Opinion 98 - 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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

HISTORIC PRESERVATION -- Town Building (need for referendum when selling)

REAL PROPERTY -- Sale (by town of historic building)

REFERENDUM -- Permissive (need for in town when selling historic building)

GENERAL MUNICIPAL LAW, §119-dd; TOWN LAW, §64(2): A town may sell an historic building pursuant to the procedural requirements of General Municipal Law, §119-dd(4) and such sale is not subject to the permissive referendum requirements of Town Law, §64(2).

You ask whether the sale by a town of an historic building pursuant to General Municipal Law, §119-dd(4) is subject to the permissive referendum requirements of Town Law, §64(2).

Town Law, §64(2), enacted by chapter 634 of the Laws of 1932, authorizes town boards, by resolution subject to permissive referendum, to convey unneeded town real property. Article 5-K of the General Municipal Law (§119-aa et seq., added L 1980, ch 354) relates to local government programs for the preservation, restoration and maintenance of the historical, architectural, archeological and cultural environment (see General Municipal Law, §119-aa). Section 119-dd of the General Municipal Law, concerning local historic preservation programs, provides that, "[i]n addition to existing powers and authorities for local historic preservation programs", the local legislative body of a municipal corporation, after public notice appropriately given at least 30 days prior to the anticipated date of availability, may lease or sell historic buildings or structures upon such terms and conditions as the local legislative body deems appropriate to ensure the maintenance of the historic quality of the buildings and structures (General Municipal Law, §119-dd[4]). The sale or lease must be for fair and adequate consideration of the building and structures and, in no event, may be less than the expenses incurred by the municipality with respect to the building and structures for acquisition, restoration, improvement and interest charges (id.). Section 119-dd contains no referendum requirement.

It is a fundamental rule of statutory construction that a prior general statute yields to later more specific statutes (see, gen., McKinney's Statutes, §397). Applying that rule here, we note that section 119-dd(4) of the General Municipal Law was enacted after Town Law, §64(2) and specifically relates to the conveyance of historic buildings and structures. Moreover, by its express terms, it is a grant of authority "[i]n addition to existing powers and authorities for local historical preservation programs". Therefore, in our opinion, section 119-dd(4) contains the controlling statutory procedures and the referendum requirements of Town Law, §64(2), an earlier general statute, do not apply.

We note that this conclusion is supported by the case of Grayson v Town of Huntington, 144 Misc 2d 1064, 545 NYS2d 633 affd 160 AD2d 835, 554 NYS2d 269 app den 76 NY2d 714, 564 NYS2d 718. In that case, the court held that the specific provisions of Public Housing Law, §124, which authorizes the grant, lease or conveyance of municipal real property to a public housing authority and contains no referendum requirement, controls over the more general requirements of Town Law, §64(2) (see also 1992 Opns St Comp No. 92-32, p 82).

Accordingly, it is our opinion that a town may sell an historic building pursuant to the procedural requirements of General Municipal Law, §119-dd(4) and such sale is not subject to the permissive referendum requirements of Town Law, §64(2).

August 10, 1998
Daniel Pozin, Esq., Attorney at Law
Town of New Castle