Opinion 95 - 21


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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

SEWER DISTRICTS -- Consolidation (procedures for)

TOWN LAW, §206: A town board may, on its own motion, and must, upon the filing of a proper petition, initiate a proceeding to consolidate two or more sewer districts. The consolidation is subject to public hearing and permissive referendum requirements.

You ask whether a town board may initiate a proceeding to consolidate several sewer districts on its own motion, or whether such a proceeding may be initiated only upon petition.

Town Law, §206 authorizes towns to consolidate two or more special improvement districts established for the same purpose, subject to public hearing and permissive referendum requirements (Town Law, §206[1][a],[2],[3],[4],[5]). Subdivision 1 of section 206 relates to the initiation of the consolidation proceeding and provides as follows:

The town board of any town may, and within 20 days after the date of filing with the town clerk of a petition ... shall, adopt a resolution calling a public hearing upon:

a. The consolidation of two or more special improvement districts established or created for the same purpose ..." (Emphasis added)

Subdivision 1, therefore, describes two potential actions of the town board -- one discretionary and one mandatory. The town board, in its discretion, "may" call a public hearing to consolidate (19 Opns St Comp, 1963, p 64). If a proper petition is filed, however, the town board "shall" call a public hearing (id.). In either case, if the town board, after the public hearing, determines that it is in the public interest to consolidate, the board may then adopt a resolution, subject to permissive referendum, to consolidate the districts (Town Law, §206[3]).

Accordingly, a town board may, on its own motion, and must, upon the filing of a proper petition, initiate a proceeding to consolidate two or more sewer districts. The consolidation is subject to public hearing and permissive referendum requirements.

July 27, 1995
Jeffrey H. Morris, Esq., Town Attorney
Town of Victor