Opinion 88-9


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

WATER DISTRICTS -- Improvement of Facilities (procedure for acquisition of real property by district governed by separate board)

IMPROVEMENT DISTRICTS -- Property (procedure for acquisition of real property by district governed by separate board)

TOWN LAW, §§202-b, 215[5], 216: A town board may delegate to a separate board of commissioners of a water district governed by article 13 of the Town Law the authority to purchase real property in connection with an increase or improvement of facilities. Prior to such delegation, the town board must call and conduct a public hearing on the increase or improvement of facilities after the written approval of the separate board of commissioners.

You ask whether a separate board of commissioners of a water district governed by article 13 of the Town Law (§§210-216) needs the approval of the town board before it may acquire real property on behalf of the district. You state that the parcel is needed for an anticipated enlargement of the district's pumping, filtration and purification facilities. You also state that no town obligations would be used to finance the acquisition.

Town Law, §215(5) provides that a separate board of commissioners of a town water district may purchase real property for any purpose authorized by law, subject to the provisions of article 13 of the Town Law. The purchase of real property in order to increase or improve the facilities of the district is such an authorized purpose (Town Law, §§202-b, 215[5],[19]). Before the parcel may be acquired, however, a proceeding to increase or improve the facilities of the district must be conducted in accordance with the provisions of sections 202-b and 216 of the Town Law.

Section 202-b of article 12 of the Town Law sets forth the manner in which an improvement district can undertake an increase or improvement of facilities. In the case of a district having a separate board of commissioners, Town Law, §216 further provides, in part, that with respect to any district purpose which may be initiated without petition, the town board shall call a hearing in the manner provided by article 12 of the Town Law, after such purpose shall have been approved in writing by a majority of the commissioners. If the town board determines, after public hearing, to authorize the purpose, it may delegate to the board of commissioners authority to conduct all further proceedings thereon pursuant to article 12. Therefore, in order to initiate the proceeding to increase or improve the facilities, a majority of the separate board of commissioners must approve the proposed action in writing (Town Law, §216).

After obtaining the approval of the board of commissioners, the town board is required to cause a map and plan of the proposed improvement, together with an estimate of the cost, to be prepared by a competent engineer duly licensed by the State of New York (Town Law, §202-b[1]). When the map, plan and estimate have been completed, the town board then must call a public hearing and cause a notice of hearing to be published and posted in the manner prescribed in Town Law, §193. Such notice is required to describe in general terms the location of the lands to be acquired, specify the estimated expense thereof, and state the time when and place where the town board will meet to hear all interested persons (Town Law, §202-b[1]). After holding the public hearing, the town board may authorize the purchase of the parcel and may delegate to the separate board of commissioners authority to conduct all further proceedings thereon pursuant to article 12 of the Town Law (Town Law, §216).

Based on the foregoing, it is our opinion that, in the instant situation the town board must call and conduct the public hearing required for an increase or improvement in facilities (Town Law, §216; see 7 Opns St Comp, 1951, p 367). However, before the town board may call the public hearing, a majority of the district's separate board of commissioners must approve the proposed increase or improvement of facilities in writing. After the public hearing has been held and the project authorized by the town board, the town board may delegate to the separate board of commissioners the power to acquire the real property on behalf of the district (Town Law, §216; see 7 Opns St Comp, 1951, p 367, supra).

March 1, 1988
Mario John Albano, Esq.
Montrose Improvement District