Opinion 95 - 7


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Commissioners (as "governing body" of district); (authority to enter into a municipal cooperation agreement)

MUNICIPAL COOPERATION -- Procedures (authority of district governed by separate commissioners to participate)

GENERAL MUNICIPAL LAW, §§119-n(b); 119-o(1); TOWN LAW, §§61, 203, 210, 215, 341(10): A town improvement district which is governed by a separate board of commissioners is a district for purposes of article 5-G of the General Municipal Law. The district commissioners, as the governing body of the district, may, by a majority vote, authorize the district to enter into a municipal cooperation agreement with other districts and/or municipal corporations.

This is in response to your letter inquiring whether the commissioners of a town improvement district governed by article 13 of the Town Law may enter into a municipal cooperation agreement pursuant to article 5-G of the General Municipal Law.

At the outset, we note that it is the policy of this Office to render opinions involving issues arising under the State Constitution or State statutes having general applicability to the municipalities of the State. Accordingly, although the Nassau County Civil Divisions Act (L 1939, ch 273, as amended) contains provisions governing activities of certain districts in Nassau County, we will respond to your question with reference only to general State statutes. You may wish to seek the advice of the county attorney's office with respect to determining the applicability of any provisions of the Civil Divisions Act.

Article 5-G of the General Municipal Law (§§119-m - 119-oo) authorizes municipal corporations and districts to enter into agreements for the performance among themselves or one for the other of their respective functions, powers or duties on a cooperative or contract basis or for the provision of a joint service (General Municipal Law, §119-o[1]; see also General Municipal Law, §119-o[3], relative to mutual sharing plans). As defined under article 5-G, the term "district" includes:

... a county or town improvement district for which the county or town or towns in which such district is located is or are required to pledge its or their faith and credit for the payment of the principal of and interest on all indebtedness to be contracted for the purposes of such district (General Municipal Law, §119-n[b]).

Section 119-n(c) defines "joint service" to include "the joint performance or exercise of any function or power which each of the municipal corporations or districts has the power by any other general or special law to provide, perform or exercise, separately...." Any agreement entered into under article 5-G must be approved by each participating municipal corporation or district "by a majority vote of the voting strength of its governing body" (General Municipal Law, §119-o[1]; emphasis added). In addition, if the authority of any municipal corporation or district to perform any function, power and duty or to provide any facility, service, activity, project or undertaking or the financing thereof is subject to a public hearing, a mandatory or permissive referendum, consent of a governmental agency, or other requirement applicable to the making of a contract, then its authority to participate in an agreement under article 5-G is similarly conditioned (General Municipal Law, §119-o[1]).

Article 13 of the Town Law (Town Law, §210 et seq.) applies to town improvement districts which were established prior to April 8, 1932, and which, by referendum on petition filed no later than June 29, 1933, elected to continue to be governed by a separate board of commissioners (Town Law, §§61, 203, 210, 341[10]; see Kanaly v O'Neil, 147 Misc 2d 149, 555 NYS2d 567; see also 1987 Opns St Comp No. 87-69, p 104).(1) A town improvement district subject to the provisions of article 13 of the Town Law does not have the authority to issue obligations for district purposes (see Town Law, §215[1-a],which provides that proceeds of obligations issued for district improvements may be paid over to the treasurer of the district only where the town board has authorized the designation of such an officer; see also Town Law, §§215[6], 216, 231; 1974 Opns St Comp No. 74-780, unreported; 1957 Opns St Comp No. 57-588; 1956 Opns St Comp No. 8281, unreported; 1947 Opns St Comp No. 1914, unreported). The town board issues all indebtedness for the purposes of the district and, although the debt service on such indebtedness is levied and assessed against the benefited properties within the district, it is the faith and credit of the town that is pledged for the payment to principal and interest on that indebtedness (NY Const, art VIII, §3; Town Law, §§ 202, 231; see Belinson v Sewer District No. 16, 65 AD2d 912, 410 NYS2d 469; see also Opn No. 74-780, supra). In light of the foregoing, it is the opinion of this Office that a town improvement district subject to the provisions of article 13 of the Town Law is a "district" for purposes of article 5-G of the General Municipal Law.

As to whether the district commissioners constitute the "governing body" of the district for purposes of article 5-G, we note that although certain of the powers of the district commissioners are subject to review, approval and authorization by the town board (see, e.g., Town Law, §216, which requires the petitions under article 12 to be presented to and granted by the town board), as a general rule, the commissioners govern the district in the same manner in which the town board would govern the district if article 13 were not applicable (see Town Law, §§61, 203, 215[19]; see also New York Telephone Company v Town of North Hempstead, 86 Misc 2d 487, 385 NYS2d 436, affd 52 AD2d 934, 385 NYS2d 505, mod on other grounds 41 NY2d 691, 395 NYS2d 143; Grishaber v Town of Callicoon, 176 Misc 323, 27 NYS2d 522, revd on other grounds, 263 App Div 471, 33 NYS2d 508, in which the court describes the district commissioners as managing the affairs and property of the district). Therefore, it is our opinion that the improvement district commissioners of a district which is subject to the provisions of article 13 of the Town Law constitute the governing body of the district for purposes of article 5-G of the General Municipal Law.

The commissioners may, consequently, by a majority vote, authorize the district to enter into a cooperation agreement with other districts and/or municipal corporations to provide for the performance of their respective functions, powers or duties on a cooperative or contract basis or for the performance of a joint service. As noted above, however, to the extent that any of the powers of the improvement district commissioners are subject to a public hearing, a mandatory or permissive referendum, consent of governmental agencies, such as the town board, or other requirement applicable to the making of contracts, then their power to enter into a cooperation agreement for that purpose is similarly conditioned (General Municipal Law, §119-o[1]).

March 29, 1995
Anthony J. Cincotta, Esq., General Counsel
Oyster Bay Sewer District

1. Generally, other town improvement districts are governed by the town board unless otherwise provided by special act of the legislature (Town Law §61; Opn No. 87-69, supra).