Section 209-Q. Sewer, drainage or water improvements

1. Definition and
  application.  (a)  The  terms  "sewer  improvement"   and/or   "drainage
  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 a sewer district, wastewater  disposal  district
  and/or  drainage district pursuant to article twelve or twelve-A of this
  chapter.
    (b) The term "water 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 a water district  pursuant
  to article twelve or twelve-A of this chapter.
    (c)  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  sewer,
  drainage  or  water 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  map  for  providing  a  sewer,  drainage  or   water
  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  sewer,  drainage or water 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 sewer, drainage or water
  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 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  sewer,
  drainage  or  water  improvement, a description of the boundaries of the
  proposed benefited area, if any,  the  maximum  amount  proposed  to  be
  expended  for  the  proposed  sewer,  drainage or water improvement, the
  proposed method of apportioning the costs of  such  sewer,  drainage  or
  water  improvement, the proposed method of financing to be employed, the
  fact that a plan, report and map 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
  sewer, drainage or water improvement, or that any property benefited  by
  the sewer, drainage or water 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  sewer, drainage or water 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 sewer, drainage or
  water improvement.
    5. Increase in maximum amount. At any time prior to the completion  of
  a  sewer,  drainage or water improvement, the maximum amount proposed to
  be expended for such sewer, drainage or water 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 sewer, drainage or water 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  at  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 sewer, drainage or water  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.  The
  provisions  of  this subdivision referring to a referendum, shall not be
  applicable to any order increasing the maximum amount to be expended for
  a sewer improvement adopted by the town board of any town which has been
  ordered  by  the  state  commissioner  of  health  or  water   resources
  commission   to   provide   sewage  treatment  facilities  or  directing
  compliance  with  standards  or  determinations  or  orders  promulgated
  pursuant to article twelve of the public health law.
    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
  sewer, drainage or water improvement.
    (b)  If  the  town  board shall determine that it is not in the public
  interest to make the proposed sewer, drainage or water improvement,  the
  board shall adopt a resolution to that effect.
    (c)  If  the  town  board  shall  determine  that  it is in the public
  interest, the board may  adopt  a  resolution  authorizing  such  sewer,
  drainage  or  water  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 sewer, drainage or water 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 paragraph (c) of this subdivision, subdivision
  five or paragraph (c) of subdivision eight of this section,  or  section
  two  hundred nine-r 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.
    * NB Effective until March 21, 2010
    * (d) The town clerk shall cause a certified copy of any resolution or
  order adopted pursuant to paragraph (c) of this subdivision, subdivision
  five or paragraph (c) of subdivision eight of this section  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.
    * NB Effective March 21, 2010
    * (e) Any interested person  aggrieved  by  any  resolution  or  order
  adopted  pursuant to paragraph (c) of this subdivision, subdivision five
  or paragraph (c) of subdivision eight of this section,  or  section  two
  hundred  nine-r  of  this  chapter  may  review the same by a proceeding
  pursuant to article seventy-eight of the civil practice  law  and  rules
  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 law and rules 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.
    * NB Effective until March 21, 2010
    * (e)  Any  interested  person  aggrieved  by  any resolution or order
  adopted pursuant to paragraph (c) of this subdivision, subdivision  five
  or  paragraph  (c)  of  subdivision eight of this section may review the
  same by a proceeding pursuant to  article  seventy-eight  of  the  civil
  practice  law  and  rules  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 law and rules
  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.
    * NB Effective March 21, 2010
    7. Performance of the work. After the resolution authorizing a  sewer,
  drainage  or  water  improvement  shall  become  effective,  such sewer,
  drainage or water 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 sewer, drainage or
  water 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 sewer, drainage or water
  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 sewer, drainage or water  improvement  shall
  confer  upon  such  lots  or parcels, or (2) any part of the cost of the
  sewer, drainage or water 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 sewer, drainage or water  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 a  sewer,  drainage  or  water
  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
  sewer,  drainage  or  water  improvement.  The  only   change   in   the
  apportionment  of  the  costs  of a sewer, drainage or water 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
  sewer, drainage or water 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 the municipal home rule law.
    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 sewer, drainage or water
  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  map  for  such
  sewer,  drainage or water 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  sewer,  drainage  or  water
  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
  sewer,  drainage or water 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  sewer,  drainage  or
  water  improvement  is in the public interest and economically feasible,
  the board shall direct the preparation of a general plan, report and 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, drainage or
  water 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 a sewer,
  drainage  or  water  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  sewer,  drainage  or  water
  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 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 percent 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  sewer,  drainage   or   water   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.
    12-a.  Sewer and/or drainage rents and water rates. The town board may
  establish sewer and/or drainage rents and water  rates  as  provided  in
  paragraph  (l) of subdivision one 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  sewer,  drainage or water
  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  sewer,  drainage  or  water
  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  sewer,
  drainage  or  water  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 sewer,
  drainage or water 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 sewer, drainage or water  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  sewer,  drainage  or
  water 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 article 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 percent

  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 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 purposes 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.