Opinion 95 - 18

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

CEMETERIES -- Fees (authority to impose one-time maintenance fee in connection with operation of village-owned cemetery)

VILLAGES -- Powers and Duties (authority to impose one-time maintenance fee in connection with operation of village-owned cemetery)

LOCAL LAWS -- Cemeteries (authorizing imposition of one-time maintenance fee in lieu of annual assessment in connection with operation of village-owned cemetery) -- Fees (imposition of one-time maintenance fee in connection with operation of village-owned cemetery)

VILLAGE LAW, §§15-1502, 15-1506; MUNICIPAL HOME RULE LAW, §10(1)(ii)(e)(3): A village may, by local law, impose a one-time maintenance fee to be paid at the time of purchase of each burial lot in a village-owned cemetery in lieu of the yearly assessment provided for by Village Law, §15-1506.

You ask whether a village, in connection with the operation of a village-owned cemetery, may impose a one-time maintenance fee to be paid at the time of purchase of each burial lot.

Article 15 of the Village Law (§§15-1500 through 15-1508) relates to the acquisition and operation of cemeteries by villages. Section 15-1502 prescribes the procedure for the sale of burial lots but is silent with respect to the imposition of maintenance fees. Further, while there is express authority for a village to impose upon lot owners a yearly assessment of up to twelve dollars for maintenance purposes (Village Law, §15-1506[1]), there is no similar provision for a one-time maintenance fee (see 29 Opns St Comp, 1973, p 167; 2 Opns St Comp, 1946, p 714). Accordingly, there is no authority under article 15 to impose a one-time maintenance fee.

In addition to the provisions of article 15, however, the village's home rule powers must be considered. Every local government, including a village, is authorized to adopt and amend local laws, not inconsistent with the provisions of the constitution or any general law, relating to: (1) its property, affairs or government (Municipal Home Rule Law, §10[1][i]); and (2) certain specific subject matters, whether or not they relate to the property, affairs, or government of the local government, except to the extent that the State Legislature has restricted the adoption of such local laws (Municipal Home Rule Law, §10[1][ii]). One specifically listed subject is "(t)he fixing, levy, collection and administration of local government ... charges, rates or fees ..." Opns St Comp, No. 95-18 (Municipal Home Rule Law, §10[1][ii][a][9-a]). In addition, villages are authorized to enact local laws relating to:

The amendment or supersession in its application to it, of any provision of the village law relating to the property, affairs or government of the village or to other matters in relation to which and to the extent to which it is authorized to adopt local laws by this section, notwithstanding that such provision is a general law, unless the legislature expressly shall have prohibited the adoption of such a local law (Municipal Home Rule Law, §10[1][ii][e][3]).

A local government's home rule power, however, is limited by the doctrine of preemption (Albany Area Builders v Town of Guilderland, 74 NY2d 372, 547 NYS2d 627; 1994 Opns St Comp, No. 94 -7, p 11). Where the State Legislature has clearly evinced a desire to preempt an entire field and preclude any further regulation, a local law regulating the same subject is considered inconsistent and will not be given effect (Inc. Village of Nyack v Daytop Village, Inc., 78 NY2d 500, 577 NYS2d 215).

Applying the above home rule principles here, it is our opinion that a village, pursuant to Municipal Home Rule Law, §10(1), may enact a local law imposing a one-time maintenance fee at the time of purchase of a burial lot in the village cemetery, in lieu of the annual twelve dollar assessment authorized by section 15-1506(1). In this regard, we note that article 15 of the Village Law does not contain any express prohibition against inconsistent local laws (cf., Village Law, §5-532 prohibiting local laws changing, amending or superseding any of the provisions of article 5 of the Village Law) and, in our opinion, does not contain a comprehensive scheme indicative of an intent to preempt the method of funding the maintenance of cemeteries (see 1978 Opns St Comp No. 78-616, unreported). Any such fee imposed, however, would have to be reasonably related to the cost to the village of providing such ongoing maintenance (see 1992 Opns St Comp No. 92-18, p 43).

September 15, 1995
Mary Alice Bellardini, Mayor
Village of Homer