Opinion
7804-2010.
Decided January 26, 2011.
Edard P. Hourihan, Jr., Esq., Joseph S. Nacca, Esq. Bond, Schoeneck King, PLLC, Fairport, New York.
Alex Smith, Esq., Assistant Corporation Counsel, Robert N. Isseks, Esq., Middletown, New York.
The following papers were considered in connection with this motion by petitioner for a judgment pursuant to CPLR Articles 78 and 30: (a) declaring that respondents' refusal to consider any application by petitioner for a permit to connect to the City of Middletown's water supply and sanitary sewage collection system unless petitioner agrees to fund the reconstruction, repair or replacement of a pre-existing public sewer line under the ownership and custody of respondents is unlawful, arbitrary and capricious, and an abuse of discretion; (b) declaring that the City of Middletown may not require petitioner to pay for the repair or replacement of a pre-existing public sewer line under the ownership and custody of respondents as a precondition to considering any application by petitioner for a permit to connect a new building to that sewer line; (c) ordering that the respondents comply with the City Charter of the City of Middletown in connection with any permit requested by petitioner; and (d) granting the District such other and further relief as the Court deems appropriate:
PAPERS NUMBERED
Motion/Affidavit/Affirmation/Exhibit 11 Memorandum of Law 2 Affidavit of Dr. Kenneth Eastwood/Exhibits 1-103 Answer/Verification 4 Affidavit in Response of Jacob Tawil/Exhibit E5 Affirmation of Alex Smith/Exhibits A, N-Q6 Affidavit in Response of Joseph M. DeStefano/Exhibits F-EE7 Affidavit in Response of Phillip J. Clark 8 affidavit in Response of Geary F. Chumard/Exhibits B-D9 Respondents' Memorandum of Law 10 Reply Memorandum 11 Affidavit of Timothy Bonaparte/Exhibits A-E12 Affidavit of Dr. Kenneth Eastwood/Exhibits 1-213 Affidavit of Maxine Meyer/Exhibits 14 Affidavit of Barry L. Pickard, P.E., BCEE 15 Affidavit of Charles Szuberla 16 Affidavit of Carl Thurnau, P.E./Exhibit 117 Letter from Alex Smith, Esq. 18 Letter as Sur-Sur-Reply 19 Supplemental Letter from Alex Smith 20 Petitioner's Post-Conference Submission 21This hybrid CPLR article 78 proceeding/declaratory judgment action (the "Action") is brought in response to the demand of the City of Middletown (the "City") by and through various defendants/respondents (collectively referred to as the "City Respondents") requiring, as a precondition for the City to consider an application of the petitioner/plaintiff, the Enlarged City School District of Middletown (the "District"), for a permit necessary to allow the District's proposed new school to connect to the City's water supply and sanitary sewage collection system, that the District bear the financial burden of the reconstruction, repair or replacement of certain portions of the City's sewer line.
The District is in the process of finalizing plans to construct a new elementary school building (the "Proposed Building") to accommodate an expected surge in elementary school enrollment within the District. The need for the Proposed Building is supported by an October 2008 facility needs assessment which reveals a critical need for the District to increase the capacity of its elementary school facilities based upon an anticipated increase in student population, grades Kindergarten through Five, from 2,515 (for the 2008-2009 school year) to 4,083 (by the 2014-2015 school year). The District's facility needs assessment also reveals that one of the District's elementary school buildings (the "Chorley Building") is in a critical state of physical decline; thus, requiring substantial, continuing, and costly repairs.
Absent the construction of the Building or any other increase in facility capacity, there is a projected increase in average class size for Kindergarten through Second Grade from 18 students per class in the 2007-2008 school year to 25 students per class in the 2014-2015 school year and, as to grades Three through Five, from 25 students per class in 2007-2008 to 32 students per class in 2014-2015, both of which exceed the New York State Education Department's recommendations of 18 students per class (Kindergarten through Two) and 25 students per class for grades Three through Twelve.
The need to construct a new elementary school building was formalized in a resolution authorized by the District's Board of Education on or about October 30, 2008. Plans call for the Proposed Building to be erected on a site adjacent to the Chorley Building, which will be demolished. The aggregate maximum estimated cost of the Project is $63,490,000.
Given the proximity of the Proposed Building to the Chorley Building, the District's plans provide that the Proposed Building will be connected to the existing sewer pipeline which currently serves the Chorley Building. In connection therewith, on October 30, 2008, the District's Board of Education resolved to authorize the construction of the Proposed Building, the demolition of the Chorley Building, the expenditure of $2,000,000, and the issuance of bonds not exceeding $61,490,000, so as to allow the project to go forward. On that same date, the District's Board of Education also resolved to submit a proposition to the District's voters to approve the bonds. The bond resolution was approved by the voters of the District on December 18, 2008.
During an approximate two-year period, the District worked with both the New York State Education Department ("SED") and the City of Middletown (the "City"), from which various project-related approvals and permits are needed. As of the date of this proceeding, the SED had issued its full approval of the Proposed Building with one critical exception, that the District and the City resolve the issue which now underlies this proceeding — sewage disposal.
In connection with the Proposed Building and as early as October 2008, the District made the City aware that the District planned to replace the Chorley Building with the Proposed Building and regularly made presentations to the City Respondents, including the City, Mayor, and Common Council, regarding the District's proposal. Among other things, in early 2009, the Common Council approved a project-related subdivision application. With respect to the subdivision application, the City consented to the District's Board of Education acting as Lead Agency for the project. The only concern raised by the City with regard to the District's Environmental Assessment Form as it related to the subdivision application, was the District's assessment regarding traffic impacts. This is so notwithstanding the fact that the Information Details Addendum of the District's SEQR Environmental Assessment Form explicitly revealed that sewage disposal at the Proposed Building would be "handled through an existing municipal sanitary system . . . since the current system handles sewage adequately, no problems are anticipated."
The City correctly notes that the District's SEQRA documents indicated that the Proposed Building would combine the populations of the Truman Moon and Chorley Elementary Schools; thus, clearly suggesting an administratively created increase in population of the site.
At issue here is the City's demand that the District reconstruct, repair and/or replace approximately 3,300 feet of sewer pipeline, which extends well beyond the District's property and services both private individuals and developments, as a precondition to the City's consideration of the District's application for a City permit to connect the Proposed Building to the City's sewage collection system (the "City's Demand").
The entire new sewer line will run about 3,300 linear feet; from the school property to Cantrell Avenue is about 800 feet; from Cantrell to Liberty Street is another 1,050 feet, and from Liberty to Elm Street is another 1,450 feet.
By March 2010, the District was moving forward toward final approval from the SED and had begun construction-related activities. The District contends that, in an effort to seize on the urgency with which the District needed to act to ensure timely final SED approval and in order to obtain a windfall for the City and certain private individuals and enterprises situated near the Project, the City presented the City's Demand.
As part of the factual background underlying this action, the District notes that the City commissioned a Sewer System Evaluation Survey which resulted in a January 2004 report. While mention is made therein about various inadequacies to the City sewage system and, in fact, the City agreed with the New York State Department of Environmental Conservation (the "DEC") to an Order on Consent requiring the City to undertake certain corrective actions with respect to its sewage system, including, but not limited to, rehabilitating portions of the City's sewage collection system, there is no mention in the Sewer System Evaluation Survey of a need to replace the portion of the City's sewer pipeline now at issue. The same is true, the District further notes, with respect to the October 2008 modification to the Order on Consent. As with the original Order on Consent, the modified Order on Consent is silent with respect to the portion of the City's sewer pipeline at issue herein.
The District argues that there is no basis in law for this demand and that it is arbitrary and capricious, unlawful, and an abuse of discretion to have demanded same. More precisely, the District argues that the City lacks the authority under State or local law to require the District to reconstruct, repair or replace the pre-existing sewer line that services not only the District, but numerous private City residents as well. Furthermore, the District argues that it is expressly prohibited under New York law from funding such reconstruction or replacement.
The District's Project is now in serious jeopardy because sections 408 and 2512(4) of the Education Law prohibit the Commissioner of Education of the State of New York (the "Commissioner") from approving the District's plans and specifications for the Proposed Building unless the Commissioner is satisfied that the District will provide for suitable disposal of sanitation. Thus, absent a resolution of the sewage issue, the SED will not allow the District to proceed with the Proposed Building.
Through this hybrid proceeding, the District seeks judgment: (a) declaring that the City's refusal to consider any application by the District for a permit to connect to the City's water supply and sanitary sewage collection system unless the District agrees to fund the reconstruction or replacement of a pre-existing public sewer line under the ownership and custody of the City is unlawful, arbitrary and capricious, and an abuse of discretion; (b) declaring that the City may not require the District to pay for the reconstruction or replacement of a pre-existing public sewer line under the ownership and custody of the City as a precondition to considering any application by the District for a permit to connect a new building to that sewer line; (c) ordering that the City Respondents comply with the City Charter in connection with any permit requested by the District; and (d) granting the District such other and further relief as the Court deems appropriate.
The Court is satisfied that the City has either refuted certain claims advanced by the District and/or has raised questions of fact regarding same. Although worthy of recognition to the extent herein noted, the Court does not find that any such refutations, even upon accepting them as true, warrant relief any different than that herein granted given the action as posited in the Verified Petition and Complaint.
More particularly, the City has come forward with an adequate basis in fact, if not law, to have excused itself from failing to have commented on the sewerage issue to the extent disclosed in connection with the District's subdivision application, and why the City may have otherwise been delayed in appreciating and/or commenting on the potential impact of the Proposed Building upon the City's sewerage infrastructure.
Except to the extent that the arguments and issues herein raised can be said to directly relate to the judgment demanded by way of the Verified Petition and Complaint, the Court finds that the remainder of the issues in controversy are not ripe for judicial review or were not ripe at the initiation of this action. In fact, some issues came into being or evolved during the pendency of this action and, even if now ripe, cannot be said to properly fall within the parameters of the pleadings as currently drafted.
By way of example, the declarations sought in the Verified Petition and Complaint deal with the broader issue of the legality of the City's refusal to consider the District's sewer permit application unless the District agrees to fund the reconstruction, repair or replacement of the subject public sewer line and for a declaration that the City may not require the District to pay for same as a precondition to considering said permit applications. At the same time, however, certain issues have arisen as to whether SED calculations are correct or have been correctly interpreted, whether or not and to what extent, if any, the Proposed Building will contribute to current sewage problems, and whether or not and to what extent any demanded repair, reconstruction or replacement of the existing sewer lines are required even without the construction of the Proposed Building.
Although raised in various papers filed in this action, these issues do not squarely fall under the declarations sought and, in any event, are not ripe for judicial review in that there does not appear to be a final determination by the City as to what is demanded of the District, other than a total contribution towards the replacement of the subject sewer line. It would appear, however, that the Court's determination will guide the parties as to how to move forward. Certainly, then, declaratory relief, whether in the guise of a declaratory judgment action or whether couched in terms more fitting for CPLR Article 78 relief, is appropriate. Declaratory judgment actions are rightly employed "to determine the rights and obligations of parties upon the happening of a future event as it is assumed that the parties will act in accordance with the law and the court's interpretation will have an immediate and practical influence on their conduct" ( Regan v. Cuomo, 182 AD2d 1060, 1061-1062 [3d Dept., 1992] citing New York Pub. Interest Research Group v. Carey, 42 NY2d 527, 530-531).
Having ruled as such, the Court will proceed to a determination of the merits.
At the outset, the Court finds the City Respondents' reliance on Holmes v. Planning Bd. of Town of New Castle ( 78 AD2d 1 [3d Dept, 1980]), and its progeny, unpersuasive. Given the more pressing authority cited herein ( see, infra), the Court rejects the City Respondents' contention that Holmes, supra, authorizes the City Respondents to demand that the District fund the replacement of 3,300 feet of sewer pipeline, which extends well beyond the District's property and services both private individuals and developments. This is not a "reasonable condition" upon the District's "development of land" ( id.). Although the City may impose certain conditions before granting approval of a development project, it may not require the District to make off-site improvements to public infrastructure ( see Sepco Ventures, Ltd. v. Planning Bd. of Town of Woodbury, 230 AD2d 913, 915[(2d Dept., 1996]["[w]hile the Planning Board may consider off-site impacts . . . and may condition approval on plan modifications . . . such conditions may not include off-site improvements of the public roads" (citations omitted)]; Peckham Indus., Inc. v. Ross, 61 Misc 2d 616, 617 [Sup. Ct., Orange Co., 1970][town could not require developer to make improvements beyond the limits of the developer's property]; see also; see also, Johnston v. Planning Bd. of Town of Brookhaven , 11 Misc 3d 1092A, 2006 NY Slip Op 50828[U][Sup. Ct., Suffolk Co., March 22, 2006][improper to demand that developer establish a temporary septic system on Town-owned property, as yet to be determined by the Town Board . . . in order to accommodate the 75,000 gallon capacity required by the development and to be paid for by the developer in an amount to be agreed upon by the developer and the town]).
The City's authority is limited to imposing a "hookup fee" but only upon 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 [the Proposed Building] would be primarily or proportionately benefitted by the repair [, reconstruction or replacement under consideration] ( Phillips v. Town of Clifton Park Water Auth., 286 AD2d 834, 835 [3d Dept., 2001] citing Albany Area Bldrs. Assn. v. Town of Guilderland, 141 AD2d 293, 298, affd 74 NY2d 372; Home Bldrs. Assn. v. County of Onondaga, 151 Misc 2d 886; see also, Coconato v. Town of Esopus, 152 AD2d 39, 44 [3d Dept., 1989]; Tillim v. Village of Hunter, 2009 NY Misc. LEXIS 6227, 2009 NY Slip Op 32411U [NY Sup. Ct., Greene Cty., Oct. 20, 2009]). Furthermore, to the extent that any such "hookup fee" is sought to be imposed in connection with the Proposed Building, such must be predicated upon "reliable factual studies and statistics and must bear a reasonable correlation to the average, associated cost of the service provided" ( Tillim v. Village of Hunter, quoting Valentino v. Cty. of Tompkins, 45 AD3d 1235, 1237 [3d Dept., 2007]).
There is no dispute here that were the District to fund the 3,300 feet of sewer line demanded, such would benefit numerous private and commercial water district users ( see, Phillips v. Town of Clifton Park Water Auth., supra at 835). Moreover, there are contradictory submissions as to whether the Proposed Building is the cause of the demanded replacement or repair of said sewer lines ( id.). The Court cannot conclude, on the papers now before it, whether or not and to what extent, if any, the City's purported need for a new sewer line flows from the construction of the Proposed Building.
It is beyond argument that the existing line already experiences surcharges and sewage overflows. However, questions abound as to whether the City's problem with the existing sewer is merely the result of an extraordinary excess of storm water inflow/infiltration entirely unrelated to the amount of sewage flow through the line. Moreover, as noted by the District, it may be very true that the population of the Chorley Building will gradually increase whether or not the Proposed Building is erected. Plausible arguments have also been made that, given current new building efficiencies, the Proposed Building might actually be more water and sewer efficient than the Chorley Elementary School Building, thus resulting in a positive impact upon the current water and sewer system even with its increased enrollment. Finally, even upon finding that the Proposed Building is a contributing factor for the need of a new sewer line, questions of fact also exist as to what the District's proportionate usage of any replacement sewer line would amount to.
In any event, the propriety of the SED's calculation is not properly being called into question, given the pleadings currently before the Court. To the contrary, the Court is being called upon to declare whether the City's refusal to consider the District's sewer permit application is unlawful, arbitrary and capricious, and an abuse of discretion, and whether the City may require the District to pay for the reconstruction or replacement of the sewer line as a precondition to sewer permit consideration.
Upon consideration of the papers submitted in support of and in opposition to this matter, the Court concludes that the City lacks the authority to require the District to pay for off-site infrastructure improvements as a condition of granting the District a sewer permit. The City may, however, demand reimbursement for certain costs of construction of a replacement sewer line, if necessitated by the proposed building, in the form of a "hookup fee", but only to the extent proportionate to the District's usage of that sewer line relative to its total capacity and, with regard to same, the City is directed to apply the applicable provisions of the Middletown City Code, the Education Law and any other relevant code, rule, regulation and statute consistent herewith. The Court renders this determination whether or not there may exist past deviations in practice by and between municipalities (including the City) and their school districts (including the District) and/or the SED since such, neither compels a different result nor persuades this Court that it must or should rule any differently within the context of this case given the precedent herein cited.
Since compelling nonconstitutional grounds have resolved the issues herein raised, the principles of judicial restraint have foreclosed consideration of the constitutional issues raised ( see, Clara C. v. William L. 96 NY2d 244, 250 citing People v. Carcel, 3 NY2d 327, 330, Matter of Cipolla v. Golisano, 84 NY2d 450, 455, Peters v. New York City Hous. Auth., 307 NY 519, 527-528).
NY Constitution, Article VIII, § 1
Based upon the foregoing, it is hereby
ORDERED, ADJUDGED AND DECLARED, that, the City's refusal to consider any application by the District for a permit to connect to the City of Middletown's water supply and sanitary sewage collection system unless the District agrees to fund the reconstruction, repair or replacement of a pre-existing public sewer line under the ownership and custody of respondents' is unlawful, arbitrary and capricious, and an abuse of discretion; and it is further
ORDERED, ADJUDGED AND DECLARED, that, the City of Middletown may not require the District to pay for the reconstruction, repair or replacement of a pre-existing public sewer line under the ownership and custody of respondents as a precondition to considering any application by petitioner for a permit to connect the Proposed Building to that sewer line; and, it hereby
ORDERED, that the City is hereby directed to process the District's sewer connection application, subject to reimbursement for certain costs of construction of a replacement sewer line, if and only to the extent necessitated by the Proposed Building, in the form of a "hookup fee", and only to the extent proportionate to the District's usage of that sewer line relative to its total capacity.
The foregoing constitutes the Opinion, Decision, and Order of the Court.