Opinion 95 - 17


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

IMPROVEMENT DISTRICTS -- Property (transfer of property from a town to a district without consideration)

PERSONAL PROPERTY-- Disposition of (authority of town to transfer property to a district without consideration)

TOWNS -- Powers and Duties (authority of town to transfer property to a district without consideration)

TOWN LAW, §§198, 202, 202-a; MUNICIPAL HOME RULE LAW, §10(1): A town board is without authority to gratuitously transfer personal property to an improvement district, so that the personal property may be sold to generate revenue for the improvement district. The town may not adopt a local law authorizing such a gratuitous transfer.

This is response to your inquiry concerning the use, in a sewer district, of personal property owned by the town. You indicate that the town owns a supply of sand that is in excess of its own needs for the foreseeable future. The town initially acquired this sand as a gift (see 1975 Opns St Comp No. 75-941, unreported). You ask whether, in lieu of selling the sand and crediting the proceeds to the townwide general fund, the town board may transfer the sand to a town sewer district without consideration. The town board would then sell the sand to generate revenue for the sewer district.

A town improvement district, such as a sewer district, is an administrative department of the town (see Greater Poughkeepsie Library District v Town of Poughkeepsie, 81 NY2d 574, 601 NYS2d 94). With certain exceptions not applicable here, the town board is the governing board of the district and is responsible for the planning, construction, operation and maintenance of improvements in such district (Town Law, §§61, 198; see also 1987 Opns St Comp No. 87-69,  p 104). Although the town board is responsible for the construction and maintenance of improvements in a district, town general funds may not be expended for those improvements or their maintenance (1988 Opns St Comp No. 88-33, p 61; see also Belinson v Sewer District No. 16, 65 AD2d 912, 410 NYS2d 469). Once a sewer district has been established, the cost of improvements in the district, as well as the costs of operation and maintenance, must, to the extent that they are not raised by the imposition of user charges, be assessed on the properties in the district (Town Law, §198[1][i],[k],[l]; §§202, 202-a, 245; see also 1988 Opns St Comp, No. 88-30, p 56). Neither the Town Law nor any other provision of law authorizes a town to provide sewer district facilities and service as a general town expense payable out of the town general fund (Opn No. 88-33, supra; cf. Town Law, §§57, 209-r, which provide, in certain instances, authority for towns to dissolve special districts and provide services previously provided by those districts as a town function).

Given that the town board is, as noted above, without authority to expend general fund moneys for sewer district purposes, we believe that the town board is similarly without authority to gratuitously transfer personal property to the sewer district, so that the personal property may be sold to generate revenue for the sewer district (see 13 Opns St Comp, 1957, p 294, in which this Office concluded that a district could not gratuitously convey land to a town; cf. Town Law, §208, which provides for the joint administration of improvement districts and town functions; 34 Opns St Comp, 1978, p 206; 17 Opns St Comp, 1961, p 121).

As to whether the town may, by local law, authorize the transfer of personal property to a sewer district within the town without consideration, we note that a town is generally authorized to adopt local laws, not inconsistent with the Constitution or a general law, relating to its property, affairs or government or those matters specifically enumerated in section 10 of the Municipal Home Rule Law (Municipal Home Rule Law, §10[1][i],[ii]). It is well settled, however, that a local government may not exercise home rule powers in situations where the State Legislature has demonstrated a desire or design to pre-empt the subject matter of the proposed local law (see, e.g., Albany Area Builders Association v Town of Guilderland, 74 NY2d 372, 547 NYS2d 627). The intent to pre-empt need not be express, but may be implied from a declaration of State policy by the Legislature or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area (Albany Area Builders Association, supra; see also 1994 Opns St Comp No. 94 - 1, p 1; 1990 Opns St Comp No. 90-39, p 88).

The State Legislature, by enacting the provisions of articles 12 and 12-A of the Town Law relating to the financing of town improvement districts, has created a comprehensive legislative scheme and evinced an intent to pre-empt the area of financing for improvement districts (see Coconato v Town of Esopus, 152 AD2d 39, 547 NYS2d 953, lv denied 76 NY2d 701, 558 NYS2d 891; see also Opn No. 94-1, supra; 1992 Opns St Comp No. 92-33, p 84; 1990 Opns St Comp No. 90-61, p 141; Municipal Home Rule Law, §10[1][ii][d][3][1], prohibiting a town from superseding a State statute relating to an improvement district). Consequently, it is our opinion that a town may not adopt a local law authorizing a transfer of personal property from the town to a sewer district in the town without consideration (cf. 1990 Opns St Comp No. 90-1, p 1).

Accordingly, it is our opinion that the town board may not transfer sand, owned by the town, to a sewer district in the town without consideration so that the sand may be sold to generate revenue for the sewer district.

June 28, 1995
Sharon L. Langfield, Secretary/Bookkeeper
Town of Dannemora