Opinion 90-64


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


PARK DISTRICTS -- Increase or Improvement of Facilities (referendum not required)
IMPROVEMENT DISTRICTS -- Increase or Improvement of Facilities (referendum not required) -- Procedural Requirements (referendum requirements)
BONDS AND NOTES -- Referendum Requirements (bond resolution for park district)
REFERENDUM -- Permissive (need for when issuing bonds to finance improvement to park district); (need for when determining to improve park district)

TOWN LAW, §202-b; LOCAL FINANCE LAW, §35.00: The determination to increase or improve facilities of a town park district is not subject to referendum. A bond resolution authorizing the issuance of bonds to finance an improvement to a town park district is not subject to referendum.

You have inquired as to the circumstances when a referendum is authorized or required in a town park district on a project to be financed by the issuance of obligations.

The courts in this State have consistently held that a municipality may not submit a proposition to a referendum in the absence of express statutory authority (see, e.g., McCabe v Voorhis, 243 NY 401; Mills v Sweeney, 219 NY 213; Citizens For An Orderly Energy Policy v County of Suffolk, 90 AD2d 522, 455 NYS2d 32). Based upon these cases, we have stated that referenda which are neither permitted nor required by statute are improper and without effect (see, e.g., 1988 Opns St Comp No. 88-70, p 137).

Generally, where a municipal project is to be financed by the proceeds of obligations, a referendum, if any, will be authorized or required either on the decision of the governing board to undertake the project itself or the decision to authorize the issuance of bonds or capital notes to finance the project. In this regard, we note that, where obligations are to be issued to finance the cost of an improvement in a town special district, the establishment or extension of the special district, as well as any increase in the maximum amount proposed to be expended for the improvement, are subject to permissive referendum when initiated by action of the town board under article 12-A of the Town Law (Town Law, §§209-e, 209-h). The determination to increase or improve facilities of a district already established, however, is not subject to referendum (Town Law, §202-b).

Local Finance Law, §35.00 sets forth the circumstances when a bond resolution of a town finance board is subject to permissive referendum. Section 35.00(b)(2) expressly provides that a bond resolution authorizing the issuance of bonds for any town district or special improvement authorized by articles 3-A, 12, 12-A or 12-C of the Town Law is not subject to referendum. There is an exception to this rule for bond resolutions adopted by the finance board of the Town of Oyster Bay for the purpose of financing original capital improvements with an established maximum cost of $2,000,000 or more for an existing park district. However, other than this one exception for the Town of Oyster Bay, bond resolutions for town special district projects are not subject to referendum under the Local Finance Law.

The district in question is contemplating an increase or improvement of facilities. As was noted above, such action on the part of the town board is not subject to referendum under the Town Law or Local Finance Law. Further, we are aware of no statute which authorizes the governing board of a park district to conduct a non-binding, advisory referendum on the decision to undertake a project to be financed by the issuance of obligations (see also Opn No. 88-70, supra). Therefore, absent the enactment of legislation, there is no authorization or requirement to conduct a referendum prior to undertaking or financing the project.

January 9, 1991
Cornelius F. Healy
Deputy State Comptroller