Opinion 90-1


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


CONSTITUTIONAL LAW -- Gifts and Loans (gifts of moneys to public entities)
LOCAL LAWS -- Municipal Funds (authorizing gift of to another municipal corporation)
MUNICIPAL FUNDS -- Appropriations and Expenditures (use of commercial hazardous waste facility assessments); (contributions to public entities - school district)

ENVIRONMENTAL CONSERVATION LAW, §27-0925; MUNICIPAL HOME RULE LAW, §10(1)(i): Where a town imposes an assessment on the gross receipts of a commercial hazardous waste facility, the proceeds must be paid into the town-wide general fund. A town by local law may authorize a gift of an amount equal to a portion of these proceeds to a school district to develop a school district playground if the town board determines that the playground will benefit town residents.

You ask whether the proceeds from the imposition of an assessment on the gross receipts of a commercial hazardous waste facility must be applied to a town's general fund and used for town-wide purposes. You also ask whether a portion of such proceeds may be given to a school district located partly within the town to assist with the development of a school playground.

Environmental Conservation Law, §27-0925, as amended by chapter 674 of the Laws of 1989 (eff. January 1, 1990), authorizes the legislative body of a city or town, by local law, to impose and provide for the collection of an annual assessment of not more than 4% of the gross receipts of any commercial hazardous waste facility which is located in the city or town (Environmental Conservation Law, §27-0925[1]). In addition, school districts are authorized to impose an annual assessment of up to 2% (Environmental Conservation Law, §27-0925[2][a][1]).

Environmental Conservation Law, §27-0925 does not specify the manner in which the proceeds from an assessment imposed pursuant to that section are to be utilized. It is a general rule, however, that unless a statute provides otherwise and except for revenues received as a result of a part-town function or activity, revenues received by a town are credited to the general fund, town-wide (1980 Opns St Comp No. 80-784, p 214; see also 1979 Opns St Comp No. 79-614, unreported; 29 Opns St Comp 1973, p 173; 1970 Opns St Comp No. 70-753 unreported; 22 Opns St Comp 1966, 579).

Section 27-0925 was enacted to compensate the host community for the existence of a permanent disposal facility within its boundaries and to encourage the siting of new hazardous facilities (see Memorandum in Support of Senate Bill No. 8895, enacted as L 1986 ch 812, New York StateLegislative Annual, 1986, pp 339-340). In view of these purposes and since villages are not authorized to impose assessments pursuant to section 27-0925 on their own behalf, it appears that the legislature intended that the proceeds of any assessment imposed by a town should inure to the benefit of residents of the town as a whole. Therefore, it is our opinion that when a town imposes an assessment on the gross receipts of commercial hazardous waste facilities pursuant to section 27-0925, the proceeds must be paid into the town-wide general fund for use for any lawful town-wide purpose or function.

As to whether a town may donate the proceeds of an assessment imposed pursuant to Environmental Conservation Law, §27-0925 to a school district for the purpose of developing a school playground, we note that General Municipal Law, §72-h authorizes towns to transfer real property without consideration to, among other entities, school districts. Although there is no similar state statute authorizing a gift of moneys from a town to a school district, local governments are authorized to adopt local laws, not inconsistent with the Constitution or any general law, relating to their property, affairs or government (Municipal Home Rule Law, §10[1][i]). This Office has expressed the opinion that, pursuant to this authorization, a local government, by local law, may authorize a gift to another public corporation in furtherance of a public purpose of the donor municipality (see, e.g., 1982 Opns St Comp No. 82-342, p 434; 1982 Opns St Comp No. 82-164, p 173). In this regard, we note that Article VIII, §1 of the State Constitution, which prohibits municipalities from giving or loaning any money or property to or in aid of any individual, private corporation or association, or private undertaking, does not prohibit gifts to public corporations for public purposes (Comereski v City of Elmira, 308 NY 248).

Towns are authorized to develop playgrounds for the use of town residents (see Executive Law, §§420, 422; General Municipal Law, §§95, 240-244-b; see also 1978 Opns St Comp No. 78-418, unreported; 30 Opns St Comp, 1974, p 90). Thus, the legislature has determined that the development of playgrounds for town residents clearly is a proper town purpose. Therefore, it is our opinion that a town, by local law, may authorize a gift to a school district located within the town to develop a school district playground if the town board determines that the school district playground will benefit town residents. We also note that while such a local law may provide that the amount of the gift shall be equal to a portion of the assessment imposed pursuant to Environmental Conservation Law, §27-0925, the assessments must be paid into the town-wide general fund and appropriated therefrom. Finally, because the assessments are required to be used for town-wide purposes or functions, the town board, in determining whether the gift furthers a town purpose, should be assured by the school district that all town residents will have access to the playground.

As an alternative to an outright donation to the school district, we note that General Municipal Law, §244-b provides that any school district may join with a municipality in equipping, operating and maintaining playgrounds and neighborhood recreation centers and may make and perform agreements in connection therewith (see also General Municipal Law, §119-o; Executive Law, §422[7]). Such agreements shall include provisions for the proportionate cost to be borne by each municipality or school district. Pursuant to this section, the town and the school district may agree to jointly equip, operate and maintain a playground located on school district property for the benefit of both town and school district residents (Opn No. 78-930, supra). Under such an agreement, the town may agree to pay an amount toward equipping, operating and maintaining a playground which would be operated for the benefit of both the town and the school district. Consistent with the discussion in the preceding paragraph, such an agreement could also provide that the amount to be paid therewith will be equal to a portion of the assessments imposed by the town under Environmental Conservation Law, §27-0925.

February 21, 1990
Lily C. Taddeo, Town Clerk
Town of Lewiston