Opinion 2008 - 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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

 

LOCAL LAWS -- Pre-emption (special district matters)

MUNICIPAL FUNDS -- Town Charges (costs for park district improvements not payable from general fund)

PARK DISTRICTS -- Increase and Improvement of Facilities (costs not payable from town general fund); (raising amounts for)

MUNICIPAL HOME RULE LAW § 10(1)(ii)(d)(3); TOWN LAW §§ 198(4), 202(3), 202-b: The costs of construction of additional facilities or reconstruction or replacement of obsolete, inadequate, damaged, destroyed or worn out facilities, undertaken in an existing town park district pursuant to the authority in Town Law § 202-b, are charged against the properties within the park district on an ad valorem basis, and are not general town expenses payable out of the town's general fund.

You ask whether a town may transfer monies from the town general fund to be used to finance improvements in an existing town park district established pursuant to article 12 of the Town Law (Town Law § 190 et seq.).

Article 12 of the Town Law authorizes towns, pursuant to a petition process, to establish park districts. 1 Town Law § 198 (4) sets forth powers and duties of a town board with respect to park districts and provides, among others things, that, after a park district is established, the town board “shall proceed to acquire … the property described in the petition” and may improve such property for park purposes. Pursuant to Town Law § 202-b (2), the town board, on behalf of a park district, also may (1) acquire additional apparatus and equipment, (2) replace obsolete, inadequate, damaged, destroyed or worn-out apparatus and equipment, (3) construct additional facilities and appurtenances thereto, and (4) reconstruct or replace obsolete, inadequate, damaged, destroyed or worn out facilities and appurtenances thereto (see also Town Law § 202-e).

Town Law § 202 relates to the manner in which expenses for town special district improvements are raised. Town Law § 202 (3) provides that the expenses of establishing and providing the improvements for a park district “shall be assessed, levied and collected from the several lots and parcels within the district” in the same manner and at the same time as other town charges ( i.e. on an ad valorem basis) (11 Ops St Comp No. 7841, at 744).2 Further, Town Law § 202-b (1) provides that costs or expenses incurred pursuant to that section “shall be a charge against the district and assessed, levied and collected in the same manner as other charges against that particular district.” (see also Town Law § 202 [4], 202-a). Thus, the costs of the initial improvements for a newly-created park district, as well as the costs of construction of additional facilities or reconstruction or replacement of obsolete, inadequate, damaged, destroyed or worn out facilities, undertaken in an existing park district pursuant to the authority in Town Law § 202-b, are charged against the properties within the park district on an ad valorem basis.

The Town Law does not provide for a town to finance the cost of improvements to a town park district as a general town expense payable out of the general fund (see e.g. 1995 Ops St Comp No. 95-17, at 36; 1988 Ops St Comp No. 88-33, at 61; 1979 Ops St Comp No. 79-748, at 152; compare Town Law § 202 [1] [authorizing a town board to apportion against and charge to the cost of the improvement an allowance for services rendered by the town attorney, town engineer and salaried town employees for services necessary to or occasioned by making the particular improvement]; Town Law § 208 [concerning the joint administration and operation of one or more special districts with town functions]).3 Moreover, a town may not, by the adoption of a local law, provide for the use of general fund money for this purpose. Articles 12 and 12-A of the Town Law establish a comprehensive legislative scheme evincing an intent to pre-empt local laws relating to the establishment, financing and operation of town improvement districts (see Coconato v Town of Esopus, 152 AD2d 39 , 547 NYS2d 953 , lv denied 76 NY2d 701 , 558 NYS2d 891 ; 2001 Ops St Comp No. 2001-7, at 11; 2000 Ops St Comp No. 2000-17, at 44; 1992 Ops St Comp No. 92-33, at 84). In addition, although the Municipal Home Rule Law authorizes a town to adopt local laws that supersede, in certain respects, provisions of the Town Law in its application to the town (Municipal Home Rule Law § 10 [1] [ii] [d] [3]), there is an express restriction on this home rule authority with respect to provisions relating to a “special or improvement district” (Municipal Home Rule Law § 10 [1] [ii] [d] [3] [3]). Therefore, a town may not, by local law, provide for the transfer of general fund monies to finance park district improvements.

Accordingly, the costs of construction of additional facilities or reconstruction or replacement of obsolete, inadequate, damaged, destroyed or worn out facilities, undertaken in an existing town park district pursuant to the authority in Town Law § 202-b, are charged against the properties within the park district on an ad valorem basis, and are not general town expenses payable out of the town's general fund.

December 26, 2008

Peter E. Reilly, Esq., Acting Town Counsel
Town of Ballston

1 As an alternative to the petition process in article 12 of the Town Law, article 12-A of the Town Law (Town Law § 209 et seq.) authorizes the establishment of park districts by town board motion, subject to permissive referendum requirements.

2 The town board also may fix a reasonable charge for use of a park within a park district by all persons other than inhabitants and taxpayers of the district (Town Law § 198 [4]). The letter of inquiry indicates, however, that the town has not imposed any such charges for use of the park within this park district.

3 There are limited instances, not at issue here, when general fund money may be used for special district purposes ( see e.g. General Municipal Law § 9-a [authorizing temporary inter-fund advances in certain circumstances]; 1987 Ops St Comp No. 87-1, at 1 [discussing the settlement of claim against a town by using general fund money to finance a special district improvement]).