| Matter of Batti v Town of Austerlitz |
| 2010 NY Slip Op 01865 [71 AD3d 1260] |
| March 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of Gerard V. Batti et al., Appellants, v Town ofAusterlitz et al., Respondents. |
—[*1] Young, Sommer, Ward, Ritzenberg, Baker & Moore, L.L.C., Albany (Jeffrey S. Baker ofcounsel), for respondents.
McCarthy, J. Appeal from a judgment of the Supreme Court (Hummel, J.), entered April 24,2009 in Columbia County, which dismissed petitioners' application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent Town Board of the Town of Austerlitzimposing a special assessment against petitioner Phyllis M. Batti's real property.
At the urging of petitioner Gerard V. Batti and other affected property owners, respondentTown Board of the Town of Austerlitz formally accepted two roadways in the Bryarcliffe Estatessubdivision in the Town of Austerlitz, Columbia County, after the developer abandoned theproject and dissolved (see Town Law § 279 [4]). The Board, on its own motion,adopted a resolution authorizing improvements to the roads (see Town Law § 200[1]) and assessed the improvements against the benefited properties, including property ownedby petitioner Phyllis M. Batti, Gerard Batti's wife (see Town Law § 202 [2]).Petitioners commenced this CPLR article 78 proceeding objecting to the assessment against theBatti property on two grounds: first, that Phyllis Batti's property cannot be deemed to benefitfrom the roadway improvements because she would not have been entitled to participate fully ina permissive referendum on the resolution approving the improvements and, second, that theassessment was arbitrary and capricious because similarly situated properties were not includedin the assessment. Supreme Court dismissed the petition. We affirm.[*2]
Special assessments enjoy a "presumption of validity. . . requiring petitioners to show by affirmative proof that they have not benefitedfrom the improvement or that it is nonassessable in the first instance" (Matter of Nolan vBureau of Assessors of N.Y. City Fin. Admin., 31 NY2d 90, 93 [1972]). Phyllis Batti ownsproperty adjacent to the subdivision and an appurtenant right-of-way for ingress and egress overall of the subdivision roads—those ceded to respondent Town of Austerlitz as well as aprivate road in the subdivision not ceded to the Town that connects her property with the othersubdivision roads.[FN*]Although the Batti property does not directly front or abut either of the subdivision roads whoseimprovements gave rise to the assessment, petitioners actually use the improved roadway as theirsole means of ingress and egress.
The Town Law grants only the owners of land "fronting or abutting" upon a street the rightto formally petition for street improvements (Town Law § 200 [1]). However,where—as here—a town board, on its own motion, adopts a resolution to makestreet improvements, such resolution is subject to a permissive referendum initiated by frontingor abutting property owners and approved by "the owners of real property situate in the proposedbenefited area described in the resolution" (Town Law § 200 [10]). Accordingly,nonabutting owners such as Phyllis Batti are afforded a role in deciding whether to undertake aproposed improvement when the referendum process is utilized. After a town resolves to makestreet improvements, the related costs of such improvements are then assessed upon thelandowners whose parcels the town board determines are "especially benefited by theimprovement" (Town Law § 202 [2]).
While the Comptroller "has consistently expressed the opinion that only abutting andfronting owners may be deemed benefited by an improvement undertaken pursuant to [TownLaw § ] 200" (1994 Ops St Comp No. 94-27; see 1982 Ops St Comp No. 82-114;1981 Ops St Comp No. 81-353; 1981 Ops St Comp No. 81-270), this is a matter of pure statutoryconstruction, not implicating the Comptroller's expertise, such that his interpretation is notentitled to judicial deference (see Matter of White v County of Cortland, 283 AD2d 826,827 [2001], affd 97 NY2d 336 [2002]). In fact, we do not agree with that statutoryinterpretation, which the Comptroller has stated is based upon his understanding of thelegislative intent rather than the plain language of the statute (see 1994 Ops St Comp No.94-27). Town Law § 200 deals with the right of abutting property owners to petition for animprovement, making no reference whatsoever to how the funds to pay for such improvementswill be collected. Town Law § 202, by contrast, deals with how the revenue for suchimprovements will be obtained, namely from those "several lots and parcels of lands which thetown board shall determine and specify to be especially benefited by the improvement" (TownLaw § 202 [2]). The statute does not require the town board to impose an assessment forimprovement only against the owners of land abutting and fronting the street. Had that been theLegislature's desire, it could have specifically used the words "fronting or abutting" in TownLaw § 202 (2) as it did in Town Law § 200 (1). Instead, the Legislature left it withinthe town board's discretion to determine which parcels of land it deems "especially benefited bythe improvement" under the unique circumstances of each case, and permits the expense of theimprovement to be assessed against those lots. Hence, the Board here exercised its discretion incompliance with the statutes when it imposed an assessment against Phyllis Batti for theimprovement at issue.[*3]
Petitioners were afforded an opportunity to be heard at apublic hearing concerning the improvements (see Town Law § 200 [7]; seealso Town Law § 200 [9]), and Gerard Batti spoke on the topic at the hearing andseveral Board meetings. While petitioners may not have been entitled to petition forimprovements (see Town Law § 200 [1]), or for a permissive referendum if theTown Board acted on its own motion, Phyllis Batti would have been entitled to vote on such aproposition had a referendum been initiated (see Town Law § 200 [10] [requiringapproval in referendum by "affirmative vote of a majority of the owners of real property situatein the proposed benefited area"]). Her inability to participate in every aspect of the petition andreferendum process does not defeat the Board's rational determination that her property isespecially benefited by the improvement.
Equally unavailing is petitioners' argument that similarly situated properties were notincluded in the assessment. The Batti property was included on the assessment roll based onpetitioners' actual use of the subdivision roads as their sole means of ingress and egress.Petitioners failed to demonstrate by affirmative proof that properties similarly situated wereexcluded from the assessment.
Spain, J.P., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: The Batti property, includingthe right-of-way, was originally conveyed from the developer to the Battis jointly, and ultimatelyto Phyllis Batti individually.