Opn. No. ( 1978 )

Henry A. LaRaia, Esq. Counsel, Herkimer County Sewer District

We acknowledge receipt of your letter as attorney for a county sewer district in Herkimer County. You state that the method of assessment of the cost of the district, selected upon the formation of the district, is the method specified in County Law § 271. You also state that some property owners, whose properties are so located that it is not reasonable to expect those properties to be serviced by sewer lines of the county sewer district, object to paying any assessment, even a small one, in connection with the sewer district because they feel their properties are not benefited by being in the district. You inquire whether the sewer district may be diminished in size so as to exclude those properties.

We find no authority in the County Law for the diminution in the area of a sewer district created under the authority contained in the County Law Article 5-A (§§ 250-280). It is a fundamental of municipal law that a municipality may do only those acts which are specifically authorized or which are necessarily inferred from a grant power (Seaman v Fedourich,16 N.Y.2d 94 [1965]).

In our opinion, the area of an existing county sewer district created under County Law Article 5-A may not be diminished.

We point out that the determination as to the area could have been reviewed under Article 78 of the Civil Practice Law and Rules pursuant to County Law § 260 at the time of formation and also by establishment of zones of assessment or changes of areas included in the district as allowed by County Law §§ 253-a and 254.

We also point out that under County Law § 271 there must be an assessment roll prepared annually by the board of supervisors after a public hearing to provide the assessments necessary to operate and pay the operating and capital costs of such a district for the ensuing year. The board of supervisors, prior to the public hearing or at any time up to the final adoption of the assessment roll, may change the proportion of the benefit enjoyed by various properties within the district if the board concludes that the proposed figures are inequitable.