Opinion 98 - 13


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

HISTORIC PRESERVATION -- Town Building (use of to display historical material) -- Public Museum (establishment of by town) -- Contracts (with museum registered by regents)

LOCAL LAWS -- Fees (imposition of for visiting town building containing historical material)

TOWNS -- Powers and Duties (establishment of public museum); (use of town building to display historical material); (contract with museum registered by regents)

ARTS & CULTURAL AFFAIRS LAW, §§57.07, 61.05; EDUCATION LAW, §§253, 255, 262; MUNICIPAL HOME RULE LAW, §10(1)(ii)(a)(9-a): A town may establish a public museum pursuant to Education Law, §255. In general, use of the museum would be free to the inhabitants of the town. A town, apart from the creation of a public museum under the Education Law, may construct a building to house and display works of art, objects of special character or aesthetic interest or value and historical material, and may, by local law, impose fees and charges for those who visit the town building. A town also may grant money for the support of a museum registered by the regents or may contract with the trustees of such a museum to furnish services to the town.

You ask whether a town may expend certain moneys received under a watershed agreement between the town and a city to construct a museum on town lands. The museum would contain an educational presentation of the reservoir system including environmental, historical and cultural aspects of the watershed and the development of the reservoir system, including the effect on local residents. It has also been proposed that a modest admission fee be established for the museum. You state that, under the watershed agreement, these moneys are to be used only to pay for certain designated capital costs.

Initially, we note that it is the policy of this Office to render advisory legal opinions involving questions of law arising under the State Constitution or State statutes having general applicability to the municipalities of this State. We, therefore, do not, in our advisory opinions to local governments, interpret contracts entered into by local governments. Rather, we believe that the meaning and intent of such contracts, in the first instance, should be determined by the parties to the agreement. Accordingly, for purposes of this opinion, we will assume that the expenditure would be consistent with those provisions, and we will address only whether a town, under general State statutes, may expend its moneys for the construction of a museum such as outlined above.

The authority for a town to establish a public museum is derived from its authority to establish a public library. Arts and Cultural Affairs Law, §61.05 provides that any municipal corporation may establish and maintain a free public library or museum in accordance with the "library provisions" of sections 253 to 271 of the Education Law. Section 253(1) of the Education Law similarly states that all provisions of section 253 through 271 of the Education Law relative to libraries shall apply equally to museums.

Education Law, §255(1) provides for, inter alia, a town board to authorize the establishment of a public library, and authorizes the town board to appropriate money raised by tax or otherwise to equip and maintain such library or to provide a building or room for its use. We have expressed the opinion that, pursuant to this authority, a town may construct a building for use by a town public library (see, e.g., 1978 Opns St Comp No. 78-796, unreported). Section 255(1) further provides that a town may acquire real or personal property for library purposes. A public library so established would be managed by a separate board of trustees and chartered by the board of regents (Education Law, §§226, 260, 261). In general, use of the library must be free to the inhabitants of the municipality which establishes it (Education Law, §262). Education Law, §259 contains provisions relative to the annual levy and collection of taxes for library purposes, and for the maintenance of a separate library fund.

Since the provisions relative to public libraries apply equally to museums, a town board, pursuant to Education Law, §255, may establish a public museum to be governed by a separate board of trustees and chartered by the regents. In general, use of the museum would be free to the inhabitants of the town (but see Education Law, §258). Further, the town may expend its moneys to construct a building to house the museum and may annually raise taxes to fund such a museum.

In addition, we note that Town Law, §64(17-a) provides that a town board may provide for the preservation and protection of, among other things, works of art or other objects having a special character or aesthetic interest or value. Similarly, Arts and Cultural Affairs Law, §57.07(1) provides that a town may appropriate, raise by tax and expend money for historical purposes. It is our opinion that, pursuant to these grants of authority, a town, apart from the creation of a public museum pursuant to the Education Law, could construct a building to house and display works of art, objects of special character or aesthetic interest or value and historical material relative to the watershed (see, e.g., 15 Opns St Comp, 1959, p 92). As a necessary incident to housing and displaying these materials, we believe the town may also provide related educational presentations. Although Town Law, §64(17-a) and Arts and Cultural Affairs Law, §57.07(1) are silent with respect to the charging of fees for such an activity, we note that a town may adopt a local law, not inconsistent with the Constitution or any general law, relating to, inter alia, the fixing, levy, collection and administration of local government rentals, charges, rates or fees (Municipal Home Rule Law, §10[1][ii][a][9-a]). Pursuant to this authority, it is our opinion that a town, by local law, may impose fees or charges on those who visit a town building which displays the historical material. Such fees or charges must be reasonably related to the town's cost of providing this activity (see, gen., 1992 Opns St Comp No. 92-40, p 103; New York Tel. v City of Amsterdam, 200 AD2d 315, 613 NYS2d 993)(1).

Finally, we note that Education Law, §256 provides that towns may grant money for the support of the cost of maintaining or the cost of any capital improvements to or expenditures for free association or public libraries registered by the regents, and may contract with the trustees of such libraries to furnish library services to the people of the municipality. Since, as noted, these provisions apply equally to museums, pursuant to this section, a town, as an additional option, may grant money to, or contract for services with a museum (1980 Opns St Comp No. 80-448, unreported; 1974 Opns St Comp No. 74-1115, unreported; 1973 Opns St Comp No. 73-1104, unreported; 1970 Opns St Comp No. 70-921, unreported).

Therefore, a town may establish a public museum pursuant to Education Law, §255. In general, use of the museum would be free to the inhabitants of the town. A town, apart from the creation of a public museum under the Education Law, may construct a building to house and display works of art, objects of special character or aesthetic interest or value and historical material, and may, by local law, impose fees and charges for those who visit the town building. A town also may grant money for the support of a museum registered by the regents or may contract with the trustees of such a museum to furnish services to the town.

July 16, 1998
Paul T. Kellar, Esq., Town Attorney
Town of Shandaken

1. We note that a local law may not supersede the requirements of the Education Law in connection with museums established under that law (see Municipal Home Rule Law, §11[i][c]; 1983 Opns St Comp No. 83-219, p 285).