Opinion 96 - 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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Beach Erosion Control Districts (increase or improvement of facilities) -- Increase or Improvement of Facilities (reconstruction or replacement of damaged, destroyed or worn-out facilities or appurtenances by beach erosion control district)

TOWN LAW, §§198(10-a), 202-b(2): A town board, pursuant to Town Law, §202-a, may authorize the replenishment of sand and the installation of a sand-filled geotube at a town-owned beach in a town beach erosion control district which was damaged by coastal storms.

This is in reply to your letter asking whether the procedures of Town Law, §202-b may be used to authorize the replenishment of sand and the installation of a sand-filled geotube at a town-owned beach in a town beach erosion control district which was damaged by coastal storms.

It is our understanding that the town beach erosion control district was established in 1987 pursuant to a petition of property owners which asked the town board to expend a specified maximum amount annually to provide services for the district. The establishment of the town beach erosion control district did not require the consent of the State Comptroller under then existing law because the petition did not ask for a capital improvement whose cost would be financed by the issuance of town indebtedness (Town Law, §194[6]).

Town beach erosion control districts may be established by petition (Town Law, §190 et seq.) or by town board motion (Town Law, §209-a, et seq.). Town Law, §198(10-a) authorizes the town board, after a beach erosion control district has been established, to take such action as may be required to arrest erosion in such district and prevent or alleviate damage resulting therefrom, and to contract for or to construct such jetties, groins, fills, bulkheads or other works or improvements as may be necessary to carry out its purpose.

When a beach erosion control district is proposed to be established by petition, the petition may provide for the construction or acquisition of a capital improvement, or the performance or supplying of services (Town Law, §191). If the petition requests the construction or acquisition of a capital improvement, the petition must state the maximum amount proposed to be expended therefor (id.). If the petition requests the performance or supplying of certain services, the petition may state the maximum amount to be expended annually for such services (id.).

As stated above, we understand that the petition for the establishment of this district requested the performance or supplying of certain services for a specified annual maximum expenditure. If the town board wished to exceed the annual maximum expenditure requested in the petition for the establishment of the district in order to perform or supply services of the type authorized by Town Law, §198(10-a), a proceeding to increase the maximum amount to be expended would be necessary (Town Law, §209-h[2]; 9 Opns St Comp, 1953, p 374).

The project which is the subject of your inquiry, however, would be a capital improvement. Town Law, §202-b(2) authorizes a town board, on behalf of, among other types of districts, a beach erosion control district, to reconstruct or to replace damaged, destroyed or worn-out facilities and appurtenances. Such a proceeding would require a public hearing but, except in the case of certain towns within the Adirondack Park, would not require the consent of the State Comptroller (Town Law, §202-b[3]). In such a proceeding, the town board would not be limited by the maximum amount proposed to be expended annually for services in the petition which requested the establishment of the district (Town Law, §202-b[3]). We note that section 202-b was designed to grant broader powers to town boards in their administration of special improvement districts (see Memorandum to the Governor dated March 19, 1956 for chapter 278 of the Laws of 1956 from Deputy State Comptroller Joseph J. Kelly).

Town Law, §202-b(2) does not define what constitutes reconstruction or replacement of damaged, destroyed or worn-out facilities and appurtenances. In the absence of a statutory definition, the natural and obvious meaning of the phrase would apply (McKinney's Statutes, §74). Applying this general principle, we believe that the proposed capital improvement of replenishing sand and installing a sand-filled geotube at a damaged town-owned beach within the district would constitute the replacement of destroyed, damaged or worn-out facilities. Accordingly, it is our opinion that a town board may authorize the proposed project pursuant to Town Law, §202-b.

October 11, 1996
Anthony Galano, III, Esq., Assistant Town Attorney
Town of Brookhaven