Appeals court tosses non-voter-approved changes to Suffolk drinking water program

The state Appellate Division Wednesday threw out more than $30 million in changes made to Suffolk's Drinking Water Protection Program in 2011 as "illegal, null and void" because the county failed to hold a referendum to get voter approval.

The Brooklyn appeals court ruled 4-0, reversing a lower-court decision and giving a major victory to the Long Island Pine Barrens Society, which challenged what it called a raid on the water program made by the administration of former County Executive Steve Levy and approved by the county legislature.

"This is huge," said Jennifer Juengst, one of the society's attorneys. "It eliminates any doubt once and for all that when the public speaks at a referendum, the politicians cannot change their will."

Paul Sabatino, co-counsel on the suit, said the decision could potentially affect other legislative actions such as the refinancing of the Cohalan court complex in Central Islip, which also included a referendum requirement that was not followed. However, it would require a separate lawsuit.

Both sides Wednesday night declined to assess the ruling's fiscal impact until they had reviewed it. While nearly $30 million was used when Levy was in office to lower the county bond debt to offset tax hikes, much of another $55 million for sewer infrastructure improvements was not spent. The county, however, has approved about $12 million to upgrade sewer plants in Northport and Riverhead, but officials could not say Wednesday night how much has already been paid.

However, some say the impact may be softened because of a deal made between County Executive Steve Bellone and environmentalists earlier this year that was approved overwhelmingly last week by voters in a referendum. That deal authorizes borrowing $29.4 million for new land acquisition and sewer projects, while permitting the county to continue borrowing money from the $140 million sewer assessment stabilization fund for the next three years and make repayments between 2018 to 2029.

Levy, reached Wednesday night, said the ruling "seems contradictory to prior court decisions, including New York City's changes to the term limit law, which were validated in court even though they had previously gone to referendum."

The county water program, funded by a quarter percent sales tax, dates back to 1987 and is aimed at protecting the county's water supply and the pine barrens region. Three subsequent revisions to the plan, in 1993, 1999 and 2007, all required a public referendum and mandated that future changes also be approved by voters. County lawyers had maintained that provisions of the program mandating public approval violated the state constitution and Municipal Home Rule Law because it improperly restricted the power of elected officials to legislate.

However, the appellate panel ruled those measures "do not prevent Suffolk County from adopting a charter provision . . . which requires approval by public referendum" because "the relevant charter provision constitutes the county mode of granting permission to the electorate" to have the final say.

Richard Amper, Pine Barrens Society executive director, said: "The most important part of the court decision is that when the government gives the public the right to decide, they can't come back later and say April Fools."