Opinion 2000 - 3


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Establishment (filing town special district final orders with State Comptroller)
STATE COMPTROLLER -- Powers and Duties (filing town special district final orders)
TOWN CLERK -- Powers and Duties (filing town special district final orders with State Comptroller)

TOWN LAW, §§194, 195, 209-f, 209-g: A town clerk must cause to be filed with the State Comptroller a certified copy of each determination or order establishing or extending a district pursuant to articles 12 or 12-A of the Town Law, irrespective of whether the establishment or extension is subject to prior approval of the State Comptroller.

You ask whether a resolution approving the establishment or extension of a town special district under Town Law, article 12 is required to be filed with the Office of the State Comptroller, pursuant to Town Law, §194(3), even though prior approval of the establishment or extension by the State Comptroller is not required. You also ask whether such a filing is required for districts established pursuant to article 12-A of the Town Law.

Article 12 of the Town Law (§190 et seq.) contains provisions relative to the establishment and extension of town improvement districts upon petition. Section 194(1) of the Town Law provides, with respect to districts established or extended pursuant to article 12, that, after a public hearing, the town board must determine by resolution: (a) whether the petition is signed and acknowledged or proved as required by law and is otherwise sufficient; (b) whether all the property and property owners within the proposed district or extension are benefited thereby; (c) whether all the property and property owners benefited are included within the limits of the proposed district or extension; and (d) whether it is in the public interest to grant in whole or in part the relief sought. If the board determines in the affirmative on all of the above questions, the town board, pursuant to Town Law, §194(2)(b), may adopt a resolution approving the establishment or extension of the district. Subdivision 3 of section 194 provides that the town clerk "shall file a certified copy of such resolution, in duplicate, in the office of the state department of audit and control ... together with an application, in duplicate, for permission [of the State Comptroller] to create or extend such district ...". Although, on its face, subdivision 3 may appear to require an application to the State Comptroller in every case, not all establishments or extensions of districts require the prior permission of the State Comptroller. In this regard, subdivision 3 must be read together with subdivision 6 of section 194.

Subdivision 6 of section 194 provides, with certain exceptions, that permission of the State Comptroller is not required for the establishment or extension of a district unless: (1) it is proposed that the town will finance the cost thereof by the issuance of bonds, notes or other evidences of indebtedness (or, in certain instances, debt service will be assumed); and (2) if the State Comptroller has computed average estimated costs for similar types of districts, the cost of district or extension to the typical property (or, if different, the costs to the typical one or two family home), as stated in the notice of public hearing, is above the average estimated cost to typical properties or homes for that type of district.(1) If the State Comptroller's approval is required and is granted, a further order establishing or extending the district is then adopted by the town board (Town Law, §194[5]). If the State Comptroller's approval is not required, no additional town board resolution or order is required to approve the establishment or extension beyond the resolution adopted pursuant to Town Law, §194(2).

Thus, if a district or extension does not fall within the criteria set forth in subdivision 6 of section 194, a certified copy of the section 194(2) resolution approving the establishment or extension is not required to be submitted to the State Comptroller as part of an application for approval pursuant to Town Law, §194(3). A certified copy of that resolution, nonetheless, is required to be filed with the State Comptroller pursuant to Town Law, §195(1). Section 195(1) requires the town clerk to cause a certified copy of the determination of the town board adopted pursuant to section 194(2), or the order of the town board adopted pursuant to section 194(5), to be filed with the Office of the State Comptroller. This requirement for filing with the State Comptroller is for informational purposes and is applicable irrespective of whether the State Comptroller's permission is required for the establishment or extension (10 Opns St Comp, 1954, p 181).

Article 12-A (§209 et seq.) contains provisions analogous to those in article 12, relative to the establishment and extension of town improvement districts upon town board motion, subject to permissive referendum. A similar requirement for filing with the State Comptroller pertains to final orders establishing or extending districts pursuant to article 12-A, whether or not prior permission of State Comptroller is required (Town Law, §§209-f[2], 209-g[1]).(2)

Accordingly, a town clerk must cause to be filed with the State Comptroller a certified copy of each determination or order establishing or extending a district pursuant to articles 12 or 12-A of the Town Law, irrespective of whether the establishment or extension is subject to prior approval of the State Comptroller.

February 28, 2000
Norman W. Seiter, Jr., Esq., Town Attorney
Town of Scriba

1. The State Comptroller is required to provide annually to towns notice of the average cost thresholds as may be computed in accordance with section 194 (Town Law, §§194[6]; 209-f[1]). When permission of the State Comptroller is not required for the establishment or extension of a district for which the issuance of bonds or notes is proposed because the cost to the typical property or one or two family home is not above the average cost threshold, a certified copy of the town board's order calling the public hearing must be filed with the State Comptroller on or about the date of publication (Town Law, §§193[1][b][1]; 209-d[2]). It should be noted that if indebtedness is proposed, but the State Comptroller has not established an average estimated cost threshold for the particular type of district, then approval of the State Comptroller is required.

2. Note that Town Law, §§195(1) and 209-g(1) also require that the town board's determination or order be recorded in the office of the county clerk. When so recorded, the determination or order is presumptive evidence of the regularity of the proceedings for establishment or extension and of all other actions taken by the board in relation thereto.