Opinion 91-58


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


REFERENDUM -- Advisory (site plan approval)

GENERAL CITY LAW, §30-a: In the absence of express statutory authority, a city may not conduct an advisory referendum on the question whether to grant site plan approval and whether a proposed facility is consistent with the local waterfront revitalization program.

You ask whether a city may conduct an advisory referendum on the question of whether to grant site plan approval and a favorable determination as to consistency with the local waterfront revitalization program for a tire-to-energy facility sought to be located at a particular site within the city.

It has been consistently held in this State that a municipality may not submit a question to a referendum, either advisory or binding, in the absence of express statutory authority (Mills v Sweeney, 219 NY 213; McCabe v Voorhis, 243 NY 401; Kupferman v Katz, 19 AD2d 824, 243 NYS2d 773, affd 13 NY2d 932, 244 NYS2d 217; Greene v Warrensburg, 90 AD2d 916, 456 NYS2d 873, lv den 58 NY2d 604, 459 NYS2d 1027; Citizens For An Orderly Energy Policy v County of Suffolk, 90 AD2d 522, 455 NYS2d 32, lv dsmd 57 NY2d 1045, 457 NYS2d 787). Based upon these cases, we have stated that referenda which are neither authorized nor required by statute are improper and without effect and that municipal moneys may not be expended for such purposes (1990 Opns St Comp No. 90-64, p 145; 1988 Opns St Comp No. 88-70, p 137; 1987 Opns St Comp No. 87-80, p 120; 1986 Opns St Comp No. 86-8, p 14; 1981 Opns St Comp No 81-344, 376).

We are aware of no State statute which authorizes or requires an advisory referendum on the granting of site plan approval (cf. General City Law, §30-a[2], relative to public hearings on site plan approvals) or on local waterfront revitalization consistency determinations (see Executive Law, art 42, §910 et seq.; 19 NYCRR part 601). Accordingly, it is our opinion that the city may not conduct an advisory referendum on these questions.

September 16, 1991
Norman A. LeBlanc, Jr., Esq., City Attorney
City of Lackawanna