Opinion
3069/11
09-05-2018
BALDWIN UNION FREE SCHOOL DISTRICT, Bellmore Merrick Central High School District, Board of Cooperative Educational Services of Nassau County, Carle Place Union Free School District, East Williston Union Free School District, Farmingdale Union Free School District, Freeport Union Union Free School District, Garden City Union Free School District, Hewlett-Woodmere Union Free School District, Hicksville Union Free School District, Island Trees Union Free School District, Long Beach City School District, Massapequa Union Free School District, Mineola Union Free School District, Plainedge Union Free School District, Plainview-Old Bethpage Central School District, Rockville Centre Union Free School District, Uniondale Union Free School District and West Hempstead Union Free School District, Petitioners-, Plaintiffs, v. The COUNTY OF NASSAU, The Nassau County Sewer and Storm Water District and the Nassau County Sewer Finance Authority, Respondents-, Defendants. In the Matter of the Board of Education of the East Meadow Union Free School District, the Board of Education of the Westbury Union Free School District, and the National Center for Disability Services, Inc. d/b/a Abilities, Petitioners-Plaintiffs, for a Judgment Pursuant to Article 78 and Section 3001 of the Civil Practice Law and Rules v. The County of Nassau, the Nassau County Legislature and Edward Mangano, as Nassau County Executive, Respondents-Defendants. Index No. 3075/11 Action No. 2 Plaintiff Motion Seq. # 008 Defendant Motion Seq. # 007 Hofstra University, Petitioner-Plaintiff, v. Nassau County, New York, and the Nassau County Treasurer, Respondents-Defendants. Index No. 3203/11 Action No. 3 Plaintiff Motion Seq. # 007 Defendant Motion Seq. # 007 St. Francis Hospital, Roslyn, New York, St. Francis Research and Educational Corporation, WSNCHS North, Inc., d/b/a St. Joseph's Hospital and Mercy Medical Center, Chaminade High School, Holy Trinity Diocesan High School, Kellenberg Memorial High School, Our Lady of Mercy Academy and St. Dominic Parish & Schools, Petitioners-Plaintiffs, v. Nassau County, New York the Nassau County Treasurer, Respondents-Defendants.
ATTORNEYS FOR PLAINTIFFS BALDWIN UNION FREE SCHOOL DISTRICT, BELLMORE-MERRICK CENTRAL HIGH SCHOOL DISTRICT, BOARD OF COOPERATIVE EDUCATIONAL SERVICES OF NASSAU COUNTY, FREEPORT UNION UNION FREE SCHOOL DISTRICT, HEWLETT-WOODMERE UNION FREE SCHOOL DISTRICT, LONG BEACH CITY SCHOOL DISTRICT, MINEOLA UNION FREE SCHOOL DISTRICT, PLAINEDGE UNION FREE SCHOOL DISTRICT, ROCKVILLE CENTRE UNION FREE SCHOOL DISTRICT, UNIONDALE UNION FREE SCHOOL DISTRICT, INGERMAN SMITH LLP, BY CARRIE ANNE TONDO, ESQ., 150 MOTOR PARKWAY, SUITE 400, HAUPPAUGE, N.Y. 11788, 631-261-8834, CTONDO@INGERMANSMITH.COM ATTORNEYS FOR PLAINTIFFS CARLE PLACE UNION FREE SCHOOL DISTRICT, EAST WILLISTON UNION FREE SCHOOL DISTRICT, FARMINGDALE UNION FREE SCHOOL DISTRICT, GARDEN CITY UNION FREE SCHOOL DISTRICT, HICKSVILLE UNION FREE SCHOOL DISTRICT, ISLAND TREES UNION FREE SCHOOL DISTRICT, MASSAPEQUA UNION FREE SCHOOL DISTRICT, PLAINVIEW-OLD BETHPAGE CENTRAL SCHOOL DISTRICT, AND WEST HEMPSTEAD UNION FREE SCHOOL DISTRICT, GUERCIO AND GUERCIO, L.L.P., BY BARBARA P. ALOE, ESQ., 77 CONKLIN STREET, FARMINGDALE, N.Y. 11735, 516-694-3000, BALOE@GUERCIOLAW.COM ATTORNEY FOR PLAINTIFFS THE BOARD OF EDUCATION OF THE EAST MEADOW UNION FREE SCHOOL DISTRICT, THE BOARD OF EDUCATION OF THE WESTBURY UNION FREE SCHOOL DISTRICT, AND THE NATIONAL CENTER FOR DISABILITY SERVICES, INC. d/b/a ABILITIES, JASPAN SCHLESINGER LLP, BY LAUREL KRETZING, ESQ., NATASHA SHISHOV, ESQ. & SCOTT B. FISHER, ESQ., 300 GARDEN CITY PLAZA, GARDEN CITY, N.Y. 11530, 516-746-8000, SFISHER@JASPANLLP.COM ATTORNEY FOR PLAINTIFF HOFSTRA UNIVERSITY, HARRIS BEACH PLLC BY KEITH CORBETT, ESQ., 333 EARLE OVINGTON BLVD., SUITE 901, UNIONDALE, N.Y. 11553, 516-880-8489, KCORBETT@HARRISBEACH.COM ATTORNEY FOR PLAINTIFFS ST. FRANCIS HOSPITAL, ROSLYN, NEW YORK, ST. FRANCIS RESEARCH AND EDUCATIONAL CORPORATION, WSNCHS NORTH, INC., D/B/A ST. JOSEPH'S HOSPITAL AND MERCY MEDICAL CENTER, CHAMINADE HIGH SCHOOL, HOLY TRINITY DIOCESAN HIGH SCHOOL, KELLENBERG MEMORIAL HIGH SCHOOL, OUR LADY OF MERCY ACADEMY AND ST. DOMINIC PARISH & SCHOOLS, HARRIS BEACH PLLC BY KEITH CORBETT, ESQ., 333 EARLE OVINGTON BLVD., SUITE 901, UNIONDALE, NY.Y 11553, 516-880-8489, KCORBETT@HARRISBEACH.COM ATTORNEY FOR DEFENDANTS: ACTION # 1 - THE COUNTY OF NASSAU, THE NASSAU COUNTY SEWER AND STORM WATER DISTRICT AND THE NASSAU COUNTY SEWER FINANCE AUTHORITY, ACTION # 2 - THE COUNTY OF NASSAU, THE NASSAU COUNTY LEGISLATURE AND EDWARD MANGANO, AS NASSAU COUNTY EXECUTIVE, ACTION # 3 - NASSAU COUNTY, NEW YORK, AND THE NASSAU COUNTY TREASURER, ACTION # 4 - NASSAU COUNTY, NEW YORK, THE NASSAU COUNTY TREASURER, SPOLZINO SMITH BUSS & JACOBS, LLP BY JOANNA M. TOPPING, ESQ., 81 MAIN STREET, WHITE PLAINS, N.Y. 10601, 914-457-4166, JTOPPING@SSBJLAW.COM
ATTORNEYS FOR PLAINTIFFS BALDWIN UNION FREE SCHOOL DISTRICT, BELLMORE-MERRICK CENTRAL HIGH SCHOOL DISTRICT, BOARD OF COOPERATIVE EDUCATIONAL SERVICES OF NASSAU COUNTY, FREEPORT UNION UNION FREE SCHOOL DISTRICT, HEWLETT-WOODMERE UNION FREE SCHOOL DISTRICT, LONG BEACH CITY SCHOOL DISTRICT, MINEOLA UNION FREE SCHOOL DISTRICT, PLAINEDGE UNION FREE SCHOOL DISTRICT, ROCKVILLE CENTRE UNION FREE SCHOOL DISTRICT, UNIONDALE UNION FREE SCHOOL DISTRICT, INGERMAN SMITH LLP, BY CARRIE ANNE TONDO, ESQ., 150 MOTOR PARKWAY, SUITE 400, HAUPPAUGE, N.Y. 11788, 631-261-8834, CTONDO@INGERMANSMITH.COM
ATTORNEYS FOR PLAINTIFFS CARLE PLACE UNION FREE SCHOOL DISTRICT, EAST WILLISTON UNION FREE SCHOOL DISTRICT, FARMINGDALE UNION FREE SCHOOL DISTRICT, GARDEN CITY UNION FREE SCHOOL DISTRICT, HICKSVILLE UNION FREE SCHOOL DISTRICT, ISLAND TREES UNION FREE SCHOOL DISTRICT, MASSAPEQUA UNION FREE SCHOOL DISTRICT, PLAINVIEW-OLD BETHPAGE CENTRAL SCHOOL DISTRICT, AND WEST HEMPSTEAD UNION FREE SCHOOL DISTRICT, GUERCIO AND GUERCIO, L.L.P., BY BARBARA P. ALOE, ESQ., 77 CONKLIN STREET, FARMINGDALE, N.Y. 11735, 516-694-3000, BALOE@GUERCIOLAW.COM
ATTORNEY FOR PLAINTIFFS THE BOARD OF EDUCATION OF THE EAST MEADOW UNION FREE SCHOOL DISTRICT, THE BOARD OF EDUCATION OF THE WESTBURY UNION FREE SCHOOL DISTRICT, AND THE NATIONAL CENTER FOR DISABILITY SERVICES, INC. d/b/a ABILITIES, JASPAN SCHLESINGER LLP, BY LAUREL KRETZING, ESQ., NATASHA SHISHOV, ESQ. & SCOTT B. FISHER, ESQ., 300 GARDEN CITY PLAZA, GARDEN CITY, N.Y. 11530, 516-746-8000, SFISHER@JASPANLLP.COM
ATTORNEY FOR PLAINTIFF HOFSTRA UNIVERSITY, HARRIS BEACH PLLC BY KEITH CORBETT, ESQ., 333 EARLE OVINGTON BLVD., SUITE 901, UNIONDALE, N.Y. 11553, 516-880-8489, KCORBETT@HARRISBEACH.COM
ATTORNEY FOR PLAINTIFFS ST. FRANCIS HOSPITAL, ROSLYN, NEW YORK, ST. FRANCIS RESEARCH AND EDUCATIONAL CORPORATION, WSNCHS NORTH, INC., D/B/A ST. JOSEPH'S HOSPITAL AND MERCY MEDICAL CENTER, CHAMINADE HIGH SCHOOL, HOLY TRINITY DIOCESAN HIGH SCHOOL, KELLENBERG MEMORIAL HIGH SCHOOL, OUR LADY OF MERCY ACADEMY AND ST. DOMINIC PARISH & SCHOOLS, HARRIS BEACH PLLC BY KEITH CORBETT, ESQ., 333 EARLE OVINGTON BLVD., SUITE 901, UNIONDALE, NY.Y 11553, 516-880-8489, KCORBETT@HARRISBEACH.COM
ATTORNEY FOR DEFENDANTS: ACTION # 1 - THE COUNTY OF NASSAU, THE NASSAU COUNTY SEWER AND STORM WATER DISTRICT AND THE NASSAU COUNTY SEWER FINANCE AUTHORITY, ACTION # 2 - THE COUNTY OF NASSAU, THE NASSAU COUNTY LEGISLATURE AND EDWARD MANGANO, AS NASSAU COUNTY EXECUTIVE, ACTION # 3 - NASSAU COUNTY, NEW YORK, AND THE NASSAU COUNTY TREASURER, ACTION # 4 - NASSAU COUNTY, NEW YORK, THE NASSAU COUNTY TREASURER, SPOLZINO SMITH BUSS & JACOBS, LLP BY JOANNA M. TOPPING, ESQ., 81 MAIN STREET, WHITE PLAINS, N.Y. 10601, 914-457-4166, JTOPPING@SSBJLAW.COM
Antonio I. Brandveen, J. The Petitioners/Plaintiffs (hereinafter "Plaintiffs") in these four consolidated actions - Baldwin Union Free School District, et al v. County of Nassau , Index No. 3069/11, Board of Education of East Meadow, et al v. County of Nassau, Index No. 3075/11, Hofstra University v. County of Nassau, Index No. 3203/11, and St. Francis Hospital et al. v. County of Nassau , Index No. 3335/11 - all challenge the validity of Nassau County Ordinance 184-2010 and the Amendment to the Ordinance No. 199-2010. They move in each action for orders and judgments, pursuant to CPLR § 3212, granting summary judgment declaring that Nassau County's Ordinance 184-2010 and the Amendment to the Ordinance 199-2010 are unconstitutional, null, void and unenforceable, and dismissing all counterclaims interposed as against them .
The four actions were commenced as Article 78 and hybrid Article 78 proceedings / Declaratory Judgment actions. This Court by Order, dated September 30, 2011, converted the four matters to Declaratory Judgment actions (CPLR § 103[c] ) and joined them for the purposes of discovery and trial (CPLR § 602[a] ). Plaintiffs were granted a preliminary injunction, which was clarified by order, dated October 21, 2011, staying the effective date of the Ordinance and Amendment, and enjoined and restrained the Defendants from taking any action to enforce the Ordinance pending final determination of these actions. On appeal the order imposing the injunction was upheld and affirmed (see, Bd. of Educ. of E. Meadow Union Free Sch. Dist. v. County of Nassau, 120 A.D.3d 1170, 992 N.Y.S.2d 535 [2nd Dept. 2014] )
3. Pursuant to this Court's "So Ordered" stipulations dated March 3, and 11, 2011, Baldwin Union Free School District, Bellmore Merrick Central High School District, Board of Cooperative Education of Nassau County, Uniondale Union Free School District, and Plainedge Union Free School District were joined as petitioners/plaintiffs in the action under Index No.3069/11, and the caption was amended to the caption set forth above (in Action No. 1).
There was a fifth action entitledChaminade High School; Holy Trinity Diocesan High School, Kellenberg Memorial High School, Our Lady of Mercy Academy and St. Dominic Parish & Schools against Nassau County, New York and the Nassau County Treasurer, under Index No. 8228-12. By stipulation (So Ordered by Justice R. Bruce Cozzens), dated June 27, 2012 the attorneys for the parties in that action agreed, inter alia that the defendants would serve an answer within 20 days and that action would be consolidated into the St. Francis action under Index No.3335-11. There is no record of an answer being interposed as to the Chaminade High School, et al, complaint.
The County served amended answers asserting counter claims against the following plaintiffs: The National Center for Disabilities Services, Inc. d/b/a Abilities ("Abilities"), one of the plaintiffs in Action # 2; Hofstra University, plaintiff in Action # 3; St. Francis Hospital, St. Francis Research and Education Corp., WSNCHS North, Inc., d/b/a St. Joseph Hospital and Mercy Medical Center some of the plaintiffs in Action # 4.
The Respondents/Defendants, County of Nassau et al ( hereinafter collectively referred to as "County") , oppose the motions and cross-move against all plaintiffs for orders and judgments, pursuant to CPLR § 3212 and CPLR § 3211 (a)(7), granting summary judgment dismissing the complaints and petitions in the four consolidated actions, and declaring Nassau County Ordinance 184-2010 and the Amendment to the Ordinance No. 199-2010 to be valid and enforceable. The plaintiffs' motions and the County's cross-motion are consolidated for disposition and decided as follows:
County of Nassau defendants submitted one cross-motion in response and opposition to the four separate motions submitted by the plaintiffs in the four separate, but consolidated, actions.
The four actions at bar arise from the County's adoption and enactment of Ordinance 184-2010 ("Ordinance"), on November 3, 2010, and the Amendment to the Ordinance 199-2010 ("Amendment"), on December 11, 2010 (collectively referred to as "The Ordinance") which sought to impose "Service Charges" (hereinafter "service charges") on certain owners or occupants of real property (hereinafter "Exempt Users" ) which have historically not contributed financially for their usage of the sewer system and facilities owned and maintained by the County and its entities. The Ordinance also sought to impose service charges on non-exempt "High Water Users" which would be required to pay the service charges in addition to their assessed ad valorem taxes .
"Exempt Users" are owners and/or occupants of real property that are exempt from paying assessed property and ad valorem taxes because they are religious institutions, Fire and Ambulance companies, Public School districts, certain medical and educational institutions and other entities.
8. None of the plaintiffs in these actions are in the designated "High Water User" classification.
"Exempt Users" are defined as certain tax exempt entities, such as school districts, certain hospitals, not-for-profit organizations and other entities, that as a result of their tax-exempt status have not previously paid for their usage of the sewer system on the ground that they are exempt from paying general taxes or the ad valorem taxes the County levies on all taxable properties in Nassau County which receive benefits from the sewer system, either through direct or indirect connection to the system.
"High Water Users" are defined as owners or occupants of real property that utilize the sewage facilities to a greater extent than others, thus resulting in their paying a disproportionally low amount in assessed ad valorem taxes compared to their actual usage.
The Ordinance authorizes the County to impose service charges upon both Exempt and High Water Users for their use of the sewer system at a rate not to exceed $0.01 (one cent) per gallon of water entering the system based on their reported water consumption in 2009, and for subsequent years thereafter.
The Ordinance also provides the service charges would not be imposed on High Water users if the subject property is residential and the user owns or occupies the premises solely as such user's primary residence. Additionally, High Water users are entitled to claim deductions from the service charges for water that is used for irrigation purposes, and commercial or industrial operations, that is not discharged into the County's sewage facilities.
Exempt Users are not entitled to those same deductions.
The Ordinance was to take effect on July 1, 2011.
All of the plaintiffs in these four actions are classified as Exempt Users (i.e., public school districts, private religious schools, certain hospitals, colleges and/or not-for-profit organizations).
The original Ordinance excluded houses of worship, used primarily for religious worship, from the category of Exempt Users subject to service charges. Shortly after its enactment, the Ordinance was amended to add fire companies, voluntary ambulance services and veterans organizations as additional "Excluded Exempt Users" who were not subject to the sewage service charges.
Pursuant to the terms of the Ordinance, the County Treasurer was delegated and authorized to promulgate rules and rate schedules for the creation and collection of the sewer rate charges. The fifth, sixth, seventh, eighth, and ninth "Whereas Clauses" of the Ordinance set forth the defendants' purpose and guiding principles for its enactment, including the Legislature's concern that Exempt Users of the sewer system were not paying their fair share of the cost of the sewer services, and High Water Users were paying too little for the sewer services in light of their unusually high usage of the system and the desire to impose service charges upon those entities to address those concerns.
In the motions at bar, the plaintiffs seek to have The Ordinance declared invalid based on the following grounds: (1) The Ordinance is an impermissible tax; (2) The Ordinance is pre-empted by state law; (3) The Ordinance violates the County's own Charter; (4) The Ordinance violates the Due Process Clauses and Equal Protection Clauses of both the New York State and United States Constitutions since The Ordinance distinguishes between Exempt users and High Water users without a rational basis, and between Exempt Users and Excluded Exempt Users (i.e., houses of worship, fire companies, etc.) without a legitimate state purpose or a rational basis; (5) The Ordinance was enacted in an arbitrary and capricious manner (i.e., defendants seek to impose charges without a reasonable factual basis); (6) The Ordinance is unconstitutionally vague, and (7) The Ordinance improperly delegates unchecked rule-making authority to the County Treasurer ("Treasurer").
The plaintiffs contend that the County is seeking to supplement the funding of the sewer system by imposing an impermissible tax upon them through the collection of "service charges," even though the plaintiffs had never been required to pay or requested to pay for those services or usage. The plaintiffs further assert that The Ordinance is vague, irrational, and fails to include an accurate rate or method for determining the service charges of sewer rates. The thrust of plaintiffs' argument is that the County is attempting to use The Ordinance to evade state law and their tax exemption status by improperly creating a two-tier "tax" system to fund the sewer system. The plaintiffs maintain that the County's labeling of the sewer user fee as a service charge is nothing more than a thinly disguised effort to impose a tax on the Tax Exempt plaintiffs and is in clear violation of state law.
Plaintiffs proffer two reasons why that The Ordinance violates the Equal Protection and Due Process Clauses: (1) some Exempt Users (i.e., houses of worship, fire companies, etc.) are excluded from the charges, while other Exempt Users (i.e., school districts) are not, and (2) "High Water Users" are entitled to apply for deductions for certain water usage not discharged into the sewer system, but Exempt Users are not permitted to apply for the same deduction for their water usage (i.e., for irrigation, cooling towers, etc.) that is similarly not discharged into the system. In sum, the plaintiffs argue that no rational or legitimate basis exists to distinguish between Exempt Users and Excluded Exempt Users, or between Exempt Users and High Water Users.
The plaintiffs further argue that the enactment of The Ordinance was arbitrary and capricious and violates both the General Municipal Law and Nassau County Charter § 1228 on the ground that the imposition of sewer service charges lacks uniformity as required by County Charter § 1231 ("Charter § 1231"). Plaintiffs additionally claim that Charter § 1231, which the County asserts as the statutory authority for the enactment of The Ordinance, was expressly, or impliedly, repealed by the State's enactment of Chapter 685 of the Laws of 2003 ("Chapter 685") which established the Nassau County Sewer and Storm Water Resource District. Moreover, plaintiffs contend, the Ordinance is unconstitutionally vague, and improperly delegates unchecked rule-making authority to the Treasurer, rendering the ordinance invalid.
The County contends, in opposition to the motions and in support of its cross-motion, that it enacted The Ordinance pursuant to Charter § 1231 in its effort to cover projected budgetary shortfalls in funding the costs of the sewer system, and to correct the inequities in how the sewer system was funded. Moreover, the County contends, The Ordinance is constitutional since it is rationally related to the intended purpose of having the costs of the sewer system equitably shared by those who utilize and benefit from it.
The County asserts that the Nassau County Legislature, in accordance with Charter § 1231, which was enacted in 1951, has the authority to "charge and collect rents, rates, fees or other charges...for direct or indirect connection with, or the use or services of, the [County sewer district's] sewer facilities." and that such service charges shall, as near as the County Legislature shall deem "practicable and equitable," be "uniform throughout" the County sewer district, and that the charges may be based, inter alia , "on the consumption of water, or in connection with the real property, making due allowances for commercial use of water".
The County, despite having the authority since 1951 to separately charge for sewer usage, did not exercise that authority since it had opted to fund the sewer and storm water systems, pursuant to County Charter § 1222 and § 1228, through the use of ad valorem taxes that were imposed on all taxable real property in Nassau County connected to the sewage systems. However, the County claims that the loss of projected revenue, the increasing costs of maintaining and upgrading the sewer system, and the desire to not further burden the taxpayers that were already paying a disproportional high amount for the benefits they received, forced the County to seek another method of raising revenue to fund the sewer system. To accomplish that goal, it enacted The Ordinance, which imposed "service charges" upon certain users of the sewer system at a rate "not to exceed $0.01 per gallon of water entering the County's sewer system," based on the users' reported water consumption in 2009. The users subject to the service charges fell into two distinct groups, as designated by the ordinance: "Exempt Users" and "High Water Users." The County argues that The Ordinance made the funding of the sewer system more equitable by having those entities who had been receiving free sewer services (Exempt Users) or were paying a disproportionally low amount (High Water Users) for their usage of the system would now pay their fair share commensurate with their usage and the benefits they received from the sewer system. All of the plaintiffs in these four consolidated actions fall into the "Exempt User" category, therefore being subject to the sewer service charges imposed by The Ordinance. The procedural history after the enactment of The Ordinance is summarized as follows:
The County enacted Ordinance No. 184-2010 on November 30, 2010, to become effective on July 1, 2011. The County then enacted the Amendment to the Ordinance No. 199-2010 on December 14, 2010.
This Court, in an order to show cause dated June 23, 2010, issued a temporary restraining order prohibiting the County from enforcing The Ordinance pending the hearing and determination of the plaintiffs' motion for a preliminary injunction (see , Baldwin motion Ex. 5).
On September 11, 2011, this Court denied the County's motion to dismiss the actions, and converted the Article 78 actions and hybrid Article 78/Declaratory Judgment actions to Declaratory Judgment actions and consolidated the four actions for trial and discovery (see, Baldwin motion Ex.7).
This Court then granted, in an order dated October 21, 2011, a preliminary injunction (a) enjoining and staying the effective date of the Ordinance, (b) enjoining, staying and restraining the imposition of, and prohibiting the accrual of retroactive imposition of sewer charges, fees, interest or other penalties, and (c) enjoining, restraining, and staying the County from taking any steps or actions, either directly or indirectly, to impose, effectuate, collect, or otherwise enforce fees and/or charges pursuant to the ordinance, pending a final determination on the merits (see Baldwin Ex. 8).
The Appellate Division, Second Department, by decision and order dated December 19, 2011, denied the County's motion to stay enforcement of this Court's order dated October 21, 2011, pending the hearing and determination of the appeal thereon. Subsequently, this Court, in an order dated June 26, 2012, denied in its entirety the County's motion seeking summary judgment dismissing the actions and declaring the Ordinance and Amendment authorized.
The Appellate Division, in a decision and order dated September 10, 2014, affirmed this Court's order dated October 21, 2011, and affirmed, as so modified this Court's June 26, 2012, order (see, Baldwin Union Free Sch. Dist. v. County of Nassau, 120 A.D.3d 1166, 992 N.Y.S.2d 110 [2nd Dept. 2014] ).
The modification consisted of deleting the provision denying the County's motion, in effect, for summary judgment declaring the Ordinance and amendment is an authorized exercise of their authority...and substituting a provision that the motion was denied without prejudice to renewal upon completion of discovery (see, Baldwin Union Free Sch. Dist. v. County of Nassau, 120 A.D.3d 1166, 992 N.Y.S.2d 110 ).
Thereafter, on August 12, 2015, this court granted the County leave to amend their answers to include a counterclaim to recover, retroactively in quantum meruit , the reasonable value of the sewer service accepted by the plaintiffs (see, St. Francis' Ex. K) . Plaintiffs' motions for leave to reargue were denied by this Court on May 16, 2016, as well as the County's motion which sought an order vacating or modifying the preliminary injunctions, directing the non-municipal plaintiffs to post an undertaking in the amount of $48,0000,000.00, and fixing the liability of the School Districts in the amount of $48,000,000.00. However, this Court did direct in that order that the non-municipal plaintiffs to post an undertaking of $500.00 in total for all of them (see , Baldwin motion Ex.14).
See Footnote 8.
The legislative enactments which are the subjects of these actions and motions at bar are stated in their entirety as follows:
The Ordinance 184-2010 AN ORDINANCE ESTABLISHING A SCHEDULE OF SERVICE CHARGES TO BE IMPOSED UPON CERTAIN USERS PURSUANT TO SECTION 1231 OF THE NASSAU COUNTY CHARTER FOR USE OF SERVICES OF FACILITIES MAINTAINED BY THE NASSAU COUNTY SEWER AND STORM WATER RESOURCES DISTRICT AND DESIGNATING THE COUNTY TREASURER TO COLLECT SUCH SERVICE CHARGES ALONG WITH ANY INTEREST ACCRUED THEREUPON.
11. The Ordinance passed the County Legislature on October 29, 2010 (11 votes for, 1 vote against and2 recused) became an Ordinance on November 3, 2010, upon approval by the County Executive.
WHEREAS, Section 1231 of the Nassau County Charter (the "Charter") authorizes the Nassau County Legislature to collect rents, rates, fees or other charges ("Service Charges") for direct or indirect connection with, or the use of services of, sewer facilities maintained in any sewage disposal district or in and sewage collection district, and
WHEREAS, Section 1231 of the County Charter permits such rents, rates, fees or other charges too be based or computed on the consumption of water in connection with real property, making due allowances for commercial use of water; and
WHEREAS, certain owners or occupants of real property within the County of Nassau (the "County") use the services of sewer facilities maintained by Nassau County Sewer and Storm Water Resources District (the "District") without charge because their real property is exempt by law from the ad valorem tax (also referred to as assessments) levied upon all the taxable property in the District (such owners or occupants, excluding "Houses of Worship", as defended below, are referred to herein as "Exempt Users"); and
WHEREAS, "Houses of Worship" shall mean, for the purposes of this Ordinance, any structure or site used primarily as a place of worship on a permanent basis by a recognized and established religious sect or denomination provided, however, that this definition shall not include any religious site or structure used as a: school, college, hospital or other similar structure or site that is not used primarily for religious worship.
WHEREAS, certain owners or occupants of real property within the County use the services of sewer facilities maintained by the District to a greater extent than others such that assessments imposed upon such owners are disproportionately low when compared with such owners' or occupants' actual use of services of said sewage facilities maintained by the district (such owners or occupants, "High Water Users"); and
WHEREAS, the County Legislature has determined that the use of said sewage facilities without charge by Exempt Users results in District taxpayers bearing a higher burden of the costs of sewage services in the District, and therefore if should be the policy of the County to require Exempt Users to pay their fair share of the cost of such services; and
WHEREAS, the County Legislature has determined that High Water Users place a disproportionate burden on the services rendered by said sewage facilities maintained by the District and that, it should be the policy of the County to discourage the excessive use of water for sewage purposes in the County so as to benefit the Environment of the County; and
WHEREAS, the County has conducted an analysis of the use of the sewer system to identify such Exempt Users and High Water Users and determined the charges to be imposed upon such Exempt Users and High Water Users commensurate with such burdens; and WHEREAS, therefore, the County now desires to impose such Service Charges pursuant to Section 1231 of the Charter for the use of the services of sewage facilities maintained by the District.
NOW, THEREFORE, BE IT ORDAINED THAT:
Section 1. Collection of Service Charges
a. The County is hereby authorized to impose Service Charges upon Exempt Users and High Water Users for the use of services of sewage facilities maintained by the District at a rate not to exceed $0.01 per gallon of water entering the County's sewage system based on consumption for 2009 as reported by municipalities, districts, authorities or private entities providing water to parcel in the District in accordance with Section 1231 of the Charter.
b. The County Treasurer may establish such rules and regulations as he or she deems necessary in order to implement this Ordinance.
Section 2. Calculation and Billing of Service Charges
a. The Service Charges imposed upon Exempt Users and High Water Users shall be based upon such user's consumption of water as reported by such municipalities, districts, authorities or private entities as provide water to such users to the County pursuant to Section 1232 of the Charter.
i. Commencing upon the effective date of this Ordinance and until the end of the calendar year 2011, users shall be billed for Service Charges on the same schedule of billing periods established by such municipalities, districts, authorities or private entities for the imposition and billing of charges for the consumption of water, Thereafter, users shall be billed on an annual basis for the immediately preceding calendar year, or any portion thereof that remains unbilled, or on any other schedule as the County Treasure shall determine.
ii. Such Service Charges shall be billed no later than thirty (30) days following the County's receipt of the information referred to in Section 2(a) of this Ordinance.
iii. During the first applicable billing period for each municipality, district, authority or private entity providing water service within the District, Service Charges imposed pursuant to this Ordinance shall be prorated such that Exempt Users and High Water Users shall be billed only for that period commencing upon the effective dare of this Ordinance and extending to the end of such applicable billing cycle.
iv. The County shall be authorized to charge and collect Service Charges from Exempt Users and High Water Users as such information referred to in Section 2(a) of this Ordinance becomes available to the County. In the event that the County does not receive the information referred to in Section 2(a) of this Ordinance within the time period established by Section 1232 of the Charter, such Exempt User and High Water User shall continue to be liable for the payment of Service Charges from the commencement of such applicable billing period (or the effective date of this Ordinance, as the case may be) regardless of when such usage information becomes available to the County.
Section 3. Exclusion and Exemption
a. Service Charges shall not be imposed upon any High Water User for the residential use of water at real property that such user owns or occupies solely as such user's primary residence; provided, however, that Service Charges shall nevertheless by imposed upon any High Water User if such user's real property is also used for non-residential purposes. b. Exemption for Irrigation Purposes and Certain Commercial or industrial Operations:
i. A High Water User who uses water for irrigation purposes or commercial or industrial operations shall be entitled to a deduction for the amount of water that is used for such purposes and operations and is not discharged into sewage facilities maintained by the District.
ii. Any user who requests an exemption pursuant to this subsection shall apply to the County Treasurer for such exemption on forms provided by the County Treasurer. Such form shall required the High Water User to certify to the County Treasurer the amount of water that is used for irrigation purposes or commercial or industrial operations and is not discharged into sewage facilities maintained by the District. Such user shall then submit such application and certification to the County Treasurer along with payment of the balance of Service Charges that are not eligible for exemption pursuant to this section.
iii. The County Treasurer or his designee shall review the application and certification and shall approve an application and certification that meets the requirements of this Ordinance.
iv. The County Treasurer or his or her designee shall have the right to audit and examine any such application and certification at any time (including, but not limited to, after such application and certification is approved and accepted by the County Treasurer) to determine whether such certification is true and accurate. If the County Treasurer or his or her designee determine that such certification is not true and accurate, the County Treasurer or his or her designee shall determine the true and accurate amount of water that is used for irrigation purposes or commercial or industrial operations and is not discharged into sewage facilities maintained by the District and determine the correct amount of Service Charges to be imposed upon such High Water User. In the event that the true and correct amount is higher than the amount paid by such High Water User, the County Treasurer shall bill such High Water User for such deficiency. Any deficiency billed by the County Treasurer shall be subject to the provisions of Section 4 herein. In the event that the true and correct amount is lower than the amount paid by such High Water User, the County Treasurer shall refund any such overpayment to the High Water User.
v. A High Water User may appeal a determination of the County Treasurer or his or her designee in relation to an audit of an application or certification filed by such user. Such appeal must be made in writing within ten (10) days of receipt of notice of such determination, setting forth the reasons why the user believes such determination is incorrect. The County Treasurer or his or her designee shall review such appeal, and may, in his or her discretion, conduct any further investigation he or she deems necessary and appropriate to determine the appeal. The County Treasurer shall make a final determination in writing no later than sixty (60) days following the receipt of an appeal.
vi. A High Water User that knowingly and intentionally files a false certification with the County Treasurer shall be subject to prosecution under the New York State Penal Law.
Section 4. Enforcement
a. Service Charges shall be paid within thirty (30) days of the date of the billing statement imposing such Service Charges.
b. Pursuant to Section 1231 of the Charter, following such thirty (30) day period, interest shall accrue on the amount due and payable at a rate of one (1) percent per month until such time as such unpaid Service Charges are paid or are levied against the parcels of real property liable for the payment of such Service Charges in Accordance with Section 1233 of the Charter.
c. The County Treasurer shall compile a schedule of all Service Charges remaining unpaid as of the first day of September of each calendar year and the interest that has accrued thereon and shall forward such schedule to the County Legislature no later than the fifteenth day of September of each calendar year in the form prescribed by Section 1233 of the Charter. Such amounts shall then be levied against the parcels of real property liable for the payment of such Service Charges in accordance with Section 1233 of the Charter.
Section 5. Effective Date
a. This Ordinance shall take effect as of July 1, 2011.
The Amendment to the Ordinance 199-2010
The Amendment passed the County Legislature on December 6, 2010 (16 votes for, 0 votes against) and became an Ordinance on December 14, 2010 upon approval of the County Executive.
AN ORDINANCE TO AMEND ORDINANCE NO. 184-2010 ENTITLED "AN ORDINANCE ESTABLISHING A SCHEDULE OF SERVICE CHARGES TO BE IMPOSED UPON CERTAIN USERS PURSUANT TO SECTION 1231 OF THE NASSAU COUNTY CHARTER FOR USE OF SERVICES OF FACILITIES MAINTAINED BY THE NASSAU COUNTY SEWER AND STORM WATER RESOURCES DISTRICT AND DESIGNATING THE COUNTY TREASURER TO COLLECT SUCH SERVICE CHARGES ACCRUED THEREUPON.
WHEREAS, the Legislature desires to amend Ordinance 184-2010 to incorporate the definitions of "Exempt Users" and "High Water Users" and to exclude from the definition of "Exempt Users" the following: "Houses of Worship", "Fire Companies", "Volunteer Ambulance Services", and "Veterans Organizations", as defined herein.
NOW, THEREFORE, BE IT ORDAINED THAT:
Section 1. Ordinance No. 184-2010 Section 1. is amended by adding the following subsections thereto:
d. For the purposes of this Ordinance, the following terms shall have the following meanings:
i. "Exempt User" shall mean certain owners or occupants of real property within the County of Nassau that use the services of sewer facilities maintained by the Nassau County Sewer and Storm Water Resources District without charge because their real property is exempt by law from the ad valorem tax (also referred to as assessments) levied upon all the taxable property in the District.
This definition shall exclude the following:
1. "Houses of Worship." For the purposes of this Ordinance Houses of Worship shall mean any structure or site used primarily as a place of worship on a permanent basis by a recognized and established religious sect or denomination provided, however, that this definition shall not include any religious site or structure used as a: school, college, hospital or other similar structure or site that is not used primarily for religious worship.
2. "Fire Companies" For the purposes of this Ordinance, Fire Companies shall mean:
a. A volunteer fire company of a city, town, village or fire district fire department,
b. A fire corporation, the members of which are volunteer fireman and which was incorporated under or is subject to the provisions of section fourteen hundred two of the not-for-profit corporation law, which is not included within paragraph a above, if such corporation is by law under the general control of, or recognized as a fire corporation by, the governing board of a city, town, village or fire district, or
c. A fire corporation, the members of which are volunteer fireman and which was incorporated under, or established pursuant to the provisions of, any general or special law, which is not included within the paragraphs a and b above, if such corporation is by law under the general control of, or recognized as a fire corporation by, the governing board of a city, town, village, fire district or a district corporation other than a fire district.
3. "Voluntary Ambulance Services." For the purposes of this Ordinance, Voluntary Ambulance Services shall mean a voluntary ambulance service registered or certified pursuant to article 30 of the public health law.
4. "Veterans Organizations." For the purposes of this Ordinance, Veterans Organizations shall mean any organization of persons who have served in the armed forces of the United States which has been duly chartered as a veterans' organization under the laws of the United States or of the state of New York.
ii. "High Water Users" shall mean certain owners or occupants of real property within the County that use the services of sewer facilities maintained by the District to a greater extent than others such that assessment imposed upon such owners are disproportionally low when compared with such owners' or occupants' actual use of services of said sewage facilities maintained by the District.
Section 2. Effective Date
a. This Ordinance shall take effect immediately.
On a motion to dismiss pursuant to CPLR § 3211(a)(7), the court must give the pleadings a liberal construction, accept the facts as alleged in the complaint as true, and accord plaintiffs the benefit of every possible favorable inference ( Chanko v. American Broadcasting Cos. Inc. , 27 N.Y.3d 46, 29 N.Y.S.3d 879, 49 N.E.3d 1171 [2016] ; AG Capital Funding Partners, L.P. v. State Street Bank and Trust Co. , 5 N.Y.3d 582, 591, 808 N.Y.S.2d 573, 842 N.E.2d 471 [2005] ; Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus" ( EBC I, Inc. v. Goldman Sacks & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 (2005) ; see also Vasomedical Inc. v. Barron , 137 A.D.3d 778, 25 N.Y.S.3d 894 [2d Dept. 2016] ; Zellner v. Odyl, LLC, 117 A.D.3d 1040, 1041, 986 N.Y.S.2d 592 [2d Dept. 2014] ). That is a determination either to be made on motions for summary judgment or at trial.
Here, the plaintiffs have set forth viable causes of action sufficient to withstand the defendants' motion to dismiss. Moreover, the viability of the plaintiffs' causes of action have previously been determined to be valid since this Court (1) denied defendants' prior motion to dismiss the pleadings and sua sponte converted the Article 78 and hybrid Article 78 / Declaratory judgment actions to Declaratory Judgment actions, (2) denied defendants' prior motion for summary judgment (as modified by the Appellate Division) with leave to renewal after the completion of discovery, and (3) granted the plaintiffs' initial motions for a preliminary injunction, which was affirmed on appeal. Accordingly, the branch of the County defendants' cross-motion pursuant to CPLR § 3211(a)(7), to dismiss the complaints for failure to state a cause of action, is denied.
In considering now the plaintiffs' motions and defendants' cross-motion for summary judgment, "pursuant to CPLR § 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." ( Sheppard-Mobley v. King, 10 A.D.3d 70, 74, 778 N.Y.S.2d 98 [2nd Dept. 2004], aff'd as mod ., 4 N.Y.3d 627, 797 N.Y.S.2d 403, 830 N.E.2d 301 [2005], citing Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Winegrad v. New York Univ. Med . Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; see also JMD Holding Corp. v. Congress Financial Corp., 4 N.Y.3d 373, 384, 795 N.Y.S.2d 502, 828 N.E.2d 604 [2005] ; Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974] ). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" ( Sheppard-Mobley v. King , supra at 74, 778 N.Y.S.2d 98 ; Alvarez v. Prospect Hosp., supra ; Winegrad v. New York Univ. Med Ctr., supra ) . Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact that require a trial ( Alvarez v. Prospect Hosp. , supra at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). The evidence presented by the opponent of summary judgment must be accepted as true and must be given the benefit of every reasonable inference. (see , Demshick v. Community Housing Management Corp., 34 A.D.3d 518, 521, 824 N.Y.S.2d 166 [2nd Dept. 2006]citing Secof v. Greens Condominium, 158 A.D.2d 591, 551 N.Y.S.2d 563 [2nd Dept. 1990] ). However, mere conclusions or unsubstantiated allegations will not defeat the moving party' s right to summary judgment ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
To grant summary judgment, the court must find that there are no material, triable issues of fact, that the movant has established its cause of action or defense sufficiently to warrant the court, as a matter of law, directing judgment in its favor, and that the proof tendered is in admissible form ( Menekou v. Crean , 222 A.D.2d 418, 419-420, 634 N.Y.S.2d 532 [2d Dept. 1995] ). If the movant tenders sufficient admissible evidence to show there are no material issues of fact, the burden then shifts to the opponent to produce admissible proof, establishing a material issue of fact. Id. at 420, 634 N.Y.S.2d 532. Summary judgment is a drastic remedy that should not be granted where there is any doubt regarding the existence of a triable issue of fact. Id.
In determining whether The Ordinance is valid and enforceable, the Court's analysis starts by recognizing that legislative enactments are presumed valid and the one who challenges a statute bears the burden of proving the legislation unconstitutional beyond a reasonable doubt (see , 41 Kew Gardens Rd. Assocs. v. Tyburski , 70 N.Y.2d 325, 333, 520 N.Y.S.2d 544, 514 N.E.2d 1114 [1987] ; Trump v. Chu , 65 N.Y.2d 20, 25, 489 N.Y.S.2d 455, 478 N.E.2d 971 [1985], appeal dismissed 474 U.S. 915, 106 S.Ct. 285, 88 L.Ed.2d 250 [1985] ; Maresca v. Cuomo , 64 N.Y.2d 242, 250-251, 485 N.Y.S.2d 724, 475 N.E.2d 95 [1984], appeal dismissed 474 U.S. 802, 106 S.Ct. 34, 88 L.Ed.2d 28 [1985] ). Additionally, as this action involves economic legislation, modern substantive due process principles require that the judiciary give great deference to the Legislature in that area ( Exxon Corp. v. Governor of Md. , 437 U.S. 117, 124, 98 S.Ct. 2207, 57 L.Ed.2d 91 [1978], reh denied sub nom ; Shell Oil Co. v . Governor of Md. , 439 U.S. 884, 99 S.Ct. 232, 58 L.Ed.2d 200 [1978] ; see also Montgomery v. Daniels, 38 N.Y.2d 41, 67, 378 N.Y.S.2d 1, 340 N.E.2d 444 [1975] ). When reviewing such legislation, the courts may not concern themselves with its ultimate wisdom; the legislation must be sustained if it has any reasonable relation to the municipalities legitimate interests (see, Exxon Corp. v. Governor of Md., supra ).
The County's authority to enact The Ordinance, and its constitutionality, is subject to the power provided by the State. "As limited by the State and Federal Constitutions' protection of individual rights and restriction of state power, the State Constitution establishes the State government, as the preeminent sovereign of New York, and the three coordinate branches of the state government, may exercise the entire legislative, executive, and judicial power of the State, as entrusted to them by the people (see N.Y. Const., art. III, § 1 ; art. IV, § 1 ; art VI) (internal citations omitted). Given that the authority of political subdivisions flows from the state government and is, in a sense, an exception to the state government's otherwise plenary power, the lawmaking power of a county, or other political subdivision, can be exercised only to the extent it has been delegated by the State’ " ( Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, 22 N.Y.3d 606, 619, 986 N.Y.S.2d 1, 9 N.E.3d 351 [2014], quoting Albany Area Bldrs. Assn. v. Town of Guilderland , 74 N.Y.2d 372, 376, 547 N.Y.S.2d 627, 546 N.E.2d 920 [1989] )."Perhaps the most significant delegation of state legislative authority is embodied in article IX of the Constitution, the home rule article (see N.Y. Const. art. IX), Article IX empower[s] municipalities to legislate in a wide range of matters relating to local concern,' and generally, ‘[s]o 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, and with respect to other enumerated subjects, except to the extent that the legislature shall restrict the adoption of such a local law’ " ( Matter of Baldwin Union Free Sch. Dist. v. County of Nassau , supra at 620, 986 N.Y.S.2d 1, 9 N.E.3d 351, quoting Albany Area Bldrs, Assn. v. Town of Guilderland, supra at 376, 547 N.Y.S.2d 627, 546 N.E.2d 920 ). Article IX provides for the creation of local governmental entities and grants certain powers to local governments (see, N.Y. Const. Art. IX §§ 1, 2 ; Kamhi v. Town of Yorktown, 74 N.Y.2d 423, 428, 548 N.Y.S.2d 144, 547 N.E.2d 346 [1989] ).
"To implement article IX [of the NY Constitution], the Legislature enacted the Municipal Home Rule Law" ( DJL Rest. Corp. v. City of New York , 96 N.Y.2d 91, 94, 725 N.Y.S.2d 622, 749 N.E.2d 186 [2001] ; see Municipal Home Rule Law § 50[1] ). The Municipal Home Rule Law sets forth the general powers of local governments to adopt and amend local laws in accordance with article IX of the NY Constitution (see, Municipal Home Rule Law § 10[1] ; 41 Kew Gardens Rd. Assoc. v. Tyburski , 70 N.Y.2d 325, 332, 520 N.Y.S.2d 544, 514 N.E.2d 1114 ; Kamhi v. Town of Yorktown, supra at 429, 548 N.Y.S.2d 144, 547 N.E.2d 346 ). Municipal Home Rule Law § 10, also provides additional powers of local governments to enact local laws (see Municipal Home Rule Law § 10[1][ii][a]-[e] ). The statute expressly gives counties, cities, towns, and villages the authority to adopt and amend local laws relating to "[t]he fixing, levy, collection, and administration of local government rentals, charges, rates or fees, penalties, and rates of interest thereon, lien on local property in connection therewith and charges thereon." ( Municipal Home Rule Law § 10[1][ii][9-a] ). It also provides that, "[i]n the exercise of its powers to adopt and amend local laws, the legislative body of a local government shall have power: To delegate to any officer or agency of such local government the power to adopt resolutions, or to promulgate rules and regulations, for carrying into effect of fully administering the provisions of any local law Municipal Home Rule Law § 10[4][a] ).
"The Municipal Home Rule Law also permits counties to amend their charters in a manner consistent with applicable state laws and the Constitution" ( Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, supra at 616, 986 N.Y.S.2d 1, 9 N.E.3d 351 ). Pursuant to this authority, Nassau County amended or renumbered certain provisions of its Charter, and the Board of Supervisors renamed the County Legislature and its powers transferred to that body (see, Nassau County Charter § 102). However, Nassau County has not abdicated the powers granted to it under the 1936 law, and the County Legislature still maintains the power to "adopt, amend, and repeal ordinances for the purpose of making effective any of the provisions of this act and to carry out all powers conferred upon the county or the County Legislature by any other law, and provide for the enforcement thereof...;" (see, Nassau County Charter § 103[5] ).
In view of the foregoing, the Nassau County Charter, duly enacted by the State Legislature, still has the force and effect of a statute (see, Korn v. Gulotta , 72 N.Y.2d 363, 373, 534 N.Y.S.2d 108, 530 N.E.2d 816 [1988] ["the governing statute in this case is the Nassau County Charter enacted by the State Legislature in 1936"]; Matter of Town of N. Hempstead v. County of Nassau , 103 A.D.3d 734, 735, 962 N.Y.S.2d 164 (2nd Dept. 2013) ["the County Comptroller may properly audit the subject park district pursuant to the authority granted to county comptrollers by the New York State Legislature pursuant to L 1936, ch 879, § 402(6), which Nassau County later adopted"] ). Accordingly, there is no merit to the plaintiffs' contentions that The Ordinance violates GML § 451, which requires that the levy of sewer charges be imposed in an equitable, rational, and uniform manner, and be based upon any combination of factors as set forth in that statute. Where, as here, the County has its own Charter (as duly enacted by the State Legislature), a provision in the County's Charter, either Charter § 1231 or Chapter 685 or 2003, regarding sewer rate charges, rents or assessments, controls over those sections in the General Municipal Law as to the same items. Where State legislation has been enacted for the particular municipality, that is the controlling legislation and not General Municipal Law § 451. The plaintiffs also contend that if § 1231 is the controlling legislation, then The Ordinance, which distinguishes between Exempt Users (Excluded and Non-Excluded), and between Exempt Users and High Water Users, violates the very statute that authorized it, since it does not provide for the uniform imposition of service charges on all users. Thus, the plaintiffs argue, The Ordinance violates the express language of the enabling legislation, Charter § 1231, which does not contain the same equitable basis language contained in GML § 451[1]. The plaintiffs rely upon the portion of Charter § 1231 which states "be uniform throughout the sewer district". However, Charter § 1231 further provides that "[s]uch service charges shall, as near as the Board of Supervisors shall deem practicable and equitable, be uniform throughout....". Accordingly, the County Legislature had discretion in imposing service charges and distinguishing between users. The Legislature "may take into consideration the views and policies of any elected official or body, or other person, and ultimately applies [ies] independent judgment in the best interest of the authority, its mission, and the public" ( Matter of Prometheus Realty Corp. v. N.Y.C. Water Bd. , 30 N.Y.3d 639, 646, 69 N.Y.S.3d 555, 92 N.E.3d 778 [2017]internal quotations and citations, omitted ). "[C]ase law holds that a utility has "unfettered discretion to fix [rates] as it will so long as invidious illicit discriminations are not practiced and differentials are not utterly arbitrary and unsupported by economic or public policy goals, as it reasonably conceives them" ( Matter of Prometheus Realty Corp. v. NYC Water Bd. , supra at 646, 69 N.Y.S.3d 555, 92 N.E.3d 778, quoting Carey Transp. v. Triborough Bridge & Tunnel Auth., 38 N.Y.2d 545, 553, 381 N.Y.S.2d 811, 345 N.E.2d 281 [1976] ). The task in demonstrating that the rate-setting agency's determination is unreasonable is appropriately described as a "heavy burden" ( id. at 646, 69 N.Y.S.3d 555, 92 N.E.3d 778, citing Matter of Nazareth Home of the Franciscan Sisters v. Novello , 7 N.Y.3d 538, 544, 825 N.Y.S.2d 426, 858 N.E.2d 1131 [2006] ; Consolation Nursing Home v. Commissioner of NY State Dept. of Health, 85 N.Y.2d 326, 331, 624 N.Y.S.2d 563, 648 N.E.2d 1326 [1995] ), which the plaintiffs have not met here.
Now the County Legislature
There is also no merit to the argument that The Ordinance is invalid and void because the County's authority, pursuant to Charter § 1231, was limited pursuant to County Charter § 1228. County Charter § 1228 was enacted prior to § 1231, and consequently § 1228 neither repealed or superseded, or was limited by, Charter § 1231. Accordingly, pursuant to Charter § 1231, the County was expressly and unambiguously delegated the authority to impose sewer charges on the owners or occupants of parcels of real property in the County that utilize, and or receive the benefits of, its sewage facilities, regardless of whether there were multiple sewage collection districts or distribution districts, or a combination of them, or one all-encompassing district.
Moreover, no triable issue of fact exists as to whether the purpose of the fees were to be used for the specific purpose they were being charged. The evidence clearly shows that the determination to impose the service charges was not due to a deficiency in the County's general operating budget, but because the amount received from the sewer ad valorem tax was insufficient to cover the costs of maintaining the Sewer system and paying off its debt.
Accordingly, as The Ordinance was enacted for the specific purpose of raising additional revenue to fund only the sewer system's maintenance, debt services, and improvements, it was rationally related to its stated intent and purpose.
A separate question is whether the rate charge, set at a maximum of $.01 per gallon of water used was justified. The County was not obliged to set the lowest possible rate every year since it can balance rate-setting with other needs and goals. As such, it cannot be stated that the County's actions were "utterly arbitrary and unsupported by economic or public policy goals, as it reasonably conceives them" ( Carey Transp. v. Triborough Bridge & Tunnel Auth., supra at 553, 381 N.Y.S.2d 811, 345 N.E.2d 281 ). Notably, Class 1 and 2 owners had for years been paying sewage ad valorem taxes on their properties at a disproportionally high amount for their sewage usage, and the benefits thereof received, when compared against the amount of usage placed upon the system by both the Exempt Users (plaintiffs and those similarly situated) who never paid anything, and the High Water Users, who paid a disproportionally low amount compared to their usage and the benefits received.
Consequently, the enactment of an ordinance which imposed sewage rate charges pursuant to water usage - upon exempt users (while excluding some exempt users) and upon high water users, while permitting high water users that are required to pay the ad valorem tax to be entitled to a deduction for certain water usage which does not actually enter the sewer system - was not irrational. Imposing sewage rate charges on the exempt and high water users was rationally related to County's goal to raise revenue to cover the costs of servicing and maintaining the sewage system, and to make it self-supporting. It also served the public policy to avoid increasing the disproportionate financial burden upon Class 1 and 2 properties that have historically shouldered the sewage systems costs while exempt users have not paid anything and high water users paid a low amount in relation to the benefits received.
Accordingly, after applying the well-established deferential standard of review, this Court finds that the County's actions fell short of being arbitrary and unsupported by rational goals (see, Matter of Prometheus Realty Corp. v. NYC Water Bd. , supra at 646-647, 69 N.Y.S.3d 555, 92 N.E.3d 778 ).
The plaintiffs have also failed to establish that it was wholly irrational for the County to exclude certain tax exempt entities, to wit, houses of worship, fire companies, voluntary ambulance services, and veterans organizations (as defined in the Amendment). The members of the County Legislature could have reasonably believed that those designated charitable, volunteer and not-for-profit entities utilized the sewer system less, received less benefits from it, had less ability to raise revenue and pay charges for the usage of the sewer system than other exempt entities, and that their minimal sewage usage would have resulted in a negligible amount of lost revenue. Nor was the County under any requirement or burden to show that the excluded exempt properties were, in terms of their financial status, "more needy" in comparison with other exempt properties (see, Matter of Prometheus Realty Corp. v. New York City Water Bd. , supra at 647, 69 N.Y.S.3d 555, 92 N.E.3d 778 [2017] ).
It was also not irrational for the County to permit High Water Users to claim a deduction for water (used for irrigation, commercial and operating purposes) that is not discharged into the sewage system, while not permitting the exempt users the same deduction. This again can be seen as rationally related to the Legislatures' goal of having the costs of the sewage system more proportionally and equitably spread across the users of the system. In view of the fact that High Water Users are already subject to charges through the sewage ad valorem tax, allowing the High Water Users to apply for a deduction towards the additional sewer service charge for certain water usage is rationally related to the County's goal of making the system self-supporting, while also having the subject Users pay their fair share. In sum, the distinction between Exempt Users and Excluded Exempt Users and Exempt Users and High Water Users, did not have to be drawn with surgical precision (see generally Carey Transp. v. Triborough Bridge & Tunnel Auth. 38 N.Y.2d at 554, 381 N.Y.S.2d 811, 345 N.E.2d 281 ; Elmwood-Utica Houses v. Buffalo Sewer Auth. , 65 N.Y.2d 489, 495, 492 N.Y.S.2d 931, 482 N.E.2d 549 [1985] ), and must be upheld in the absence of proof of invidious discriminations or a differential that is entirely unsupported by rational goals.
However, while the County had the authority, pursuant to Charter § 1231, to impose service charges or rents on all property owners for their sewage usage since 1951, the plaintiffs are correct that the County's authority to impose those charges ended prior to the enactment of the Ordinance and Amendment. When the New York State Legislature enacted Local Law 2003, Chapter 685 § (4), establishing and creating the Nassau County Sewer and Storm Water Finance Authority (Authority) and consolidating the County's numerous different sewer districts into the Nassau County Sewer and Storm Water Resources District (District), that statute became the controlling legislation, implicitly superseding and repealing the County's authority to impose sewer charges pursuant to Charter § 1231.
Contrary to the County's arguments that Chapter 685 did not repeal County Charter § 1231, either expressly or by implication, this Court concludes that it was the State Legislatures' unmistakable intent to repeal and render § 1231 null and void. Chapter 685 at § 4 clearly and unequivocally sets forth, inter alia, that "notwithstanding any provision of the county law, the county charter or any other general, special, or local law to the contrary, there shall annually be assessed, levied, and collected from the several lots and parcels of land within the district...amounts needed to pay to the authority the cost of any services...." (Local Law 2003, Chapter 685 § 4[3][b]). As such, the statute specifically sets forth the legislative intent that the costs for Nassau County's Sewer and Storm Water Resource District shall be raised by and through the use of assessments levied for sewer and storm water services. In clear and unequivocal language Chapter 685 authorized and directed that only assessments (taxes) would be used to pay for the costs of providing sewer services.
Thus, Local Law 2003, Chapter 685, is in direct conflict with the provisions of County Charter § 1231, which authorized the use of sewer charges and rents.
Accordingly, the Ordinance and the Amendment to the Ordinance (both enacted in 2010 under the County's purported authority pursuant to Charter § 1231) are null, void, unenforceable and invalid since the legislation enacted by the county in 2003 cannot supercede the governing State legislation promulgated in Local Law 2003, Chapter 685.
Even assuming arguendo that Local Law 2003, Chapter 685, did not repeal and render County Charter § 1231 null and void, the Ordinance and the Amendment to the Ordinance is void and unenforceable as impermissibly vague.
The Ordinance authorizes the County to impose service charges on Exempt and High Water Users for their use of the sewage facilities at a rate not to exceed $0.01 per gallon of water entering the County's sewer system, based upon their 2009 water consumption and then annually based upon the prior year's reported water consumption. The Ordinance designates the County Treasurer to collect the service charges, and authorizes the Treasurer to contract with any person or entity for the collection of the charges on such terms as the Treasurer deems advisable. The Ordinance also authorizes the Treasurer to establish any rules and / or regulations deemed necessary to implement The Ordinance, and delegates to the Treasurer the authority to determine whether a high water user is entitled to a deduction for water usage that does not enter the system. The Treasurer also has the authority to determine any appeals of those decisions. However, The Ordinance does not set forth what methodology will be utilized in setting the rates, or even if the rate is subject to change from year to year. Consequently, contrary to the assertions of the County, the failure to set forth the basis of how the rate charges will be determined, makes it not only difficult, but nearly impossible, for the entities to determine and calculate the sewer charges that will be imposed upon them, to properly prepare and establish their annual budgets, and to arrange for the timely payment of the charges so as not to incur additional interest and penalty charges. This is especially important since The Ordinance requires the payments to be made within 30 days of being charged and providing for a monthly 1% penalty for any late payments.
"A statute withstands an attack for vagueness if it contains sufficient standards to afford a reasonable degree of certainty so that a person of ordinary intelligence is not forced to guess at its meaning and to safeguard against arbitrary enforcement" ( Salvatore v. City of Schenectady , 139 A.D.2d 87, 89, 530 N.Y.S.2d 863 [1988] [citations omitted ] ). Here The Ordinance fails to satisfy these requirements, as the terms for setting the fees are so vague as to confound a person of ordinary intelligence and, thus, the ordinance is susceptible to arbitrary enforcement. Accordingly, The Ordinance is impermissibly vague and imparts vast discretion to the County to determine and set the sewage usage fee rates anywhere up to $0.01 per gallon of water usage.
The plaintiffs are also correct that The Ordinance impermissibly delegates unchecked authority to the County Treasurer and that the County Legislature exceeded its authority in delegating duties and responsibilities to the County Treasurer that are preserved for and the responsibility of the County Legislature.
It is also noted that the Eighth Whereas clause in the Ordinance states "the County has conducted an analysis of the sewer system to identify such Exempt Users and High Water Users and determined the charges to be imposed upon such Exempt and High Water Users commensurate with such burdens". However, there is scant evidence to support that statement. At the time the Ordinance was enacted, the County did not complete an analysis before the enactment of the Ordinance or the Amendment. While the County asserts its employees conducted a review, there was no actual comprehensive rate analysis done to establish sewer use charges was done prior to the enactment. In fact, it wasn't until several months after enactment of The Ordinance that the County selected an outside consulting firm to conduct an analysis. That firm did not provide its first draft analysis until approximately 2 years after The Ordinance was scheduled to take effect. Based upon the firm's draft analysis, the service charges, provided for in The Ordinance, would not achieve the goal set forth by the County Legislature. The draft analysis proposes a 2 tier rate charge system, charging both for the size of the entities' water meter(s) with a separate charge for the amount of water consumed.
The Court now turns to the issue of the County's counterclaims for unjust enrichment and quantum meruit . against some, but not all, of the plaintiffs in the four consolidated actions. The basis of a claim for unjust enrichment is that the defendant has obtained a benefit which in "equity and good conscience" should be paid to the plaintiff" ( Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [2011] ). "To prevail on a claim of unjust enrichment, a party must show that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered" Anesthe s ia Assocs . of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 59 A.D.3d 473, 481, 873 N.Y.S.2d 679 (2nd Dept. 2009) (citations omitted), see also Cruz v. McAneney, 31 A.D.3d 54, 59, 816 N.Y.S.2d 486 (2nd Dept. 2006) ; Marini v. Lombardo , 79 A.D.3d 932, 934, 912 N.Y.S.2d 693 [2d Dept. 2010] ; Old Republic National Title Ins. Co. v. Luft, 52 A.D.3d 491, 491-492, 859 N.Y.S.2d 261 [2nd Dept. 2008] ).
While it is clear that with the enactment of Charter § 1231 in 1951 the County was authorized to impose sewer charges or rents, that authority ended in 2003 upon the enactment of Chapter 685, which rendered the County's authority to imposes charges null, void, and invalid. Therefore the County currently has no authority to seek to retroactively recoup sewer charges after the enactment of Chapter 685. Moreover, as the County, by its own acknowledgment, was able to and always funded the sewer and storm water system through the use of taxes, and did not impose, request, or in any manner seek to exercise its authority, pursuant to Chapter § 1231, to impose sewer charges or rents on any entity prior to 2010. Accordingly, while the County previously had the statutory authority to impose service charges or rents, it never sought to exercise that authority until well after its statutory authority to do so was repealed in 2003. Here, none of the plaintiffs, or any other similarly situated entities, were ever previously requested to, nor did they ever expect, or have any reason to expect, to be charged for their usage or benefits received from use of the County's sewer system.
Consequently, as neither the County nor the tax exempt entities (the plaintiffs and those similarly situated) previously had any expectation they would be a charged for their use of the sewer system, there is can be no valid claim for unjust enrichment. To the contrary, it would be unjust to require these tax exempt entities, who were never previously requested to pay for their sewer usage, to now be charged retroactively for such usage. This is especially true since the County has acknowledged it never sought those charges prior to 2010 when it covered the costs of the sewer system through the use of taxes.
Similarly, since the County never had any expectation of payment from the exempt entities for their sewer usage, and those entities never expected to be requested to pay for such usage, the County's counterclaim for quantum meruit is without merit (see, Steinberg v. DiGeronimo, 255 A.D.2d 204, 680 N.Y.S.2d 93 [1st Dept. 1998] ). Moreover, in view of the County's failure to assert a reasonable value for the services they are seeking retroactive payment for, it has failed to properly plead a claim for quantum meruit ( Miranco Contr., Inc. v. Perel, 57 A.D.3d 956, 871 N.Y.S.2d 310 [2nd Dept. 2008] ; Fulbright & Jaworski, LLP v. Carucci , 63 A.D.3d 487, 881 N.Y.S.2d 56 [1st Dept. 2009] ).
Accordingly, for the reasons set forth infra , it is
ORDERED that the motion by plaintiffs Baldwin Union Free School District, et al in Action No. 1 for an order, pursuant to CPLR § 3212, granting summary judgment in their favor, and declaring Nassau County's Ordinance 184-2010 and Amendment Ordinance 199-2010, null, void and unenforceable, is granted; and it is further
ORDERED that the motion by plaintiffs The Board of Education of the East Meadow Union Free School District, et al in Action No. 2 for an order, pursuant to CPLR § 3212, granting summary judgment in their favor, and declaring Nassau County's Ordinance 184-2010 and Amendment Ordinance 199-2010, null, void and unenforceable, is granted; and it is further
ORDERED that the motion by plaintiff The National Center for Disability Services, Inc., d/b/a ABILITIES in Action No. 2, for an order pursuant to CPLR § 3212, granting summary judgment and dismissing the counterclaims asserted against it by the defendants, is granted; and it is further
ORDERED that the motion by plaintiff Hofstra University in Action No. 3, for an order, pursuant to CPLR § 3212, granting summary judgment in its favor, and declaring Nassau County's Ordinance 184-2010 and Amendment Ordinance 199-2010, null, void and unenforceable, is granted; and it is further
ORDERED that the motion by plaintiff Hofstra University in Action No. 3, for an order, pursuant to CPLR § 3212, granting summary judgment and dismissing the counter-claims asserted by the defendants against it, is granted; and it is further
ORDERED that the motion by plaintiffs St. Francis Hospital, Roslyn, New York, et al in Action No. 4, for an order pursuant to CPLR § 3212, granting summary judgment in their favor, and declaring Nassau County's Ordinance 184-2010 and Amendment Ordinance 199-2010, null, void and unenforceable, is granted; and it is further
ORDERED that the motion by plaintiffs St. Francis Hospital, Roslyn, New York, Sr. Francis Research and Educational Corporation, WSNCHS North, Inc., d/b/a St. Joseph's Hospital and Mercy Medical Center in Action No. 4, for an order pursuant to CPLR § 3212, granting summary judgment and dismissing the counter-claims asserted by the defendants against them, is granted and it is further
ORDERED that the cross-motion by defendants the County of Nassau, et al in all four actions for an order, pursuant to CPLR § 3212 and CPLR § 3211(a)(7), granting summary judgment in their favor, and dismissing the plaintiffs' complaints in all four actions, is denied in its entirety.
All matters not decided herein are denied.
The foregoing constitutes the decision and order of this Court.
Settle judgment in each action, declaring the rights of the parties in accordance with this order.