NY Supreme Court to rule on “refuse fee”; nixes New Rochelle’s Motion to Dismiss

The City of New Rochelle city council’s Motion to Dismiss a lawsuit against its residential refuse fee was decided this week; Judge James Hubert of the Supreme Court of the State of New York, County of Westchester sitting at White Plains denied the motion in a four-page decision. The council has three weeks to explain, essentially; why “user fees” should be employed instead of simply utilizing general property taxes; increasing them above a 2011 statutory limit as required to supplement revenues from sales taxes, parking tickets and assorted permits and fines in order to finance necessary city operations.

The question is of considerable significance in light of the 2% property tax cap legislation adopted two years ago by a nearly unanimous state legislature and signed into law by the governor. The city had tripled-up a pre-existing, 10 year-old fee for refuse pick-up, increasing it to $223 per residence (private homes and each individual apartment in a multi-family or high rise, included). The council also increased the city tax levy by 2%; combining the levy and fees, the increase for the 2012 budget year approached 15% in total. For the 2013 budget just adopted last December, the city council maintained the enhanced fee and then increased property taxes in general by almost 7% after voting to raise the cap as permitted under the 2011 state legislation.

The lawsuit was filed in the form of an Article 78 proceeding which is designed according to state statute to allow an ordinary citizen to challenge the action of a government agency or officer for acting unlawfully or beyond its jurisdiction. The City of New Rochelle’s motion questioned the form and procedure of the action. Judge Hubert declined to accept such grounds to dismiss the proceeding. and concluded that “the petition … states a cause of action…”. The respondent city council was given three weeks from entry of filing of notice of entry of the decision to file and serve their answer.

With the city council’s expected response, residents, taxpayers, property owners (both individual and multi-family), renters and other stakeholders will have the opportunity to better understand why, as a consequence of the city’s budgetary woes they should have to endure fees on all sorts of city accommodations and services that they have long come to expect as a proper return on their willing and regular payment of ordinary taxes.

If the fee device as presently implemented is permitted to continue, will we, our neighbors and friends need to cower in fear of the next dreaded residential user fee? What form will it take and to what other appurtenances of suburban living will it be attached next? Traffic lights, stop signs, sewer grates, fire hydrants, chimneys, in-ground swimming pools and Jacuzzis?

Perhaps the court proceedings will shed light on the actual reasons for the city’s revenue shortfall, other than the usual culprits of loose administrative policies, archaic work rules/practices and waste. Perhaps also, a genuine discussion will ensue concerning how local government and all the political components and elements of the citizenry: Republican, Democrat, Independent and unaffiliated; ideologically liberal, libertarian and conservative; African-American, Caucasian, Asian and Spanish-Speaking, might work cooperatively and harmoniously together to start addressing our proud city’s operational and budgetary difficulties.

Proponents of efficacious and efficient government will likely cite as the chief problem and starting point of analysis; the gifting by successive Democratic city administrations of excessive tax breaks to developers of rental apartments in our beleaguered downtown core – past recipients including the Avalon group and Cappelli Enterprises – possible future recipients including Forest City Ratner, which at the present moment is seeking a new 20-year deal. As advocates of fiscal restraint see it, Westchester seems to be the home of desperate municipal taxing/revenue generation measures, and New Rochelle is its ground zero (reports of new outbreaks of “service fee fever” have lately been overheard in nearby Port Chester).

Conservatives have been outspoken on such issues for a while. Maybe it is time that we heard from those across the ideological spectrum: left-leaning and liberal advocates of strong schools and propitious living standards for all, regardless of income level. They can’t be content with the constrained school funding and slapdash infrastructure maintenance which the depletion of New Rochelle’s assessable tax base by some $32 million in only nine years has caused.

On the strictly political plane, Mayor Noam Bramson is seeking the Democratic nomination to run for the County Executive seat held by Republican Rob Astorino. The Article 78 proceeding may shed light on Bramson’s claim that his development planning and practices have halted the city’s slide from preeminence as a leading suburb. The hearings could also take stock of his administration’s devotion to an open and democratic exercise of republican local government; essentially, assaying the relative transparency or opacity of city hall in its support of the extension of generous, extra-market concessions and tax abatements to favored developers, some of whom have contributed to campaign funds of numerous New Rochelle politicians, including himself.