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Home My WebLink AboutImpact Fees 1 SB1 Paulette Rosa From:Susan H. Brock <brock@clarityconnect.com> Sent:Friday, February 23, 2024 3:23 PM To:Paulette Rosa Cc:Rod Howe; CJ Randall; Daniel Thaete; Joe Slater; Marty Moseley Subject:FW: NNC provision research Attachments:Case--Albany Area Bldrs Assn v T Guilderland Ct App 1989 transportation impact fee invalid.rtf; Case--Phillips v T Clifton Park Water Authty impact fees impt case.rtf; Case-- Coconato v T Esopus impact fees good summary AppDiv 1989.rtf; Case--Home Builders Assn of CNY v Cty of Onondaga Sup Ct sewer impact fee invalid.rtf **WARNING** This email comes from an outside source. Please verify the from address, any URL links, and/or attachments. Any questions please contact the IT department Paulette, at an MTM earlier this month, you said you have a file on impact fees and asked me to send you my prior emails on the topic. I am sending you this trail plus one other email. Rod, I asked Lori Mithen-Demasi at the AOTNYS meetings if there is anything new in the impact fee arena, and she said she was not sure but didn’t think so. I mentioned the Sheetz case pending before SCOTUS, and she didn’t appear to know about it. Given the restrictions on impact fees in NY, I do not think the Sheetz case will affect the Town until SCOTUS ranges really far afield in its opinion. Susan Susan H. Brock, Attorney at Law 12 Pheasant Way Ithaca, NY 14850 tel.: 607-277-3995 fax: 607-277-8042 brock@clarityconnect.com ******************************************************************** This electronic transmission contains legally privileged and confidential information intended only for the person(s) named. Any use, distribution, copying or disclosure by any other person is strictly prohibited. If you received this message in error, please immediately notify the sender by telephone at (607) 277-3995 (collect) or send an electronic mail message to brock@clarityconnect.com. In addition, please delete all copies of this message from your computer. ******************************************************************** From: Susan H. Brock [mailto:brock@clarityconnect.com] Sent: Wednesday, September 22, 2021 12:09 PM To: Rod Howe (RHowe@town.ithaca.ny.us) <RHowe@town.ithaca.ny.us>; Bill Goodman (BGoodman@town.ithaca.ny.us) <BGoodman@town.ithaca.ny.us>; Dan Thaete (DThaete@town.ithaca.ny.us) <DThaete@town.ithaca.ny.us>; Joseph Slater (jslater@town.ithaca.ny.us) <jslater@town.ithaca.ny.us>; Susan Ritter (SRitter@town.ithaca.ny.us) <SRitter@town.ithaca.ny.us> Subject: FW: NNC provision research 2 As we discussed this morning, here is my prior email trail and cases on when municipalities can charge latecomers for municipal infrastructure. The cases say such charges are permissible with “a demonstration that such a fee is necessitated by the particular project (as opposed to future growth and development in that municipality generally) or a demonstration that such newcomer would be primarily or proportionately benefitted by the expansion.” I think this research can be applied to the Cornell—Mitchell Street interceptor. Caveat: I have not updated the research since doing it in 2019. Please let me know if you want me to do that. Susan Susan H. Brock, Attorney at Law 12 Pheasant Way Ithaca, NY 14850 tel.: 607-277-3995 fax: 607-277-8042 brock@clarityconnect.com ******************************************************************** This electronic transmission contains legally privileged and confidential information intended only for the person(s) named. Any use, distribution, copying or disclosure by any other person is strictly prohibited. If you received this message in error, please immediately notify the sender by telephone at (607) 277-3995 (collect) or send an electronic mail message to brock@clarityconnect.com. In addition, please delete all copies of this message from your computer. ******************************************************************** From: Susan H. Brock [mailto:brock@clarityconnect.com] Sent: Tuesday, July 21, 2020 3:50 PM To: Joseph Slater (jslater@town.ithaca.ny.us) <jslater@town.ithaca.ny.us>; Dan Thaete (DThaete@town.ithaca.ny.us) <DThaete@town.ithaca.ny.us> Subject: FW: NNC provision research Joe and Dan, This info I sent Dan Tasman a year ago re: a proposed impact fee provision in the New Neighborhood Code may be relevant to the Monkemeyer sewer easement. The Town cannot force a latecomer to pay for existing infrastructure that others paid for. So I would argue the Town is legally barred from refusing to let someone connect to the sewer if they refuse to pay Monkemeyer a fee to help him recoup his sewer infrastructure costs. There is still the separate question of whether Monkemeyer is legally entitled to collect from others, regardless of what the Town does. I have my doubts and will keep thinking about this while you collect the historical info. Susan Susan H. Brock, Attorney at Law 12 Pheasant Way Ithaca, NY 14850 tel.: 607-277-3995 fax: 607-277-8042 brock@clarityconnect.com 3 ******************************************************************** This electronic transmission contains legally privileged and confidential information intended only for the person(s) named. Any use, distribution, copying or disclosure by any other person is strictly prohibited. If you received this message in error, please immediately notify the sender by telephone at (607) 277-3995 (collect) or send an electronic mail message to brock@clarityconnect.com. In addition, please delete all copies of this message from your computer. ******************************************************************** From: Susan H. Brock [mailto:brock@clarityconnect.com] Sent: Friday, July 19, 2019 5:39 PM To: 'Dan Tasman' <DTasman@town.ithaca.ny.us>; 'Susan Ritter' <SRitter@town.ithaca.ny.us>; 'Rich DePaolo (rd@betablue.org)' <rd@betablue.org>; 'Bill Goodman' <BGoodman@town.ithaca.ny.us> Subject: RE: NNC provision research Dan, thank you for your research into the areas we identified at our June 10 meeting. Here are my responses to your message. Cost sharing for infrastructure and improvements Section 272-702.2 says: “A regulating plan may also have these agreements, if necessary…. • A reimbursement agreement, allowing the first developer that builds infrastructure in an area to recover disproportionate expenses from latecomer developers who benefit from the improvements (if applicable).” My comment on that provision in my 5/29/19 markup of the draft law said: “May not be legal. Do not know of legal authority for Town to force a private developer to reimburse another private developer. If Town paid for the improvement, developer reimbursement to Town would be considered an unauthorized tax “absent a demonstration that such a fee is necessitated by the particular project (as opposed to future growth and development in that municipality generally) or a demonstration that such newcomer would be primarily or proportionately benefitted by the expansion.” (Phillips v. T. Clifton Park Water Authority App. Div. case) A court might also find the State has preempted the field of funding highway and water/sewer infrastructure (Guilderland Court of Appeals and T. Esopus App. Div. cases.” Your message below says “There seems to be a belief that ‘you can't do impact fees in New York.’” My comment above does not say all impact fees are illegal in all situations, but it notes that courts have held that local laws imposing impact fees for transportation, water and sewer are preempted by the State. My comment also notes a fee will be considered an impermissible tax “absent a demonstration that such a fee is necessitated by the particular project (as opposed to future growth and development in that municipality generally) or a demonstration that such newcomer would be primarily or proportionately benefitted by the expansion.” So we have two hurdles: preemption, and (if the municipality is not preempted) whether the fee is an illegal tax. Some of the cases I relied on for my comment in my law markup are attached. Please see highlighted provisions within the cases for further explanation. I did more research after receiving your message to see if the cases citing the attached cases change anything. They do not. Your message notes the latecomer fee information by the research center for Washington State local governments, and your message draws analogies to NY subdivision street dedication and parkland set-asides, as well as PSC solar cost- sharing. Because the issue of impact fees is governed by state law, we cannot look to what other states do. While 4 Washington State may allow latecomer fees, the attached Clifton Park case specifically says it does not matter that newcomers may benefit from existing infrastructure that others paid for. The fact that NY Town Law allows towns to require street dedication and parkland set-asides when approving subdivisions (or that the PSC can require solar cost- sharing) cannot be used to justify impact fees for street, water and sewer improvements. In fact, the opposite may be true—if the Legislature had intended towns to have the ability to impose impact fees, it could have expressly allowed them, as it did for the subdivision parkland provisions. Have you checked with the NY Planning Federation about this issue, or is that organization not helpful for this type of inquiry? I also suggest you talk with the Town of Clifton Park and Town of Fallsburg planners about whether the towns actually collect impact fees or simply have these provisions in their laws in case future legislation or case law authorizes impact fees for this type of infrastructure. Clifton Park lost its case (see attached), so it would be interesting to learn whether that town figured out a way to collect fees or is just not enforcing its fee provisions. If either of those towns is enforcing its impact fee provisions, we should ask them for the legal basis on which they are relying. Application of ADA requirements to on-street parking Section 272-503.1.2 is titled “Accessible parking spaces” and says: “Number, design, and siting of accessible parking spaces in a parking lot must comply with Americans with Disabilities Act (ADA) requirements.” My comment on the draft law said “what about parking spaces in locations other than a lot?” because I did not know whether the ADA likewise requires accessible spots for parking in a street or alley. Your research shows this type of parking also should have accessible spots. Your message says “Siting accessible parking spaces isn't possible at the regulating plan stage of a TND, because it acts as a zoning and master plan, not a site plan -- it doesn't show property lines, building locations, site features, curb cuts, utility boxes, or street furniture that would influence on-street parking locations.” But this section is in the site plan section, so wouldn’t it be appropriate to mention accessible street and alley parking here? Or if not here, then elsewhere? Street tree placement My comment on Section 272-307.7.2.C asked whether to add a minimum tree spacing requirement (in addition to the requirement for an average requirement). Your response (add a requirement for the spacing to be as even as possible) makes sense. Amateur radio facilities and Subdivision phasing and final plat timing: I will get back to you on these after I review my files. Susan Susan H. Brock, Attorney at Law 12 Pheasant Way Ithaca, NY 14850 tel.: 607-277-3995 fax: 607-277-8042 brock@clarityconnect.com ******************************************************************** This electronic transmission contains legally privileged and confidential information intended only for the person(s) named. 5 Any use, distribution, copying or disclosure by any other person is strictly prohibited. If you received this message in error, please immediately notify the sender by telephone at (607) 277-3995 (collect) or send an electronic mail message to brock@clarityconnect.com. In addition, please delete all copies of this message from your computer. ******************************************************************** -----Original Message----- From: Dan Tasman [mailto:DTasman@town.ithaca.ny.us] Sent: Wednesday, June 19, 2019 3:53 PM To: Susan Ritter <SRitter@town.ithaca.ny.us>; 'Susan H. Brock <brock@clarityconnect.com> (brock@clarityconnect.com)' <brock@clarityconnect.com>; Rich DePaolo (rd@betablue.org) <rd@betablue.org>; Bill Goodman <BGoodman@town.ithaca.ny.us> Subject: NNC provision research Sue, Susan, Bill, and Rich Following is some more in-depth information about concerns we raised about certain New Neighborhood Code provisions. There's a lot here. * Cost sharing for infrastructure and improvements There seems to be a belief that "you can't do impact fees in New York." New York doesn't have enabling legislation for impact fees, but it doesn't ban them entirely. Their current legality and use is based on a complex, tangled web of case law and tests. According to an article in the Pace Environmental Law Review (https://pdfs.semanticscholar.org/eb9e/0dde0594836d060eae1e45721383cd493045.pdf): "Enactment of equitable impact fee laws in New York seems largely dependent upon communities approaching the topic with an awareness of the proper nexus that must exist between the fee and the impact of new development upon relevant public facilities." Most communities in New York now have require some form of exaction in their subdivision regulations -- dedication of land for streets, sidewalks, parks, and related facilities. There's also park in-lieu fees, usually applied to small subdivisions, and allocated for future acquisition of parkland. Jenad v Village of Scarsdale (18 N.Y.2d 78, 218 N.E.2d 673, 271 N.Y.S.2d 955.) upheld the validity of in-lieu fees. The court noted in-lieu payments went into a separate fund, with no co-mingling with the general , making them a valid fee rather than an unauthorized tax. New York courts apply a "rational nexus" test for validating development exactions. This test requires that the imposition of a valid impact fee be dependent upon: (1) a development creating a need for new or expanded facilities; (2) the fee amount not exceeding the cost of provided the facility; and (3) the fee being designated specifically to the concern prompting its imposition. There is also a test based on Nollan v. California Coastal Commission (483 U.S. 825 (1987)) -- a case most planning students learn about -- that the basis for a valid land use exaction must be based on the relationship between the subject matter of the exaction and the legitimate intent of the relevant land use regulation. An impact fee can't serve as a tax or a taking. The fee must be for a specific purpose, not something discretionary or abstract. The Town of Clifton Park charges sewer impact fees (https://ecode360.com/6713739). From the Clifton Park town code: § 169-109 Impact fees. The Town Board shall have the authority to impose impact fees on new development, which development may: 6 A. Cause enlargement of the service area of the POTW; B. Cause increased hydraulic and/or treatment demands on the POTW. § 169-110 Use of revenues. Revenues derived from user charges and associated penalties, and impact fees, shall be credited to the sewer fund. These funds shall be used exclusively for the following functions: A. For the payment of the operation and maintenance, including repair and replacement, costs of the Town POTW; B. For the discovery and correction of inflow and infiltration; C. For the payment of interest on and the amortization of or payment of indebtedness which has been or shall be incurred for the construction or extension of the Town POTW; and D. For the extension, enlargement, replacement of, and/or additions to the Town POTW, including any necessary appurtenances. The Town of Fallsburg has very comprehensive sewer impact fee legislation (https://ecode360.com/12051778). "The purpose of this Part 3 is to assure that new development does not overtax existing levels of service and that new development bears a proportionate share of the cost of capital expenditure necessary to provide wastewater treatment and disposal services required to mitigate the impacts of new growth in the Town of Fallsburg." The (draft) New Neighborhood Code offers the option of cost sharing as one way of funding infrastructure improvements in a TND. Cost sharing would equitably spread the cost of building improvements among all projects that benefit from them, without burdening any developers or landowners with a disproportionate share of expenses. The Municipal Research and Services Center (Washington state) has a good description of the latecomer agreement concept (http://mrsc.org/Home/Explore-Topics/Public-Works/Finance/Latecomer-Agreements.aspx): "Latecomer agreements ... a property owner who has installed street or utility improvements to recover a portion of the costs of those improvements from other property owners who later develop property in the vicinity and use the improvements. The MRSC Web site also describes what latecomer fees aren't -- local improvement district assessments or connection fees. New York State Public Service Commission interconnection rules for solar projects (http://www3.dps.ny.gov/W/PSCWeb.nsf/96f0fec0b45a3c6485257688006a701a/dcf68efca391ad6085257687006f396b/ $FILE/October%20SIR%20Appendix%20A%20-%20Final%2010-3-18.pdf) enable cost sharing agreements similar to what the NNC draft proposes. The process is on pages 18 and 19, and Appendix E -- it's fairly dense. The press release announcing the interconnection rules (http://www3.dps.ny.gov/pscweb/webfileroom.nsf/Web/C392A76FBC1FA963852580B200736A49/$File/pr17008.pdf?O penElement) is a bit easier to digest. "Today's decision also establishes an interim cost-sharing requirement that will spread the cost of certain system upgrades to all the projects that benefit from them. The interim mechanism requires the first project that triggers the need for the upgrade to bear 100 percent of the costs, subject to reimbursement from later projects. Recognizing the limitations of this approach, the order directs DPS Staff to work with stakeholders on a long-term, comprehensive methodology for allocating the costs of shared system upgrades." In Washington, enabling legislation allows the municipality or a district to administer latecomer fees. NYSPSC interconnection rules let utilities manage cost sharing. To allow for flexibility, the New Neighborhood Code draft is intentionally silent on how to administer cost sharing -- it just makes them an option. Regardless, I think cost sharing and impact fees are two different things. Draft New Neighborhood Code language doesn't rule out the possibility of an improvement district for funding and maintaining improvements and amenities. * Application of ADA requirements to on-street parking 7 According to the ADA Guide for Small Towns (https://www.ada.gov/smtown.htm) "The ADA Standards have technical requirements for parking lots and garages but no technical requirements for the design of on-street parking." However, in 2011, the Ninth Circuit Court of Appeals issued an ruling that cities have an obligation under the Americans with Disabilities Act to provide on-street parking that is accessible to people with disabilities. From Fortune v. City of Loimita (823 F. Supp. 2d 1036 (C.D. Cal. 2011)): "... the broad language of the ADA requires public entities to ensure that all services, including on-street parking, are reasonably accessible to and usable by individuals with disabilities." The court opinion from one of the circuit judges (D.C. No.2:11-cv-06644-DDP-JCG) states: "The text of the ADA, the relevant implementing regulations, and the DOJ's interpretation of its own regulations all lead us to conclude that public entities must ensure that all normal governmental functions are reasonably accessible to disabled persons, irrespective of whether the DOJ has adopted technical specifications for the particular types of facilities involved." An article about the case from a law firm in California states: "Now, in light of Fortyune, cities must provide accessible on-street parking despite the absence of technical standards. The Ninth Circuit's opinion provides little help in how to comply with this requirement. The opinion does not address whether any particular conditions violate the ADA. The questions left open by Fortyune are numerous, but there are two key issues that cities should immediately consider. First, does the city provide a sufficient amount of accessible on-street parking spaces? Second, must the city provide accessible parallel parking spaces? Because the opinion gives little guidance, it is not clear how these issues should be addressed." (https://webcache.googleusercontent.com/search?q=cache:n8r37E6BXCYJ:https://www.bbklaw.com/news -events/insights/2014/legal-alerts/09/ninth-circuit-cities-must-have-on-street-disabled) The article references draft standards for dealing with accessibility and on-street parking from the United States Access Board (https://www.access-board.gov/guidelines-and-standards/streets-sidewalks/public-rights-of- way/background/access-advisory-committee-final-report/x02-6-vehicular-ways-and-facilities). Basically, draft standards ask for ADA compliance parity with accessible off-street parking requirements for on-street parking in commercial districts and at civic facilities. The NNC, like many form-based codes, doesn't have use-based districts. I can't find any land use regulations with requirements for a certain amount of accessible on-street parking. Siting accessible parking spaces isn't possible at the regulating plan stage of a TND, because it acts as a zoning and master plan, not a site plan -- it doesn't show property lines, building locations, site features, curb cuts, utility boxes, or street furniture that would influence on-street parking locations. * Amateur radio facilities FCC ruling PRB-1 (FCC 85-506. 101 FCC 2d 952 (1985). § 97.15) pre-empts zoning, restrictive covenants, and HOA agreements to the extent of allowing an amateur station antenna structure at heights and dimensions "sufficient to accommodate effective amateur service communications". The term "effective" is left up to interpretation, and there's no pre-emption of height restrictions. It doesn't necessarily mean enabling the ability to project an S9 + 60 db signal anywhere in the world using AM modulation on the 40 meter band under poor propagation conditions, or the right to take part in niche aspects of the hobby that require outsized facilities, like low power moonbounce arrays. Requirements based on allowing "effective" communications should, at least, reasonably enable most hobby and public service aspects of amateur radio -- regional emergency communication, being able to access repeaters on VHF and UHF ham bands, long-range communications and contesting on HF bands under normal propagation conditions, experimentation with digital modes, and so on. In the decision of Howard v City of Burlington (937 F.2d 1376 (9th Cir. 1991)): "... the language of PRB-1 itself confers only a limited federal preemption, and promotes the federal interest in amateur radio operations rather than any individual operator's right to erect the antenna of his or her choice. Furthermore, it entitles the operator only to "a reasonable accommodation" between the desired antenna height and "the legitimate interests of local governments in regulating local zoning matters," not to an absolute preference." 8 From PRB-1: "We will not, however, specify any particular height limitation below which a local government may not regulate, nor will we suggest the precise language that must be contained in local ordinances, such as mechanisms for special exceptions, variances, or conditional use permits. Nevertheless, local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose." Current requirements have the Town's low density character in mind. A multi-band, multibeam Yagi on a 60' tower isn't going to appear _that_ out of place on a one acre or 15,000 square foot lot. The same setup will overwhelm a 5,000 square foot lot, though. I recommend tweaking draft NNC requirements in a way that still reasonably accommodates enable "effective" communications, while considering the scale and context of antennas and structures -- 20' maximum above the roof peak, but also allow retractable antennas that can be extended higher. Requirements in the zoning code should apply for other aspects of amateur radio facilities in a TND. * Subdivision phasing and final plat timing New York State town law seems silent on the approval timing and expiration of a phased preliminary plat. The reason for special expiration and revocation time frames for phased subdivisions in the NNC is to allow a preliminary plat to stay valid while phased areas await the final plat and building stage, but prevent the preliminary plat from being valid forever if there's unbuilt phases and development stalls. For the first phase in a phased subdivision, an applicant has 6 months from the time of preliminary plat approval to apply for final plat approval for the first phase -- same as with a "phaseless" subdivision. For the next phase, the applicant must apply for final plat approval within 3 years of final plat approval for the previous phase. This is so the project stays alive -- if there wasn't such a timeframe, the preliminary plat could stay valid forever. However, the slower pace of development in the Ithaca area could make shorter periods unworkable. The application requirement for later phases isn't tied to buildout of the previous phase, because different developers or property owners may be involved in different phases, each with their own timeframes and limitations. The optional 1 year extension to the time of preliminary plat approval to application for final plat approval is not part of state law. This allows a bit more flexibility to arrange financing, line up builders, etc, considering the slower pace of development in the area. Many subdivision regulations for towns in New York have supersession provisions for certain aspects of the subdivision review process, under authority of Municipal Home Rule Law. * Street tree placement Street tree specifications for the City of Ithaca (http://www.hort.cornell.edu/uhi/outreach/pdfs/Ithacas-Trees.pdf) are very detailed. Large trees must be planted 30' apart or less, and small trees 25' apart or less. However, it also has distance requirements from obstructions -- 20' from intersections, 35' from the front of a stop sign, 10' from a fire hydrant, 15' from a light pole, and 10' from a driveway. Conceivably, a block could have very few or no street trees, because the treeless areas around hydrants, light poles, signs, and curb cuts overlap, ruling out most viable locations for street trees. City of Ithaca specifications are unclear about resolving conflicts between tree-to-tree and tree-to- obstruction spacing. I recommend keeping the 35' average spacing (number of tall trees = block face width in feet / 35, rounded up), but also adding a provision requiring distribution of street trees along a block face to be as even as possible. If you have any thoughts or questions, please let me know. Thank you! Sincerely, 9 Dan Tasman -- Dan Tasman . Senior Planner . Town of Ithaca, New York +1 607 273 1747 . dan.tasman@town.ithaca.ny.us " Growth is inevitable and desirable, but destruction of community character is not. The question is not whether your part of the world is going to change. The question is how." -- Edward T. McMahon, Conservation Fund 1 Paulette Rosa From:Susan H. Brock <brock@clarityconnect.com> Sent:Friday, February 23, 2024 3:25 PM To:Paulette Rosa Cc:Rod Howe; CJ Randall; Daniel Thaete; Joe Slater; Marty Moseley Subject:FW: NNC provision research Second of two emails for Paulette’s file on impact fees. Susan Susan H. Brock, Attorney at Law 12 Pheasant Way Ithaca, NY 14850 tel.: 607-277-3995 fax: 607-277-8042 brock@clarityconnect.com ******************************************************************** This electronic transmission contains legally privileged and confidential information intended only for the person(s) named. Any use, distribution, copying or disclosure by any other person is strictly prohibited. If you received this message in error, please immediately notify the sender by telephone at (607) 277-3995 (collect) or send an electronic mail message to brock@clarityconnect.com. In addition, please delete all copies of this message from your computer. ******************************************************************** From: Susan H. Brock [mailto:brock@clarityconnect.com] Sent: Monday, August 05, 2019 3:14 PM To: 'Dan Tasman' <DTasman@town.ithaca.ny.us> Cc: 'Susan Ritter' <SRitter@town.ithaca.ny.us>; 'Rich DePaolo' <rdepaolo@town.ithaca.ny.us>; 'Bill Goodman' <BGoodman@town.ithaca.ny.us> Subject: RE: NNC provision research Dan, Impact fees: Some of the impact fee cases I reviewed dealt with prospective (new) infrastructure, not just existing infrastructure. The Clifton Park case I sent is one of those, although the court’s summary of facts does not make that very clear. A prior decision by the same court on a procedural issue (which I did not send you) makes it clearer that Clifton Park’s impact fees were for both existing and new infrastructure. In any event, just to make sure I did not miss anything, I still think you could check with the Town of Clifton Park or Town of Fallsburg planners to ask whether they are implementing the impact fees that you saw in their codes. If they are, I would be interested in hearing the legal authority on which they are relying. I agree with you that there is no barrier to a voluntary cost sharing/recovery agreement between willing developers. I doubt the legalities of the Town’s acting as an intermediary to pass on Developer 2 reimbursements to Developer 1, though. The other alternative you proposed (condition building permit issuance on reimbursement payment) looks more legally promising and removes the need for the Town to act as a fiscal intermediary. If a developer makes its 2 commitment to a voluntary agreement part of the developer’s application to the Planning Board, I think the Planning Board could condition its approval on submission of proof that Developer 2 paid the reimbursement to Developer 1. This seems similar to other infrastructure-related commitments developers voluntarily make in their applications, and the Planning Board routinely imposes conditions to assure that those commitments are carried out. The Planning Board has flexibility to determine when the proof should be submitted, so it could require the submission prior to issuance of building permits. On-street parking: I like your new section and wording. The only change I have is to the section lettering. Unless you are working off a revised version, the new section letter should be E instead of D, because D already exists as the “Pavement edge” section. Susan Susan H. Brock, Attorney at Law 12 Pheasant Way Ithaca, NY 14850 tel.: 607-277-3995 fax: 607-277-8042 brock@clarityconnect.com ******************************************************************** This electronic transmission contains legally privileged and confidential information intended only for the person(s) named. Any use, distribution, copying or disclosure by any other person is strictly prohibited. If you received this message in error, please immediately notify the sender by telephone at (607) 277-3995 (collect) or send an electronic mail message to brock@clarityconnect.com. In addition, please delete all copies of this message from your computer. ******************************************************************** From: Dan Tasman [mailto:DTasman@town.ithaca.ny.us] Sent: Wednesday, July 24, 2019 2:55 PM To: Susan H. Brock <brock@clarityconnect.com> Cc: Susan Ritter <SRitter@town.ithaca.ny.us>; Rich DePaolo <rdepaolo@town.ithaca.ny.us>; Bill Goodman <BGoodman@town.ithaca.ny.us> Subject: RE: NNC provision research Susan, Thank you for your research! I especially appreciate the judicial decisions with cites and highlights. Regarding reimbursement agreements, I originally drafted a longer email responding to the highlighted parts of court opinions regarding municipal impact fees. The more I look at the opinions, though, the more I realize there’s a big difference between those disputed impact fee programs, and the cost sharing provision in the New Neighborhood Code draft. • The court opinions involve municipalities charging impact fees (on top of normal connection fees) for using _existing_ infrastructure. Municipalities used the fee in a way that isn’t related to the actual impact of the development. Because the court found no rational nexus, the court sees them as taxes. • The cost sharing/recovery provision would apply to a single project (regulating plan area) that involve multiple developers/landowners. It would allow landowners/developers to agree on how to pay for and recover costs from 3 building _new_ infrastructure and amenities of mutual benefit in the regulating plan area. A cost sharing agreement would apply to a discrete group of properties – a regulating plan area -- with benefits only for the same group of properties. I don’t think the lack of a cost sharing/recovery option in the NNC itself will break the code. However, I think there’s a lot of benefit to having cost sharing/recovery as an option for TNDs involving multiple property owners, whether or not the code spells it out. It would make larger TNDs more feasible, and more palatable for the involved property owners. Without a cost sharing option, TND might be a much harder sell. I can’t see how New York State law or precedent would prevent different property owners from a voluntary agreement to share or recover the cost of building _new_ infrastructure or amenities in an equitable way, if the agreement doesn’t have an end that contravenes law/precedent/public policy. Can you think of anything offhand that would prevent an agreement or contract for cost sharing or cost recovery among willing developers? Where things start to look a bit murkier to me is if the Town is involved as an intermediary to a cost sharing/reimbursement agreement. For example, a cost sharing agreement would require Developer 2, before start to improve their part of the TND, to reimburse Developer 1 X% of the cost of improvement A. Developer 1 paid for and built improvement A, and dedicated the improvement to the Town. Before Developer 2 can improve the site, they have to pay the Town that % share of improvement A. The Town forwards the full reimbursement share to Developer 1 (or their successor), and issues the appropriate permits. Or (and I know that’s grammatically incorrect) the Town won’t issue permits for improvements until it receives proof that 2 reimbursed 1 according to the agreement. I don’t think reimbursement under those kinds of intermediary relationships would be seen as a “tax” with no rational nexus, but that’s probably a “let’s cross that bridge when we get to it” situation. Regarding accessible parking in the public right-of-way, Chapter 5 (site improvements) applies to the “lot scale” of development, not streets. The NNC has standards for streets in Chapter 3 (neighborhood design), which applies at the “neighborhood scale”. A site plan may apply to development on a lot, but not a street itself. Chapter 3 addresses on-street parking, as one of the various features of a street assembly from sidewalk edge to sidewalk edge. I’m recommending adding a new section to 272-307.7.1 (Thoroughfare and street types / Thoroughfare elements / Street surface) that goes into more detail about on-street parking. The timing of on-street parking assignment is open. [begin] D On-street parking A thoroughfare with on-street parking on only one side may have alternate side parking. The Town may assign certain on-street parking spaces as accessible parking spaces. Amount, design, siting, and design of accessible on-street parking spaces must follow state or federal accessibility guidelines or requirements. The NT 5 transect zone is a “commercial” area, and other transect zones are “non-commercial” areas, for purposes of following state or federal accessibility guidelines or regulations for on-street parking. (See §272-503.1.2 for off-street accessible parking requirements.) The Town may also reserve parts of on-street parking lanes for other purposes that benefit the public. Examples include: • Loading or waiting area. • Bus stop or bulb. • Carshare or bikeshare parking space. • Government or public safety vehicle parking space. • Taxi stand. • Vehicle charging station. 4 • Temporary valet parking station. • Temporary or periodic mobile food vending. (See §272-603.9, Mobile uses) • Temporary parklet, art display, or similar installation. [end] If you have any thoughts or questions, please let me know. Thank you! Sincerely, Dan Tasman -- Dan Tasman . Senior Planner . Town of Ithaca, New York +1 607 273 1747 . dan.tasman@town.ithaca.ny.us " Growth is inevitable and desirable, but destruction of community character is not. The question is not whether your part of the world is going to change. The question is how." -- Edward T. McMahon, Conservation Fund Home Builders Ass’n of Cent. New York v. County of Onondaga, 151 Misc.2d 886 (1991) 573 N.Y.S.2d 863 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 151 Misc.2d 886 Supreme Court, Onondaga County, New York. HOME BUILDERS ASSOCIATION OF CENTRAL NEW YORK, Petitioner, v. COUNTY OF ONONDAGA; Onondaga County Sanitary District, and John M. Karanik, Commissioner of the Onondaga County Department of Drainage & Sanitation, Respondents. Aug. 21, 1991. Synopsis Home builders association and developer sought to vacate county resolution imposing sewer connection fee as being ultra vires and declaration that sewer fees were collected illegally. The Supreme Court, Onondaga County, Reagan, J., held that: (1) sewer connection fee as established by county resolution was ultra vires, and (2) impact fee constituted tax in violation of Federal and State Constitutions. Resolution annulled. Attorneys and Law Firms **863 *886 D’Arrigo Law Office, Liverpool (Mario D’Arrigo, of counsel), for petitioner. Jon A. Gerber, County Atty., Syracuse (Michele M. Pirro, of counsel), for respondents. Opinion BERNARD L. REAGAN, Justice. The Court has before it an order to show cause brought on by petitioners/plaintiffs seeking to vacate Resolution 482–90 of the Onondaga County Legislature as being ultra vires. Petitioners Home Builders Association of Central New York, *887 Inc. and Heritage Homes also seek to enjoin respondents from imposing and collecting a sewer connection fee. The petitioners also seek a declaration that all sums collected to date and retained by the respondents as sewer collection fees were collected illegally and that judgment in favor of petitioner Heritage Homes be granted in the amount of $300.00. Petitioners argue that the resolution in question violates the Onondaga County Administrative Code, the General Municipal Law, and is also a prohibited tax. The petitioners seek relief pursuant to causes of action for declaratory judgment and pursuant to Article 78 of the CPLR. The respondents have submitted a cross-motion seeking dismissal of the petition/complaint on several grounds. **864 The various procedural issues raised by respondents in their cross-motion have no merit. In regard to the substantive issue of the validity of Resolution 482–90; the essence of respondents’ position is that an impact fee for new sewer connections may be charged provided the fee is reasonable and can be substantiated, and provided that it is based only on debt payments since the inception of the consolidated sanitary district. In support of its position the respondents cite 1985 State Comptroller’s Opinion No: 85–61, which in turn relies upon Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52, 412 N.Y.S.2d 821, 385 N.E.2d 560; and Torsoe Bros. Construction Corp. v. Board of Trustees, 49 A.D.2d 461, 375 N.Y.S.2d 612. The petitioners argue that the 1985 Comptroller’s Opinion does not express the current law accurately in light of recent court decisions; in support of this position petitioners cite Albany Area Builders Association v. Town of Guilderland, 74 N.Y.2d 372, 547 N.Y.S.2d 627, 546 N.E.2d 920; and Coconato v. Town of Esopus, 152 A.D.2d 39, 547 N.Y.S.2d 953, lv. denied 76 N.Y.2d 701, 558 N.Y.S.2d 891, 557 N.E.2d 1187. Petitioners contend that the latter two cases are the controlling authorities in the present proceeding. Petitioners seek to distinguish Watergate II Apartments v. Buffalo Sewer Authority, from the present case; arguing that while the sewer rent in Watergate was reasonably related to services rendered, the fee in this case is fixed and not related in any manner to services rendered. Petitioners also argue that the sewer rent in Watergate was charged on all properties within the district, while the Onondaga County sewer connection fee is charged only against new development. Therefore, petitioners conclude, the sewer connection fee herein bears no rational underpinning for the charges assessed. In Albany Area Builders Association v. Town of Guilderland, supra, *888 the Court of Appeals dealt with the authority of a Town to enact a Transportation Impact Fee Law. The Court of Appeals found that the State Home Builders Ass’n of Cent. New York v. County of Onondaga, 151 Misc.2d 886 (1991) 573 N.Y.S.2d 863 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Legislature had enacted a comprehensive and detailed regulatory scheme in the field of highway funding, preempting local legislation on that subject (Albany Area Builders Association v. Town of Guilderland, supra, 74 N.Y.2d at 377, 547 N.Y.S.2d 627, 546 N.E.2d 920). The Court of Appeals held that the Town’s impact fee was therefore preempted by state law. The Court of Appeals set forth that where the State has preempted the field a local law regulating the same subject matter is deemed inconsistent with the State’s interest even if the terms of the local law do not actually conflict with a statewide statute. The State Legislature need not express its intent to preempt; such intent may be implied from the nature of the subject matter being regulated and the purpose and scope of the state legislative scheme. The Court of Appeals further stated that a comprehensive, detailed statutory scheme may evidence an intent to preempt (Albany Area Builders Association v. Town of Guilderland, supra at 377, 547 N.Y.S.2d 627, 546 N.E.2d 920). In addition, the Court of Appeals explicitly stated in the Guilderland case that because the impact fee then being considered was preempted by state law it was not necessary for the Court to reach the “controversial question propounded by the parties and Amici—whether local impact fees are permitted by statute, a question that has been the subject of considerable comment and litigation in other jurisdictions.” (At page 379, 547 N.Y.S.2d 627, 546 N.E.2d 920). In the present case, the Court notes that Article 5–A of the County Law provides a comprehensive scheme for the establishment, administration, operation and improvement of county sewer districts. Pursuant to said statute the financing of such districts may be accomplished in accordance with either of two methods. The method of financing used in Onondaga County has been to impose a system of sewer rents as provided by Article 14–F of the General Municipal Law, this being one of the alternative procedures provided for by Article 5–A (see YMCA v. Rochester Pure Waters District, 44 A.D.2d 219, 221–222, 354 N.Y.S.2d 201). The establishment and imposition of sewer rents as defined in Article 14–F of the General Municipal Law **865 is posited in Onondaga County Administrative Code § 11.79(a). Section 11.70 of the Onondaga County Administrative Code provides that revenues may be generated for the sewer district by assessments of the various parcels benefited by the sewer *889 system on either a benefit basis or an ad valorem basis; or revenues may be raised as authorized by the sewer rent law. The sewer connection fee is a one time charge. Therefore, the sewer connection fee is not a sewer rent, as Article 14–F of the General Municipal Law defines sewer rents as a scale of annual charges established and imposed in a sewer district (General Municipal Law § 451), nor is the sewer connection fee a special assessment to be charged annually, respondents admit that it is an impact fee. The State Legislature, in the County Law and General Municipal Law has provided a comprehensive scheme regulating sewer districts, which manifests an attempt to preempt said regulation to local sewer districts (see Coconato v. Town of Esopus, supra). Consequently, there is no authority for the County’s adoption of a local law or resolution establishing an impact fee which would supersede the State regulatory scheme. As such, the sewer connection fee as established by Resolution 482–900 is ultra vires. The Court also notes that even assuming the respondents had sufficient authority to impose the connection fee, Resolution 482–90 is unconstitutional as applied since it imposes a uniform fee on all property newly connecting to the sewer system of the district without regard to whether the development has necessitated an expansion of existing facilities, or whether the builders who have had such a fee assessed against them, or the new home owners will be primarily or proportionately benefited by any such expansion. Therefore, the impact fee constitutes a tax, violative of the Federal and State Constitutions (see Coconato v. Town of Esopus, supra, 152 A.D.2d at 44, 547 N.Y.S.2d 953, leave to appeal denied, 76 N.Y.2d 701, 558 N.Y.S.2d 891, 557 N.E.2d 1187). In accordance with the above analysis, the Court finds Resolution 482–90 as being ultra vires, invalid, null and void. Said resolution is annulled, vacated and set aside pursuant to the demands in the petition/complaint herein. Respondents are hereby enjoined and prohibited from imposing and collecting the sewer connection fees set forth in Resolution 482–90. All sums collected to date and retained by the respondents pursuant to Resolution 482–90 should be returned to those individuals or entities who paid the fee. The Court finds it unnecessary to reach any of the other issues raised in the petition/complaint or the cross-motion of respondents. [Portions of opinion omitted for purposes of publication.] All Citations 151 Misc.2d 886, 573 N.Y.S.2d 863 Home Builders Ass’n of Cent. New York v. County of Onondaga, 151 Misc.2d 886 (1991) 573 N.Y.S.2d 863 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Home Builders Ass’n of Cent. New York v. County of Onondaga, 151 Misc.2d 886 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 History There are no History results for this citation. Albany Area Builders Ass’n v. Town of Guilderland, 74 N.Y.2d 372 (1989) 546 N.E.2d 920, 547 N.Y.S.2d 627, 58 USLW 2279 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Vatore v. Commissioner of Consumer Affairs of City of New York, N.Y., May 5, 1994 74 N.Y.2d 372 Court of Appeals of New York. ALBANY AREA BUILDERS ASSOCIATION et al., Respondents, v. TOWN OF GUILDERLAND, Appellant. Oct. 26, 1989. Synopsis Builders and builders association brought action challenging town’s transportation impact fee law. The Supreme Court, Appellate Division, 141 A.D.2d 293, 534 N.Y.S.2d 791, found the law invalid, and town appealed. The Court of Appeals, Kaye, J., held that law was preempted by state law. Affirmed. Attorneys and Law Firms *373 **920 ***627 Kenneth D. Runion, for appellant. James T. Potter and Kirk M. Lewis, Albany, for respondents. *374 A. Kevin Crawford and Donna M.C. Giliberto, for the Ass’n of Towns of the State of New York and another, amici curiae. Terry Rice, for the New York Planning Federation and another, amici curiae. *375 OPINION OF THE COURT KAYE, Judge. The Town Board of defendant Town of Guilderland, a suburban community in Albany County, has projected that its population will increase substantially during the ***628 next 20 years, that such an increase will **921 directly and adversely affect the existing transportation network, and that the road system would have to be expanded. The Board further found that current revenue sources were insufficient to fund the necessary capital improvements. On the stated theory that “[n]ew development should contribute its fair share of the costs of providing new facilities necessary to accommodate said new development,” the Board adopted a local law entitled the Transportation Impact Fee Law (TIFL). The validity of that law is the issue before us today. TIFL provides that applicants for building permits who seek to make a change in land use that will generate additional traffic must pay a transportation “impact fee” when the permit is issued. The size of the fee is determined by a detailed schedule set forth in the law, which assesses fees based on size and use of the proposed development—the intention being to impose on the fee payer only “the fair share cost of improved roadways necessitated by the new development.” Alternatively, the law allows applicants to submit their own fee calculation study, but they must use a methodology prescribed in TIFL and must pay the Town 3% of the fee estimated by the independent study (up to $4,000) for “review and processing the study.” Limited credits are allowed for roadway improvements. Builders receive no credit, however, for site-related improvements, and the credits are available only as against specific portions of the total impact fee. To obtain the credit, the applicant must present cost estimates and property appraisals prepared by qualified professionals, and post a performance bond or irrevocable letter of credit equal to 110% of the cost of construction. Finally, TIFL provides that all fees collected are to be deposited in a trust fund maintained by the Town, *376 and that the moneys shall be spent only for capital improvement, and for expansion of the roadway network and transportation facilities within the Town. No funds are to be used for routine maintenance. Plaintiffs—two builders’ associations and three individual building companies—have challenged the Town’s authority to enact TIFL. They urge that the Town was without constitutional or statutory authority to enact TIFL, that impact fees are not permissible land use regulations, and that TIFL is both inconsistent with and preempted by existing State laws. The Town contends that TIFL is a permissible land use regulation authorized by section 10 of the Municipal Home Rule Law. The Appellate Division declared TIFL invalid, concluding that Albany Area Builders Ass’n v. Town of Guilderland, 74 N.Y.2d 372 (1989) 546 N.E.2d 920, 547 N.Y.S.2d 627, 58 USLW 2279 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 no statutory authority empowered the Town to enact the law, and that it is in any event preempted by the general laws regulating the funding of roadway improvements. 141 A.D.2d 293, 534 N.Y.S.2d 791. We granted leave to appeal, and now affirm on the second ground. It is a familiar principle that the lawmaking authority of a municipal corporation, which is a political subdivision of the State, can be exercised only to the extent it has been delegated by the State. While the Legislature has retained authority in matters of State concern, it has empowered municipalities to legislate in a wide range of matters relating to local concern (see, Kamhi v. Town of Yorktown, 74 N.Y.2d 423, 548N.Y.S.2d 144, 547 N.E.2d 346 [decided today]; New York State Club Assn. v. City of New York, 69 N.Y.2d 211, 217, 513 N.Y.S.2d 349, 505 N.E.2d 915, affd. 487 U.S. 1, 108 S.Ct. 2225, 101 L.Ed.2d 1). So long as local legislation is not inconsistent with the State Constitution or any general law, localities may adopt local laws both with respect to their “property, affairs or government” (see, N.Y. Const., art. IX, § 2[c][i]; Municipal Home Rule Law § 10[1] [i] ), and with respect to other enumerated subjects, except “to the extent that the legislature shall restrict the adoption of such a local law”. (See, N.Y. Const, art. IX, § 2[c][ii]; Municipal Home Rule Law § 10[1][ii].) The Town urges that these home rule powers encompass TIFL. In support of its position the Town points to provisions of the Municipal Home Rule ***629 Law that permit towns to enact local laws that relate to their “property, affairs or **922 government” (§ 10[1][i] ); to the acquisition, care, management and use of local roads (§ 10[1][ii][a][6] ); to the acquisition, ownership and operation of transit facilities (§ 10[1] [ii][a][7] ); to the fixing, levy, collection and administration of local *377 government fees (§ 10[1][ii][a][9–a] ); and to the amendment or supersession, in their local application, of provisions of the Town Law (§ 10[1][ii][d][3] ). We need not decide whether TIFL in fact falls within any of these delegated powers, however, because it is in any event preempted by State law. The preemption doctrine represents a fundamental limitation on home rule powers (see, Dougal v. County of Suffolk, 65 N.Y.2d 668, 491 N.Y.S.2d 622, 481 N.E.2d 254, affg. on opn. at 102 A.D.2d 531, 532, 477 N.Y.S.2d 381; 5 McQuillin, Municipal Corporations § 15.20, at 101–104 [3d ed. 1989] ). While localities have been invested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies “the untrammeled primacy of the Legislature to act * * * with respect to matters of State concern.” (Wambat Realty Corp. v. State of New York, 41 N.Y.2d 490, 497, 393 N.Y.S.2d 949, 362 N.E.2d 581.) Preemption applies both in cases of express conflict between local and State law and in cases where the State has evidenced its intent to occupy the field (see, e.g., Matter of Lansdown Entertainment Corp. v. New York City Dept. of Consumer Affairs, 74 N.Y.2d 761, 545 N.Y.S.2d 82, 543 N.E.2d 725 [express conflict]; Consolidated Edison Co. v. Town of Red Hook, 60 N.Y.2d 99, 468 N.Y.S.2d 596, 456 N.E.2d 487 [intent to occupy the field] ). Where the State has preempted the field, a local law regulating the same subject matter is deemed inconsistent with the State’s transcendent interest, whether or not the terms of the local law actually conflict with a State-wide statute. Such local laws, “were they permitted to operate in a field preempted by State law, would tend to inhibit the operation of the State’s general law and thereby thwart the operation of the State’s overriding policy concerns.” (Jancyn Mfg. Corp. v. County of Suffolk, 71 N.Y.2d 91, 97, 524 N.Y.S.2d 8, 518 N.E.2d 903.) Moreover, the Legislature need not express its intent to preempt (New York State Club Assn. v. City of New York, supra, 69 N.Y.2d at 217, 513 N.Y.S.2d 349, 505 N.E.2d 915). That intent may be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area (see, Robin v. Incorporated Vil. of Hempstead, 30 N.Y.2d 347, 334 N.Y.S.2d 129, 285 N.E.2d 285). A comprehensive, detailed statutory scheme, for example, may evidence an intent to preempt. Applying these principles to the case at hand, we hold that the State Legislature has enacted a comprehensive and detailed regulatory scheme in the field of highway funding, preempting local legislation on that subject. By several provisions *378 of the Town Law and Highway Law, the Legislature has evidenced its decision to regulate how roadway improvements are budgeted, how these improvements are financed, and how moneys for these improvements are to be expended. With respect to the budget process, article 8 of the Town Law establishes an elaborate “budget system” (Town Law § 102), which delineates how towns are to budget for improvements and repairs to highways (see, Matter of Petito v. O’Keefe, 52 Misc.2d 28, 30, 275 N.Y.S.2d 106, affd. 26 A.D.2d 991, 275 N.Y.S.2d 802, lv. denied 18 N.Y.2d 583, 276 N.Y.S.2d 1026, 222 N.E.2d 746). Under that system, which requires disclosure of sources of revenue and proposed expenditures, towns are held accountable for public funds (see, e.g., Town Law §§ 107, 108 and 109 [requiring preparation and disclosure of Albany Area Builders Ass’n v. Town of Guilderland, 74 N.Y.2d 372 (1989) 546 N.E.2d 920, 547 N.Y.S.2d 627, 58 USLW 2279 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 preliminary and final budgets and public hearings] ). Indeed, Highway Law § 141, together with Town Law § 104, mandates that prior to the preparation of a town budget, the town ***630 superintendent submit an estimate showing the amount to be raised by taxation for the **923 construction, improvement, maintenance and repair of town highways. The Legislature has also explicitly limited the amount a town can raise by taxation for highway purposes (see generally, Matter of Flike v. Strobel, 252 App.Div. 35, 37, 297 N.Y.S. 412). Town Law § 107(3) provides that amounts to be raised by tax for highway purposes must be within the limitations of the Highway Law. Section 271 of the Highway Law, in turn, provides detailed restrictions on the amounts to be raised for improvements to highways, with varying limits depending on the town and the purpose of the improvement. The manner in which funds are expended is also closely regulated by the Highway Law (see, Myruski v. Town Bd., 87 Misc.2d 1063, 386 N.Y.S.2d 984; Matter of Carlisle v. Burke, 82 Misc. 282, 144 N.Y.S. 163; 14 Opns.St.Comp. No. 58–184, at 72). Sections 284 through 285–a detail how funds are to be expended, requiring a written agreement between the town board, the town superintendent of highways, and the county superintendent of highways; funds for highway improvements may be paid out only “on vouchers approved by the town superintendent in accordance with such written agreement.” (Highway Law § 284.) These provisions of State law, which safeguard the public fisc, “are grounded in the general principles of fiscal responsibility and the accountability that underpins the regulation of all public conduct”. (Matter of Korn v. Gulotta, 72 N.Y.2d 363, 373, 534 N.Y.S.2d 108, 530 N.E.2d 816; Coggeshall v. Hennessey, 279 N.Y. 438, 18 N.E.2d 652; see also, 14 Opns.St.Comp. No. 58–184, at 72.) The purpose, number and specificity *379 of these statutes make clear that the State perceived no real distinction between the particular needs of any one locality and other parts of the State with respect to the funding of roadway improvements, and thus created a uniform scheme to regulate this subject matter (see, People v. De Jesus, 54 N.Y.2d 465, 468, 446 N.Y.S.2d 207, 430 N.E.2d 1260). It is equally manifest that TIFL intrudes on the legislative scheme in at least two significant respects. First, because TIFL directs moneys be paid into a separate fund, those moneys may escape the budgetary process established to regulate highway funding. Second, TIFL allows towns to evade statutory requirements for budgeting, accounting for revenues and documenting expenditures. In contrast to these directives, TIFL merely provides for payment into a trust fund, with funds to be used “for the purpose of capital improvements.” Thus, as the Appellate Division correctly observed: “Permitting towns to raise revenues with impact fees would allow towns to circumvent the statutory restrictions on how money is raised and, further, would permit towns to create a fund of money subject to limited accountability, not subject to the statutory requirements governing how funds for highway improvements are spent.” (141 A.D.2d 293, 300, 534 N.Y.S.2d 791 [citations omitted].) We therefore conclude that the State has evidenced a purpose and design to preempt the subject of roadway funding and occupy the entire field, so as to prohibit additional local regulation. In that TIFL is preempted by State law, we need not reach the controversial question propounded by the parties and amici—whether local “impact fees” are permitted by statute, a question that has been the subject of considerable comment1 and litigation in other jurisdictions.2 *380 **924 ***631 Accordingly, the order of the Appellate Division should be affirmed, with costs. WACHTLER, C.J., and SIMONS, ALEXANDER, TITONE, HANCOCK and BELLACOSA, JJ., concur. Order affirmed, with costs. All Citations 74 N.Y.2d 372, 546 N.E.2d 920, 547 N.Y.S.2d 627, 58 USLW 2279 Footnotes 1 See generally, Sweeney, The “Impact Fee”, An Exciting and Troublesome Concept, 60 NYSBJ 52 (Oct.1988); Larsen & Zimet, Impact Fees: Et Tu, Illinois?, 21 J Marshall L.Rev. 489 (1988); Bauman & Ethier, Development Exactions and Impact Fees: A Survey of American Practices, 50 Law & Contemp.Probs. 51 (Winter 1987); Nicholas, Impact Exactions: Economic Theory, Practice, and Incidence, 50 Law & Contemp.Probs. 85 (Winter 1987); Juergensmeyer & Blake, Impact Fees: An Answer to Local Governments’ Albany Area Builders Ass’n v. Town of Guilderland, 74 N.Y.2d 372 (1989) 546 N.E.2d 920, 547 N.Y.S.2d 627, 58 USLW 2279 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 Capital Funding Dilemma, 9 Fla.St. UL Rev. 415 (1981); Jacobsen & Redding, Impact Taxes: Making Development Pay its Way, 55 N.C.L.Rev. 407 (1977). 2 Compare, e.g., New Jersey Bldrs. Assn. v. Mayor of Bernards Twp., 108 N.J. 223, 528 A.2d 555, with Russ Bldg. Partnership v. City & County of San Francisco, 188 Cal.App.3d 977, 234 Cal.Rptr. 1, appeal dismissed 484 U.S. 909, 108 S.Ct. 253, 98 L.Ed.2d 211; and Call v. City of W. Jordan, 606 P.2d 217 (Utah). End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Albany Area Builders Ass’n v. Town of Guilderland, 74 N.Y.2d 372 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 History (3) Direct History (3) 1. Albany Area Builders Ass’n v. Town of Guilderland 141 A.D.2d 293 , N.Y.A.D. 3 Dept. , Nov. 10, 1988 Appeal Granted by 2. Albany Area Builders Ass’n v. Town of Guilderland 73 N.Y.2d 709 , N.Y. , Apr. 04, 1989 AND Order Affirmed by 3. Albany Area Builders Ass’n v. Town of Guilderland 74 N.Y.2d 372 , N.Y. , Oct. 26, 1989 Phillips v. Town Of Clifton Park Water Authority, 286 A.D.2d 834 (2001) 730 N.Y.S.2d 565, 2001 N.Y. Slip Op. 07235 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Howitt Enterprises Sweden, Inc. v. Monroe County Water Authority, N.Y.A.D. 4 Dept., June 6, 2008 286 A.D.2d 834 Supreme Court, Appellate Division, Third Department, New York. In the Matter of Robert L. PHILLIPS et al., Appellants, v. TOWN OF CLIFTON PARK WATER AUTHORITY et al., Respondents. Sept. 27, 2001. Synopsis Property owners who constructed two new buildings brought article 78 proceeding, challenging town water authority’s assessment of source and storage fees. The Supreme Court, Saratoga County, Williams, J., entered judgment in favor of water authority, and property owners appealed. The Supreme Court, Appellate Division, Carpinello, J., held that one-time source and storage fees were impermissible tax. Reversed. Attorneys and Law Firms **566 Pentkowski, Pastore & Freestone (Michael J. Hutter of Thuillez, Ford, Gold & Johnson, Albany, of counsel), Clifton Park, for appellants. Robert D. Wilcox, Troy, for respondents. Rosemary Nichols, Clifton Park, for National Association of Home Builders and others, amici curiae. Before: CARDONA, P.J., CREW III, PETERS, SPAIN and CARPINELLO, JJ. Opinion *834 CARPINELLO, J. Appeal from a judgment of the Supreme Court (Williams, J.), entered January 28, 2000 in Saratoga County, which dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Town of Clifton Park Water Authority assessing source and storage fees for its water system. A detailed factual analysis of the instant controversy has been set forth by this Court on two prior occasions and thus will not be repeated herein (243 A.D.2d 911, 662 N.Y.S.2d 867; 215 A.D.2d 924, 626 N.Y.S.2d 865). Briefly, petitioners, owners of commercial property in the Town of Clifton Park, Saratoga County, challenge the assessment by respondent Town of Clifton Park Water Authority (hereinafter the Water Authority) of $22,000 in “source” and “storage” fees on two newly constructed office buildings. The origin of these fees, which petitioners claim are actually an invalid tax, is the Water Authority’s 1992 adoption of a “Water Service Fee Schedule” setting forth charges for the use of its integrated water system. Under this fee schedule, “[a]ll property proposed for subdivision or change in use” was charged, in addition to the standard turn-on, meter inspection and hook-up fees, a one-time “source” and “storage” fee. Following a nonjury trial, Supreme Court dismissed the petition, adopting in toto the findings of fact and conclusions of law as prepared by respondents’ counsel, without specifically addressing petitioners’ primary challenge to the assessment, i.e., that the source and storage fees constitute an invalid tax. Upon our review of the record, we are compelled to the conclusion that that portion of the Water Authority’s fee structure which imposes source and storage “fees” only on properties proposed for subdivision or change in use, i.e., new construction, indeed imposes an impermissible tax, not a fee, and is therefore unlawful. Accordingly, we reverse Supreme Court’s judgment and grant the petition. It is undisputed that a public authority cannot levy taxes, which “go to the support of government without any necessity to relate them to particular benefits received by the taxpayer” (Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 58, 412 N.Y.S.2d 821, 385 N.E.2d 560). It can, however, exact fees, which are characterized as “a visitation of the costs of special services upon the one who derives a benefit from them” (Jewish Reconstructionist Synagogue of N. Shore v. Incorporated Vil. of Roslyn Harbor, 40 N.Y.2d 158, 162, 386 N.Y.S.2d 198, 352 N.E.2d 115 [emphasis *835 in original]; see, Public Authorities Law § 1120–d [20] ).1 Indeed, “ [t]o **567 the extent that fees charged are exacted for revenue purposes or to offset the cost of general governmental functions they are invalid as an unauthorized tax” (Matter of Torsoe Bros. Constr. Corp. v. Board of Trustees of Inc. Phillips v. Town Of Clifton Park Water Authority, 286 A.D.2d 834 (2001) 730 N.Y.S.2d 565, 2001 N.Y. Slip Op. 07235 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Vil. of Monroe, 49 A.D.2d 461, 465, 375 N.Y.S.2d 612; see, New York Tel. Co. v. City of Amsterdam, 200 A.D.2d 315, 317, 613 N.Y.S.2d 993; Orange & Rockland Utils. v. Town of Clarkstown, 80 A.D.2d 846, 847, 444 N.Y.S.2d 670). To be sure, the law does not permit a municipality to charge “newcomers” an impact fee to cover expansion costs of an existing water facility absent a demonstration that such a fee is necessitated by the particular project (as opposed to future growth and development in that municipality generally) or a demonstration that such newcomer would be primarily or proportionately benefitted by the expansion (see, Albany Area Bldrs. Assn. v. Town of Guilderland, 141 A.D.2d 293, 298, 534 N.Y.S.2d 791, affd. 74 N.Y.2d 372, 547 N.Y.S.2d 627, 546 N.E.2d 920; Home Bldrs. Assn. v. County of Onondaga, 151 Misc.2d 886, 573 N.Y.S.2d 863; see also, Giuliani v. Hevesi, 228 A.D.2d 348, 644 N.Y.S.2d 265, mod. 90 N.Y.2d 27, 659 N.Y.S.2d 159, 681 N.E.2d 326). Here, the record clearly establishes that the source and storage fees (which are assessed only on projects involving new construction) actually fund improvements to the water system which benefit everyone in the water district. The evidence is also clear that petitioners’ specific project did not require any improvements to the system. For example, the administrator of the Water Authority testified that the improvements to the water system impact all users of the system. Similarly, when asked on direct examination if “there [is] anyone in the service area of the Water Authority not benefitted by the storage improvements”, respondents’ own licensed professional engineer, who was involved in developing the challenged fee structure, unequivocally testified, “No.” This same engineer further conceded that other capital improvements to the existing system also benefit everyone in the district. Particularly noteworthy are the following exchanges during his cross-examination: Q. * * * And you have just told us the improvements you have described, everybody in the water district benefits from them, don’t they? A. That’s true. *836 Q. But, in fact, some people pay source and storage fees that contribute to that expense and other people don’t, correct? * * * Q. Right? A. Say it again. Q. The improvements you have described in the Clifton Park Water District, everyone benefits from, but some people contribute to the cost of that through source and storage fees and others don’t? A. To some degree that’s true, yes. * * * Q. Isn’t it true by making the improvement, everybody in the district benefitted? A. Yes. **568 Q. Isn’t it true when you created new wells down at Vischers Ferry, everyone in the district benefitted? A. Yes. Q. Isn’t it true that when you built the storage tank on Knolltop, the pressure was better and essentially everybody in the system benefitted? A. No, that’s not true. Q. A lot of the existing users benefitted from that, right? A. That’s correct. The crux of respondents’ argument at the trial was that it is not “fair” to charge existing users for capital improvements to meet new demand created by growth generally, a classic “welcome stranger” philosophy. While perhaps a strong equitable concept, the law does not support it. Because the subject fees impose the burden of these capital improvements upon a discrete group of residents, even though the benefit is enjoyed by all, the true nature of the subject source and storage fees is that of a prohibited tax (see, Coconato v. Town of Esopus, 152 A.D.2d 39, 547 N.Y.S.2d 953, lv. denied 76 N.Y.2d 701, 558 N.Y.S.2d 891, 557 N.E.2d 1187; Albany Area Bldrs. Assn. v. Town of Guilderland, 141 A.D.2d 293, 534 N.Y.S.2d 791, supra; Matter of Torsoe Bros. Constr. Corp. v. Board of Trustees of Inc. Vil. of Monroe, 49 A.D.2d 461, 465, 375 N.Y.S.2d 612, supra; Home Bldrs. Assn. v. County of Onondaga, 151 Misc.2d 886, 573 N.Y.S.2d 863, supra ). In advancing the propriety of the Water Authority’s “fee”, respondents argue that it is lawful for petitioners to be required to contribute their fair share to past costs expended to develop and maintain the intact water Phillips v. Town Of Clifton Park Water Authority, 286 A.D.2d 834 (2001) 730 N.Y.S.2d 565, 2001 N.Y. Slip Op. 07235 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 system. We find no authority in the law for this position. To the contrary, this Court’s prior decisions clearly reject such a theory. In Albany Area Bldrs. Assn. v. Town of Guilderland, supra, we held that “[t]o the extent *837 that the transportation impact fee imposes the expense of highway improvements upon a small group of home buyers even though the benefit of such improvements is enjoyed by the public generally, this fee indeed resembles a tax” (id., at 298, 534 N.Y.S.2d 791). This principle was squarely reaffirmed in Coconato v. Town of Esopus, supra, wherein we similarly rejected an attempt to justify a hook-up fee to the town water system as an entrance fee to be applied only to new users of the system. These cases speak directly to the issue at bar and denounce the imposition of a one-time impact fee even where a municipal newcomer admittedly reaps the benefit of an existing intact infrastructure (see also, Matter of Torsoe Bros. Constr. Corp. v. Board of Trustees of Inc. Vil. of Monroe, supra; see generally, Video Aid Corp. v. Town of Wallkill, 203 A.D.2d 554, 610 N.Y.S.2d 610, mod. on other grounds 85 N.Y.2d 663, 628 N.Y.S.2d 18, 651 N.E.2d 886). Indeed, all new residents in any municipality reap the benefit of the existing municipal infrastructure which, before their arrival in that community, were paid for by those already present. However “unfair” to existing residents, the law simply does not permit charging a fee only to newcomers to equalize the financial burden between them and long-time residents who have paid for an existing infrastructure. In light of our conclusion that the subject fees are unlawful as an invalid tax, we need not reach petitioners’ constitutional challenge. ORDERED that the judgment is reversed, on the law, without costs, and petition granted. CARDONA, P.J., CREW III, PETERS and SPAIN, JJ., concur. All Citations 286 A.D.2d 834, 730 N.Y.S.2d 565, 2001 N.Y. Slip Op. 07235 Footnotes 1 Relatedly, even where a fee is properly imposed, the amount thereof must be based on reliable factual studies and statistics and must bear a reasonable correlation to the average, associated cost of the service provided (see, Jewish Reconstructionist Synagogue of N. Shore v. Incorporated Vil. of Roslyn Harbor, supra; Coconato v. Town of Esopus, 152 A.D.2d 39, 43, 547 N.Y.S.2d 953, lv. denied 76 N.Y.2d 701, 558 N.Y.S.2d 891, 557 N.E.2d 1187; Orange & Rockland Utils. v. Town of Clarkstown, 80 A.D.2d 846, 444 N.Y.S.2d 670; Matter of Torsoe Bros. Constr. Corp. v. Board of Trustees of Inc. Vil. of Monroe, 49 A.D.2d 461, 465, 375 N.Y.S.2d 612). End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Phillips v. Town Of Clifton Park Water Authority, 286 A.D.2d 834 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 History (4) Direct History (2) 1. Phillips v. Town Of Clifton Park Water Authority 286 A.D.2d 834 , N.Y.A.D. 3 Dept. , Sep. 27, 2001 Leave to Appeal Denied by 2. Phillips v. Town of Clifton Park Water Authority 97 N.Y.2d 613 , N.Y. , Mar. 26, 2002 Related References (2) 3. Phillips v. Town of Clifton Park Water Authority 215 A.D.2d 924 , N.Y.A.D. 3 Dept. , May 18, 1995 Appeal After Remand 4. Phillips v. Town of Clifton Park Water Authority 243 A.D.2d 911 , N.Y.A.D. 3 Dept. , Oct. 16, 1997 Coconato v. Town of Esopus, 152 A.D.2d 39 (1989) 547 N.Y.S.2d 953 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 152 A.D.2d 39 Supreme Court, Appellate Division, Third Department, New York. Anthony COCONATO et al., Doing Business as REHA Associates II, Respondents, v. TOWN OF ESOPUS, Appellant. Nov. 22, 1989. Synopsis Real estate developers brought a challenge to Town Law which required all new customers of water district to pay an initial hookup fee, fixed by subsequent resolution at $1,000 per dwelling unit and $1 per square foot of nonresidential space, and which provided that the fees would be deposited into a special account, to be used solely for capital developments in the district. The Supreme Court, Ulster County, Bradley, J., entered summary judgment for developers, and town appealed. The Supreme Court, Appellate Division, Mercure, J., held that the law was invalid. Affirmed. Attorneys and Law Firms **954 *41 Kellar & Kellar (Leslie F. Couch of Couch, White, Brenner, Howard & Feigenbaum, Albany, of counsel), Kingston, for appellant. Riseley, Riseley, Gruner & Salzmann (Richard F. Riseley, Jr., of counsel), Kingston, for respondents. OPINION *44 Before KANE, J.P., and CASEY, MIKOLL, YESAWICH and MERCURE, JJ. Opinion MERCURE, Justice. On June 11, 1986, defendant enacted Local Laws 1986 No. 3 of the Town of Esopus which required all new customers of the Port Ewen Water District (hereinafter the District) in Ulster County to pay an initial hook up fee, fixed by subsequent resolution at $1,000 per dwelling unit and $1 per square foot of nonresidential space, and provided that the fees so collected be deposited into a special account, to be used solely for capital developments in the District. Plaintiffs are real estate developers who proposed an extensive “planned unit development” within defendant’s borders and were advised approximately one month prior to the granting of final approval that the provisions of defendant’s Local Law No. 3 applied to their project, resulting in hook up fees of $170,000. *42 Plaintiffs commenced this action seeking a declaration that Local Law No. 3 is illegal and void. Eventually, plaintiffs moved and defendant cross-moved for summary judgment. Supreme Court, inter alia, granted plaintiffs’ **955 motion for summary judgment and declared Local Law No. 3 to be invalid. Defendant appeals. There should be an affirmance. We begin our analysis by noting that “local governments do not have inherent power to adopt local laws, but may only exercise those powers expressly granted to them by the State Constitution or the Legislature” (Albany Area Bldrs. Assn. v. Town of Guilderland, 141 A.D.2d 293, 296, 534 N.Y.S.2d 791, affd. 74 N.Y.2d 372, 547 N.Y.S.2d 627, 546 N.E.2d 920; see, 41 Kew Gardens Rd. Assocs. v. Tyburski, 70 N.Y.2d 325, 332, 520 N.Y.S.2d 544, 514 N.E.2d 1114; County Sec. v. Seacord, 278 N.Y. 34, 37, 15 N.E.2d 179). If a local government acts beyond the scope of authority granted to it, its acts will be considered unconstitutional. At the same time, a duly enacted local law is presumed to be constitutional and “[d]efeating this presumption places a heavy burden, at the threshold, on the party challenging the local law” (41 Kew Gardens Rd. Assocs. v. Tyburski, supra, 70 N.Y.2d at 333, 520 N.Y.S.2d 544, 514 N.E.2d 1114). Defendant’s initial claim is that authority for the local law is found in Town Law § 198(3)(a), which, it contends, authorizes imposition of the hook up fee as a uniform installation service charge. We disagree. Town Law § 198(3)(a) refers to “that portion of a supply pipe within the bounds of a public highway” and provides for “a uniform service charge for the installation of such portion of a supply pipe” (emphasis supplied), but only if the town performs the installation. Here, the plans provided for plaintiffs’ installation, construction and retention of ownership of all water supply pipes and roads Coconato v. Town of Esopus, 152 A.D.2d 39 (1989) 547 N.Y.S.2d 953 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 within the project and that plaintiffs make all connections to District mains, rendering Town Law § 198(3)(a) inapplicable to the project. We also note the failure of defendant’s Town Board to adopt a resolution governing the installation of plaintiffs’ supply pipe, as required by Town Law § 198(3)(a). We also reject defendant’s contention that Local Law No. 3 was authorized pursuant to N.Y. Constitution, article IX, § 2 and Municipal Home Rule Law § 10. The means by which revenues are raised and expended for the purpose of acquiring or constructing capital improvements or additional facilities in a town water district is already the subject of considerable regulation. Articles 12 and 12–A of the Town Law establish a comprehensive scheme for financing water district improvements, manifesting the Legislature’s intent to preempt the *43 area of financing capital improvements to town water districts (see, Albany Area Bldrs. Assn. v. Town of Guilderland, supra, 141 A.D.2d at 299–300, 534 N.Y.S.2d 791). Town Law § 202–b, governing the financing of improvements or additions to water district facilities, provides that any cost or expense incurred in the acquisition of additional facilities or improvements to existing facilities shall be a charge against the entire district and assessed, levied and collected in the same manner as other charges against the particular district. Significantly, there is no authority for a town’s adoption or amendment of a local law amending or superseding a State statute relating to a special or improvement district or an improvement area (see, Municipal Home Rule Law § 10[1][ii][d][3]; cf., Kamhi v. Town of Yorktown, 74 N.Y.2d 423, 432, 548 N.Y.S.2d 144, 547 N.E.2d 346 [1989] ). Additionally, since the expenses of construction and maintenance of the facilities of the District have, since its establishment in 1936, been assessed pursuant to Town Law § 202(3) on an ad valorem basis, all future assessments must be levied on the same basis (see, 1986 Opns St Comp No. 86–10, at 17; 1978 Opns St Comp No. 78–785, at 151; see also, 63 NY Jur, Waterworks, § 67, at 565–566). There is no provision in the Town Law which allows a town to change the basis of assessment following the establishment of a water district (1986 Opns St Comp No. 86–10, at 17; see, Municipal Home Rule Law § 10 [1] [ii][d] ). Nor can defendant’s hook up fee be justified as an entrance fee to allow new users to use the water district system. It is well settled, under the power to regulate, that the license fee “cannot be **956 greater than a sum reasonably necessary to cover the costs of issuance, inspection and enforcement” (Matter of Torsoe Bros. Constr. Corp. v. Board of Trustees of Inc. Vil. of Monroe, 49 A.D.2d 461, 465, 375 N.Y.S.2d 612). Defendant’s final argument with respect to its authority to charge for providing water facilities is that the State Constitution grants municipal water systems the right to make a “fair return * * * over and above costs of operation and maintenance and necessary and proper reserves” (N.Y. Const., art. IX, § 1[f][1] ). Although Town Law § 198(3)(d) authorizes a town board to set and raise water rates (see, 1986 Opns St Comp No. 86–10, at 17; 1983 Opns St Comp No. 83–116, at 145), a charge for hook up to a town water system is not within its purview. Furthermore, we agree with Supreme Court’s conclusion that the use of funds collected for capital reserves would be unlawful and that improvements to the District may not be financed by a capital reserve fund. The provision of Local Law No. 3 that the initial hook up fees shall be deposited in a “special account” or fund to be used “solely for capital improvements in the Port Ewen Water District” violates the proscription against a town’s establishment of capital reserve funds to finance all or part of the cost of improvements to be constructed, reconstructed or acquired or equipment to be acquired, on behalf of an improvement district within such town (General Municipal Law § 6–c[3][a]; see, 1977 Opns St Comp No. 77–657, at 135). Finally, even assuming that defendant had sufficient authority to impose the hook up fees, Local Law No. 3 is unconstitutional as applied in this case since it imposes a uniform fee on all new dwelling units without regard to whether the development has necessitated an expansion of existing facilities or whether plaintiffs will be primarily and proportionately benefitted by any such expansion (see, Kamhi v. Town of Yorktown, supra, 74 N.Y.2d at 435, 548 N.Y.S.2d 144, 547 N.E.2d 346). As such, the fee constitutes a tax, prohibited by the Municipal Home Rule Law and violative of the Federal and State Constitutions (see, Albany Area Bldrs. Assn. v. Town of Guilderland, 141 A.D.2d 293, 298–299, 534 N.Y.S.2d 791, supra; Juleah Co. v. Incorporated Vil. of Roslyn, 88 Misc.2d 809, 389 N.Y.S.2d 958, affd. 56 A.D.2d 483, 392 N.Y.S.2d 926, affd. 44 N.Y.2d 845, 406 N.Y.S.2d 760, 378 N.E.2d 123; see also, U.S. Const., 14th Amend.; N.Y. Const., art. I, § 11; Municipal Home Rule Law § 10[1][ii][d][3] ). Judgment affirmed, with costs. KANE, J.P., and CASEY, MIKOLL and YESAWICH, JJ., concur. Coconato v. Town of Esopus, 152 A.D.2d 39 (1989) 547 N.Y.S.2d 953 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 All Citations 152 A.D.2d 39, 547 N.Y.S.2d 953 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.