Opinion 2002 - 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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Dock Districts (expansion of activities to include maintenance and operation of recreational facilities)
LOCAL LAWS -- Pre-emption (special district matters)

TOWN LAW 198(10); MUNICIPAL HOME RULE LAW 10(1)(i), (ii)(d)(3): A town board may not expand the activities of a public dock district to include maintenance and operation of recreational facilities such as a playground and swimming pool.

You ask whether a town board may expand the activities of a public dock district to include maintenance and operation of recreational facilities such as a playground and swimming pool.

Any town bordering upon or containing within its boundaries any navigable water of this State may establish, by petition (Town Law 190 et seq.) or town board motion (Town Law 209 et seq.), a public dock district. Town Law 198 sets forth a town board's powers with respect to improvement districts. Subdivision 10 of section 198 provides, in pertinent part, that, except as otherwise provided by law, after a public dock district is established, the town board may contract for the construction of a public dock and may acquire such real property as the board may deem necessary for the construction and maintenance of the dock and its approaches. The board also may provide for the maintenance of the dock and establish rules for its use. Pursuant to section 202-b, a town board, on behalf of a public dock district, may acquire additional apparatus and equipment and construct additional facilities and appurtenances thereto, "within the limitations of section one hundred ninety-eight". There is, however, nothing in section 198, or any other State statute, that would authorize a town board to acquire or maintain and operate recreational facilities, such as a playground or swimming pool, as part of a public dock district (but see Town Law 198[4], relative to town park districts, and 206[1][b], authorizing the consolidation of two or more coterminous special improvement districts created for different purposes).

Further, it is our opinion that a town may not, pursuant to its home rule powers (see NY Const, article IX; Municipal Home Rule Law 10[1][i]), adopt a local law expanding the functions of a public dock district. We believe articles 12 and 12-A of the Town Law establish a comprehensive legislative scheme and evince an intent to preempt local laws relating to the establishment, financing and operation of town improvement districts (see, e.g., 1992 Opns St Comp No. 92-33, p 84; 1986 Opns St Comp No. 86-53, p 84; see also Coconato v Town of Esopus, 152 AD2d 39, 547 NYS2d 953, lv den 76 NY2d 701, 558 NYS2d 891; Municipal Home Rule Law 10[1][ii][d][3][1], generally prohibiting a town pursuant to that provision from superseding a State statute relating to an improvement district).

Accordingly, it is our opinion that a town board may not expand the activities of a public dock district to include maintenance and operation of recreational facilities such as a playground and swimming pool.

March 5, 2002

Ernest J. Cannava, Esq., Senior Assistant Town Attorney
Town of Islip