On June 2, 1987 defendant, the Town of Guilderland in Albany County (hereinafter the Town), purportedly acting pursuant to its authority under Municipal Home Rule Law §§ 10 and 11, adopted a local law entitled the Transportation Impact Fee Law (hereinafter TIFL). Under this law, all applicants for building permits who seek "to make an improvement to land or change use of land which will generate additional traffic" are required to pay a transportation impact fee at the time the permit is issued (TIFL §§ 5, 7). The amount of the fee is determined by a fee schedule set forth in the law. For example, the fee is $937 for a single-family detached dwelling and $375 for a three-story or greater multifamily dwelling. TIFL also established a Transportation Impact Fee Trust Fund and explicitly provides that these funds are to be used for the purpose of capital improvements to and expansion of the Town, County and State roadway network and transportation facilities within the Town. No funds are to be used for periodic or routine maintenance.
Plaintiffs, Albany Area Builders Association, Home Builders Association of Schenectady, Inc., D & M Swift Builders, Inc., Masullo Brothers Builders, Inc. and Traditional Builders, Ltd., commenced a CPLR article 78 proceeding challenging the Town's authority to enact TIFL, stipulated to the adjournment of that proceeding and brought a direct action to this court by submission of the controversy upon an agreed statement of facts pursuant to CPLR 3222 and 22 NYCRR 800.21. The controversy submitted for decision is whether the Town had the statutory and constitutional authority to adopt TIFL or whether TIFL is invalid for lack of such authority.
Municipal Home Rule Law § 10 confers upon local governments the power to adopt local laws dealing with specified matters. This power is in large measure codified in the home rule provisions of the State Constitution (see, NY Const, art IX, § 2 [c]). "The theory behind home rule is very simple: it is the thought that local problems, in which the State has no concern, can best be handled locally" (Baldwin v City of Buffalo, 6 N.Y.2d 168, 172).
Plaintiffs first contend that Municipal Home Rule Law § 10 (1) (i), which permits local governments to adopt laws relating generally to their own "property, affairs or government", does not authorize TIFL because of TIFL's far-reaching implications. We agree. Plaintiffs correctly note that the terms "property, affairs or government", as used in the context of home rule provisions, have a limited meaning (see, Adler v Deegan, 251 N.Y. 467, 473) and do not encompass matters of substantial State concern even though they also touch upon concerns of the locality (see, Hotel Dorset Co. v Trust for Cultural Resources, 46 N.Y.2d 358, 373; County Sec. v Seacord, 278 N.Y. 34, 38, supra; Matter of Sherman v Frazier, 84 A.D.2d 401, 409; County of Orange v Metropolitan Transp. Auth., 71 Misc.2d 691, 703, affd 39 A.D.2d 839) or even deal directly with the affairs of a municipality (Hotel Dorset Co. v Trust for Cultural Resources, supra). The Court of Appeals in Baldwin v City of Buffalo (6 N.Y.2d 168, 173, supra) held a local statute altering ward boundaries to be within the constitutional home rule provisions upon finding that "such legislation affects only the property, affairs or government of the municipality involved" (emphasis supplied).
In the case at hand, it can hardly be disputed that TIFL has effects which go beyond the Town's boundaries. The imposition
Municipal Home Rule Law § 10 (1) (ii) further empowers local governments to adopt and amend local laws "not inconsistent with the provisions of the constitution or not inconsistent with any general law, relating to [certain enumerated] subjects, whether or not they relate to the property, affairs or government of such local government". Plaintiffs claim that the Town's adoption of TIFL was not authorized by either Municipal Home Rule Law § 10 (1) (ii) (a) (6), as it does not relate to "[t]he acquisition, care, management and use of its highways, roads, streets, avenues and property", or Municipal Home Rule Law § 10 (1) (ii) (a) (7), permitting laws relating to "[t]he acquisition of its transit facilities and the ownership and operation thereof". Subclause (6) merely permits municipalities to regulate the use of municipal roadways (see, Good Humor Corp. v City of New York, 290 N.Y. 312, 317; Browne v City of New York, 241 N.Y. 96, 124). In Browne v City of New York (supra, at 124), Judge Cardozo wrote that this provision empowers localities "to regulate the burdens to which the streets shall be subjected * * * to place reasonable regulations upon traffic, its methods, forms or hours". This provision has never been interpreted to permit a municipality to create new taxes to fund highway improvements and we decline to do so now. Nor does subclause (7) provide authority for the impact fee. This provision grants localities the authority to acquire transit facilities, which are "any tangible means of moving people and things from place to place" (New York State School Bus Operators Assn. v County of Nassau, 39 N.Y.2d 638, 640); it does not explicitly or implicitly grant municipalities the authority to create new forms of taxation to support transit facilities.
Nor does Municipal Home Rule Law § 10 (1) (ii) (a) (12), authorizing local governments to adopt laws relating to "[t]he government, protection, order, conduct, safety, health and well-being of persons or property therein", provide authority
Plaintiffs next argue that the transportation impact fee provided for in TIFL is, in essence, an impermissible regressive tax, not authorized by Municipal Home Rule Law § 10 (1) (ii) (a) (9-a) (see, NY Const, art XVI, § 1; see also, County Sec. v Seacord, 278 N.Y. 34, 37, supra; People v Board of Managers, 123 Misc.2d 188, 195; Mobil Oil Corp. v Town of Huntington, 85 Misc.2d 800, 805-806). The label which is attached to an assessment is not dispositive of its true nature (see, Matter of Joslin v Regan, 63 A.D.2d 466, 470, affd 48 N.Y.2d 746). Taxes are imposed for the purpose of defraying the costs of government services generally (see, American Sugar Ref. Co. v Waterfront Commn., 55 N.Y.2d 11, 26-27, appeal dismissed sub nom. New York Shipping Assn. v Waterfront Commn., 458 U.S. 1101; Matter of Joslin v Regan, supra, at 470). Fees, on the other hand, have been characterized as the "visitation of the costs of special services upon the one who derives a benefit from them" (Jewish Reconstructionist Synagogue v Incorporated Vil. of Roslyn Harbor, 40 N.Y.2d 158, 162 [emphasis in original]; see, Matter of Joslin v Regan, supra, at 470). To the extent that the transportation impact fee imposes the expense of highway improvements upon a small group of home buyers even though the benefit of such improvements is enjoyed by the public generally, this fee indeed resembles a tax.
In our view, the Town's reliance upon Jenad, Inc. v Village of Scarsdale (18 N.Y.2d 78) is misplaced. In that case, the Village of Scarsdale, acting pursuant to Village Law former § 179-k (now Village Law § 7-728), gave its planning board the authority to approve plats for subdividing and, as a condition
Even if this were not the case, we also find, as contended by plaintiffs, that TIFL is inconsistent with and preempted by general laws regulating highway funding and municipal finance (see, Consolidated Edison Co. v Town of Red Hook, 60 N.Y.2d 99, 105). It is noted initially that intent on the part of the Legislature to preempt a particular area need not be express, but may be implied (see, New York State Club Assn. v City of New York, 69 N.Y.2d 211, 217, affd 487 US ___, 108 S.Ct. 2225; Consolidated Edison Co. v Town of Red Hook, supra, at 105). "A desire to preempt may be implied from a declaration of State policy by the Legislature * * * or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area" (Consolidated Edison Co. v Town of Red Hook, supra, at 105). Also relevant to the issue of preemption is "the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme * * * including the need for State-wide uniformity in a given area" (Matter of Ames v Smoot, 98 A.D.2d 216, 219), as well as "the lack of any perceived `real distinction' between any particular locality and other parts of the State in this regard" (People v De Jesus, 54 N.Y.2d 465, 468; see, Robin v Incorporated Vil. of Hempstead, 30 N.Y.2d 347, 350).
The means by which revenues are raised and expended for the purpose of improving transportation facilities are the subject of comprehensive regulation by the Legislature, primarily
We conclude that the Town did not have statutory or constitutional authority to adopt TIFL and that the law is invalid for lack of such authority.
Judgment rendered in favor of plaintiffs, and it is declared that the Town of Guilderland Transportation Impact Fee Law is invalid, with costs.