Opinion 2002 - 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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

MUNICIPAL FUNDS -- Town Charges (street lighting and maintenance of town hall as townwide charges)
STREETS AND HIGHWAYS -- Lighting (as townwide charge in towns)
TOWNS -- Powers and Duties (maintenance of town hall as townwide charge); (street lighting as townwide charge)

TOWN LAW 64(3), (19), 81(1)(c), 220(3); HIGHWAY LAW 327: Real property taxes for the cost of street lighting within a town pursuant to Town Law 64(19) and Highway Law 327 are raised on a townwide basis. Similarly, as a rule, the cost of maintaining a town hall building used for the offices of town officials is raised on a townwide basis.

You ask whether the cost of expenses for street lighting in a town and for maintaining a building used as the town hall are raised by taxes levied on a townwide, or town outside village, basis. We are informed that the building used as the town hall is owned by the town, used for the offices of the town supervisor, clerk, assessor, justice and building inspector, and, by intermunicipal agreement, is also used by a village.

As a general rule, all real property taxes raised for town purposes must be levied on the whole area of the town, including the real property located in villages situated within the town, unless there is a State statute that requires or permits monies for any given purpose to be raised from taxes levied only in the unincorporated area of the town (see, e.g., 1994 Opns St Comp No. 94-10, p 17; 1989 Opns St Comp No. 89-61, p 135; 1980 Opns St Comp No. 80-334, p 98; Incorporated Village of Ardsley v Town of Greenburgh, 79 AD2d 628, 433 NYS2d 626, mod 55 NY2d 915, 449 NYS2d 27; DuBois v Village of New Paltz, 35 NY2d 617, 364 NYS2d 506). Further, we have concluded that a local government may not, pursuant to its home rule powers, exempt properties in that portion of a town within incorporated villages from real property taxes for particular town purposes (Opn No. 80-334, supra).

Town Law 64(19) authorizes towns to contract for lighting certain improved state highways and county roads, as the town board deems necessary for the safety and convenience of the public. Highway Law 327 authorizes towns, subject to the approval of the State Commissioner of Transportation, to provide for the lighting of dangerous portions of certain roads or highways. Neither statute, however, authorizes the expense for such lighting to be raised by taxes levied in less than the entire area of the town (Town Law 64[22]; 1977 Opns St Comp No. 77-263, unreported; 7 Opns St Comp, 1951, p 343; compare Highway Law 277, providing for the exemption of property within an incorporated village from tax levies for certain highway related purposes).1

Town boards are also authorized to acquire, equip and maintain real property for use as a town hall (see Town Law 64[2],[3],[23]; 81[1][c]; 220[3]). As a rule, the cost of maintaining a town hall for use as the offices of town officials is a cost of general town government and there is no authority generally to charge that expense to less than the entire area of the town (see, e.g., 13 Opns St Comp, 1957, p 286; 11 Opns St Comp, 1955, p 408; cf. 14 Opns St Comp, 1958, p 294, referring to certain administrative expenses [e.g., utility and service charges] "peculiarly and exclusively" applicable to a part-town activity). This conclusion is consistent with the general rule with respect to the salaries of most town officers (see, e.g., 1984 Opns St Comp No. 84-60, p 76).2 Moreover, the fact that, by intermunicipal agreement, a village within the town also uses the building for village purposes does not change the tax base on which the town's share of costs is charged (see, e.g., Opn No. 94-10, supra; cf. Education Law 256[2], expressly providing that, when a town and village jointly contract to support a library or cooperative library system, the amount appropriated by the town board is chargeable to the town outside village).

Accordingly, real property taxes for the cost of street lighting within a town pursuant to Town Law 64(19) and Highway Law 327 are raised on a townwide basis. Similarly, as a rule, the cost of maintaining a town hall building used for the offices of town officials, is raised on a townwide basis.

December 10, 2002

Merrilyn Pulver, Supervisor
Town of Fort Edward

1.  Although apparently not at issue here, articles 12 (190 et seq.) and 12-A (209 et seq.) authorize the establishment of lighting districts within towns. When established, the expenses of lighting districts would be assessed only against the several lots and parcels within the district (Town Law 202, 202-a; see also Town Law 204). Except upon proper consent by the village, town improvement districts may not be established or extended in an incorporated village (Town Law 190, 209).

2.  We note that Town Law 138 does not dictate a contrary conclusion. Section 138 provides that "[a]ll charges and expenses, including salaries, incurred by the building inspector in connection with his duties shall be a charge upon the taxable property of that part of the town outside of any incorporated village " The determination of the location of the building inspector's office, however, in our opinion, rests with the town board (Town Law 64[3]; 1983 Opns St Comp No. 83-171, p 216) and, therefore, is not an expense incurred by the building inspector within the intendment of section 138 (see 13 Opns St Comp, 1957, p 286, supra).