Filed Date: 2/22/1977
Status: Precedential
Modified Date: 7/5/2016
JOHN P. SULLIVAN, ESQ. Town Attorney, Whitestown
This is in response to your letter of February 2, 1977 wherein you ask for our opinion on four questions relating to a sewage-works corporation in the Town of Whitestown, formed in 1962 under Transportation Corporations Law, Article 10.
Your first question asks if the sewage-works corporation may charge hookup fees where it was formed with the consent of the Town Board, but consent to the charging of the hookup fees was neither asked for by the corporation nor given by the Town Board.
Transportation Corporations Law, §
The precise question of whether the corporation may charge for a service not included in the schedule of rates agreed to by the Town and the sewage-works corporation does not appear to have been decided by the courts. However, it does appear that where a corporation whose charges are regulated in a manner similar to that pertaining to a sewage-works corporation performs a service which is not included in the list of agreed services and rates and makes a charge for the service, the corporation may make a reasonable charge for the service rendered. Annot., 103 A.L.R. 1373 (1936); cf. Raymond-Hadley Corp. v. Boston M.R.Co.,
The second question posed is whether the corporation may expand the territory which it services without consent of the Town Board. It is our opinion that the sewage-works corporation could expand its territory only if it amended its certificate of incorporation and again obtained the approval of the Town Board, since Transportation Corporations Law, §
"No certificate of incorporation of a sewage-works corporation shall be filed unless there be annexed thereto a certificate or certificates duly executed in behalf of the local governing bodies of the city, town or village * * * consenting to the formation of the corporation for the area described in such certificate." (Emphasis ours.)
Your third question asks if the sewage-works corporation may charge hookup fees to individual property owners and not charge this fee to an apartment complex where some of the officers of the sewage corporation are also officers of the apartment complex.
Although in contrast to the Public Service Law, among others, no specific prohibition against unjust determination and unreasonable preferences is set forth in Transportation Corporations Law, §
The reference in your letter to the fact that owners of the apartment complex are also officers and owners of the sewage-works corporation indicates that this joint interest is the basis for the discrimination as between the individual property owners and the apartment complex. In the absence of any other facts justifying the preferential treatment given to the apartment complex, it is our opinion that the action which you described constitutes unreasonable discrimination.
Your fourth question asks whether or not the Town, in purchasing the sewage-works corporation under Transportation Corporations Law, §
"This act shall take effect on the first day of October next succeeding the date on which it shall become a law [October 1, 1970] except that the provisions of subdivision a of section one hundred twenty of such law in effect immediately preceding the effective date of this act shall continue in effect with respect to corporations consented to by the local governing body prior to the effective date of this act."