Opinion 97 - 15


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

COUNTIES -- Improvement Districts (no authority to establish lighting district)

IMPROVEMENT DISTRICTS -- Lighting Districts (no authority to establish in county)

LOCAL LAWS -- Pre-emption (formation of county lighting district)

COUNTY LAW, 250; MUNICIPAL HOME RULE LAW, 10: A county is not authorized to establish a special district for the operation and maintenance of street lighting.

You ask whether a county may establish a lighting district whereby benefited properties would be assessed for the cost of operating and maintaining street lights.

Article 5-A of the County Law (250 et seq.) governs the establishment and operation of special districts within counties. Section 250 generally enumerates the purposes for which districts may be established within counties. Street lighting is not one of the listed purposes (cf. Town Law, 190, 209-a, authorizing towns to establish lighting districts; Highway Law, 328, authorizing counties to provide lighting of public highways, or portions thereof located outside of cities and villages, as a county charge).

Further, it is our opinion that a county may not, by the enactment of a local law, provide for the establishment of a lighting district. A county is generally authorized to adopt local laws, not inconsistent with the Constitution or a general law, relating to its property, affairs or government or to those matters specifically enumerated in section 10 of the Municipal Home Rule Law (Municipal Home Rule Law, 10[1][i],[ii]). Also, article 4 of the Municipal Home Rule Law authorizes charter counties to adopt charter laws pertaining to the structure of county government and the manner in which it is to function. Charter laws need not be consistent with general or special laws except as provided in Municipal Home Rule Law, 34 (Heimbach v Mills, 67 AD2d 731, 412 NYS2d 668). 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 (Albany Area Builders Association v Town of Guilderland, 74 NY2d 372, 547 NYS2d 627; Jancyn Manufacturing Corp. v County of Suffolk, 71 NY2d 91, 524 NYS2d 8; Con Ed v Town of Red Hook, 60 NY2d 99, 468 NYS2d 596). 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 (Vatore v Commissioner of Consumer Affairs, 83 NY2d 645, 612 NYS2d 357; Albany Area Builders Association, supra; Jancyn, supra; Con Ed, supra; see also 1990 Opns St Comp No. 90-39, p 88; 1987 Opns St Comp No. 87-55, p 83).

This Office has expressed the view that article 5-A of the County Law establishes a comprehensive scheme for county improvement districts and evinces an intent to pre-empt the adoption of local laws establishing districts for improvements or services not enumerated in article 5-A (1993 Opns St Comp No. 93-13, p 21; see also 1994 Opns St Comp No. 94-1, p 1). Consequently, in our opinion, a county may not adopt a local law to establish a special district for street lighting purposes.

Accordingly, a county is not authorized to establish a special district for the operation and maintenance of street lighting.

July 22, 1997
Dennis D. Curtin, Esq., County Attorney
County of Clinton