Opinion 92-42


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (use of municipal employees and equipment on private property pursuant to contract)
PERSONAL PROPERTY -- Municipal Equipment (use for private property pursuant to contract)
TOWNS -- Powers and Duties (authority to use employees and equipment on private property pursuant to contract)

STATE CONSTITUTION, ARTICLE VIII, §1; TOWN LAW, §64(2-a): A town may enter into an agreement with the owner of a parking lot pursuant to which the town would lease a portion of the lot for town parking purposes and, in consideration therefor, would agree to plow snow on the portion of the property not used for town parking if the snow plowing is primarily in furtherance of a proper town purpose and the value of the services to the owner, plus any other consideration provided by the town, is commensurate with the value of the benefit received by the town under the lease.


You ask whether a town may enter into an agreement with the owner of a parking lot to permit the town to use a portion of the parking lot for municipal parking purposes. In consideration therefor, the town would agree to assume responsibility for snow removal from the entire parking lot including a portion to be retained by the owner for use in connection with his private business.

Article VIII, §1 of the State Constitution, inter alia, prohibits municipalities from making gifts or loans of their money or property to or in aid of private entities. Further, it is a general rule that, because town equipment is acquired for town purposes (see Town Law, §64[2-a]) and town personnel is hired to provide services for the town (see, e.g., Highway Law, §140[4]), a town may not perform work on private property in furtherance of purely private purposes even if fair and adequate consideration is paid to the town under a contract (see, e.g., 1988 Opns St Comp No. 88-41, p 81; 1985 Opns St Comp No. 85-37, p 51; 1983 Opns St Comp No. 83-103, p 127; 29 Opns St Comp, 1973, p 122).

It is not an improper use of town equipment and personnel, however, to perform work on private property if the work primarily furthers a proper town purpose and is undertaken pursuant to a statutory or contractual obligation, although the work may also provide an incidental private benefit (see, e.g., Schulz v Warren County Board of Supervisors, 179 AD2d 118, 581 NYS2d 885; Murphy v Erie County, 28 NY2d 80, 320 NYS2d 29; 1990 Opns St Comp No. 90-59, p 136; 1982 Opns St Comp No. 82-123, p 153; see also 1989 Opns St Comp No. 89-30, p 71). Thus, town equipment and personnel may be used to perform work on private property as consideration under a lawful town contract if the work performed is primarily in furtherance of a town purpose and the value of the work to the private party, plus other consideration provided by the town, is commensurate with the value of the benefits received by the town under the contract. For example, we have concluded that a municipality may agree to routinely plow snow from the private property of a volunteer ambulance corps as consideration for services provided by the corps under a contract with the municipality in order to facilitate the efficient provision of ambulance service to the municipality (Opn No. 82-123, supra).

With regard to your specific question, Town Law, §64(2) authorizes towns to acquire real property for lawful town purposes by lease, purchase or condemnation. Pursuant to this authority, a town clearly may lease a parking area for town use (see also Town Law, §220[4]; General Municipal Law, §72-j). Further, there is no requirement in section 64(2) that the town pay only cash consideration under a lease (cf. Clintwood Associates v County of Ontario, 144 AD2d 928, 534 NYS2d 246; 1986 Opns St Comp No. 86-44, p 72). Therefore, it is our opinion that the town could agree to plow snow on the portion of the property not used by the town for parking if the snow plowing is primarily in furtherance of a proper town purpose and the value of the services to the other party, plus other consideration as may be provided by the town, is commensurate with the value of the benefit received by the town. If, for example, plowing snow on the private portion of the property facilitates access to the portion used for town parking, the town could provide the plowing as consideration. Whether the particular plowing would be proper, however, would depend on the nature and extent of the proposed services. We believe the town, in the first instance, should determine, based on the general principles discussed above, whether the services are in furtherance of a town purpose and, if so, whether the value to the owner, plus any other consideration to be paid by the town, approximates the value of the benefits received by the town under the lease.

December 30, 1992
Ronald P. Bennett, Esq., Town Attorney
Town of Colden