Volume 7 - Opinions of Counsel SBEA No. 74
Special districts (aquatic plant growth control) (charge - type of) - General Municipal Law, § 99-j; Town Law, §§ 202, 209-d:
Costs of an aquatic plant growth control district are imposed on an ad valorem basis, in the absence of a town board order that costs be imposed upon each parcel “in proportion. . .to the benefit” derived by each parcel.
We have been asked whether a lake “weed control district” may be established by a town on a special assessment basis (Real Property Tax Law, §102(15)), or whether it must be established based on the use of a special ad valorem levy (id., §102(14)).
Every municipal corporation is authorized to take action to control aquatic plant growth (General Municipal Law, §99-j). Towns are authorized to establish “aquatic plant growth control districts” pursuant to sections 190 and 198(10-e) of the Town Law.
Although subdivision 3 of section 202 of the Town Law provides that the expense of an aquatic plant growth control district is to be “assessed, levied and collected from the several lots and parcels of land within the district. . .in the same manner and at the same time as other town charges. . .”, which would seem to require a special ad valorem levy (Real Property Tax Law, §102(14)), the statute further provides that this is so “except as otherwise provided by law.”
Section 209-d of the Town Law provides that the order of the notice of hearing establishing an aquatic plant growth control district “may contain a statement that the cost of. . .aquatic plant growth control. . .shall be assessed by the town board in proportion as nearly as may be to the benefit which each lot or parcel will derive therefrom.” In that case, subdivision 2 of section 202 of the Town Law provides that the cost of construction
shall be borne by local assessment upon the several lots and parcels of lands [sic] which the town board shall determine and specify to be especially benefited by the improvement, and the town board shall apportion and assess upon and collect from the several lots and parcels of land so deemed benefited, so much upon and from each as shall be in just proportion to the amount of benefit which the improvement shall confer upon the same.
This is a special assessment (Real Property Tax Law, §102(15)).
(Subdivisions 1 and 2 of section 202-a of the Town Law provide that operation and maintenance charges of a town special district be imposed in the same manner as the capital cost of construction of the district or improvement, as provided above.)
Thus, if an order is adopted by the Town Board pursuant to section 209-d of the Town Law, then charges of an aquatic plant growth control district may be imposed on a special assessment (i.e., “benefit”) basis. If not, then the costs of the district should be raised by special ad valorem levies.
April 27, 1982