Opinion 94-27

This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

STREETS AND HIGHWAYS -- Improvements (assessments against non-fronting owners)

REAL PROPERTY TAXES AND ASSESSMENTS -- Assessments (imposition of assessment for road improvement against non-fronting owners)

TOWN LAW, §§200, 202(2): The cost of a road improvement undertaken pursuant to Town Law, §200 may be assessed only against abutting or fronting owners.

You ask whether a town may assess the cost of a road improvement under Town Law, §200 against both abutting and non-abutting property owners if it is determined that all of such property owners are benefited by the improvement.

Town Law, §200 authorizes a town board, either upon petition of a prescribed percentage of fronting or abutting owners or upon the board's own motion, to improve a street, highway, private road or right-of-way. When the improvement is initiated by the town board, the resolution authorizing the improvement is subject to permissive referendum and the petition requesting a referendum must be initiated, signed and acknowledged in the same manner as a petition for the improvements pursuant to section 200 (Town Law, §200[10]; 24 Opns St Comp, 1968, p 459).

The expense of the improvement is to be borne by "local assessment upon the several lots and parcels of lands which the town board shall determine and specify to be especially benefited by the improvement" (Town Law, §202[2]). This Office has consistently expressed the opinion that only abutting or fronting owners may be deemed benefited by an improvement undertaken pursuant to section 200 (see, e.g., 1981 Opns St Comp No. 81-353, p 385; 32 Opns St Comp, 1976, p 85; 27 Opns St Comp, 1971, p 160; 1969 Opns St Comp No. 69-703, unreported; 24 Opns St Comp, 1968, p 900; 22 Opns St Comp 1966, p 677; see also 9 Opns St Comp, 1953, p 35). We continue to adhere to that view.

As noted, under section 200 only abutting or fronting owners may submit a petition to initiate a road improvement. Similarly, in the event an improvement is initiated on town board motion, only abutting or fronting property owners may petition for a referendum. We believe these restrictions on the right to petition are evidence of legislative intent that only abutting or fronting owners may be deemed benefited by the improvement (see Opn No. 69-703, supra; see also Memoranda to the Governor by the Department of Transportation, April 2, 1963 and June 10, 1965, for L 1963, ch 706 and L 1965, ch 855, stating that improvements under section 200 are to be paid by fronting or adjoining owners). If sections 200 and 202(2) were to be read to allow the cost of the improvement to be spread among non-abutting or fronting owners, then the cost of an improvement could be imposed on a class of property owners who are not full participants in the process of authorizing the improvement (cf. Town Law, §§191, 192, 209-e). We do not believe the Legislature intended such a result.

We note that, should the town board find the procedures of Town Law, §200 to be inappropriate for the town in the instant situation, there is precedent for the establishment, pursuant to special act, of town special districts for road improvements. These districts could encompass both abutting and non-abutting properties, if determined to be benefited (see, e.g., L 1994, ch 589; L 1993, ch 569). We mention the possibility of a special act for informational purposes only, and not as a recommendation of this Office with respect to any such act.

December 31, 1994
Murray N. Jacobson, Esq., Town Attorney
Town of Clarkstown