Opinion 97 - 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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


COUNTIES -- Improvement Districts (sale of real property of a county sewer district) -- Real Property (sale of real property of county sewer district)

IMPROVEMENT DISTRICTS -- Real Property (sale of real property of a county sewer district) -- Referendum - (on sale of real property of a county sewer district)

SEWER DISTRICTS -- Referendum (on sale of real property of a county sewer district)

COUNTY LAW, §§215(5), (6); 275: Pursuant to County Law, §215, real property acquired for a county sewer district, that is no longer needed for public use, may be sold, upon a two-thirds vote of the board of supervisors, to the highest bidder after public advertisement. Such sale would not be subject to a referendum within the district.

You ask whether the sale of the real property used for a county sewer district must be approved by a majority of the qualified electors in the sewer district.

A county sewer district is an administrative unit of the county established pursuant to the provisions of Article 5-A of the County Law (see Shields v Dinga, 222 AD2d 816, 634 NYS2d 790; Tom Sawyer Motor Inns, Inc. v Chemung County Sewer District No.1, 33 AD2d 720, 305 NYS2d 408). Once a county district has been established, the board of supervisors is required to appoint an administrative head or body for the district (County Law, §261). The administrative head or body is authorized to acquire, by gift, lease, purchase or condemnation, real estate, easements, rights of way, and other interests in real estate necessary to accomplish the purposes of the district (County Law, §263). No general provision is made in Article 5-A for the sale of the property of a county district. Section 275 of the County Law makes specific provision for the sale of all or part of a water supply and distribution system of a county water district to a water authority or a joint water works system. Section 275 provides that such a sale is subject to a mandatory referendum. However, no specific provisions applicable to the sale of property used for a sewer district appear in Article 5-A.

In the absence of provisions in Article 5-A for the sale of property used for a sewer district, it is necessary to examine the general provisions applicable to the sale of county property. County Law, §215(5) provides that when the board of supervisors determines that any county real property is no longer necessary for public use, the board, by resolution adopted by a two-thirds vote, may sell or convey the property. Pursuant to County Law, §215(6), such property may be sold or leased only to the highest bidder after public advertisement (see 1991 Opns St Comp No. 91-27, p 27). There is no provision in section 215 that would require or permit the board of supervisors to conduct a referendum on the sale of county property (see McCabe v Voorhis, 243 NY 401; Mills v Sweeney, 219 NY 213; Citizens For An Orderly Energy Policy v County of Suffolk, 90 AD2d 522, 455 NYS2d 32, holding that a municipality may not submit a proposition to a referendum in the absence of express statutory authority; see also 1990 Opns St Comp No. 90-64, p 146; 1988 Opns St Comp No. 88-70, p 137).

Accordingly, under section 215 of the County Law, real property acquired for the county sewer district, that is no longer needed for public use, may be sold, upon a two-thirds vote of the board of supervisors, to the highest bidder after public advertisement. Such sale would not be subject to a referendum within the district.(1)

October 6, 1997
David J. Morris, Esq., County Attorney
County of Livingston

1. Although not pertinent to our conclusion regarding referendum requirements, we note that, in this instance, the proposed sale is to a county water and sewer authority. The enabling act for this public authority contemplates the acquisition, by the authority, of county property that continues to be of use to the public, and conveyance to the authority of that property on negotiated basis rather than at public sale (see Public Authorities Law, §1199-eeee[2]; see also 1989 Opns St Comp No. 89-57, p 128). It would appear that the enabling act, as a later specific or special statute, would supersede County Law, §215(3), to the extent inconsistent, with respect to the need to declare the real property no longer necessary for public use and to conduct a public sale (see McKinney's Statutes, §397). Since nothing in the enabling act addresses the vote required to approve a sale to the authority, the sale would still require the adoption of a resolution by a vote of two-thirds of the board of supervisors (County Law, §215[5]).