Can a NY landowner pull their property out of the village if they get some but not all village services?

Subject

Village Law § 18-1804 exclusion requires no village services

Plain-English summary

The Village of Waverly had a property owner who wanted to pull his property out of the village boundaries under Village Law § 18-1804. The property received village streets, street lights, and water service. It did not have an abutting sidewalk and was not on the village wastewater system. The village had completed all these services and improvements. Fire protection in both the Town of Barton and the Village of Waverly came from an independent fire district.

The question: did receiving some but not all of the listed services and improvements make this property eligible for exclusion?

Village Law § 18-1804 provides that boundaries may be diminished by excluding "territory not adjacent to nor benefited by either street or sidewalk improvements, electric lights, sewers, water works system or fire protection, when any of such benefits, improvements or system have been completed in a village."

The AG read that language as creating an all-or-nothing test: exclusion is available only when the property is benefited by none of the listed improvements that have been completed in the village. Receiving any one of those services makes the property ineligible for exclusion.

The reasoning was textual and purposive. Textually, the statute uses "not adjacent to nor benefited by either" followed by the list. Read carefully, the structure says: the property must not be benefited by any of these services. Purposively, the AG found the intent was to give rural properties (those not served by village facilities) a way to drop out of the village and instead be placed in the town where similar properties sit, relieved of paying the general village tax to support facilities they do not use. A property that already enjoys some village services has the connection to the village that justifies keeping it within the village taxing structure.

The AG noted the statute is murky and has no useful legislative history (L 1903 ch 606 was the original passage, with amendments in L 1921 ch 275 and L 1929 ch 662 also lacking helpful history). The AG admitted the construction was an interpretive call.

So this Waverly property, which received village streets, street lights, and water, was ineligible for exclusion under § 18-1804. Lack of sidewalk and lack of sewer did not save the petition.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why is the AG strict about the all-or-nothing reading?

Because the statute's apparent purpose is to release truly rural, unserved properties from village taxation. A property that gets streets, lights, and water from the village is integrated into the village in ways that justify continued taxation. Letting partially served properties opt out would create a fairness problem: the property would still benefit from the services without paying for them.

What if the village only partially completed a service for the property (e.g., water mains nearby but no actual hook-up)?

The statute uses "benefited by" the service. If the village has completed the service but the particular property does not benefit from it, that piece does not count against exclusion. The harder factual question is what "benefited by" means: it generally implies actual access or potential access at the property line. The AG opinion does not parse that finely.

What's the difference between exclusion under § 18-1804 and other boundary changes?

Section 18-1804 is one specific mechanism. New York has several boundary-change procedures: annexation, dissolution, exclusion, alteration. Each has its own conditions. Section 18-1804 specifically addresses excluding individual properties; other procedures handle different change types.

Are there alternatives if a property owner can't use § 18-1804?

Potentially, depending on the situation. Tax challenges (claiming over-assessment), annexation petitions to a different jurisdiction (rare and complex), or seeking dissolution of the village entirely. None is easy. The exclusion procedure under § 18-1804 is the most direct route, but only for properties that genuinely receive no village services.

Why is fire protection on the list of services?

Because villages historically provided fire protection as a core service. Where the village runs its own fire department (or contributes to one), property owners benefit. The Waverly situation is interesting: an independent fire district served both the town and the village, so the village arguably is not providing the fire protection. But the AG did not need to reach that question because the property received three other listed services.

Statutory framework

Village Law § 18-1804 (originally L 1903 ch 606, amended by L 1921 ch 275 and L 1929 ch 662) is the boundary-diminishment-by-exclusion statute. It identifies five categories of services and improvements: street improvements, sidewalk improvements, electric lights, sewers, water works system, and fire protection.

The statute requires that the territory be not adjacent to and not benefited by any of those services that have been completed in the village.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-42_pw.pdf

Original opinion text

VILLAGE LAW § 18-1804; L 1929 CH 662; L 1921 CH 275; L 1903
CH 606.
A property owner may utilize section 18-1804 of the Village
Law to exclude his property from village boundaries only if he
does not receive specified village services and improvements.
August 14, 1995

James J. Killela, Jr., Esq.
Village Attorney
Village of Waverly
P. O. Box 149
Waverly, NY 14892

Informal Opinion
No. 95-42

Dear Mr. Killela:
You have asked that we construe section 18-1804 of the
Village Law, a procedure for diminishing the boundaries of a
village. Your concern is the following language:
The boundaries of a village may be diminished by excluding
from its corporate limits territory not adjacent to nor benefited by
either street or sidewalk improvements, electric lights, sewers, water
works system or fire protection, when any of such benefits,
improvements or system have been completed in a village.

A taxpayer seeking exclusion of his property from village
boundaries is currently served by village streets, street lights
and water supply. However, there is no sidewalk abutting the
taxpayer's property and the property is not serviced by a
wastewater treatment facility. All of the above services and
improvements have been completed in the village. The Town of
Barton and the Village of Waverly are serviced by an independent
fire district.
Your question is whether, under the statutory language, the
presence of some but not all of the listed benefits and
improvements makes this property eligible for exclusion from the
village under section 18-1804.
We have found no authorities construing this language.
Further, no legislative history is available from the initial
passage of the section (L 1903, ch 606). Nor is there anything
helpful in the text of two subsequent amendments to the provision
or in their legislative history. L 1921, ch 275; L 1929, ch 662.
We are left to construe the provision based only on its actual
language.

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While the language of the statute is somewhat murky, as you
have suggested, we believe that there is a logical construction
of the syntax which also appears to achieve the intended public
purpose. In our view, a property is eligible for exclusion only
if it is not benefited by any of the listed improvements which
have been completed in the village. It must not be benefited by
sidewalk improvements, electric lights, sewers, water systems or
fire protection. The receipt of any one of these improvements or
services, which has been completed by the village, makes the
property ineligible for exclusion from the boundaries of the
village.
The apparent statutory intent is to create a procedure
whereby rural properties, unserved by village facilities, are
afforded a mechanism for exclusion from the village. Such
properties would be relieved of paying the general village tax to
support these facilities. They could be placed in the town
outside the village where similar property is located.
We conclude that a property owner may utilize
section 18-1804 of the Village Law to exclude his property from
village boundaries only if he does not receive specified village
services and improvements.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is

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an informal and unofficial expression of the views of this
office.
Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions