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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

ELECTIONS -- Improvement Districts (eligibility to vote)
IMPROVEMENT DISTRICTS -- Establishment (eligibility of non-property owners to vote in election on establishment) -- Referendum (eligibility to vote)
SEWER DISTRICTS -- Establishment (eligibility of non-property owners to vote in election on establishment) -- Referendum (eligibility to vote)
WATER DISTRICTS -- Establishment (eligibility of non-property owners to vote in election on establishment) -- Referendum (eligibility to vote)

TOWN LAW, §209-e: Persons who do not own taxable real property situate in a proposed water or sewer district are not entitled to vote in a special district election on a proposition to establish the water or sewer district. At such election each tenant by the entirety, tenant in common and joint tenant owning taxable real property within the proposed district is entitled to vote. However, partnerships and corporations owning such property are only entitled to a single vote. Any such person or entity owning more than one parcel within the proposed district is entitled only to a single vote.

You ask whether persons who do not own taxable real property in a proposed district are entitled to vote in a special election on a proposition to establish a water district or sewer district pursuant to Town Law, §209-e. You also request clarification of voting rights and the number of votes which might be cast in such special elections by persons or entities owning property within the district as a tenant by the entirety, tenant in common, joint tenant, partnership or corporation.

Town Law, §209-e(3) provides, in pertinent part, that a proposition to approve a resolution establishing a special district "must be approved by the affirmative vote of a majority of the owners of taxable real property situate in the proposed district". The provision in section 209-e(3) limiting the right to vote only to property owners was held to be unconstitutional in the context of a referendum to establish a water district in Matter of Wright v Town Board of the Town of Carlton, 41 AD2d 290, 342 NYS2d 577 [1973], affd 33 NY2d 977, 353 NYS2d 739. The court in Wright, supra, discussed the U.S. Supreme Court case of Salyer v Tulare Water District, 410 US 719, 93 S Ct 1224, 35 L Ed 2d 659, in which the Supreme Court recognized an exception to "one-person, one-vote" principles when a governmental body has a special limited purpose which disproportionately affects landowners as a group, and found it was not controlling. In reaching its conclusion, the court also noted that both landowners and tenants share a vital concern as to the availability of good drinking water and that tenants may indirectly pay for water through increases in rents.

Subsequently, however, the Court of Appeals in Esler v Walters, 56 NY2d 306, 452 NYS2d 333 (1982), upheld the constitutionality of the requirement in Town Law, §206(7) that a voter on a proposition for the consolidation of special districts must be "the owner of taxable property situate within one of the districts ..." (see also 1983 Opns St Comp No. 83-189, p 238). The Court of Appeals, noting that the property ownership provision in section 206(7) was "comparable" to that in section 209-e(3) (56 NY2d at 310, 452 NYS2d at 335), held that the requirement in section 206(7) did not violate the equal protection guarantees of either the State or Federal Constitutions (NY Const, art I, §11, US Const, 14th amend), or the voter rights provisions of the State Constitution (NY Const, art I, §1; art II, §1).

The Court relied upon the decision of the U.S. Supreme Court in Ball v James, 451 US 355, 101 S Ct 1011, 68 L Ed2d 150 (1981), which upheld a land ownership requirement in an election of directors of a water reclamation district. The Court of Appeals stated that "the Supreme Court's latest decision in this area [Ball v James] now indicates that the exception recognized in Salyer is broader than it was perceived to be when the Wright case was decided" (56 NY2d at 312, 452 NYS2d at 336). The Court expressly rejected factors found persuasive in Wright; i.e., the common interest of both landowners and tenants in the availability of public water facilities and the fact that costs of the district directly imposed on landowners will also be passed along to tenants through increased rents. Instead, the Court observed that "it was now clear, from the Supreme Court's decision in the Ball case that the question is not whether those entitled to vote are the only ones affected by the operations of this type of special entity, but whether the effect on them is disproportionately greater than on those claiming an equal right to vote" (56 NY2d at 313, 452 NYS2d at 337). The Court of Appeals indicated that, as in Ball, the role of the consolidated water district was limited to the storage and delivery of water to landowners throughout the district and did not include the exercise of general governmental authority or provision of general public services. It further noted that the costs of the consolidated water district and its operations would be assessed "only against landowners whose property alone is subject to assessments and charges for the benefits conferred, and is also subject to liens for delinquencies" (56 NY2d at 313, 452 NYS2d at 337).

It is clear that the Court of Appeals, in rejecting the factors found to be persuasive in Wright and noting that section 209-e contains "comparable" provisions to section 206(7), no longer views Wright as controlling precedent (see also dissenting opinion of Judge Fuchsberg). Moreover, the limited purpose of a water district and the disproportionate effect of its activities upon landowners therein is the same in the context of both a special district election on a proposition to establish a water district pursuant to Town Law, §209-e and on a proposition to consolidate water districts pursuant to Town Law, §206(7). Therefore, it is our opinion that the holding of Esler applies equally to a vote on a proposition to establish a water district and, therefore, persons who do not own taxable real property situated in the proposed district are not entitled to such a vote.

It is also our opinion that the same conclusion would apply to a proposition to establish a sewer district pursuant to Town Law, §209-e. Like water districts, sewer districts are governmental bodies performing a special limited function and not exercising general governmental authority. Further, since the assessments and charges of a sewer district, like those of a water district, are raised only against landowners (Town Law, §§198[1], 202, 202-a; General Municipal Law, art. 14-F), the establishment of a sewer district will have the same type of a special and disproportionate effect upon landowners as that discussed in Esler.

We also note that the rationale of the U.S. Supreme Court's decision in Ball has been considered and applied by other courts in the context of sewer and certain other types of districts. For example, in Burris v Sewer Improvement District No. 147, 743 F Supp 655, (US Dist Ct, ED Ark.), the court upheld the constitutionality of an Arkansas statute allowing the majority in assessed value of the landowners to petition for the formation of a sewer improvement district. In Goldstein v Mitchell, 144 Ill App 3rd 474, 494 NE2d 914, the Appellate Court of Illinois, 2d District, upheld the constitutionality of a statute limiting to property owners the right to vote in an election of a member of the board of commissioners of a drainage district which, in addition to having responsibility for the management of erosion and flooding problems, possessed powers relating to the collection and disposal of sewage. Similarly, the Ball rationale has been applied in New York to a referendum under Town Law, §209-e on extension of a refuse collection district (Lane v Town of Oyster Bay, 149 Misc 2d 237, 564 NYS2d 655, appeal pending) and in other states to irrigation district elections (Porterfield v Van Boening, 154 Ariz 556, 744 P2d 468), and rapid transit districts (Southern California Rapid Transit District v Bolen, 60 Law Week 5518, Calif. Sup Ct. No. 5015986). Indeed, the only cases of which we are aware in which the Ball rationale has been rejected and a land ownership requirement stricken were Quinn v Millsap, 491 US 95, 109 S Ct 2324, 105 L Ed2d 74, which was not a voting rights case but, rather, involved a real property ownership requirement for appointment to a board recommending a plan for reorganization of local government, and Bjornstad v Hulse, 229 Cal App 3rd 1568, 281 Cal Rptr 548, in which the California Court of Appeals had declared unconstitutional a statute specifying that only landowners in a special water district could vote in district elections or be members of the district's governing board of directors. The latter decision, however, was vacated by the California Supreme Court and remanded for reconsideration in the light of an intervening statutory amendment enfranchising all residents of the water district.

Accordingly, we conclude that persons who do not own taxable real property situated in a proposed sewer district are not entitled to vote on a proposition to establish the sewer district, pursuant to Town Law, §209-e. We note that the Attorney General, in 1991 Opn Atty Gen I 91-30, has reached the same conclusion.

Your question regarding voting rights, in elections under Town Law, §209-e, of tenants by the entirety, joint tenants, tenants in common, partnerships and corporations has previously been addressed by this Office in 1986 Opns St Comp No. 86-17, p 28. As we concluded in that opinion, which is hereby reaffirmed, each tenant by the entirety, tenant in common and joint tenant owning taxable real property within a proposed district is entitled to vote in an election conducted pursuant to Town Law, §209-e. However, partnerships and corporations owning such property are only entitled to a single vote, and any person or entity owning more than one parcel within the proposed district is entitled only to a single vote.

December 29, 1992
Mahlon R. Perkins, Esq., Town Attorney
Town of Dryden