Upon the reading and consideration of NYSCEF documents numbered 1 to 57 in County of Suffolk v Town of Riverhead et al., with the Index No. 616977/2021 (Action No. 1) and the NYSCEF documents numbered 1 to 31 in County of Suffolk v Town of Riverhead et al., with the Index No. 602155/2023 (Action No. 2), it is:

ORDERED and ADJUDGED that the relief requested in the First Cause of Action of the Petition-Complaint in Action no. 1 is granted; and it further

ORDERED and ADJUDGED that the relief requested in the Petition-Complaint in Action no. 1 is granted only to the extent that the determination made by the Town Board of the Town of Riverhead in adopting the Resolution Nos. 2018-953 and 2021-326 was arbitrary and capricious and had no rational basis; and is further

ORDERED and ADJUDGED that the Town of Riverhead is prohibited and enjoined from imposing the sewer charges pursuant to the Resolution Nos. 2018-953 and 2021-326; and is further

ORDERED that the relief requested in the Second and Third Causes of Action of the Petition-Complaint in Action no. 1 are denied; and it is further

ORDERED that the Fourth, Fifth, and Sixth Causes of Action in Action no. 1 are severed from the causes of action which are disposed by this Order, for their further determination and disposition; and it is further

ORDERED that the Petition-Complaint in Action no. 2 is adjourned for ninety (90) days from the date of this Order to provide the parties the opportunity to file their memoranda and supporting documents.

The County of Suffolk (County) brought two hybrid Article 78 proceedings and declaratory judgment actions against the Town of Riverhead, the Town Board of the Town of Riverhead, and the Town Board of the Town of Riverhead as the governing body of the Riverhead Sewer District (collectively Town or Riverhead) to vacate and annul the Town's Resolution Nos. 2018-953 and 2021-326 in first action with the Index No. 616977/2021 (Action No. 1) and the Resolution No. 2022-429 in the second action with the Index No. 602155/2023 (Action No. 2).

The County challenges the sewer charges charged by the Town to the County as an out-of-district user for County owned facilities for the 2017/18 through the 2020/21 fiscal years in Action No. 1 and for the 2021/22 fiscal year in Action No. 2. Pursuant to the So-Ordered Stipulation dated March 21, 2023 (Hensley, A.J.S.C.), the two actions were joined for discovery and trial. The So-Ordered Stipulation also provided that the parties agreed to "forego additional briefing on the duplicative allegations in Action 2 and request[ed] that the Court resolve all Article 78 claims and defenses associated with either Action 1 or Action 2 based upon the memoranda and other documents submitted in regards to the Article 78 claims in Action 1" (NYSCEF Doc No. 51, Action no. 1). In both actions, Riverhead submitted an answer with counterclaims, as well as a return. Briefing by the parties was only done in Action no. 1.

The Riverhead Sewer District (Sewer District) is a municipal special district duly formed under the Town Law and located within the territorial boundaries of the County. The Sewer District has the authority to fix sewer rents and levy ad valorem taxes on in-district properties. Since September 16, 1969, the County and Riverhead entered into a series of intermunicipal agreements, pursuant to which the Sewer District provided for the collection, treatment, and disposal of sewage generated from various County owned facilities, including the Suffolk County Correctional Facility, the Riverhead County Center, and the Criminal Court facilities (County Facilities). The County Facilities are located in the Town of Southampton, outside of the jurisdictional boundaries of the Sewer District and the Town of Riverhead. The County is the only out-of-district user of the Sewer District.

The last intermunicipal agreement dated December 1, 1997 (Agreement) allowed the County to use the Sewer District for the treatment of the sewage generated by the County Facilities through December 31, 2017. The Agreement included a complex calculation of the payments owed by the County to the Sewer District for sewer services. Pursuant to the Agreement, the parties agreed that the County was to pay Riverhead, for each calendar year that the Agreement was in effect, "a sum of money to be computed by adding the 'sewer rent' for each calendar year to the 'ad valorem levy' for each calendar year" (NYSCEF Doc No. 3, Action no. 1). The County's average payment for services rendered by Riverhead from 2006 to 2017 was approximately $345,966.21 per fiscal year, with the payment for the 2016/17 fiscal year being $280,294.08.

When the County attempted to extend the Agreement with some minor modifications for an additional twenty years beyond December 31, 2017, Town Supervisor Sean M. Walter sent a letter dated August 9, 2017 to the County rejecting such proposal "[i]n light of the Sewer District's failure to receive the necessary rate stabilization funds [from the County] resulting in substantial budget shortfalls" (NYSCED Doc No. 7, Action no. 1). The Town Supervisor also noted that "Suffolk County must recognize that the Riverhead Sewer District rate and assessment [has to] be stabilized at three percent before meaningful negotiations may be held regarding the continued treatment of County sewage by the Riverhead Sewer District" (id.).

The correspondence referred to Riverhead's claim that the County had failed to pay Riverhead specific sums from the County's Assessment Stabilization Reserve Fund (ASRF) to stabilize Riverhead's sewer rates for 2016 and 2017. This claim was the subject of the action filed by Riverhead against the County on June 1, 2017, captioned Town of Riverhead v County of Suffolk, with the Index No. 02872/2017. By Order dated May 15, 2020 (Leo, J.S.C.), Riverhead's claims for ASRF funding were dismissed.^[FN1]

On September 16, 2017, the County informed Riverhead that its refusal to accept and treat sewage from the County Facilities would threaten immediate and irreparable harm to the residents of the County and would pose an immediate danger to the health and safety of those same residents. As a result, the Sewer District has continued to provide services to the County Facilities despite the Agreement having expired on December 31, 2017 and no other agreement [*2]having been executed.

In the absence of an intermunicipal agreement between the County and the Sewer District, the Town Board adopted a number of resolutions to set sewer charges for the County Facilities.

On December 18, 2018, Riverhead adopted Resolution No. 2018-953 titled "Establishes Fair and Reasonable Sewer Rent for Out of Town Facilities for Calendar Year 2018 and 2019" (2018 Resolution). The 2018 Resolution explained that the Sewer District is prohibited by law from making a gift of sewer services to the County and that absent an intermunicipal agreement with the County it was necessary for Riverhead to fix a sewer rent for the sewer treatment provided by the Sewer District to the County for the calendar years of 2018 and 2019. The relevant Whereas and Resolved Clauses of the 2018 Resolution stated:

WHEREAS, the annual cost to the County to construct and operate its own treatment plant to provide sewer services of a quality and standard provided by the District has been calculated by the District Engineer to be $2,428,343 on an annual basis which under the proposed local law would be the annual sewer rent due and owing by the County of Suffolk for the treatment of sewage generated outside of the District and the Town at the County Center, and

. . .

NOW THEREFORE BE IT RESOLVED, that the Riverhead Town Board as the governing body of the Riverhead Sewer District hereby determines that the sewer rent for sewer service for the out of town facilities located at the County Center for the calendar year 2018 shall be the district rate as established for in district connections by the 2017/2018 tax warrant of $6.657 per one thousand gallons of annual flow based upon the gallons of waste water usage for the County Center facilities set and determined by the Suffolk County Department of Health Services Division of Environmental Quality's "STANDARDS FOR APPROVAL OF PLANS AND CONSTRUCTION FOR SEVVAGE DISPOSAL SYSTEMS FOR OTHER THAN SINGLE-FAMILY RESIDENCES and STANDARDS FOR APPROVAL OF PLANS AND CONSTRUCTION FOR SEWAGE DISPOSAL SYSTEMS FOR SINGLE-FAMILY RESIDENCES (the "Base Rent"), plus an out of district surcharge in recognition of the additional benefit derived [sic] ad valorem tax paid by District residents and additional out of Town user charge. Using the County's Standards, the District Engineer has calculated the gallons of waste water usage to be 169,399 gallons per day resulting in an annual flow of 61,830,635 gallons. This results in a fair and reasonable charge to the County of Suffolk for the treatment of sewage generated at the County Center for the calendar year of 2018 of $720,311.44. Using the same methodology and the 2018/2019 resident Sewer District rent of $6.433 per one thousand gallons of annual flow the charge for 2019 is hereby set at $696,073.83.

(NYSCEF Doc No. 12, Action No. 1).

The 2018 Resolution established that the sewer rents for the County Facilities for the 2017/18 and 2018/19 fiscal years would be calculated on the basis of an annual flow of 61,830,635 gallons, plus an out-of-district surcharge, plus an additional out of Town user charge.

On February 3, 2021, Riverhead adopted Resolution No. 2021-101, which authorized the notice of a public hearing to "Establish Fair and Reasonable Sewer Rent for Out of Town Facilities for Calendar Years 2020 and 2021 and [to] Ratify and Confirm Fair and Reasonable Sewer Rent for Out of Town Facilities for Calendar Years 2018 and 2019" (2021 Notice of Public Hearing). The relevant Whereas and Resolved Clauses of this resolution are the following:

WHEREAS, the Riverhead Town Board has no authority or right to levy a tax for the annual charge for sewer services benefitting properties outside of the geographic boundary of the taxing jurisdiction of the Town of Riverhead, and therefore in recognition of the fact that out of District users do not pay the District wide tax levy and the uncertain nature of out of District connections the appropriate multiplier for such out of District connections is 1.75, and

. . .

BE IT FURTHER RESOLVED, that the subject matter of the public hearing will be the confirmation by the Riverhead Town Board as the governing body of the Riverhead Sewer District that the sewer rent for sewer service for the out of town facilities located at the County Center for the calendar year 2018 is the district rate as established for in district connections by the 2017/2018 tax warrant of $6.657 per one thousand gallons of annual flow based upon the water consumption for the County Center facilities as determined by application of the waste water usage set and determined by the Suffolk County Department of Health Services Division of Environmental Quality entitled STANDARDS FOR APPROVAL OF PLANS AND CONSTRUCTION FOR SEWAGE DISPOSAL SYSTEMS FOR OTHER THAN SINGLE FAMILY RESIDENCES and STANDARDS FOR APPROVAL OF PLANS AND CONSTRUCTION FOR SEWAGE DISPOSAL SYSTEMS FOR SINGLE-FAMILY RESIDENCES which has been calculated by the District Engineer to be 169,399 gallons per day resulting in an annual flow of 61,830,635 gallons utilizing an out of town user rate multiplier of 1.75. This results in a fair and reasonable charge to the County of Suffolk for the treatment of sewage generated at the County Center for the calendar year of 2018 of $720,311.44. Using the same methodology and the 2018/2019 resident Sewer District rent of $6.433 per one thousand gallons of annual flow the charge for 2019 is confirmed as $696,073.83. Using the same methodology and the 2019/2020 resident Sewer District rent of $6.323 per one thousand gallons of annual flow the charge for 2020 is hereby set at $684,171.43. Using the same methodology and the 2020/2021 resident Sewer District rent of $6.990 per one thousand gallons of annual flow the charge for 2021 is hereby set at $756,343.24, and ( . . . )

(NYSCEF Doc No. 13, Action No. 1).

Pursuant to the 2021 Notice of Public Hearing, the sewer rent for the County Facilities was to be calculated based on an annual flow of 61,830,635 gallons and an "out of town user rate multiplier of 1.75" (id.).

At the noticed public hearing held on March 2, 2021, the Sewer District Superintendent testified that as the Town Board and the Sewer District did not have the ability to levy ad valorem portion taxes on the County Facilities, "what's been established is a rate and a multiplier [*3]for properties that are outside of the district to make up for that difference. So, this was originally established in 2018. It was done again in 2019" (NYSCEF Doc No. 23, R-3, Action No. 1).

On May 19, 2021, Riverhead adopted Resolution No. 2021-326 "Establishes Fair and Reasonable Sewer Rent for Out of Town Facilities for Calendar Year 2021 and Ratifies and Confirms Fair and Reasonable Sewer Rent for Out of Town Facilities for Calendar Year 2018, 2019, 2020" (2021 Resolution). The Whereas Clauses of the 2021 Resolution state that the County had failed to pay the fair and reasonable rate so established for 2018, 2019, and 2020 and to enter into an agreement; that in the absence of an agreement with the County, Riverhead had to fix the rent for the sewer treatment provided by the Sewer District to the County for the calendar years 2020 and 2021; and that a public hearing had been held at which the County did not provide any oral or written testimony. The 2021 Resolution set the sewer rates for the fiscal years 2019/20 and 2020/21, ratified the sewer rates for the 2017/18 and 2018/19 fiscal years, and specifically provided:

NOW, THEREFORE, BE IT FURTHER RESOLVED, the Riverhead Town Board as the governing body of the Riverhead Sewer District hereby determines that the sewer rent for sewer service for the out of town facilities located at the County Center for the calendar year 2018 is the district rate as established for in district connections by the 2017/2018 tax warrant of $6.657 per one thousand gallons of annual flow based upon the water consumption for the County Center facilities as determined by application of the waste water usage set and determined by the Suffolk County Department of Health Services Division of Environmental Quality entitled STANDARDS FOR APPROVAL OF PLANS AND CONSTRUCTION FOR SEWAGE DISPOSAL SYSTEMS FOR OTHER THAN SINGLE-FAMILY RESIDENCES and STANDARDS FOR APPROVAL OF PLANS AND CONSTRUCTION FOR SEWAGE DISPOSAL SYSTEMS FOR SINGLE-FAMILY RESIDENCES which has been calculated by the District Engineer to be 169,399 gallons per day resulting in an annual flow of 61,830,635 gallons. This results in a fair and reasonable charge to the County of Suffolk for the treatment of sewage generated at the County Center for the calendar year of 2018 of $720,311.44. Using the same methodology and the 2018/2019 resident Sewer District rent of $6.433 per one thousand gallons of annual flow the charge for 2019 is confirmed as $696,073.83. Using the same methodology and the 2019/2020 resident Sewer District rent of $6.323 per one thousand gallons of annual flow the charge for 2020 is hereby set at $684,171.43. Using the same methodology and the 2020/2021 resident Sewer District rent of $6.990 per one thousand gallons of annual flow the charge for 2021 is hereby set at $756,343.24, and ( . . . )

(NYSCEF Doc No. 2, Action No. 1).

After a public hearing held on May 18, 2022, Riverhead adopted Resolution No. 2022-429 captioned "Establishes Fair and Reasonable Sewer Rent for our of Town Facilities for Calendar Year 2022" (2022 Resolution) on June 7, 2022. The 2022 Resolution established the [*4]following sewer rent for the calendar year 2022:

NOW, THEREFORE, BE IT FURTHER RESOLVED, the Riverhead Town Board as the governing body of the Riverhead Sewer District hereby determines that that the sewer rent for sewer service for the out of town facilities located at the County Center for the calendar year 2022 is the district rate as established for in district connections by the 2021/2022 tax warrant of $7.289 per one thousand gallons of annual flow based upon the water consumption for the County Center facilities as determined by application of the waste water usage set and determined by the Suffolk County Department of Health Services Division of Environmental Quality entitled STANDARDS FOR APPROVAL OF PLANS AND CONSTRUCTION FOR SEW AGE DISPOSAL SYSTEMS FOR OTHER THAN SINGLE FAMILY RESIDENCES and STANDARDS FOR APPROVAL OF PLANS AND CONSTRUCTION FOR SEWAGE DISPOSAL SYSTEMS FOR SINGLE-FAMILY RESIDENCES which has been calculated by the District Engineer to be 169,399 gallons per day resulting in an annual flow of 61,830,635 gallons utilizing an out of town user rate multiplier of 1.75. This results in a fair and reasonable charge to the County of Suffolk for the treatment of sewage generated at the County Center for the calendar year of 2022 of $788,696.12, ( . . . )

(NYSCEF Doc No. 3, Action No. 2).

Pursuant to an agreement between the parties that included a complete reservation of the parties' rights to challenge Riverhead's resolutions, on or about June 29, 2022, the County sent the Town a check in the amount of $1,329,512.52 for the sewer services provided to the County from 2018 to 2022 (NYSCEF Doc No. 17, Action No. 2). This represented the minimum amount that both parties agreed would be owed by the County for the sewer services provided by the Sewer District.

The County's Verified Petition-Complaint in Action no. 1 contains three causes of action asserted pursuant to Article 78 under CPLR 7803 (1), (2) and (3) and three causes of action seeking recovery of damages and declaratory relief, specifically alleging violation of procedural due process, the Equal Protection Clause, and the New York State Constitution. In Action no. 1, the County challenges the 2018 Resolution and the 2021 Resolution adopted by the Town (collectively Resolutions).

The County argues that it is entitled to Article 78 relief because (i) the imposition of sewer rents in the Resolutions on a basis other than General Municipal Law §§ 451 and 452 is unlawful and in excess of Riverhead's jurisdiction; (ii) the method employed by Riverhead to determine the sewer rents produced charges which favored some users over others, and such an ultra vires act violates the mandates of Article 8, § 2-A of the New York State Constitution, Article 5-G of the General Municipal Law, sections 451 to 452 and/or 33 USC § 1251 et. seq.; (iii) Riverhead was divested of its jurisdiction and had no authority to pass the Resolutions; and (iv) sewer charges must be based on the actual use of the sewer system and must be reasonably related to the actual services rendered by Riverhead to the County, and the Resolutions ignored any such "reasonable relation" and were thus made in violation of lawful procedure, affected by an error of law, arbitrary and capricious and/or an abuse of discretion. The County is also asking [*5]for mandamus relief directing and compelling Riverhead to allow an extension of the County Correctional Center to connect to the Riverhead Wastewater Treatment Facility.

The County further contends that the enactment of the Resolutions is unconstitutional, unjustifiable, unreasonable, arbitrary, capricious, and confiscatory. Pursuant to the County, the demanded sewer rents are unlawful and violate General Municipal Law §§ 94 and 451 because they bear no fair and reasonable relationship to the quantity of sewer services utilized, the amount of flow therefrom, the services actually rendered, the benefits conferred on the County, or the actual or reasonable costs associated with the provision of such sewer service by the Town. According to the County, Riverhead's demand for $2,856,899 for sewer services provided in fiscal years 2017/18 through 2020/21 (when according to the County the costs of actually providing such services totaled $1,153,729) is arbitrary, capricious, and unreasonable. The County argues that these sewer charges were imposed with the intention of having the County subsidize the Sewer District's budgetary shortfalls associated with the operation of Riverhead's Advanced Wastewater Treatment Facility.

Riverhead submitted an answer with counterclaims for the County's failure to pay the sewer rents from 2018 to 2021, and for judgment authorizing its termination of services to the County Facilities.

The parties submitted briefings regarding the three causes of action asserted pursuant to Article 78.

In its First Cause of Action, the County argues that it is entitled to judgment pursuant to CPLR 7803 (3) prohibiting Riverhead from imposing the sewer rents pursuant to the Resolutions, as such sewer charges are in violation of General Municipal Law § 451 and are arbitrary and capricious.

In reviewing the Resolutions pursuant to CPLR 7803 (3), the inquiry is limited to whether the Resolutions were "made in violation of lawful procedure, w[ere] affected by an error of law or w[ere] arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]; Matter of Goldfarb v Town of Ramapo, 167 AD3d 1009, 1011 [2d Dept 2018]; see Matter of Hack v Town Bd. of Town of Putnam Valley, 219 AD3d 489, 489 [2d Dept 2023]).

A determination is arbitrary and capricious when it is without sound basis and reason and generally taken without regard to the facts (Matter of Razzano v Remsenburg-Speonk UFSD, 162 AD3d 1043, 1045 [2d Dept 2018]; see Matter of Wooley v New York State Dept. of Corr. Servs., 15 NY3d 275, 280 [2010]; Matter of Pell v Bd. of Ed. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester Cnty., 34 NY2d 222, 231 [1974]). In demonstrating that administrative actions were taken arbitrarily, a petitioner bears a heavy burden of proof, for which conclusory allegations and speculative assertions will not suffice (Matter of Cashin v Cassano, 129 AD3d 953, 954 [2d Dept 2015]; see Matter of Knight v Cnty. of Nassau, 27 AD3d 470, 471 [2d Dept 2006]). If a court concludes that the determination is supported by a rational basis, the court must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the municipality (Matter of Wooley, 15 NY3d at 280; Matter of Deerpark Farms, LLC v Agric. & Farmland Prot. Bd. of Orange Cnty., 70 AD3d 1037, 1038 [2d Dept 2010]).

The County argues that the sewer charges represent an arbitrary and capricious application of Riverhead's authority to set reasonable sewer charges under General Municipal Law § 451 because they bear no relationship to the quantity of sewer services utilized, the amount of flow therefrom, the services actually rendered, the benefits conferred on the County, or the actual or reasonable costs associated with the provision of such sewer service by Riverhead. However, as the Town correctly points out, General Municipal Law § 451 is inapplicable to the sewer rents charged by the Town to the County Facilities.

In 1951, Article 14-f of the General Municipal Law, known as the Sewer Rent Law, was added to provide a uniform statutory framework for the imposition of sewer rents, defined as "[a] scale of annual charges established and imposed in a city or village or in a sewer or wastewater disposal district in a county or town pursuant to this article for the use of a sewer system or any part or parts thereof" (General Municipal Law § 451 [1] [emphasis added]). General Municipal Law § 451 (1) allows municipalities to impose "sewer rents" based on consumption of water on the premises, the number and kind of plumbing fixtures on the premises, the number of persons served on the premises, the volume and character of sewage discharged at the premises, and "upon any other equitable basis determined by the local legislative body, including, but not limited to, any combination of the foregoing" (General Municipal Law § 451 [1] [e]; Matter of Frontier Ins. Co. v Town Bd. of Town of Thompson, 285 AD2d 953, 955—56 [3d Dept 2001]). The test is whether the local law or resolution under scrutiny "reflect[s] [a] reasonable and nonarbitrary interpretation of [General Municipal Law § 451]" (Matter of Frontier Ins. Co., 285 AD2d at 956, quoting Watergate II Apartments v Buffalo Sewer Auth., 46 NY2d 52, 59 [1978]).

Furthermore, the Sewer Rent Law requires that the resolution establishing sewer rents "[s]hall prescribe the basis of the charge for such rents" (General Municipal Law § 452 [5] [b]; Matter of Rezek v Vill. of Richmondville, 24 AD3d 1169, 1170 [3d Dept 2005]) and that sewer rents shall constitute a lien upon the real property served by the sewer system (General Municipal Law § 452 [3]).

Under the plain language of the statute, General Municipal Law § 451 only applies to sewer rents imposed "in a sewer or wastewater disposal district in a county or town," and not outside the boundaries of the sewer district. The County Facilities are not within the boundaries of the Sewer District. The County points to no authority applying General Municipal Law § 451 to sewer rates set for an out-of-district user. Furthermore, General Municipal Law § 452 (3) discusses how "sewer rents" are liens on real property, which clearly would not be applicable to an out-of-district property. Thus, contrary to the County's assertion, the sewer charges imposed by the Town are not subject to the requirements of General Municipal Law §§ 451 and 452. The Town did not have to follow the statutory factors listed in General Municipal Law § 451 (1) when setting the sewer rents for the County Facilities.

Even though the County failed to show that the imposition of the sewer charges was in violation of General Municipal Law § 451, the County met its burden of demonstrating that the determination made by the Town in adopting the Resolutions imposing the sewer charges on the County Facilities was arbitrary and capricious and had no rational basis in the record.

Pursuant to Town Law § 198 (1) (i), the Town Board may "establish, from time to time, charges, fees or rates for the use of such sewer system, to be designated 'sewer rents'. Such rents [*6]may be based upon the metered consumption of water on premises connected with the sewer system, making proper allowance for commercial use of water, the number and kind of plumbing fixtures connected with the sewer system, the number of persons served by the sewer system, or upon any other equitable basis, as the town board may determine." Unlike General Municipal Law § 451, this section of the Town Law is not restricted to properties within the boundaries of a sewer district.^[FN2] Thus, Town Law § 198 (1) (i) gives flexibility to a town to establish sewer rents based on "any other equitable basis" (see Watergate II Apartments, 46 NY2d at 60 [describing "any other equitable basis" as a flexible standard]).

Similarly, the Appellate Division has held that there must be a rational basis with respect to sewer rents assessed (see Matter of Heritage Hills Sewage Works Corp. v Town Bd. of Town of Somers, 54 AD3d 673, 675 [2d Dept 2008]; Matter of Frontier Ins. Co., 285 AD2d at 956; Welch Foods, Inc. v Wilson, 277 AD2d 882, 886 [4th Dept 2000]; Arcuri v Vill. of Remsen, 202 AD2d 991, 992 [4th Dept 1994]; Matter of Hull v Town of Warrensburg, 207 AD2d 37, 41 [3d Dept 1994]).

Furthermore, several opinions issued by the Office of the New York State Comptroller offer guidance about the setting of rates for out-of-district users. Such opinions underline that out-of-district rates need to have a rational or reasonable basis (see e.g. 1991 Ops St Comp No. 91-24 "[a]mounts paid by outside users . . . pursuant to contracts may property include those capital and operation and maintenance costs attributable to the provision of the outside service" and referring to the imposition of "an equitable share of the [out-of-district user's] costs"]; 1981 Ops St Comp No. 81-330 ["[a] city may charge outside users a different rate [for water usage] than city residents as long as the difference has a rational basis and is not purely arbitrary"]; 1978 Ops St Comp No. 78-902 ["amount to be paid under the contract should reflect the actual value of the use of the sewer system"]; 1971 Ops St Comp No. 71-358 ["The contract price [for an out-of-district user] must have a reasonable basis, and in computing it, due regard must be had for the additional expense caused by the added sewage burden, the capital investment of the sewer district and similar factors"]; 4 Ops St Comp No. 2684 at 84 [1948] ["The portion to be paid by an outside connection to the sewer district mains must have a reasonable basis. For example, in computing the contract price, due regard must be had for the additional expense caused by the added sewage burden, the capital investment of the sewer district and similar factors."]).

The costs of operation and maintenance of a sewer district may be raised entirely through benefit assessments, entirely through sewer rents or through a combination of sewer rents and ad valorem benefit assessments (1980 Ops St Comp No. 80-708; see Town Law §§ 198 [1] [i], [l], 202 [2], 202-a [2]; General Municipal Law § 450 et seq.; 1976 Ops St Comp No. 76-267). Properties within the Sewer District are charged both: the sewer rent based upon water consumption determined by meter readings by the Riverhead Water District and the ad valorem [*7]component (NYSCEF Doc No. 49, Action no. 1). This formula used for in-district properties does not apply to the County Facilities, as the Town cannot charge the County the ad valorem component due to the County being outside of the district and also a municipality. The parties agree that the Town can charge outside users a different sewer rent as the in-district users (see also 1981 Ops St Comp No. 81-330; 1973 Ops St Comp No. 73-776).

Since there was no longer an intermunicipal agreement in place between the County and the Sewer District,^[FN3] the Town Board adopted the Resolutions establishing a formula for the out-of-district sewer charges to be paid by the County. The Town imposed sewer charges are made in effect of two components: (i) a base rent related to the County's design flow usage of 169,399 gallons per day resulting in an annual flow of 61,830,635 gallons, and (ii) the application of a multiplier of 1.75 to the base rent.

The first component of the sewer charges adopted by the Town is a base sewer rent based on the annual flow of 61,830,635 gallons. Specifically, the Resolutions describe this maximum design flow as the

annual flow based upon the water consumption for the County Center facilities as determined by application of the waste water usage set and determined by the Suffolk County Department of Health Services Division of Environmental Quality entitled STANDARDS FOR APPROVAL OF PLANS AND CONSTRUCTION FOR SEWAGE DISPOSAL SYSTEMS FOR OTHER THAN SINGLE-FAMILY RESIDENCES and STANDARDS FOR APPROVAL OF PLANS AND CONSTRUCTION FOR SEWAGE DISPOSAL SYSTEMS FOR SINGLE-FAMILY RESIDENCES which has been calculated by the District Engineer to be 169,399 gallons per day resulting in an annual flow of 61,830,635 gallon ( . . . )

(NYSCEF Doc Nos. 2 and 12, Action no. 1).

Pursuant to the affidavit of Connie DeGiovine, consultant for the County and the County's former Budget Director, the design flow formula used by the Town requires the County to pay for almost 100,000,000 million gallons of sewer service not actually utilized over a four year period, requires the County to pay $622,831.00 unrelated to the reasonable costs of providing such sewer services for the same period, and subjects the County to an increase in charges above the County's actual usage at the average of 61.6% from 2017 to 2021. The County contends that such a base rent is in excess of any reasonable charge for the services provided and bears no relation to the actual services provided to the County or the sewer rents historically charged to the County for such services (NYSCEF Doc No. 34, Action no. 1).

The County's submissions show that the projected capacity upon which Riverhead seeks to calculate the sewer rents — not for usage but for sewer availability — imposes a substantial surcharge on the County and is not linked to actual usage. Compared to the maximum design flow used by Riverhead at 169,399 gallons per day resulting in an annual flow of 61,830,635, the [*8]actual usage of the County Facilities was: an average of 101,249 gallons per day resulting in an annual flow of 36,955,987 gallons for 2017/18; an average of 119,632 gallons per day resulting in an annual flow of 43,665,592 gallons for 2018/19; an average of 108,235 gallons per day resulting in an annual flow of 39,505,695 gallons for 2019/20; and an average of 91,313 gallons per day resulting in an annual flow of 33,329,234 gallons for 2020/21 (id.).

Riverhead does not deny that the sewer base rent is not based on actual usage. Instead, Riverhead contends that the Sewer District is "mandated" by the County's own Department of Health Services, as well as the New York State Department of Environmental Conservation (DEC), to "reserve" a portion of its sewer plant's permitted flow capacity to the sewage flow attributed to the County Center Facility under the County's Department of Health Services standards, regardless of the actual flow received from that facility (NYSCEF Doc No. 50, Action no. 1). Riverhead argues that charging the County based on the amount of gallonage that must be reserved in order to comply with the requirements of the County's Department of Health Services, rather than charging the County for its actual usage, is necessary and rational.

However, Riverhead points to no regulation, statute, standard, or requirement from the County's Department of Health Services and/or the DEC containing this alleged mandate to reserve. Although reference is made by Riverhead that the DEC and the County's Department of Health Services require such "reservation," no legal authority is cited to in support of such contention. Riverhead provided an unsworn and unsigned "memorandum" from Christopher Weiss, who appears to be the District's Engineer, stating that the "Riverhead Sewer District is required under its NYSDEC requirements for its sanitary collection system and Wastewater Reclamation Facility (WWRF) to reserve the out-of-district allocation of 169,399 gallons per day of sanitary discharge from the Suffolk County Correctional Facility Complex (SCCFC), which gallonage cannot be allocated to any other user of the WWRF sewer district" (NYSCEF Doc No. 47, Action no. 1). Mr. Weiss does not indicate which DEC requirements he is referring to. The affidavit of the Sewer District Superintendent provided that "[u]tilizing the various criteria and standards set forth in the County Health Departments' standards," the Sewer District's outside consulting engineers had determined that the sanitary flow contribution from the County Facilities would be 169,399 gallons per day. But the affidavit did not specify what those "criteria and standards" were. Similarly, the affidavit of William Rothaar, the Financial Administrator of the Town and the Sewer District, refers to unspecified requirements from the County's Department of Health Services and the DEC. Additionally, even though the Resolutions refer to two standards of the County's Department of Health Services, Riverhead did not provide those documents to the Court, and did not refer to any section or specific language of those standards in its memorandum and supporting papers.

The County, on the other hand, provided the State Pollutant Discharge Elimination System Discharge Permit (SPDES) issued by the DEC to the Sewer District, which permits the treatment of 1.3 million gallons of flow from all users of the sewer system on a daily basis and is silent as to any reservation requirement for the County Facilities. The County also provided the affidavit of Eric M. Hofmeister, the Deputy Commissioner of the County's Department of Public Works, in which Mr. Hofmeister stated that while sewer systems must demonstrate that they possess the available capacity to accept and treat some hypothetical among of flow, such amount is not "reserved" to a specific user (NYSCEF Doc No. 52, Action no. 1).

According to Riverhead, because the Sewer District is precluded from "selling" the 169,399 gallons being reserved for the County Facilities to any potential in-district user, it is [*9]"fair and rational for the Town Board to fix the sewer rent for the out-of-district County Center based upon the amount of gallonage that must be reserved for the County's usage" (NYSCEF Doc No. 50, Action no. 1). Again, Riverhead provided no regulation, statute, standard, or other legal authority on which this alleged preclusion to "sell" is based.

Riverhead also failed to explain why if it were required to use such a "ear marking" method, it did not follow such a method in the Agreement that it had with the County for years. In fact, the sewer rent portion was calculated in the Agreement based on the actual "water usage" of the County Facilities (NYSCEF Doc No. 3, p. 2, Action no. 1), not on the maximum design flow methodology.^[FN4] There is nothing in the record indicating that any other Sewer District user is charged sewer rent based on a maximum design flow calculation (see NYSCEF Doc No. 25, p. 17, Action no. 1).

Additionally, Riverhead argues that since the County Facilities are not within the Riverhead Water District and their usage is not based on metered readings by the Riverhead Water District, the Sewer District has no means of verifying the flow numbers provided by the County, which Riverhead argues further provides a rational reason for the use of the County's Department of Health Services wastewater flow numbers. The Court finds this alleged justification unconvincing, in light of the quantity of effluent discharged to the Sewer District being measured at the Riverhead County Center pump station maintained by the County, which is calibrated on an annual basis, and Riverhead's ability to perform its own calibration tests and/or install a meter at the point of interconnection to measure the flow.

Therefore, this Court finds that the imposition of a sewer base rent related to the County's design flow usage of 169,399 gallons per day is arbitrary and capricious, as the design flow has no reasonable relation to the County's actual sewage usage, Riverhead cited to no authority in support of its contentions that it needs to reserve a portion of its plant's capacity for the County Facilities and is prohibited from "selling" such reserved portion, the standards of the County's Department of Health Services mentioned in the Resolutions were not provided to the Court, the design flow methodology was not used in the Agreement or with other Sewer District users, and Riverhead has the ability to measure the actual sewer discharge from the County Facilities into the Sewer District. Based on the above, the formula used by the Town in its Resolutions in calculating the wastewater usage to be 169,399 gallons per day was "without sound basis in reason . . . and taken without regard to the facts" (see Matter of Pell, 34 NY2d at 231).

The second component of the sewer charges imposed on the County by the Town is a [*10]multiplier of 1.75 applied to the base rent, that is an additional seventy-five percent (75%) of the base rent and which is assessed as a surcharge against the County because it is an out-of-district user.

The County objects to the "unexplained and unspecified" 75% "penalty" denominated in the 2018 Resolution (but omitted from the 2021 Resolution) as an "an out of district surcharge in recognition of additional benefit derived as valorem tax paid by District residents" plus an additional out of Town user charge (NYSCEF Doc No. 32, Action no. 1). The County claims that the arbitrary formula for the four-year period requires the County to pay a penalty of $1,049,197 unrelated to the reasonable costs of providing such sewer services, and subjects the County to an arbitrary increase in charges above any reasonably calculated ad valorem surcharge or out of town user charge. The County argues that any reasonably calculated out-of-district surcharges and user fees to compensate Riverhead for the lack of an ad valorem tax paid by the County, would be at most $30,728 for 2017/18 and $40,855 for 2018/19, as opposed to the 1.75 multiplier used by Riverhead that results in $308,704 for 2017/18 and $298,318 for 2018/19.

Riverhead explains that the out-of-district multiplier of 1.75 takes into account that unlike in-district users who cannot withdraw from the Sewer District, the County can stop using the District's Sewer Treatment Plant at any time, making the Sewer District "financially vulnerable" (NYSCEF Doc No. 49, Action no. 1). Riverhead further argues that a portion of the multiplier is attributed to the County no longer contributing to the payment of the Sewer District's substantial debt service; that should there be a default on the part of the County in paying its bill, the Town would have to employ costlier practices to collect the unpaid charges as the unpaid charges would not constitute a lien on the property such as it is the case with in-district users (id.). Pursuant to the Town, the out-of-district multiplier also includes an out-of-district fee and an ad valorem benefit (id.).

This Court finds Riverhead's arguments justifying the rationality of the multiplier unavailing.

No financial analysis or formula was provided to demonstrate how a multiplier of 1.75 was selected. For example, it is unknown why the Town selected a 1.75 multiplier and not a 1.5 or a 2.0 multiplier. Riverhead's submissions are silent as to the numerical calculation through which the multiplier of 1.75 was arrived.

While opinions of the Office of the New York State Comptroller have determined that out-of-district rates negotiated in agreements can be based on factors such as capital, operation, and maintenance costs attributable to the provision of the outside service (see 1991 Ops St Comp No. 91-24; 1971 Ops St Comp No. 71-358; 4 Ops St Comp No. 2684 at 84 [1948]), here, the Town's submissions do not refer to such costs as being a justification for the multiplier. Although the Town argues that the application of the 1.75 multiplier is necessary to equalize the County's share of the Sewer District's debt service, no information was provided as to what that share would be, except for the vague allegation that "a portion of the 1.75 multiplier adopted by the Town Board is attributed to repayment of the District's debt service" (NYSCEF Doc No. 49, Action no. 1).

Furthermore, the contention that the multiplier is justified because the County can stop using the District's Sewer Treatment Plant "at any time" (id.), therefore making the District "financially vulnerable," is baseless. It is inconceivable that the County would be able to suddenly stop using the District's Sewer Treatment Plant. In 2017, just before the expiration of the Agreement, the County described Riverhead's intent of stopping the provision of sewer [*11]services to the County Facilities as "threaten[ing] immediate and irreparable harm to the residents of the County and pos[ing] an immediate danger to the health and safety of those same residents" (NYSCEF Doc No. 8, Action no. 1). No sewer services for the Suffolk County Correctional Center, the Riverhead County Center, and the Criminal Court facilities, which are facilities providing vital services to the residents of Suffolk County, would surely not be a rational option for the County and would be, as the County argued to Riverhead, an "irreparable harm" to the County residents. Additionally, if the County were in the position to stop using the services of the Sewer District, that would mean that it would have an alternative to disposing the wastewater generated by the County Facilities. This would entail the construction of a County sewer treatment plant, a project that would take significant time, most likely years, and would not occur "at any time."

Ineffective is also Riverhead's contention that the County is at greater risk of nonpayment because unlike in-district users, the County is not subject to collection of sewer rents via a lien on its real property and that the Sewer District would have to employ costlier collection methods when recovering unpaid charges from the County, as opposed to an in-district user. However, NY Constitution, article VIII, § 2 prohibits a county from incurring debt without first pledging its full faith and credit for the payment of the debt (Matter of Schulz v State, 198 AD2d 554, 556 [3d Dept 1993]). The County also showed that it has never failed to make a payment under the Agreement and has provided the Sewer District and Riverhead with various subsidies over the years.

Additionally, the multiplier of 1.75 was not used in the Agreement. Because the County is not subject to ad valorem taxation, the Agreement recognized such a fact and provided for an express formula to calculate the County's payment for the "ad valorem rate," as a charge in addition to the sewer rent. The formula in the Agreement included calculations based on, inter alia, the "annual net debt service budget of the district" and the total assessed value of the Sewer District ^[FN5] (NYSCEF Doc No. 3, Action no. 1). While under the Agreement such surcharges were calculated with a complicated formula to ensure parity between the fees paid by in-district and out-of-district users and ranged from approximately $28,000 to $47,000 per year, the Resolutions demanded nearly ten times that amount (ranging from approximately $293,000 to $324,147 per year) without any attempt to relate such a drastic increase in these surcharges to any related increased costs of providing services.

Whereas Riverhead argues in its submissions that the "Town Board adopted an out-of-district multiplier of 1.75 as part of the out-of-district rate" (NYSCEF Doc No. 50, Action no. 1), neither the 2018 Resolution nor the 2021 Resolution mention the 1.75 multiplier in the Whereas or the Resolved Clauses. This underscores the lack of reasonableness of this multiplier, which is not revealed in the language of the Resolutions but is surreptitiously included in the total sewer charges adopted by the Town Board. If the use of a 1.75 multiplier was supported by a rational basis, why then hide its application or call it something else?

The 2018 Resolution refers to "an out of district surcharge in recognition of the [*12]additional benefit derived from the ad valorem tax paid by District residents and [an] additional out of Town user charge" being added to the base rent (NYSCEF Doc No. 21, Action no. 1). The 2018 Resolution does not specify the amounts of these two surcharges, although together they do represent a 1.75 multiplier of the base rent. Furthermore, the 2018 Resolution contains no reference as to how the out-of-district surcharge and the out of Town user charge were calculated, except to mention that the annual cost to the County to construct and operate its own treatment plant to provide sewer services of a quality and standard provided by the Sewer District had been calculated by the Sewer District engineer to be $2,428,343. However, the sewer rent set by the Town Board in the 2018 Resolution was less than a third of this amount, so it is unclear how the alleged avoided annual costs associated with constructing a hypothetical treatment plant were linked to these surcharges. Riverhead's submissions included no information about this $2,428,343 calculation. Additionally, at a public hearing on March 2, 2021, the Sewer District's Superintendent testified that "what's been established is a rate and a multiplier for properties that are outside of the district to make up for that difference. So, this was originally established in 2018. It was done again in 2019" (NYSCEF Doc No. 23, R-3, Action no. 1). But the 2018 Resolution established an "out of district surcharge" and an "out of Town user charge," not a 1.75 multiplier.

The 2021 Resolution is completely silent as to any surcharges or multipliers. The 2021 Resolution states that for 2017/18 the sewer charge is $720,311.44 based on $6.657 per one thousand gallons using the annual flow of 61,830,635 gallons. It then applies the "same methodology" to calculate the sewer rents for 2018/19 at $696,073.83 (based on $6.433 per one thousand gallons of annual flow of 61,830,635 gallons), for 2019/20 at $684,171.43 (based on $6.323 per one thousand gallons of annual flow of 61,830,635 gallons), and for 2020/21 at $756,343.24 (based on $6.990 per one thousand gallons of annual flow of 61,830,635 gallons).^[FN6]

However, applying simple math to the numbers set in the 2021 Resolution and multiplying for each year the per one thousand gallons rate by the annual flow of 61,830,635 gallons results in completely different numbers than the ones stated in the 2021 Resolution. Specifically, for 2017/18, multiplying $6.657 by 61,830.635 equals to $411,606.53; for 2018/19, multiplying $6.433 by 61,830.635 equals $397,756.47; for 2019/20, multiplying $6.323 by 61,830.635 equals to $390,955.11; and for 2020/21 multiplying $6.990 by 61,830.635 equals to $432,196.14. Simply put, the numbers do not add up. What appears to be happening is that a multiplier of 1.75 was surreptitiously applied to each of these numbers and was built in the total sewer charges. This multiplier of 1.75, while referred to in the 2021 Notice of Public Hearing as "an out of town user rate multiplier of 1.75," is not referred to at all in the 2021 Resolution. Furthermore, in contrast to the 2018 Resolution, the 2021 Resolution omitted any reference to surcharges, or any alleged avoided costs associated with the County constructing a hypothetical treatment plant. The 2021 Resolution does not only omit the fact that a multiplier is being applied; but does not even try to justify the out-of-district sewer charges imposed on the [*13]County.^[FN7]

Whether expressly based upon the avoided costs of having to construct, operate, and maintain a state-of-the-art sewage treatment facility in the 2018 Resolution, or the 1.75 "appropriate multiplier" in the 2021 Notice of Public Hearing, or the lack of any express basis in the 2021 Resolution, Riverhead applied an unreasonable multiplier upon the County as an out-of-district user of the Sewer District.

The Court finds that the adoption by the Town of the out-of-district multiplier of 1.75 is arbitrary and capricious as no financial analysis or formula was provided for how a multiplier of 1.75 was selected, no capital, operation, and maintenance costs were attributable to the multiplier, Riverhead's arguments that the County can stop using the District's Sewer Treatment Plant at any time and that collection proceedings against the County would be more difficult than against a normal in-district user are unavailing, the multiplier of 1.75 was not used in the Agreement, and the Resolutions do not mention the 1.75 multiplier.

Additionally, the Resolutions doubled the total sewer charges imposed on the County from the total sewer charges set by the Agreement, with no justification at all for the doubling. Between 2006 and 2017, the County's average payment for services rendered by Riverhead was approximately $345,966 per fiscal year pursuant to the Agreement negotiated between the parties (NYSCEF Doc No. 33, in Action no. 1). The final payment under the expired Agreement was $289,294.08 for the 2016/17 fiscal year, but for the 2017/18 fiscal year the sewer charges were set by the 2018 Resolution at $720,311. The Town's demand for $720,311 in 2017/18 and $696,074 in 2018/19 represents a 200% to 250% increase in sewer charges from the charges charged under the Agreement. Surely such a dramatic increase would need to be justified, which the Resolutions and Riverhead's submissions did not (see Matter of Cent. Sch. Dist. No. 1 of Towns of Schoharie Et Al., Schoharie Cnty. v Vill. of Schoharie, 42 AD2d 1008, 1009 [3d Dept 1973] [arbitrariness demonstrated by 125% increase from previous year with no demonstration of any increased costs to provide those services]). The doubling of the sewer charges, after Riverhead's demands for additional funding were denied by the County, was without a reasonable basis.

In conclusion, Riverhead's demand in the Resolutions for $2,856,899 from the County for sewer services provided in the fiscal years 2017/18 through 2020/21 is arbitrary and capricious. Both components of the sewer charges — the base rent related to the County's design flow usage of 169,399 gallons per day resulting in an annual flow of 61,830,635 gallons, and the application of a 1.75 multiplier to the base rent — are not rational or reasonable. Furthermore, the methodology used by the Town was not an equitable basis for calculating the sewer charges (see Town Law § 198 [1] [i]). Accordingly, the County's First Cause of Action is granted. The determination made by the Town Board in adopting the Resolution Nos. 2018-953 and 2021-326 was arbitrary and capricious and had no rational basis. The Town is prohibited and enjoined from imposing the sewer charges pursuant to the Resolutions.

The parties' remaining contentions regarding this First Cause of Action are without merit or need not be reached in light of this determination.

As part of its Second Cause of Action, the County further contends that Riverhead acted without the requisite jurisdiction to impose an illegal tax disguised as a fee, which is unrelated to the cost of furnishing sewer services. The County argues that it is therefore entitled to judgment granting it a writ of prohibition pursuant to CPLR 7803 (2). Riverhead does not address the County's Second Cause of Action in its memorandum of law.

A petition seeking Article 78 relief in the nature of prohibition should be granted upon a showing that a "body or officer proceeded, is proceeding, or is about to proceed without or in excess of jurisdiction" (CPLR 7803 [2]). "Prohibition may be maintained solely to prevent or control a body or officer acting in a judicial or quasi-judicial capacity from proceeding or threatening to proceed without or in excess of its jurisdiction . . . and then only when the clear legal right to relief appears and, in the court's discretion, the remedy is warranted" (Matter of the Town of Huntington v New York State Div. of Hum. Rts., 82 NY2d 783, 786 [1993], quoting Matter of Schumer v Holtzman, 60 NY2d 46, 51 [1983]; see Matter of Rachelle v Rice, 112 AD3d 942, 942 [2d Dept 2013]). "The remedy is confined to judicial or quasi-judicial action rather than to legislative, executive, administrative, or ministerial acts" (Matter of Raiser & Kenniff, P.C. v Nassau Cnty. Sheriff's Dept., 149 AD3d 1084, 1085 [2d Dept 2017], quoting Matter of Doe v Cuomo, 71 AD3d 889, 889 [2d Dept 2010]). The remedy will not lie where its proponent has access to another adequate legal remedy unless, in the rare instance, it would furnish a more complete and efficacious remedy (Matter of Town of Huntington, 82 NY2d at 786).

Here, the County failed to demonstrate that the conduct sought to be prohibited pertained to a judicial or quasi-judicial action. The adoption of the Resolutions was clearly not a judicial or quasi-judicial action. Moreover, the existence of an adequate alternative legal remedy, that is the successful filing of an Article 78 proceeding pursuant to CPLR 7803 (3), precludes the relief requested (see Matter of Doe, 71 AD3d at 889).

Accordingly, the County's Second Cause of Action is dismissed.

As part of its Third Cause of Action, the County argues that it is entitled to judgment pursuant to Article 78 directing and compelling Riverhead to allow an expansion of the County Correctional Center to connect to the Riverhead Wastewater Treatment Facility as all of the conditions required have been fully and completely satisfied and the issuance of the permit is a nondiscretionary ministerial act enjoined upon it by law. The County also contends that as Riverhead failed to provide any administrative record in response to the County's mandamus claim, the Court should compel Riverhead to provide such records and permit the parties to subsequently brief this claim.

In response, Riverhead contends that such permits were not issued as the Sewer District and the County no longer have an intermunicipal agreement that would allow the County to continue using the Riverhead Sewer Treatment plant, and that the County has no right to permits expanding its use of the Sewer District.

"Mandamus to compel performance is an extraordinary remedy that is available only in limited circumstances" (Matter of Dickson v New York City Dept. of Buildings, 226 AD3d 1014 [2d Dept 2024], quoting Matter of Hene v Egan, 206 AD3d 734, 735 [2d Dept 2022]). "The [*14]extraordinary remedy of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief has been demonstrated" (Matter of Gonzalez v Vill. of Port Chester, 109 AD3d 614, 615 [2d Dept 2013], quoting Matter of Rose Woods, LLC v Weisman, 85 AD3d 801, 802 [2d Dept 2011]).

Here, the County failed to establish that there existed a "clear legal right" to the relief requested (see Matter of O'Sullivan v New York City Dept. of Buildings, 226 AD3d 686, 688 [2d Dept 2024]; Matter of Ogunbayo v Admin. for Children's Servs., 106 AD3d 827, 827 [2d Dept 2013]). The County did not provide any relevant permit documentation, such as a permit application or a permit denial. In fact, the only document included regarding the permit(s) was an undated email from the Sewer District Superintendent to an engineering firm (presumably a County contractor) stating that he was "unable to issue any further approvals or permits for this project as directed by the town supervisor" and labeled as a "permit denial" (NYSCEF Doc No. 11, Action no. 1).^[FN8] It is unclear from reading the Petition-Complaint whether the County is seeking one, two or more permits, and what these permits are specifically for. Instead, the Petition-Complaint includes a general statement that "permits are required to allow the completion of repairs to the Suffolk County Correctional Center and its connection to the sewer district" (NYSCEF Doc No. 1, Action no. 1).

Additionally, and most crucially, the County did not identify any statute, regulation, or any other legal authority that would demonstrate that the issuance of the permits is a non-discretionary, ministerial act. Simply put, it is unknown what would give the County a clear legal right to the unidentified permits.

The two cases cited by the County in support of its contention that the Court should hold its decision on this aspect of the proceeding pending Riverhead's provision of the administrative record on this aspect and the parties' subsequent briefing of the claim are inapplicable to the instant hybrid proceeding. In Matter of MVM Const. v Westchester Cnty., 112 AD3d 635, 636 [2d Dept 2013], the Second Department, Appellate Division dealt with the authority of the Appellate Division under CPLR 7804 (g) to remit a proceeding in which the substantial evidence issue from CPLR 7803 (4) is raised, and the papers were insufficient, or the full administrative record was not provided. Clearly this proceeding is not before the Appellate Division and this cause of action is not pursuant to CPLR 7803 (4). The other case cited by the County, Matter of Smiler v Bd. of Educ., 15 AD3d 409, 410 [2d Dept 2005], involved respondents deprived of the opportunity to answer. In this situation, Riverhead has answered and both parties have briefed the issue of mandamus relief.

Accordingly, the County is not entitled to mandamus relief, and the Third Cause of Action is dismissed.

The County's Fourth, Fifth, and Sixth Causes of Action seek declaratory relief and damages not in the nature of CPLR Article 78 relief.

"'In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those which seek to recover damages and declaratory relief, on the other hand. The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment'" (Matter of Coma Realty Corp. v Davis, 200 AD3d 975, 975 [2d Dept 2021], quoting Matter of E. W. Bank v L & L Assocs. Holding Corp., 144 AD3d 1030, 1033 [2d Dept 2016]). "[W]here no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action" (Matter of Jellyfish Properties, LLC v Inc. Vill. of Greenport, 220 AD3d 778, 779 [2d Dept 2023]; Matter of Rosenberg v New York State Off. of Parks, Recreation, & Historic Pres., 94 AD3d 1006, 1006 [2d Dept 2012]).

Here, since no party made such a summary judgment motion, the Court has no authority to summarily dispose of the three causes of action which seek to recover damages and declaratory relief, and further proceedings on those causes of action will occur (Matter of Bonacker Prop., LLC v Vill. of E. Hampton Bd. of Trustees, 168 AD3d 928, 928 [2d Dept 2019]).

The County's Verified Petition-Complaint in Action no. 2 contains two causes of action asserted pursuant to Article 78 under CPLR 7803 (2) and (3) and two causes of action seeking recovery of damages and declaratory relief, specifically alleging violation of the Equal Protection Clause and the New York State Constitution. In Action no. 2, the County challenges the 2022 Resolution.

The County's claims in the Petition-Complaint in Action no. 2 are very similar to the ones made by the County in Action no. 1. The County contends that it is entitled to Article 78 relief because: (i) the imposition of sewer rents in the 2022 Resolution on a basis other than General Municipal Law §§ 451-52 is unlawful and in excess of Riverhead's jurisdiction; (ii) the method employed by Riverhead to determine sewer rents produces charges which favors some users over others, and such an ultra vires act violates the mandates of Article 8, § 2-A of the New York State Constitution, Article 5-G of the General Municipal Law, General Municipal Law §§ 451-52 and/or 33 USC § 1251 et seq.; (iii) Riverhead had no authority to pass the 2022 Resolution; and (iv) sewer charges must be based on the actual use of the sewer system and must be reasonably related to the actual services rendered by the Sewer District to the County, and the 2022 Resolution ignored any such "reasonable relation" and was thus made in violation of lawful procedure, affected by an error of law, arbitrary and capricious and/or an abuse of discretion.

Riverhead submitted an answer with counterclaims for the County's failure to pay the sewer rents for 2022, and for judgment authorizing its termination of sewer services to the County Facilities because of non-payment. Riverhead also provided its administrative return.

The parties did not submit any briefings in Action no. 2. Pursuant to the So-Ordered Stipulation dated March 21, 2023 (Hensley, A.J.S.C.), the two actions were joined for discovery and trial. Part of the So-Ordered Stipulation, the parties agreed to "forego additional briefing on the duplicative allegations in Action 2 and request[ed] that the Court resolve all Article 78 [*15]claims and defenses associated with either Action 1 or Action 2 based upon the memoranda and other documents submitted in regards to the Article 78 claims in Action l" (NYSCEF Doc No. 29, Action no. 2). This Court recognizes that the legal issues raised in both actions are the same (but for the mandamus claim only found in Action no. 1) and that pursuant to the So-Ordered Stipulation the parties agreed in effect to forego briefing in Action no. 2. However, the memoranda and supporting documents submitted by both sides in Action no. 1 did not refer to the 2022 Resolution, but only discussed the 2018 and 2021 Resolutions, which are the subject of Action no. 1. For example, there is no discussion in the memoranda filed in Action no. 1 by the County regarding the Article 78 challenge to the 2022 Resolution, the wastewater usage of the County Facilities for the year 2022, or an analysis of the imposed 2022 sewer charges. In fact, the memorandum submitted by the County in support of its Petition-Complaint in Action no. 1 was filed before the 2022 Resolution was even adopted by the Town. The Court notes also that the two actions were only joined for trial and discovery, and not consolidated.

While the parties' legal arguments would likely be very similar, if not identical, in Action no. 2 to Action no. 1, in order to issue an informed decision and opinion in Action no. 2, this Court needs to give both parties the opportunity to present arguments about the factual issues regarding the sewer charges imposed by the 2022 Resolution, such as an analysis or calculations of the 2022 sewer charges and the 2022 actual sewer usage. Accordingly, the return date of the Petition-Complaint in Action no. 2 is adjourned for ninety (90) days from the date of this Decision and Order to give the parties the opportunity to file their memoranda and supporting documents.

The foregoing constitutes the decision and Order of the Court.