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HOMEOWNERS FILE SUIT OVER SEWER TAXES ON SUNSET ISLAND

A group of Sunset Island residents is suing the Town of Wilson, trying to get their 2000 sewer taxes canceled.

The 85 parcels on the island have no sewers, but the town has been planning to change that.

The county Health Department has applied pressure on the property owners by sending them a letter in March 1998 warning that their cottages would be considered unfit for human habitation if sewers weren't installed.

The county's position was that septic tank outflow was polluting Lake Ontario.

County Environmental Health Director James J. Devald said the county has not carried out that threat yet because the town is working on the issue.

"They have all their applications in for funding," he said. The town is seeking state and federal grants for the project.

New Supervisor Jerry L. Dean said, "We have suspended any operation to move this project on until the lawsuit is settled." But he said the state and federal grant applications will remain active.

The town placed bids for water and sewer work previously, but revisions in the plans have been forced by reviews by the state Department of Environmental Conservation and the Army Corps of Engineers.

In the process, the price tag on the project ballooned above the $565,850 ceiling set by the state as the most the Sunset Island property owners could bear, based on the assessed value of their properties.

Even though no construction is currently scheduled, the town has formed a sewer district and taxed the island properties to pay for the legal and engineering costs involved in the effort so far.

That's where the lawsuit comes in. The Sunset Island Sewer Committee, comprising some property owners, is suing the town, the Sunset Island Sewer District, the Town Board, former Supervisor Marilynn R. Allgeier, Tax Collector Kathleen A. Dixon, and Assessor Milton S. Bradshaw.

Also listed as plaintiffs are individual property owners Charles Keipper, Ronald Knuth, Rita Miller, Edward Kinkle and Mary Foote.

The purpose, according to court papers, is to annul the special assessment of $272.77 per island parcel imposed as part of the 2000 property tax, and obtain an order that no further money be spent on the project unless the town as a whole provides the revenue.

The suit seeks refunds of whatever sewer district taxes have already been paid this year, but does not seek a refund of last year's taxes. For 1999, the town levied $20,000 on the islanders by adding $3.62 per $1,000 of assessed valuation to their tax bills.

Dixon said most of the tax payments received so far this year from islanders have been marked "Paid Under Protest."

The Sunset Island Sewer Committee's attorney, Paul J. Hirsch of the Buffalo firm of Allen & Lippes, said he had recommended that tactic.

The grounds for invalidating the sewer tax levy claimed in the suit are that the town did not comply with state law by publishing a public hearing notice at least 10 days before the hearing on the town budget was held last fall, and that the flat fee per parcel imposed for this year violates the law.

Hirsch said the town act that created the sewer district in 1997 said that taxes were to be levied "in proportion as nearly as may be to the benefit which each lot or parcel shall derive."

Recalled former Town Attorney F. Warren Kahn, who will represent the town in the case, "I think we did it right. . . . The (town) board was of the opinion that everyone would benefit equally."

Hirsch disagrees. "I don't think that's a reasonable position to take," he said.

The lawsuit quotes Kahn as telling Keipper at the public hearing that the flat fee was being instituted because Hirsch suggested it.

"I have no recollection of ever making that suggestion," Hirsch asserted.

The suit claims there are several ways to measure differing benefits of a sewer project: by counting the number of bathrooms in a house, or by comparing water usage, for example.

Instead, the suit says, "The Town of Wilson chose to treat the required provision of needed sewerage in an off- handed and arbitrary manner, exposing (the plaintiffs) to the very possible loss of their properties and fiddling away their tax dollars with no coherent plan for proceeding with provisions of a real sewer district."

Hirsch said Sunset Island, populated almost entirely on a seasonal basis by persons who do not live in Wilson year-round, "is an annoyance to (the town). It's 'those people out there.' "

The suit also claims the legal notice for the public hearing was published on Oct. 27, less than 10 days before it was held on Nov. 4.

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