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THERE ARE TWO STATUTORY PROCEDURES FOR APPROVING AN EXTENSION OF A SEWER DISTRICT; HERE THE REQUEST FOR AN EXTENSION WAS INITIATED UNDER ONE STATUTORY PROCEDURE, WHICH DOES NOT REQUIRE A REFERENDUM, BUT THE TOWN APPLIED THE OTHER STATUTORY PROCEDURE, WHICH DOES REQUIRE A REFERENDUM; THAT WAS ERROR (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the town failed to follow the correct statutory procedure for approval of an extension of a sewer district to include petitioner’s commercial development  There are two statutory procedures. The Town Law Article 12 procedure applies when a petition is filed by an owner of taxable property (like the petitioner in this case). The Article 12 procedure has no “referendum” requirement. The Town Law Article 12-A procedure is initiated by the town and requires a referendum. Here the town required a referendum and thereby applied the wrong statutory procedure:

… [W]ithout formally ruling on the article 12 petition, the Town Board … essentially approved the extension project under the framework of article 12-A by providing for a permissive referendum. Recognizing that these articles do not contain any mechanism for such a conversion, we find that the Town Board erred and, as a result, its resolutions must be invalidated. Matter of Glen Wild Land Co., LLC v Town of Thompson, 2025 NY Slip Op 02628, Third Dept 5-1-25

Practice Point: Where the Town Law provides two distinct statutory procedures for approval of an extension of a sewer district, the town must follow the procedure in the applicable statute. Here the applicable statute did not require a referendum but the inapplicable statute did. The town erred when it required a referendum.

 

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