Opinion 88-54


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

IMPROVEMENT DISTRICTS -- Extensions (prior to effective date of a consolidation)

WATER DISTRICTS -- Extension (prior to effective date of a consolidation)

TOWN LAW, §§190, 206, 209: A town board may not establish an extension to a consolidated water district prior to the effective date of the consolidation. The town board may, however, initiate proceedings for such an extension prior to the effective date of the consolidation. Prior opinions superseded to the extent inconsistent.

You ask about the extension of a consolidated water district where a town board has adopted a resolution consolidating water districts in the town prior to October 1 in any year. Under section 206 of the Town Law, the consolidation of the districts, assuming that it is not defeated at referendum, will become effective on December 31 of that year. You ask whether the consolidated district may be extended prior to December 31, and, if so, what time table must be followed for the extension of the consolidated district.

As noted in your inquiry, it has been the opinion of this Office that proceedings to extend a consolidated district may not be initiated prior to the effective date of the consolidation (3 Opns St Comp, 1947, p 322; see also 1978 Opns St Comp No. 78-287 and 1971 Opns St Comp No. 71-941, both unreported). We believe that since a consolidated district does not come into existence until the effective date, the district cannot be extended prior to that date.

We find no reason to alter our conclusion that a consolidated district may not be extended prior to the effective date of the consolidation. To the extent that our earlier opinions indicated that a town could not initiate proceedings to extend a consolidated district prior to the effective date of the consolidation, however, those opinions are now superseded.

The resolution of a town board consolidating special districts only becomes effective after the period for filing a petition requesting a referendum has expired or, if a petition is filed, the consolidation has been approved at a special election (Town Law, §206[5]). Pursuant to Town Law, §206(11), the actual consolidation of the district "becomes effective on the thirty-first day of December next succeeding, provided however, that if any such resolution shall be adopted subsequent to the first day ofOctober in any year such consolidation shall become effective on the thirty-first day of December of the next succeeding calendar year." Thus, once the town board's resolution becomes effective, the consolidation is contingent only upon the passage of time. Under these circumstances, since the consolidated district is certain to come into existence on the date specified by section 206, there appears to be no legal or practical impediment to the initiation of proceedings to extend the consolidated district prior to the effective date of the consolidation. Consequently, it is our opinion that once the resolution adopted by the town board consolidating the districts becomes effective, the town board may, upon the presentation of a petition under Article 12 of the Town Law or on its own motion under Article 12-A of the Town Law, call a public hearing on the extension of the consolidated district (Town Law, §§193, 209-d).

After the town board has held the public hearing on the extension and has made the determinations required by section 194(1) or section 209-e(1) of the Town Law, it may wait and adopt a resolution approving the extension of the district after the consolidation becomes effective. In the alternative, the town board may, after the public hearing, adopt a resolution approving the extension which specifies that it is not to become effective until the consolidated district comes into existence. While the Town Law is silent as to the inclusion of an effective date in a resolution adopted pursuant to Town Law, §206 (cf. Municipal Home Rule Law, §27[4], which authorizes a local law to specify an effective date), it is a general common law rule that, in the absence of a statute to the contrary, a local legislative body may provide for a resolution to become effective at a specified future date or upon the happening of a future event within a reasonable time after passage (see City of Buffalo v Chadeayne, 134 NY 163; 5 McQuillin, Municipal Corporations, §§15.39, 15.41; 1 Antieau, Municipal Corporations Law, §4.26; also see McKinney's Statutes, §§41, 43). Therefore, it is our opinion a town board resolution approving the establishment of an extension may provide that it will become effective after the consolidated district comes into existence. We must emphasize, however, that, irrespective of whether the town delays adopting its resolution approving the extension or adopts a resolution which provides that it shall take effect at some future date, the extension will not be established until after the consolidation becomes effective.

Finally, we note that it is possible, where a resolution for the consolidation of special districts is adopted after October first in any year (Town Law, §206[11]), for more than a year to elapse before the consolidation becomes effective. Therefore, in evaluating whether to approve an extension prior to the effective date of the consolidation, it will be necessary for the town board to consider the effects of this delay including, among other factors, the potential for increases in the cost of improvements and further real property development.

November 30, 1988
John A. Michalek, Esq., Deputy Town Attorney
Town of Hamburg