Opinion 2002 - 4


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

CONSTITUTIONAL LAW -- Gifts and Loans (authority to use town monies to dredge a privately-owned channel); (authority to utilize the services of the town highway department to dredge a privately-owned channel)
MUNICIPAL FUNDS -- Appropriations and Expenditures (appropriation of current funds to pay for dredging privately-owned channel) -- Highway Funds (dredging services performed by highway department charged to general fund)
REFERENDUM -- Mandatory (need for to expend current funds for dredging)
SUPERINTENDENT OF HIGHWAYS -- Powers and Duties (assignment of additional duties - dredging)
TOWNS -- Powers and Duties (authority to expend current funds for dredging a privately-owned channel)

TOWN LAW 81(1)(g); STATE CONSTITUTION, ARTICLE VIII, 1; TOWN LAW 32(1): A town may expend current tax monies to dredge a privately-owned waterway within the town, subject to voter approval and other applicable laws and regulations, including any permit requirements. The town must determine that the dredging will provide, at most, only an incidental benefit to the private owner and will primarily serve town purposes. The dredging work may be carried out by the town highway superintendent provided such work is reasonably related to and does not interfere with the usual work of the superintendent and the cost of the work is charged to the town's general fund.

You ask whether a town may expend current tax monies and utilize the services of the town highway department to dredge a navigable channel located within the town. You indicate that the banks of the waterway and an undetermined portion of the channel bed, which links a bay and a major waterway, are owned by a private individual and the channel is regularly used by fishing guide boats and other pleasure craft. Ice melt, prevailing winds and water currents are shifting the channel bed, and you have been advised that, absent dredging, the channel will continue to fill in with rock and sediment, impeding boat traffic by rendering portions of the channel too shallow for boat navigation.

Town Law 81(1)(g) contains authority for a town to expend monies from taxes levied for the fiscal year in which the expenditure is to be made to dredge waterways and provides as follows:

The town board may upon its own motion and shall upon a petition, as hereinafter provided, cause to be submitted at a special or biennial town election, a proposition:

1.     In any town:

(g) To dredge, bulkhead, dock and otherwise improve any navigable, or other waterway, within the town, and to rent, purchase and equip necessary machinery for such dredging, docking, bulkheading or other improvement, and supply the necessary labor and material therefor.

Section 81(1)(g) was intended to permit towns a means to ensure that those who utilize waterways within the town, including those in the fishing industry, are not impeded by adverse conditions of the waterway caused by, for example, "unusual tidal conditions and constant erosion" (see Memorandum to the Governor, dated March 19, 1942, by the Counsel to the Governor, recommending approval of the bill that was enacted as chapter 155 of the Laws of 1942). There is nothing in the Legislative history indicating that this authority be limited to waterways owned by the town. Thus, we have previously expressed the opinion that, pursuant to this section, a town, subject to voter approval and all other applicable laws and regulations, may dredge a waterway within the town, even in instances where the bed and banks of waterway are privately-owned (1979 Opns St Comp No. 79-660, unreported).

Although section 81(g) provides authority to expend current tax monies to dredge a privately-owned waterway within the town, the town must ensure that the particular expenditure does not contravene the gift and loan prohibition in article VIII, 1 of the New York State Constitution. Article VIII, 1 prohibits municipalities from giving or loaning money to or in aid of any individual or private corporation, association or undertaking. This prohibition is intended to prevent raids on the public purse for the benefit of favored individuals or enterprises (see, e.g., Teachers Assoc. Cent. High School Dist. v Board of Educ., 34 AD 2d 351, 353, 312 NYS 2d 252, 254). This Office has consistently expressed the opinion that when towns make expenditures to maintain, repair or improve private property, they will not contravene this constitutional prohibition so long as the expenditures only incidentally benefit the private property owner (see, e.g., 1989 Opns St Comp No. 89-50, p 112). Therefore, to ensure that the expenditure is consistent article VIII, 1, the town should commence dredging only upon its determination that the dredging will provide, at most, only an incidental benefit to the private owner, and will primarily serve the town purposes envisioned by section 81(1)(g).

With respect to the performance of the dredging work by the town highway department, we have previously concluded that, pursuant to Town Law 32, a town board may impose additional duties on a highway superintendent that are reasonably related to his or her usual and normal duties and that do not interfere with his or her ordinary duties, such as by requiring so much time that other duties imposed by law will be neglected (see, e.g., 1991 Opns St Comp No. 91-45, p 125). When the highway superintendent performs work for the benefit of the town unrelated to the highway system, the cost of such work must be charged against the appropriate item in the general fund rather than the highway fund (see, e.g., Opn No. 91-45, supra). Accordingly, it is our opinion that the town may utilize the town highway department to perform services arising from a dredging project that are reasonably related to, and do not interfere with the performance of the usual work of that department. The cost of such services would be charged to the general fund.

Finally, the town should obtain all the necessary easements or property interests from the private owner authorizing town employees to enter and perform the dredging (Opn No. 79-660, supra). In addition, prior to undertaking any dredging activities, the town is advised to contact the State Department of Environmental Conservation to ascertain and ensure compliance with any applicable permit requirements (see, e.g., Environmental Conservation Law 24-0701[7]).

Accordingly, a town may expend current tax monies to dredge a privately-owned waterway within the town, subject to voter approval and other applicable laws and regulations, including any permit requirements. The town must determine that the dredging will provide, at most, only an incidental benefit to the private owner and will primarily serve town purposes. The dredging work may be carried out by the town highway superintendent provided such work is reasonably related to and does not interfere with the usual work of the superintendent and the cost of the work is charged to the town's general fund.

March 20, 2002

Robert D. Ventre, Esq.
Town Attorney, Town of Henderson