKEEPSIE. NEW YORK 12601
914-454-1110
FLORIDA OFFICE:
50 SOUTH BELCHER ROAD
BUILDING E. SUITE 122
CLEARWATER, FLORIDA 33515
813-461-3144
BRANCH OFFICE:
BANK OF MILLBROOK BUILDING
FRANKLIN AVE.
MILLBROOK, NEW YORK 12545
March 26, 1980
.I0SEPH F'. HAWKINS
COUNSEL
"MEMBER N. Y. AND FLORIDA BAR
Louis D. Diehl, Supervisor
Town of Wapp~nger
Wappinger Falls, New York 12590
Re: Entry Fees for Sewer and Water Districts
Dear Lou:
At the last meeting there was some discussion as to rates
or charges to be imposed upon people who are obtaining hook-ups
to existing sewer districts in view of the difficulties presently
being experienced by the town. T recall the thought of one
speaker being that those receiving new hook-ups should pay a
surcharge or other comparable premium rate for the privilege
of hooking up. While you may be aware of it, I wish to bring
to your attention that the use of such surcharge or premium rates
'with respect to persons who own land within existing districts
is impermissible. Such surcharges or premium rates may only be
applied to persons newly brought within a district, the rationale
being that inasmuch as their land had.not been previously assessed
for the cost of the improvements which are now being utilized by
them, such an entrance fee or surcharge is proper. However, with
respect to lands previously within the district, such fee would
be impermissible inasmuch as the land in question had been
previously assessed for the cost of the benefits now sought to be
utilized.
I enclose a copy of an opinion of the State Comptroller with
respect to the subject. If you have any further questions, I will
be happy to respond to the same.
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Ol't\tO\:' of TilE STATE () 1\It'THIILI.EH 19Q
OPINION 69.408
Inquiry: )lay a S100 "cntrance fee" be charged new u~rs of
water wno arc located within the boundaries of .an established
water district, the fees to be placed in a capital re:sen'e fund
creatcd to finance future improvements in, and extensions to,
the water districn
Statement of Law: An '.cntrance feeH is the colloquial term
used to describe a flat rate fee or charge imposed upon thc
owners of parcels of property newly eligihle to use a facility,
such as a water system. llIustrative is the charge upon owners of
properties in an extension area of a water district (Town L
~ 202(5). The justification for an "entrance fee" is that the
O\..ners of these properties are entitled to scrvices from existing
\'aluable facilities for which they have not contrihuted. The
property owner in a water district cxtension has paid nothina
toward the existing facility from which the ex tension is servicc~
and benefited. The "entrance fce" is payment for this benefit.
Property lying \\'ithin the cstahlished areas of a \\'ater district
differs from property lying within an extension Lo that Jistrid.
The property lying within the ex tension area has ncvcr bcen
subject te taxation for the principal facility. :\n "entrallee fee"
in this instance is, therefore, jllStified. Property Iyin~ \\ ithin the
established area of the water district has bet'n allll IS "ubject to
water cli"trid taxation mill all such propertv has all absulute
ri;::ht to Le serviced by the di5triet's :l\aila1Ik facilities. Thl'
eharging of ,\'ater renl::; in a sum sufficient to meet all
obligations of the district, thus obvialing the 1II"'I'.-sit\' of
taxation .fur the district. docs not mean Ihat all propert\' Within
this area of the district has not hcenliahlc 10 tax.ation I'rom the
dale of establishllll~nt of Ihc di-Iril'l. Tlwol'l'lically. all propl'rty
uwners wilhin this arl'a of Ihe distrid ha\" IWl'n la,,'d and han'
bl'en paying for Ihe facilities of the Ili5trid. '1'111'51' propl'fty
0'\11cr5 are not newly eligible to me the facilitics. :\n "cntranec
fee" to thcsc property owncrs is, accordingly, unauthorized.
Tcwn Law ~ llJHp)(e), (II) is tlll'l'xelllsive authorization for
water di::trict charges in all established section of a water
district. :'I'dion ICJB(3)(c) pro\'i(k~ that:
The town board shall have the pow('r to adopt. from
time 10 lime, ordinanccs, wit's ant! rq~ulations for the
oper~tioll of the water di5trid allll thc II,;{' of waler
therem. . . .
Thc imposition of all "entrance fee" may not be inferred
from this broall 1~lllguage. Sedion ll)l\(:~)( ,I) prO\ ide:' fur the
impositioll uf f,'cs in tile nahlft' of watlT rcnls or ('harges only.
The chaq.~t'5 authurizClI for '\<lter arc l'ontradual in nature allll
:~~:~'<T~',,:"C /~>., ::':.~~~:'>
200 OPINI()~S OF THE STATE 0 )\1l'TROLLER
must be applied equally to all consumers in the same classifica.
tion. A separate and (li~tinct classification of new consumer is
not a valid classification.
New consumers may not be charged a higher rent for water
than old consumers as a back door "entrance fee" charge.
Accordingly, the imposition of an "cntrance fee" on thc owners
of property lying within an existing water district, upon such
O\mers' election to rcceive water scn.'ices, is unauthorizcd.
Finally, it must be pointed out that General :\lunicipal Law
~6.c(:3) :;pt~dficall)' prohihits the establishment uf a' capital
reserve fund by a town improvement district.
Conclusion: Owners of property lying within an established
water district may not be chargcd a flat rate "entrance fee"
upon such oWllcrs' clection to he serviced by the district's
facilities.
June 3, 1969.
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OPINION 69.410
Inquiry: Where the owncr of a parcel of real property in a
village fails to pay village taxes on that parcel, may villaO'c
services, such as water service, to another pared owned hy t~e
samc penson hc shut off or discontinued?
Statement of Law: \illages arc authorized tu enforce the
collcction of delilJ(luent taxes either hy viUalTc tax sale or by a
t:ivil action a~ainst the owncr (Heal P Tax r, ~ 91.l-l0, HSO).
There is no authority l' Of the denial uf servkes tu uther pan:eb
as 10 which thl'fe i~ 110 tklilllllll'I\l'Y.
Conclusion: Where the owner of a parcel of real pruperty in a
villagc fails to pay village taxes thereon, the village may not
dellY village scrvice~ to other parcels U\\11Cd hy him as to which
there i~ 110 Ilclinqul'llcy,
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OPli\ION 69..l20
Statement of Fael: .\ deed 10 lTrlain feal property, upon