Opinion 94 - 20


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


REAL PROPERTY TAXES AND ASSESSMENTS -- Assessments (special assessment for snow removal)

STREETS AND HIGHWAYS -- Snow Removal (special assessment for)

BONDS AND NOTES -- Budget Notes (use of to finance excess cost of snow removal) -- Serial Bonds (use of for "extraordinary expenses" for snow and ice removal)

VILLAGE LAW, §§5-518, 6-622, 22-2200; MUNICIPAL HOME RULE LAW§10(1)(ii)(e)(2); LOCAL FINANCE LAW, §§26.10, 29.00: A village may not impose a special assessment to pay the cost of snow removal in excess of the amounts appropriated, but it may issue budget notes to finance such excess costs. In addition, a village has temporary authority to issue serial bonds to pay for "extraordinary expenses" for snow and ice removal incurred in its 1993-4 fiscal year.

You ask whether a village may impose a special assessment to fund costs, in excess of amounts appropriated, for removal of snow. For purposes of this inquiry, we assume the village has no available moneys which may be transferred to increase this appropriation pursuant to Village Law, §5-520(3).

Villages are authorized to assess the cost of certain "local improvements" against benefited properties, in accordance with applicable procedural requirements (Village Law, §§5-518, 6-622, 22-2200; Municipal Home Rule Law, §10[1][ii][e][2]). We have previously expressed the opinion that, for this purpose, a local improvement need not necessarily be founded in a physical improvement, but in appropriate circumstances can also be based upon a service which will enhance the value of property to receive the service (1988 Opns St Comp No. 88-2, p 2). We also concluded, however, that municipal services which are provided to the public at large, rather than to especially benefited properties, could not be financed as "local improvements". (id.; see also 1990 Opns St Comp No. 90-39, p 88). Since the maintenance of a public street is undertaken for the benefit of the public at large (see Lopes v Rostad, 45 NY2d 617, 412 NYS2d 127), it is our opinion that a village may not finance the cost of snow removal by the imposition of a benefit assessment.

Although a village may not impose assessments for this purpose, if an insufficient amount has been appropriated for snow removal in a given fiscal year, a village may finance an increase in the appropriation by the issuance of budget notes in that year, in accordance with Local Finance Law, §29.00 (see Local Finance Law, §29.00[a][1],[b]). In the case of an unforeseeable public emergency during a fiscal year, there is no ceiling on the amount of budget notes which may be issued during that fiscal year (Local Finance Law, §29.00[a][1]). The notes must be redeemed in the fiscal year succeeding the fiscal year in which they are issued or, if authorized and issued after the adoption of the budget for the succeeding fiscal year, in the next succeeding fiscal year (Local Finance Law, §29.00[j], [k]). Pursuant to Village Law, §5-520(2), a budget note resolution generally must be adopted prior to the incurrence of the additional expense which is to be financed by the notes. In the case of a public emergency, however, the budget notes may be authorized after the expense has been incurred, and the proceeds used to reimburse the general fund (see Coggeshall v Hennessey, 279 NY 433; Davis v Sharp, n.o.r, 30 NYS2d 438; Davis v Sharp, n.o.r 30 NYS2d 441 mod and affd 265 App Div 825, 37 NYS2d 843). Whether an emergency exists in a given situation, of course, is a question of fact to be determined in the first instance at the local level.

In addition, pursuant to Local Finance Law, §26.10(c)(2) as amended by L 1994, ch 585, the finance board of the village may authorize the issuance of serial bonds before the end of the village's 1994-5 fiscal year to provide for the payment of all or part of any "extraordinary expenses" for snow and ice removal incurred in its 1993-4 fiscal year, or to reimburse or replenish any fund or account from which moneys to pay such expenses were advanced or paid. The period of probable usefulness for such bonds is five years and the date of final maturity may not extend beyond December 31, 1999.

Accordingly, a village may not impose a special assessment to pay the cost of snow removal in excess of the amounts appropriated, but it may issue budget notes to finance such excess costs. In addition, a village has temporary authority to issue serial bonds to pay for "extraordinary expenses" for snow and ice removal incurred in its 1993-4 fiscal year.

November 10, 1994
Alan L. Honorof, Esq., Village Attorney
Inc. Village of Plandome Manor