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Home My WebLink AboutTown Law Manual 2016 k TOWN LAW MANUAL �1 THE ASSOCIATION OF TOWNS OF THE STATE OF NEW YORK ' i 2016 ; I i TOWN LAW MANUAL For Town Supervisors and Town Board Members i i An Association of Towns of the State of New York Publication 02015 i FOREWORD TABLE OF CONTENTS This publication was initially prepared and distributed in 1962.A FOREWORD second edition was issued in 1972,with periodic updates since. The preparation of this manual and its updates has been a large CHAPTER 1 GENERAL PROVISIONS AND CLASSIFICATION OF TOWNS task for Association of Towns staff members,both former and §1-1 PURPOSE AND RESPONSIBILITIES OF TOWNS..... 1 current.This particular edition has been laid out and written to §1-2 CLASSES OF'TOWNS......................................... 2 make it as compact and useful as possible for supervisors and town §1-3 CLASSIFICATION AND board members. HOME RULE AUTHORITY................................. 2 §1-4 CHANGE IN CLASSIFICATION............................ 3 Answers to many of the day-to-day questions and problems facing §1-5 SUBURBAN TOWNS......................................... 3 town boards and supervisors are covered in this manual.Town supervisors and board members elect to take on great CHAPTER 2 TOWN OFFICERS AND EMPLOYEES responsibilities,which have grown more instrumental as the issues ARTICLE I. facing towns and society as a whole have grown more complex. §2-1 PUBLIC OFFICERS VS.EMPLOYEES................... 5 Given the difficult and rare issues that surface every day,further §2-2 ELECTED AND APPOINTED OFFICERS.............. 5 research and discussion may be necessary,along with consultation §2-3 ADDITIONAL EMPLOYEES.............................. 6 with your town's municipal attorney. §2-4 COMPENSATION AND BENEFITS..................... 6 §2-5 COLLECTIVE NEGOTIATIONS AND EMPLOYEE This manual,along with all other Association of Towns publications ORGANIZATIONS.......................................... 8 prepared for town officers,is town property.It should be shelved §2-6 EMPLOYEE PROTECTION AGAINST and passed along to one's successor in office.The cost for this RETALIATORY ACTION................................... 9 publication is paid for with dues towns pay to utilize the §2-7 DEFENSE AND INDEMNIFICATION OF Association of Towns'member services and benefits. OFFICERS AND EMPLOYEES........................ 9 One of the principal services the Association of Towns provides is ARTICLE II.PUBLIC OFFICERS to answer procedural,substantive and general inquiries from town §2-8 QUALIFICATIONS OF PUBLIC OFFICERS.......... 9 officials in our member towns.Members looking for sample local §2-9 OATH OF OFFICE.......................................... 11 laws,contracts,resolutions,ordinances and other useful materials §2-10 OFFICIAL UNDERTAKING.............................. 12 and articles can call the office to obtain them.We are proud to offer §2-11 TERMS OF OFFICE......................................... 13 these services,and we hope this edition of the Town Law Manual §2-12 RESIGNATIONS............................................. 15 will encourage all town officers to continue to count on us for all of §2-13 VACANCIES IN OFFICE................................... 15 their legal and technical training. §2-14 REMOVAL FROM OFFICE................................. 18 Gerry Geist,Executive Director ARTICLE III.SPECIFIC OFFICES December 2015 §2-15 INTRODUCTION............................................. 18 (518)465-7933 §2-16 TOWN BOARD................................................ 19 §2-17 SUPERVISOR.................................................. 20 §2-18 DEPUTY SUPERVISOR.................................... 21 §2-19 CONFIDENTIAL SECRETARY/BOOKKEEPER..... 21 I I III I i §2-20 HIGHWAY SUPERINTENDENT.......................... 22 §3-16 EXECUTIVE SESSIONS...................................... 44 §2-21 DEPUTY HIGHWAY SUPERINTENDENT............. 22 §2-22 TOWN CLERK................................................ 23 CHAPTER 4 FISCAL MATTERS §2-23 DEPUTY TOWN CLERK.................................... 23 ARTICLE I.GENERAL PROVISIONS §2-24 TOWN ATTORNEY........................................ 23 §4-1 RESPONSIBILITIES OF THE TOWN BOARD........... 49 2-25 TOWN JUSTICE 23 §4-2 RESPONSIBILITIES OF THE SUPERVISOR..............49 §2-26 COURT CLERK............................................... 24 §4-3 BUDGET AND FISCAL YEAR............................... 49 §2-27 ASSESSOR/BOARD OF ASSESSMENT REVIEW... 24 §4-4 TOWN BUDGET CALENDAR............................. 50 §2-28 TAX COLLECTOR/RECEIVER OF TAXES............ 24 §2-29 COMMITTEES................................................. 25 ARTICLE II.REAL PROPERTY TAX CAP §2-30 HOLDING MULTIPLE OFFICES §4-5 OVERVIEW..................................................... 51 COMPATIBILITY OF OFFICE.............................. 26 §4-6 APPLICABILITY.............................................. 51 §4-7 SPECIAL DISTRICTS........................................ 51 ARTICLE IV.ETHICS AND CONFLICTS OF INTEREST §4-8 FORMULA-CALCULATING THE LEVY LIMIT....... 52 2-31 OVERVIEW 27 4-9 EXCLUSIONS § 3 2-32 CODE OF ETHICS 27 §4-10 LEGISLATIVE OVERRIDE.................................. 53 §2-33 BOARDS OF ETHICS......................................... 27 §4-11 FILING WITH THE COMPTROLLER'S OFFICE....... 54 §2-34 EVALUATING CONFLICTS OF INTEREST............. 27 §4-12 ERRORS IN TAX LEVY CALCULATION................. 54 §2-35 FINANCIAL DISCLOSURE................................. 32 §2-36 OTHER PROHIBITED ACTIONS......................... 32 ARTICLE III.BUDGETING PROCESS §2-37 DISCLOSURE IN CERTAIN APPLICATIONS........... 32 §4-13 START OF PROCESS; I PROCEDURAL REQUIREMENTS 54 CHAPTER 3 TOWN BOARD MEETINGS AND PUBLIC HEARINGS §4-14 SUBMISSION OF ESTIMATES............................. 54 3-1 LOCATION 34 §4-15 TENTATIVE BUDGET 3-2 ACCESS 34 §4-16 PRELIMINARY BUDGET.................................... 56 §3-3 FREQUENCY................................................... 34 §4-17 FIRE DISTRICT BUDGETS.................................. 57 §3-4 TYPES OF MEETINGS....................................... 34 §4-18 PUBLIC HEARING............................................ 57 3-5 NOTICE 36 §4-19 FINAL REVISION AND ADOPTION OF BUDGET..... 58 §3-6 AGENDAS...................................................... 36 §4-20 TAX LEVY...................................................... 59 §3-7 MEETING PACKETS........................................ 37 §4-21 BENEFIT DISTRICTS....................................... 59 §3-8 MEETING PROCEDURE ................................... 37 §4-22 APPROPRIATIONS AND TRANSFERS.................. 61 §3-9 VOTING AND QUORUM.................................... 37 §3-10 ROLE OF TOWN CLERK................................... 38 ARTICLE IV.COMPENSATION OF OFFICERS AND EMPLOYEES §3-11 ROLE OF TOWN SUPERVISOR............................ 38 §4-23 NOTICE OF AMOUNTS;INCREASES..................... 63 §3-12 PUBLIC PARTICIPATION IN TOWN BOARD MEETINGS §4-24 SALARIES....................................................... 64 AND PUBLIC HEARINGS 39 §3-13 USE OF CAMERAS,VIDEO ARTICLE V.ACCOUNTING AND AUDIO EQUIPMENT.................................. 41 §4-25 DUTIES OF SUPERVISOR(TOWN LAW§125) ..... 66 §3-14 BROADCASTING,WEBCASTING AND STREAMING §4-26 COMPTROLLER AS ACCOUNTING OFFICER.......... 67 TOWN BOARD MEETINGS................................ 41 §3-15 OPEN MEETINGS LAW...................................... 41 iv V i ARTICLE VI.CLAIMS AND PAYMENTS ARTICLE XIII.CAPITAL IMPROVEMENTS §4-27 CLAIMS(TOWN LAW§118) ............................ 68 §4-28 AUDIT OF CLAIMS(TOWN LAW§119) 69 §4-48 FINANCING CAPITAL IMPROVEMENTS.............. 99 ............................ 99 j ................ 4-29 PAYMENTS BY CREDIT CARD............................ 71 §4-49 CAPITAL NOTES §4-30 ONLINE PAYMENTS, §4-50 BONDS AND SERIAL BONDS............................ 100 ELECTRONIC PAYMENTS/BANKING................ 72 §4-51 STATUTORY INSTALLMENT BONDS................. 103 §4-52 BOND ANTICIPATION NOTES AND BOND ANTICIPATION ARTICLE VII.PAYROLLS RENEWAL NOTES......................................... 104 §4-31 CERTIFICATION OR VERIFICATION..................... 74 §4-53 REGISTERED OBLIGATIONS........................... 105 ARTICLE VIII.PETTY CASH FUNDS ARTICLE XIV.NONCAPITAL FINANCING §4-32 PURPOSE...................................................... 75 §4-54 TYPES OF NONCAPITAL FINANCING;SALE;DEPOSIT OF PROCEEDS 105 §4-33 AMOUNT ................................................... 75 §4-55 BUDGET NOTES 106 4-34 SETUP AND USE.............................................. 75 §4-56 TAX ANTICIPATION NOTES 108 §4-35 CLAIMS FOR REIMBURSEMENT......................... 76 §4-57 REVENUE ANTICIPATION NOTES.................... 109 §4-36 EXCEPTION IN CASE OF PETTY CASH FUND FOR TAX COLLECTORS IN TOWNS OF THE 2ND CLASS........ 78 ARTICLE XV.INSTALLMENT PURCHASE CONTRACTS ARTICLE IX.TOWN CHARGES §4-58 PURPOSE;ADVANTAGES;LIMITS.................... 110 I §4-37 CHARGES AUTHORIZED BY STATUTE;OTHER AUTHORIZED ARTICLE XVI.RESERVE FUNDS EXPENSES..................................................... 79 §4-59 PURPOSE 112 .................................................... 4-38 PROHIBITED CONTRACTS AND EXPENDITURES... 79 §4-60 TYPES AND GENERAL REQUIREMENTS.......... 112 §4-39 JUDGMENTS.................................................... 79 4-61 CAPITAL RESERVE FUNDS 112 ARTICLE X.PURCHASING AND CONTRACTING §4-62 INSURANCE RESERVE FUNDS........................... 113 §4-40 COMPETITIVE BIDDING.................................... 79 §4-63 RESERVE FUNDS FOR PAYMENT OF UNEMPLOYMENTINSURANCE ..................... 114 .............................. 4-41 COMPETITIVE BIDDING PROCEDURES................ 81 §4-42 PAYMENT ON PUBLIC WORKS PROJECTS............92 §4-64 TAX STABILIZATION AND CONTINGENCYRESERVE FUNDS............................................. 114 §4-43 EXCEPTIONS TO COMPETITIVE BIDDING............ 93 §4-44 PROCUREMENT POLICIES................................. 96 ARTICLE XVII.DEPOSITORIES AND INVESTMENTS ARTICLE XI.ANNUAL ACCOUNTING §4-65 STATUTORY REQUIREMENTS;DESIGNATION..... 114 §4-45 REQUIRED STATEMENTS,BOOKS AND RECORDS FOR §4-66 INVESTMENT OF GENERAL FUND MONIES;PURPOSE;CONSIDERATIONS........................... 115 EXAMINATION BY TOWN BOARD..................... 97 §4-46 EXCEPTION TO AUDIT REQUIREMENT.............. 97 §4-67 AUTHORIZED INVESTMENTS............................ 116 ARTICLE XII.BORROWING CHAPTER S STATE ENVIRONMENTAL QUALITY REVIEW(SEAR)ACT §4-47 SALE OF MUNICIPAL OBLIGATIONS.................. 97 §5-1 PURPOSE;SCOPE ............................................. 119 §5-2 DECISIONS SUBJECT TO SEQR.......................... 120 §5-3 CLASSIFICATION............................................. 120 §5-4 LEAD AGENCY AND INVOLVED AGENCIES........... 121 VI ' VII r ' II §5-5 ENVIRONMENTAL ASSESSMENT FORM(EAF) .....121 §5-6 DECLARATIONS............................................... 121 CHAPTER 7 PLANNING AND ZONING §5-7 ENVIRONMENTAL IMPACT STATEMENT ARTICLE I. AND PUBLIC COMMENT.................................... 122 j §7-1 OVERVIEW 147 ....................................... §5-8 FINDINGS........................................................ 122 §7-2 LIMITATION ON ZONING AUTHORITY................ 147 §7-3 COMPREHENSIVE PLAN.................................... 147 CHAPTER 6 TOWN LEGISLATION §7-4 ROLE OF THE TOWN BOARD............................. 148 ARTICLE I.RESOLUTIONS §7-5 STATE ENVIRONMENTAL QUALITY REVIEW ACT §6-1 OVERVIEW.................................................... 123 (SEQRA) ....................................................... 148 §6-2 FORM AND PROCEDURE OF RESOLUTIONS......... 123 §6-3 MOTIONS....................................................... 125 ARTICLE II.ZONING BOARD OF APPEALS(ZBA) §7-6 MEMBERSHIP AND REMOVAL........................... 149 ARTICLE 11.ORDINANCES §7-7 RESIDENCY AND OATH OF OFFICE..................... 149 §6-4 OVERVIEW AND AUTHORITY........................... 125 §7-8 TERMS OF OFFICE........................................... 149 §6-5 SUBJECT MATTER OF ORDINANCES;LICENSES... 125 §7-9 TRAINING...................................................... 149 §6-6 PROCEDURE FOR ADOPTING AN ORDINANCE...... 128 §7-10 RESPONSIBILITIES........................................ 149 §6-7 ADDITIONAL REQUIREMENTS FOR ZONING ORDINANCES...................................... 130 ARTICLE III.PLANNING BOARD §6-8 PREEMPTION OF ORDINANCES BY STATE LAW... 131 §7-11 CREATION AND ABOLISHMENT....................... 152 6-9 ENFORCEMENT 132 § § ................................................ 7-12 MEMBERSHIP AND REMOVAL.......................... 152 ; §7-13 RESIDENCY AND OATH OF OFFICE................... 153 ARTICLE III.LOCAL LAWS §7-14 TRAINING REQUIREMENT............................ 153 6-10 OVERVIEW AND AUTHORITY 132 §7-15 RESPONSIBILITIES 153 §6-11 PROTECTION OF TOWN HOME RULE AUTHORITY........................133 ARTICLE III.TOOLS USED IN ZONING AND PLANNING §6-12 AREAS OF §7-16 SITE PLAN REVIEW........................................ 153 TOWN BOARD LOCAL LAW AUTHORITY............ 134 §7-17 SPECIAL USE PERMITS(TOWN LAW§274-B) ... 155 §6-13 AUTHORITY TO SUPERSEDE TOWN LAW............ 136 §7-18 SUBDIVISION REVIEW(TOWN LAW§276) ....... 156 §6-14 EFFECT OF LOCAL LAWS ON ORDINANCES ........ 137 §7-19 NONCONFORMING USES....................................157 §6-15 RESTRICTIONS ON ADOPTION OF LOCAL LAWS....137 §7-20 VARIANCES......................................................158 §6-16 PROCEDURE FOR ADOPTING A LOCAL LAW.........138 §6-17 FILING OF LOCAL LAWS....................................140 ARTICLE IV.ENFORCEMENT §6-18 LOCAL LAWS SUBJECT TO §7-21 ENFORCEMENT AUTHORITY........................... 158 MANDATORY REFERENDUM 141 §7-22 ENFORCEMENT OFFICER 158 ............................ ................................ §6-19 LOCAL LAWS SUBJECT TO PERMISSIVE REFERENDUM- MUNICIPAL HOME RULE LAW......................... 143 CHAPTER 8 SPECIAL IMPROVEMENT DISTRICTS, §6-20 RECONSIDERATION OF A LOCAL LAW SUBJECT TO SEWER AND WATER IMPROVEMENTS REFERENDUM................................................ 145 ARTICLE I.GENERAL PROVISIONS §6-21 ACTS AND RESOLUTIONS OF THE TOWN BOARD SUBJECT §8-1 PURPOSE...................................................... 160 TO PERMISSIVE REFERENDUM- §8-2 ADMINISTRATION .......................................... 160 TOWN LAW ARTICLE 7.................................... 145 §8-3 SPECIFIC TYPES OF IMPROVEMENT DISTRICTS....160 VIII IX ^r, II I I ' §B-4 LIMITATIONS ON ESTABLISHMENT.................. 162 §8-5 AD VALOREM AND BENEFIT DISTRICTS............ 162 I ARTICLE II.ESTABLISHMENT OR EXTENSION OF DISTRICTS TOWN LAW MANUAL §8-6 PROCEDURES................................................ 163 Chapter 1 §8-7 ARTICLE 12 PETITION METHOD..................... 164 §8-8 ARTICLE 12-A TOWN BOARD INITIATIVE......... 171 GENERAL PROVISIONS AND CLASSIFICATION OF TOWNS ARTICLE III.ARTICLE 12-C SEWER,WASTEWATER DISPOSAL, § 1-1.Purpose and Responsibilities of Towns. WATER AND DRAINAGE IMPROVEMENTS AS TOWN FUNCTIONS §8-9 OVERVIEW 174 A.There are 932 towns in New York State. Historically,towns were an arm of the state meant to ARTICLE IV.CONSOLIDATION AND DISSOLUTION........... 180 perform certain state functions. However,as towns ARTICLE V.LOCAL WATER AND SEWER AUTHORITIES grew and residents required more local government §8-10 STATUTORY AUTHORITY;CREATION; services,the Legislature conferred additional powers POWERS AND DUTIES.......................................180 to town governments.Thus,towns are no longer merely political subdivisions of the state; instead, CHAPTER 9 FIRE PROTECTION AND EMERGENCY AMBULANCE they have the character and capacity of responsible SERVICES municipal corporations and operate as a general §9-1 PURPOSE...................................................... 182 purpose local government. §9-2 FIRE DISTRICTS ............................................. 182 §9-3 FIRE PROTECTION DISTRICTS......................... 186 Town Law§2 defines a town as a"municipal §9-4 FIRE ALARM DISTRICTS................................. 188 corporation comprising the inhabitants within its §9-5 BENEFITS..................................................... 188 boundaries,and formed for the purpose of exercising §9-6 WATER SUPPLY IN FIRE DISTRICTS................. 188 §9-7 APPROPRIATIONS FOR FOREST FIRES AND NATURAL such powers and discharging such duties Of local DISASTERS..................................................... 188 government and administration of public affairs as §9-8 EMERGENCY AMBULANCE SERVICES................ 189 have been,or,may be conferred or imposed upon it by law."Additionally,as discussed further in Chapter CHAPTER 10 MUNICIPAL COOPERATION 6 of this manual, Municipal Home Rule Law gives §10-1 OVERVIEW...................................................... 191 towns a great deal of authority to enact local laws B.Home rule authority.Before 1964,town boards needed specific authorization from state legislation or the New York State Constitution in order to act, and the authority granted in those enabling statutes were strictly and narrowly construed.However,since Jan. 1, 1964,all towns enjoy constitutional home rule powers.Among other things,this means that towns can enact local laws regarding the"property,affairs X and government" of the town,provided the local law 1 I e I , i i I is not inconsistent with the Constitution or a law of ! general statewide applicability enacted by the state § 1-4.Change in Classification. Legislature (e.g.,laws on competitive bidding, open meetings,ethics etc.). For further information on the A.Mandatory change (Town Law§ 11).When a federal scope of home rule authority and how it can be used, decennial Census shows that the population of a town of please see Chapter 6,Town Legislation. the second class hits more than 10,000 people,its classification automatically changes to a town of the first § 1-2.Classes of Towns.Each town is,by statutory class,and at the next biennial town election,it must elect definition,either a town of the first class or a town of the the officers required for towns of the first class.This is second class,depending on its population as reflected by the referred to as a"mandatory" change of classification. latest federal decennial Census.Additionally,some first-class towns may further be classified as suburban towns (cf.§ 1- B.Optional change (Town Law§ 12).Certain towns of 4).Towns with a population of 10,000 or more and every the second class can change to a town of the first class. town in Westchester County are towns of the first class (see This is referred to as an'optional"change in Town Law§ 10).Any town that is not a town of the first class classification and can be done by a town of the second is a town of the second class. In addition,all towns in Suffolk class whenever: and Broome Counties,the Town of Potsdam in St.Lawrence County and the Town of Ulster in Ulster County are towns of (1) Its population reaches 5,000 or more (whether by the second class (see Town Law§ 10). special or decennial federal Census); or I ' § 1-3.Classification and Home Rule Authority.Because (2) Its assessed valuation exceeds$10 million; or towns have home rule authority,most of the differences and distinctions between towns of the second class and towns of (3) It adjoins a city with a population of more than i the first class can easily be addressed by local law,and thus 300,000. town classification is much less important than it once was. For example,towns of the first class have specific statutory §1-5.Suburban Towns.Some towns of the first class may authority to appoint deputy town attorneys (see Town Law§ also opt to classify as a suburban town under Town Law 20[2-b]). However,towns of the second class can use their Article 3-a. j municipal home rule authority to create the position of I, deputy town attorney.Additionally,there may occasionally A.The provisions of the Suburban Town Law may be be different procedures prescribed for towns of the second made applicable to a town that: class versus a town of the first class.For example,in a town of the first class,the supervisor may designate a bookkeeper (1) Has a population of at least 25,000; or or confidential secretary,or both.In towns of the second class,the supervisor must be authorized by town board (2) Has a population of at least 7,500 and is not more resolution to take such action(see Town Law§29[15]). than 15 miles from a city having a population of i at least 100,000,measured from their respective nearest boundary lines; provided,however,that the population of such town increased at least 65 2 3 i it percent between 1940 and 1960,or 40 percent between 1950 and 1960,as shown by the decennial federal Census for such years. Chapter 2 I' TOWN OFFICERS AND EMPLOYEES B. Information is available at the office of the Association of Towns on the procedures to change to a suburban ARTICLE 1.Overview. ' town classification and the operation of towns on becoming a suburban town.This information is not §2-1.Public Officers vs.Employees.The difference between a public officer and employee is an important,if not included in the Town Law Manual because,with the always clear,distinction to make.There is no list setting forth authority given to towns under Municipal Home Rule Law,there seems to be no particular advantage to any what positions constitute public officers or what positions town becoming a suburban town.As noted,all towns, � constitute employees.However,as a general rule,the Attorney General's Office describes an employee as one"who regardless of size or classification,possess home rule local law powers,which allow a town to restructure the does not discharge independent duties but acts by the makeup of its government. direction of others" (1997 N.Y.Op.Atty. Gen. [Inf.] 1117). On the other hand,the duties of a public officer"involve some exercise of sovereign powers,"or in other words,a public officer has discretion as to how he or she performs his or her duties (see id.).Thus,for example,the highway superintendent is a public officer,whereas highway department laborers are employees. The distinction between public officer and employee can be important when determining things like the applicability of residency requirements (cf.§2-8,infra). i §2-2.Elected and Appointed Officers.Under Town Law§ 20 the following are elected positions in towns of the first class: supervisor,town board members,town clerk,town justices,highway superintendent,tax receiver and assessor. For towns of the second class,the supervisor,town justices, town board members,town clerk,highway superintendent, tax assessors and tax collector are elected positions (see Town Law§20 [1][b]).If a town wants to change an elected position to an appointed position,it must pass a local law that is subject to a mandatory referendum (see Municipal Home Rule Law§23).Additionally,there may be other specific statutes that allow towns to switch a specific elected office to an appointed office and prescribe a different procedure.Thus,before pursuing switching an elected position to an appointed one,towns should consult with 4 5 1� I i i j their town attorney. (1) Elected officials.Elected officials do not accrue j vacation or sick leave credit(see Ops.State Compt. If an office is not elected,it is appointed. In most cases,the 80-736). town board makes appointments. However,there are exceptions to this rule.For example,principals appoint their j C. Health insurance.Town boards may provide health deputies and the town clerk appoints the deputy town clerk, insurance for its officers and employees,including the highway superintendent appoints the deputy highway j retired officers and (see employees to General Municipal P Y — P superintendent,etc. (see generally Public Officers Law§9). Law§92-a).Towns with 50 full-time employees or 50 full-time equivalent employees must also consider the §2-3.Additional Employees. In addition to the officers and Affordable Care Act.Please note that,for the purposes of employees specifically authorized by law,towns may also the Affordable Care Act,who is included as an have"such other employees as the town board may "employee" differs from what's discussed in§§2-1 and 2- determine necessary for the proper conduct of the affairs of 3 of this manual. the town" (see Town Law§20).Unlike town officers, i employees need not reside in the town(cf§2-8,infra).They D. State retirement system.Towns may join the New must,however,take and file a civil service oath or York State and Local Employees' Retirement System (see affirmation,unless they are employed in a position classified NY RETIR&SS§30)thus making its officers and by Civil Service as"Labor Class" (see Civil Service Law§62). employees eligible for membership.Part-time employees may(but are not required to)become members (see 2 §2-4.Compensation and Benefits. NYCRR 324.5),whereas membership is mandatory for full time employees (see 2 NYCRR 324.4).Please refer to A. Compensation.The town board fixes the salary and j 2 NYCRR 324.2 for a definition of what constitutes a determines the payment schedule of all officers,officials "part-time employee." and employees of the town (see Town Law§27[1]).The town board can also hire laborers,clerical assistants and I E. Workers'compensation.Towns are responsible for stenographers and compensate them on an hourly or providing the statutory benefits set forth in the Workers' daily basis. For further discussion of salaries,please refer Compensation Law to their employees while engaged in to Chapter 4 of this manual,titled Fiscal Matters. employments listed in Workers'Compensation Law§3 (1).The list of employment is too extensive to replicate B. Vacations,sick leaves,leaves of absence, here,and reference should be made to these provisions; overtime.A town board may provide and set rules and however,in general,highway construction work is a job regulations regarding paid or unpaid vacation,sick leave involving workers'compensation benefits. and leave of absence plans for town officers and employees (see General Municipal Law§92).The town F. Disability benefits.A town,on an optional or board may also establish a town policy regarding voluntary basis,may choose to provide employees overtime compensation (see General Municipal Law§ coverage under the Disability Benefits Law(see Workers' 90),which must be consistent with the Fair Labors Compensation Law§212[2]).If a town has a sick leave Standard Act. plan and undertakes voluntary coverage under the Disability Benefits Law,it may,either with or without 6 7 a employee contributions,secure insurance to provide negotiations.A neutral,independent entity,the Public disability benefits.Thus,the town may be partially Employment Relations Board,often referred to as"PERB," reimbursed for the full salary paid to the employee administers the law and acts as a mediator,fact-finding during his or her period of sick leave or disability. board and resolves disputes over representation status. There is a plethora of rules and case law regarding G. Volunteer firefighters'benefits.Towns are negotiations and what employers can and cannot do; responsible for the statutory benefits provided in cases therefore,it is essential for towns to consult with their town of injuries or death to volunteer firefighters arising in fire attorneys. protection districts or in unorganized areas of the town outside of villages and fire districts. §2-6.Employee Protection against Retaliatory Action. Civil Service Law§75-b and Labor Law Article 20-c are H.Deferred compensation plans.Towns may establish commonly referred to as the Whistleblower's Protection Act. deferred compensation plans for employees.A deferred ! These provisions protect employees who disclose compensation plan is an arrangement where an information to a government body regarding an employer's employee authorizes the employer to deduct a portion of violation of law or regulation that presents a specific and his or her pay and to invest those funds for the benefit of substantial danger to public health or safety.In other words, the employee.The employer is required to invest the an employer cannot take disciplinary action against an deducted funds in accordance with the rules and employee for disclosing such violation.However,employees standards adopted by the state Deferred Compensation � must follow a specific procedure outlined in the law in order Board.The investment can be effected by contracting to avail themselves of this protection. with a financial organization or by participating in an approved plan established for state employees.The §2-7.Defense and Indemnification of Officers and amount deducted from the employee's compensation is Employees.The town board may adopt a local law or exempt from federal (not state)withholding taxes. resolution providing for the legal defense and However,it is considered part of compensation for indemnification of its officers and employees in any state or retirement pension purposes (see State Finance Law§ 5). j federal civil action that arises from an alleged act or omission that takes place while the officer or employee was acting §2-5.Collective Negotiations and Employee within the scope of his or her duties (see Public Officers Law Organizations.The Public Employees'Fair Employment Act, § 18).The town may also pay for reasonable attorney fees, also referred to as the"Taylor Law"governs public sector fines and damages;however,it may not pay for punitive labor relations and authorizes groups of eligible employees damages. to unionize (see Civil Service Law§§200=214).Among other things,the law gives public employees the right to join (or to ARTICLE II. Public Officers. refrain from joining) any employee organization,to be represented by employee organizations of their own §2-8.Qualifications of Public Officers. choosing,and to negotiate collectively with their public employers.The Taylor Law also authorizes towns to A.Elector.Town public officers must be electors of the recognize and collectively negotiate with employee town at the time of election and as long as they hold organizations and sets forth rules regarding collective office (see Town Law§23).An elector is a person who,if 8 9 i III I I I he or she so desired,could register as a voter in the town { a question of fact that depends on the (see 1985 Ops.Atty.Gen. (Inf) 143 [1985]).This does not circumstances of each case.Ultimately,only a mean the individual must be registered to vote in the court can determine domicile (see Hosley v. town,simply that he or she meets the qualifications to Curry,85 NY2d 447 [1995]; 1977 N.Y.Op. register,specifically the residency,age and citizenship Atty.Gen. (Inf.) 271). qualifications (see Election Law§5-102). 3.Age qualification.An individual must be 18 to B.Residency Qualification. hold public office (see Public Officers Law§3;Town Law §23; cf Election Law§5-102[1]. 1.Statutory requirement.Both Public Officers Law §3 and Town Law§23 require town public officers 4. Citizenship qualification.A person must be a to be residents of the town. United States citizen to hold public office (see Public Officers Law§3;Town Law§23; cf. Election Law§ 5- 2.Definition."Residency"means domicile,which the 102[11) AttorneyGeneral' s Office described as follows: The existing domicile,whether of origin or §2-9.Oath of Office. selection,continues until a new one is acquired and the burden of proof rests upon the party who alleges A.Statutory requirement. Public Officers Law§ 10 and a change.The question is one of fact rather than law, Town Law§25 require all town officers to take and and it frequently depends upon a variety of subscribe a constitutional oath of office before entering circumstances,which differ as widely as the into the duties of office and within 30 days of the term of peculiarities of individuals. ... I office's commencement(see also Public Officers Law§ In order to acquire a new domicile there must 30[1][h]). be a union of residence and intention. Residence without intention or intention without residence is of B. Filing of oath;term.Oaths of office are filed with the no avail.Mere change of residence although town clerk(see Public Officers Law§ 10 and Town Law§ continued for a long time does not effect a change 25).Additionally,town justices and court clerks must of domicile,while a change of residence even also file an oath of office with the county clerk and Office for a short time with the intention in good faith to of Court Administration,in addition to filing their oaths change the domicile,has that effect. ...There must be with the town clerk(see Uniform justice Court Act§§ a present,definite and honest purpose to give up the 104, 111).The oath is good for the term of the office for old and take up the new place as the domicile of the which it is taken. person whose status is under consideration. ...A temporary residence for a temporary purpose,with C.Administering oaths.Under Public Officers Law§ 10 intent to return to the old home when that purpose an oath of office may be administered by: has been accomplished,leaves the domicile 1.A judge of the Court of Appeals; unchanged (1985 Ops.Atty. Gen. (Inf) 143 [1985]). 2.The attorney general; I 3.Any officer authorized to take,within the state,the (i) Determination of domicile.This is I acknowledgment of the execution of a deed of real 10 11 II i � I I property(cf Real Property Law§298).This includes I a justice of the Supreme Court,an official examiner of B. Blanket undertaking.Public Officers Law§ 11(2) title,an official referee,a notary public or a town provides that in lieu of any individual undertaking as councilman or town justice within the jurisdiction where they serve; required by law,the town board may approve the 4.An officer in whose office the oath is required to be procurement of a blanket undertaking from any duly filed or by his or her duly designated assistant(i.e. authorized corporate surety covering the officers,clerks the town clerk); and employees of the town.Such blanket undertaking must be approved as to form,manner of execution and 5.A presiding officer(town supervisor) or clerk (town clerk)who shall have taken an oath of office; sufficiency of surety by the town board and filed in the or same manner as individual undertakings.This section 6.If the local officer is a member of the United States further provides that any such blanket undertaking entered into must indemnify against losses caused by the military,then the oath can be delivered by any failure of the officers or employees to faithfully perform commissioned officer,in active service,of the armed their duties or by their fraudulent or dishonest acts. forces of the United States. (There are additional requirements for certification if you chose this option.) C. Failure to comply. If an individual refuses or fails to execute and file an undertaking within the time period D. Failure to take or file oath.Taking and filing an established by law,the office automatically becomes oath of office is particularly important because if an vacant by operation of law(see Public Officers Law§ individual refuses or fails to do so within the time 30[1][h]). period established by law,the office automatically §2-11.Terms of Office.Town Law§24 outlines the terms becomes vacant by operation of law(see Public Officers Law§30[1][h]),and taking and filing it late of office of most,but not all,elected and appointed town officers. For the most part,elected officials serve two years, does not cure the vacancy(see 1986 Ops.Atty. Gen. (Inf) 96 [1986]). though there are exceptions,most notably,town board members serve four-year terms.Additionally,terms of office §2-10.Official Undertaking, i for elected offices maybe extended (see§2-11[A],infra) Town Law§24 also specifies that all other appointed officers A. Statutory requirement;filing.Supervisors,town hold their respective offices and positions at the pleasure of I clerks,tax collectors,receivers of taxes,town justices, i the town board,except as otherwise provided by law.This means that unless there is a statute setting a term of office constables and highway superintendents,and any other for an appointed officer,such as Town Law§271 that sets officers or employees as required by the town board must execute and file an official undertaking in the town the term of office for planning board members,and unless clerk's office in a form,sum and with sureties directed the town has a local law setting a term of office for an and approved by the town board.The official appointed position,appointed officers do not have a specific undertaking must also be filed within 30 days of taking term of office. office or notification of appointment(see Public Officers A. Extending terms of office.The town board may Law§ 11;Town Law§25). extend an elected officer's term from two years to four 12 13 i Ir i I I years either one of two ways: §2-12.Resignations.A town officer resigns by delivering 1. Town Law§24-a: Under this section,the his or her resignation in writing to the town clerk.If no town board of any town may adopt a effective date is specified,the office becomes vacant resolution providing for a four-year term for immediately upon delivery to the town clerk.If an officer any or all elected town positions. The wishes to resign at a future date,he or she should specify the resolution is subject to a mandatory date in the written resignation. However,if the date named is referendum and must be adopted at least more than 30 days after delivery to the town clerk(90 days 150 days before a biennial election (every I for justices),the resignation nonetheless becomes effective odd-numbered year,except in Broome 30 days after delivery.For the town clerk to resign,he or she County,where it is held in even-numbered should send a written resignation to the Secretary of State years).The referendum must be held at the (see Public Officers Law§31). biennial election,and if passed,the four-year term of office will take effect at the next li §2-13.Vacancies in Office. biennial election. 2. Municipal Home Rule: Under Municipal A. How vacancies occur.Vacancies can take place in a Home Rule Authority,any town may change variety of ways.These include: the term of office of its town officers (with the exception of town justices)through a 1. The death of the incumbent. local law,subject to a mandatory referendum (Municipal Home Rule Law§§ 2. Resignation(see§2-12,supra). 10(1)(ii)(a); 23(2)(e)]. 3. Removal from office (see§2-14 infra). (i)There are two advantages to using the Municipal Home Rule option. First,the 4. Ceasing to be a resident of the town. town board may include a provision in the local law providing that the new S. Conviction of a felony or of a crime involving i four-year term of office will apply to one's oath of office. those officers elected at the same election where the change to the four- 6. Entry of a judgment or court order declaring the year term was approved (Grant et al. v. officer to be insane or incompetent. Board of Elections of the County of Rockland, 98 Misc.2d 644; Opn.St. Comp. 7. Judgment of a court declaring an election or 79-434).Second,using the Municipal appointment void or finding that an office is Home Rule Law,the referenda can take forfeited or vacant. place in the off-election year(i.e.,an f even-numbered year,except for Broome 8. Refusal or neglect to file an official oath or County),which can potentially undertaking(see§2-9,supra). depoliticize the issue. 14 15 T ' I 9. Additionally,certain other acts will also create in November to fill out the remainder if a town vacancies.For example,courts have held that where two of the term.For example, I candidates for the same elected office receive the same board member resigns on June 30, number of votes in an election,the tie vote created a vacancy ! 2015 after serving a year-and-a-half upon the commencement of the term of office for which the of a four-year term,the individual election was held (see Furk v.Bd. of Sup'rs of Sullivan County, i appointed to fill that position would 1 NY2d 128 [1956]). Additionally,if a town officer accepts I serve until the end of December 2015. an office that is incompatible with the office he or she held. In November 2015,there should be an The acceptance of such a second office creates a vacancy in election to elect someone to fill out the office already held. I the remainder of the term,which in this example,would be two years. B.Authority to fill.Town Law§64 (5) authorizes town boards to fill vacancies in town offices.However,if the i ii. Vacancies after September 20: If the town board does not have the authority to fill the vacancy occurs after September 20, position in the first instance,they do not have the the person appointed to that position authority to fill the vacancy.For example,if the deputy will serve for slightly more than a town clerk position is vacant,the town clerk has the year until the end of the next calendar authority to fill that vacancy. year.For example,if a town board member resigns on Oct. 30,2015 after C.Qualifications.A person appointed to fill the vacancy serving a year and 10 months of a must possess the same qualifications for the office as the four-year term,the individual original electee or appointee (see§2-8,supra). I appointed to fill that position would serve until the end of December 2016. D.Length of appointment. In November 2016,there should be an election to elect an individual to fill 1.Appointed office:If the vacancy exists in an out the remainder of the term which, appointed office,the appointment is for the I in this example,would be one year. remainder of the unexpired term. The theory being that the public does not have enough time to learn about 2.Elected office(Public Officers Law§42):This candidates before a November depends on when the vacancy in the elected office election. took place and how much time is left on the term of office. E.Special elections.Public Officers Law§42(3) also authorizes the governor to call a special election to fill a i. Vacancies before September 20: If the I vacancy in an elected office whenever a board vested vacancy occurs before September 20, with the authority to fill such vacancy is unable to do so the person appointed to that position because of a tie vote or if the board neglects to fill such will serve until the end of the calendar vacancy for any other reason.The governor has done so year,and there should be an election on a few occasions involving town elections,but not 16 17 often. the positions.Some towns may have a town comptroller while others do not.The list included here of town offices is §2-14.Removal from Office. meant to be a very general overview;it is by no means exhaustive,and there may be variations in your town. A.Elected officers.The town board does not have the _ authority to fire or remove an elected official.Under §2-16.Town Board. Public Officers Law§36,a resident of the town or the county district attorney may commence a court A. Composition.The town board usually consists of the proceeding to remove an individual for committing supervisor and four councilmembers. However,the misconduct,maladministration,malfeasance or number of town board members in any town may be malversation in office. 1 increased to six or reduced to three by a local law subject jto a mandatory referendum pursuant to the Municipal B. Appointed officers and employees.The general rule Home Rule Law.Relatively few towns have done this to is that appointed officers serve at the pleasure of the date. town board,unless otherwise provided in law,and so an I individual could be removed via town board resolution B. Responsibilities.The town board is the executive (see Town Law§24).However,depending on how the and legislative branch of town government.Town Law§ position is classified under Civil Service,how long the 64 lists the general powers of the town board,which person has been in his or her position,and if they are a includes,but is not limited to,managing and controlling veteran or volunteer firefighter,an individual may be town finances,controlling and managing town property entitled to a hearing before being removed from office and generally"hav[ing] and exercis[ing] all the powers (see Civil Service Law§75).Additionally,there are some conferred upon the town and such additional powers as statutory protections afforded to certain offices.For shall be necessarily implied therefrom," (Town Law§ example,a planning board or zoning board member may 64[23]).Town boards also adopt budgets,fix salaries of not be removed without cause,and the town has to hold officers and employees,establish rules of its procedure a public hearing(see Town Law§§267,271).Finally,the and adopt local laws,just to name a few responsibilities. town must abide by any internal procedures it has Although Town Law sets forth most town board established regarding termination.The Association of functions,other articles of law,such as General Municipal Towns strongly recommends consulting with your town Law,Highway Law,Education Law,Agriculture and attorney prior to removing an appointed officer or Markets Law and Not-For-Profit Corporation Law,may employee. also provide sources of authority for town board actions. ARTICLE III.Specific Offices. 1.Majority of board acts as body.The town board,as a group,is the executive head of the §2-15.Introduction.Because towns have municipal home I town and must function as a body.There is no rule authority,each town decides for itself the makeup of true executive in town government like the town offices,and there is no "one size fits all." For example, mayor of a city or village.Thus,an individual some towns may have a combined office of town clerk and board member or town supervisor may not tax collector,while others have different individuals filling I unilaterally act on behalf of the town board 18 19 M and each town board member has the same functioning in between town board meetings and authority as any other board member. In address day-to-day issues,the town board may delegate nistration and supervision most instances,a simple majority of the town the power and duties of admi board is necessary for the board to take of the town or special improvement districts to the action.Additionally,the town board may supervisor(see Town Law§29[16]).However,a town delegate certain responsibilities to the town board may not abdicate or surrender its basic statutory supervisor(see§2-7,infra). responsibilities to the supervisor. C. Meetings.Please refer to Chapter 3. §2-18.Deputy Supervisor.The town board may establish the office of deputy supervisor(see Town Law§42). The D. Representation and advisory referenda.When a town supervisor appoints the deputy supervisor,but if he or town board member votes on a proposal before the she fails to do so within five days of there being a vacancy in board,he or she represents,through that vote,the views the office of deputy town supervisor,the town board may of the town residents.Because of this high level of make the appointment(id.).However,the deputy supervisor responsibility,and in order to ensure that residents' i serves at the pleasure of the town supervisor(id.);thus,even voices are accurately reflected,some board members if the town board appoints someone as deputy supervisor, may want residents to vote on matters before the town the town supervisor may remove that person without town board takes action.However,unless there is board approval.Furthermore,the town supervisor does not j constitutional or statutory authority,towns may not hold forfeit the authority to appoint a deputy should he or she fail a referendum (see McCabe v. Voorhis,243 NY 401 [1926]; to do so within five days (see 33 Opns St Comp, 1977 No.77- 2005 Ops.Atty.Gen. (Inf) 1091 [2005]). 655 p 133). §2-17.Supervisor. When a town supervisor is absent or unable to act,the deputy supervisor may perform the supervisor's duties.The A. Responsibilities.As a member of the town board,the I definition of"absence"must be reasonable because,as the supervisor has no more authority than any other Attorney General's Office stated"[c]learly,not every individual town board member(see -16[B][1]infra). momentary unavailability§2ilability of the supervisor will constitute an This means that the supervisor's vote has no more absence within[Town Law§42]" (1992 N.Y.Op.Atty.Gen. weight than any other town board member,nor does the (Inf.) 1103).Finally,although the deputy supervisor may act supervisor's vote count as a tiebreaker.Although instead of the supervisor,unless the deputy supervisor is a supervisors do not necessarily have more authority in i member of the town board,he or she has no authority to vote most instances,they do have more responsibilities.The on matters before the town board(see Town Law§42). supervisor presides over town board meetings (see Town Law§ 63) and has a number of responsibilities §2-19.Confidential Secretary/Bookkeeper.In towns of l. regarding financial matters. For a description of the the first class,the supervisor appoints a confidentia supervisor's fiscal responsibilities,please refer to Town secretary or bookkeeper(see Town Law§29[151).ln towns Law§§29 and 125. of the second class,the town board may create the position of secretary or bookkeeper or both.Once created,the B. Delegated authority.In order to keep the town supervisor has the authority to fill the positions.The town 20 21 board must fix compensation for the position in a i "reasonable"amount see id. . 77-655 p 133). §2-20.Highway Superintendent.The highway §2-22•Town Clerk.The town clerk has a number of statutory responsibilities that are too numerous to list in this superintendent is in charge of the highway department and executing the statutory responsibilities listed in Highway manual.Among other things,town clerks issue licenses, manage records,post notices,and have filing responsibilities. Law§ 140.These duties include,among other things, Additionally,the town clerk acts as the recording secretary repairing and maintaining town highways and bridges and snow removal.The town board may also,pursuant to Town and takes minutes at town board meetings. For more Law§32,impose additional duties on the highway information on the role of the town clerk,please refer to the superintendent,such as performing work for the recreation Association of Towns'Town Clerk Manual. department;however,these duties must fall under the §2-23.Deputy Town Clerk.The town clerk may appoint up general scope of his or her employment and may not to three deputies,all of whom serve at the pleasure of the interfere with his or her primary duties (see 24 Op.St. Compt. 146, 1968; Op.St.Compt.81-345).As the head of the town clerk(see Town Law§30 [10]).The town clerk sets the duties of the first deputy town clerk and may authorize the highway department,the highway superintendent has the first deputy to act on the town clerk's behalf(see id.).The authority to hire and fire highway employees without town board approval.However,the highway superintendent must town board has the authority to set the duties of the second still abide by town policies and civil service laws with respect and third deputy town clerks; however,in the event the town I, board does not do so,the town clerk may set the duties of the to employment.Additionally,the town board is the one that fixes the pay or salary for highway department employees. second and third deputies (see id.). For more information on the role of the highway superintendent,please refer to the Association of Towns' §2-24.Town Attorney.The town board may establish the Highway Law Manual. office of town attorney(Town Law§20 [2]).Although town I officers must be a resident of the town,if a town that has the §2-21.Deputy Highway Superintendent.The town board office of town attorney does not have an attorney residing I may establish the office of deputy highway superintendent ' within its boundaries,the town attorney need not be a (see Town Law§32[2]).Although the town board creates I resident(see Town Law§23).Additionally,if the town , abolishes or has not established the office of town attorney, the office,the highway superintendent appoints the deputy the town board may retain an attorney or law firm to who serves at the pleasure of the highway superintendent � (id.).If the highway superintendent does not appoint a perform specified legal services.Under these circumstances, deputy within five days of the office being established or the attorney would be an independent contractor paid for within five days after a vacancy occurs,the town board has actual legal services rendered and need not be a town the power to appoint someone (id.). However,even if the resident(see 1988 N.Y. Op.Atty. Gen. [Inf.] 49). town board appoints someone, pp the highway sup .erintendent may remove him or her without town board approval §2-25.Town Justice.Town justices have jurisdiction in Furthermore,the highway superintendent does not forfeit criminal and civil matters and in special proceedings as the authority to appoint a deputy if he or she fails to do so conferred by law(see Town Law§31 and the Uniform Justice Court Act).For amore in-depth review of town justice within five days (see generally 33 Ops.St. Compt., 1977 No. responsibilities,please refer to the Unified Court System 22 23 �I I Justice Court Manual, receiver of taxes serves in towns of the first class (receiving taxes and assessments). Both offices have similar powers and §2-26.Court Clerk.The town board and the town justice(s) duties that are primarily listed in Town Law§§35 and 37 must work together and reach a consensus on who to and Real Property Tax Law.In addition to collecting taxes,a appoint as court clerk.While the town board passes the receiver of taxes may collect school taxes,assessments and, resolution appointing or terminating the clerk,the town except as otherwise provided by law,water rates and sewer board may act only with the town justice's consent(see rents,among other things. For further information on tax Town Law§20). For more information on the collectors and receivers of taxes,please refer to the responsibilities of the court clerk,please refer to the Office of Association of Towns' Tax Collector Manual. Court Administration's Town and Village Court Clerk Operations Manual,available online. §2-29.Committees. §2-27.Assessor/Board of Assessment Review.An A.Town board committees. Many towns find that there li assessor or board of assessors estimates the value of real is a considerable amount of work to do in between property in the town for taxation purposes and prepares the meetings in order to gather information on matters annual assessment roll. In towns that kept the elected three- requiring town board decisions.The town supervisor assessor system;-it is possible to change to one elected or may appoint committees of town board members to appointed assessor by adopting a local law subject to either a make studies and report back with recommendations mandatory or permissive referendum(see Real Property Tax (see Town Law§ 63).Town board committees can Law§§328 and 329). conduct formal or informal meetings and hearings; On grievance day,an assessment review board hears however,they cannot make any decision for the town property owner complaints and may make adjustments to board.Please note that these committees are considered assessments.The board of assessment review consists of public bodies and thus are subject to the Open Meetings between three and five members,all appointed by the town Law. board.The town assessor may not serve as a board of assessment review member(see Real Property Tax Law§§ B.Citizen committees.Although not specifically 102[3],[4]; 523). authorized by statute,town boards may appoint one or more citizen committees to advise them on particular Planning Board Members: Please refer to Chapter 7 of this matters.The town board cannot delegate its authority or manual. authorize the spending of public monies by private individuals;thus, citizen committees are advisory only. Zoning Board Members: Please refer to Chapter 7 of this Their makeup can vary in size and may include one or manual. more members of existing boards or bodies of the town. For example,a town may set up a master plan advisory Code Enforcement Officer: Please refer to Chapter 7 of this committee of local citizens with expertise in land use manual. issues,and appoint the chairman of the planning board to the committee and a town board member as an ad hoc §2-28.Tax Collector/Receiver of Taxes.A tax collector i member. serves in towns of the second class (collecting taxes). A I 24 25 i r" i I I I i §2-30.Holding Multiple Offices/Compatibility of Office: ARTICLE IV.Ethics and Conflicts of Interest. There is no overarching law that says one person may hold only one position; however,there are some situations where §2-31.Overview.Public officials and employees are held to two positions are incompatible,and therefore,one person certain standards of behavior; municipal"ethics"refers to may not hold both at the same time. Additionally,a town's principles found in law that define behavior as proper.Ethics ethics code may prohibit dual office holding. Offices or laws are both a sword and a shield designed"to protect the positions of employment are incompatible if: public from municipal contracts influenced by avaricious officers, [and] to protect innocent public officers from A.There is a specific statutory prohibition. For example, unwarranted assaults on their integrity." State laws on ethics Town Law§20(4)states that an individual cannot hold are found in General Municipal Law Article 18 and common more than one elective town office;thus,an elected law,which is law created by courts.In addition,towns must highway superintendent may not also be a town board have their own ethics code,which should be reviewed i member. whenever confronted with an ethics or conflict of interest question. B. One position is subordinate to the other. Subordination occurs when one office has authority over §2-32.Code of Ethics.General Municipal Law Article§806 another position.Another way to think of it is that you requires each town to adopt a code of ethics containing cannot be the boss of yourself.For example,because the standards for town officers and employees to follow.Local town board adopts the budget,which includes codes can be more restrictive than what is prescribed by compensation levels for town employees,and in general, General Municipal Law Article 18.Common topics covered in is responsible for hiring and firing employees,a town ethics codes include what constitutes a conflict of interest, board member should not also hold a position as a town nepotism,gift provisions and when recusal is required.The employee. town supervisor must ensure that each officer and employee receives a copy of the ethics code. C.There is a conflict in duties between the two positions. The Attorney General's Office has described it as being an' §2-33.Boards of Ethics.Article 18 authorizes but does not "inconsistency"in offices (see 1993 Ops.Atty. Gen. (Inf) require the establishment of a local board of ethics.The 1005 [1993]),i.e.whether having one person hold the board must consist of at least three individuals,who are two positions in question upsets a system of checks and appointed by the town board,a majority of whom are not balances. For example,a code enforcement officer should officers of or employed by the town,but one of whom is an not also be on the zoning board of appeals because the employee or officer of the town.The function of the board of ZBA regularly reviews decisions made by the codeethics is to render advisory opinions to town officers and enforcement office. employees regarding Article 18 or the local code of ethics. §2-34.Evaluating Conflicts of Interest.General Municipal Law Article 18 prohibits a municipality from entering into a contract where an employee or officer has an interest in the contract and has the authority to either: (a) negotiate, 26 27 A , I I II prepare,authorize or approve the contract or authorize or dependents,excluding employment contracts with the approve payment thereunder; (b) audit bills or claims under town.Furthermore,General Municipal Law states that an the contract; or(c) appoint an officer or employee who has officer or employee has an interest in contracts with a any of the powers or duties set forth above (see General firm,partnership or association where the officer or Municipal Law§801).Additionally,courts will find conflicts employee is a member or employee and in contracts of a of interest even when there is no violation of General company where an officer or employee is an officer, Municipal Law Article 18 if there is an appearance of director,employee or stockholder. impropriety. In order to determine if a conflict of interest exists,AOT recommends asking the following six questions: C.Does the officer or employee with the interest have "control" over the contract? Control means that the 1. Is there a contract with the municipality? officer or employee with the interest has the authority to, 2. If so,does an officer or employee have an either individually or as a board member: negotiate, "interest"in the contract? draft,authorize or approve the contract; authorize 3. If so,does the officer or employee with the interest payment under a contract;audit bills or claims under the have"control" over the contract? contact; or appoint someone with any of these powers or 4. Do any statutory exceptions listed in General duties. Municipal Law Article 18 apply? S. Does the town's local ethics code apply? D.Do any statutory exceptions listed in General 6. Is there an"appearance of impropriety"? Municipal Law Article 18 apply? General Municipal Law§802 lists exceptions to the statutory prohibition ployee with If the answers to questions 1 through 3 are"yes"and no against contracts where an officer or em statutory exceptions apply,one need not move onto control over the contract has an interest.Exceptions are questions 5 and 6 because there is a conflict of interest under only permitted if the town officers or employees who t' General Municipal Law Article 18 and the town may not have,will have or later acquire any interest in any actual enter into the contract. Please note that recusal is or proposed contract with the town"publicly disclose the insufficient to cure a General Municipal Law Article 18 nature and extent of such interest in writing"to the town conflict of interest. board as soon as they have knowledge of such interest. Written disclosure must be made part of the town A.Is there a contract with the municipality?Under board's official record.Once made,no further disclosures General Municipal Law Article 18,a contract means any need to be made by the officer or employee with respect claim,account or demand against or agreement with a to additional contracts with the same party during the municipality. Contracts may be express or implied, remainder of the fiscal year(see General Municipal Law§ ' verbal or written. 803).The list below is not exhaustive,but some of the I more common exceptions include: B.Does an officer or employee have an"interest"in � 1.Depository institutions.The first the contract?Interest means a direct or indirect y financial or material benefit. General Municipal Law also exception relates to a bank or trust company ing agent, states that an officer or employee has an interest in the named as depository,payregistration agent or for the investment of re contracts of a husband or wife,minor children or g 28 I 29 i i municipal monies.Any bank may be named association-a fire company,a voluntary except one in which the supervisor, hospital-in which a town officer has an comptroller or their deputies and employees interest or is a member,are permitted. have an interest. In other words,the law will not force the designation of a bank outside of 6.Pre-existing contracts.Contracts that the town because of prohibited conflicts of existed before the town officer or employee interest so long as full and complete was elected or appointed are allowed,but the disclosure of such interest is made known to law does not authorize the renewal of any the town board. such contract if the existing interests and conflicts do not otherwise qualify under one 2.Employment.The law does not prohibit a of the exceptions. contract with a person,firm,corporation or association in which a town officer or 7.$750 threshold.If the total of all claims, employee has an interest solely by reason of accounts or demands in which a town officer private employment as an officer or employee or employee has an interest during one fiscal j of any such firm,etc.,so long as the officer's year is less than$750,the contract is not or employee's income,compensation or prohibited. remuneration from private employment is i not directly affected by the contract,and the 8.Stock If the contract is with a corporation duties of private employment do not directly (other than a bank or trust company) in involve the procurement,preparation or which a town officer or employee has an performance of any part of the contract. interest by reason of stock holdings when less than 5 percent of the outstanding stock of the 3.Real property purchase.The law allows corporation is owned or controlled,directly towns to purchase real property from its or indirectly,by the town officer or employee, officers and employees provided that the the contract is permitted. purchase and the consideration therefor are approved by an order of the Supreme Court E.Does the town's ethics code apply?Even if there is I upon petition of the town board. no conflict of interest under General Municipal Law Article 18,there may be a prohibited conflict of interest 4.Real property condemnation.Towns may i pursuant to the town's ethics code. acquire real property or an interest therein from its officers and employees by means of F.Is there an appearance of impropriety?Even if condemnation proceedings pursuant to there is no violation under General Municipal Law Article Eminent Domain Procedure Law. 18,courts have found conflicts of interest when actions raise an appearance of impropriety.There is no standard S.Nonprofits.Contracts between the town test to apply to determine if there is an appearance of and a membership corporation or other impropriety;however,courts have stated that the voluntary nonprofit corporation or potential conflict should be more than speculative. 30 31 Towns may consider posing the question to its local interest in the application.Under General Municipal Law§ ethics board. 809,an officer or employee has an interest in the application when he,his spouse,or their brothers,sisters,parents, §2-35.Financial Disclosure.Towns with populations of children,grandchildren,or the spouse of any of them: more than 50,000 must adopt provisions for the filing of annual statements of financial disclosure by their officers . is the applicant; and employees.Those large towns that chose not to do so are subject to the annual disclosure filing requirements and . is an officer,director,partner,or employee of the forms provided in General Municipal Law§812.Towns with applicant; or less than 50,000 in population can elect to subject themselves and their officials and employees to annual . legally or beneficially owns or controls stock of a financial disclosure requirements,including those contained corporate applicant or is a member of a in§812.That section contains an extensive annual partnership or association applicant; or disclosure form.Additionally,any assessor receiving$20,000 or more (in the aggregate) must annually file a disclosure . form (see RPTL§336; GML§812[1][a]). is a party to an agreement with such an applicant, express or implied,whereby he may receive any §2-36.Other Prohibited Actions. In addition to contractual payment or other benefit,whether or not for services rendered, dependent or contingent upon conflicts of interest,General Municipal Law Article 18 sets the favorable a forth other prohibited actions,namely: approval of such application, lication, petition or request. A.Accepting any gift valued more than$75 in any form if Ownership of less than 5 percent of the stock of a it may raise questions of undue influence in official duties; corporation whose stock is listed on the New York or American Stock Exchanges shall not constitute an ' B.Disclosing confidential information to further personal interest for the purposes of this section. interests; C.Receiving any payment,direct or indirect,for services in relation to any matter before any municipal agency of which one is an officer or employee or whereby one's compensation is dependent or contingent upon action by such agency(but allowing fixing of fees to be paid upon the reasonable value of the services rendered). §2-37.Disclosure in Certain Applications.The provisions of General Municipal Law§809 place responsibility on the applicant for any land use change,permit or variance to disclose the names of any local or state officials who have an 32 33 �I i fixed time and place throughout the year,such as"7:00 p.m.on the first Monday of each month in Town Hall." Chapter 3 TOWN BOARD MEETINGS AND PUBLIC HEARINGS B.Special meetings.A town supervisor may,on his or her own,call a special meeting at any time by giving the §3-1.Location.Town board meetings must be held within other town board members at least two days'written the territorial limits of the town (see Town Law§62[2]). If notice specifying the time and place of the meeting. the law provides for a joint meeting of two or more town Alternatively,if two town board members submit a boards,for example,in establishing a joint fire district,the written request for a special board meeting,the meeting must be held in a town represented at the meeting. supervisor must schedule a special meeting within 10 Finally,a few individual towns have authority from the state days of the request(see Town Law§62[2]). Business Legislature via special act to hold town board meetings conducted at a special meeting held without two days' outside the town. notice is valid as long as all the councilmembers had actual notice of the meeting,attended and participated §3-2.Access.Under the Americans with Disabilities Act (see 1980 Op.Atty. Gen. [Inf] 109; 18 Op.St.Comp.No. (ADA),local government programs must be accessible to 442]). individuals with disabilities,and all new construction or alterations to buildings after Jan. 26, 1992,must provide the C.Budget meetings.Town boards must meet within the disabled with access.The New York State Uniform Fire timeframes specified by statute regarding the tentative Prevention and Building Code contains similar requirements budget,preliminary budget and final budget. For more for all new buildings and reconstruction-Furthermore,Public information on these dates and the budget process please Officers Law§ 103(b) requires a public body to make all refer to Chapter 4 in this manual. reasonable efforts to hold meetings in facilities that permit barrier-free access to the physically handicapped. D.Organizational meeting.The organizational meeting refers to a meeting held in the beginning of the year §3-3.Frequency.Town boards in towns of the first class where,generally,the town board appoints officers, must hold at least one meeting per month (see Town Law§ authorizes contracts and conducts a plethora of other 62 [2]). There is no statutory requirement regarding how business in order to get the town government organized often a town board must meet in towns of the second class, to function throughout the year.Although there is no but it should meet regularly enough to attend to town statutory requirement that towns hold an organizational business. meeting,one should be held as soon as possible after the New Year begins. Organizational meetings may be a §3-4.Types of Meetings. special town board meeting or as part of a regularly scheduled meeting(see Op. St.Compt. No. 82-145).For a A.Regular meetings.There is no statutory definition for list of matters that should be considered and more what constitutes a"regular"meeting. Generally,the information on the organizational meeting,please refer town can think of a regular meeting as a meeting that to the Association of Towns'publication"First Meeting of they would normally hold.For example,the phrase might the New Town Board." refer to meetings established by the town board for a 34 35 i E.Work sessions.Some towns designate certain agendas for meetings,they are not required to by statute.If a meetings as "work sessions"or"informal meetings" town chooses to use an agenda,it should do so in accordance because the board has no intention of voting on any with the rules of procedure adopted by the town board or matter or taking any action. Significantly,there is no with past practice if not otherwise addressed. statutory reference to"work sessions"or the like,and any gathering of a quorum of a public body for the § 3-7.Meeting Packets.Public Officers Law,§103 (e) purpose of conducting public business is a"meeting"that requires towns,upon request and that have the capability to is open to the public and requires notice,whether or not do so,to make available before the meeting information that there is an intent to take action and regardless of the will be discussed during the meeting and is provided to town manner in which a gathering may be characterized(see board members in advance of the meeting,including but not Orange County Publications v. Council of the City of limited to proposed resolutions,proposed policies and Newburgh,45 NY 2d 947 [1978]). proposed local laws. Foil fees may be charged for these packets. In addition,if the town maintains a regularly and §3-5.Notice. routinely updated website and utilizes a high-speed Internet connection,such records must be posted on the website to A.Town board meetings: Notice of the time and place of the extent practicable as determined by town prior to the a meeting must be conspicuously posted in at least one meeting. public location(e.g.,the town clerk's bulletin board) and given to the news media at least 72 hours before any §3-8.Meeting Procedure.The town board may determine meeting scheduled at least a week in advance (see Public -its own rules of procedure (see Town Law§ 63),which Officers Law§ 104 [1]).Where a meeting is scheduled should also be made known to the public.For sample rules of less than a week in advance,notice to the news media procedure adopted by other towns,please contact the and public posting must be done to the extent practicable Association of Towns.In the absence of a set of formal rules (see Public Officers Law§ 104 [2]). For further of procedure,longstanding practice may govern (see Op St information on notice requirements,please refer to the Comp No.81-417; OML-AO-2852). Association of Towns' Town Clerk Manual. §3-9.Voting and Quorum.Every question shall be voted on B.Public hearings: It is imperative to check the statute with an"aye"and"no/nay"with the names of the members that calls for a public hearing and follow the procedure present and their votes entered in the meeting minutes. prescribed by that statute. For example,the town needs Voting by proxy,telephone or affidavit is prohibited,and to hold a public hearing before adopting a local law,and town board members must be physically present in order to Municipal Home Rule Law§20 (5) requires the notice be vote.A quorum of the town board,that is,a majority of the f published in a newspaper of general circulation in the entire town board must be present to conduct business (in town at least five days in advance of the public hearing. other words,three members out of a five-member board) However,the notice required for public hearings on (see Town Law,§63; General Construction Law,§41).A other matters may differ,depending on what the statute majority vote of the fully constituted board,regardless of requiring the public meeting says. vacancies,absences or abstentions,is required to approve any action (see id).There are some exceptions where more §3-6.Agendas.Although many town boards prepare than a straight majority maybe required-for example,a 36 37 -- supermajority of the town board is required to override a county planning board's recommendation pursuant to §3-12.Public Participation in Town Board Meetings and General Municipal Law,§239-m.Always check with the town Public Hearings. attorney where questions arise regarding the vote required to carry any action. A. Right to participate.Although Open Meetings Law (discussed further herein)gives the public the right to §3-10.Role of Town Clerk.The clerk must attend every attend town board meetings and to listen to town board meeting and keep a written record of all proceedings of the deliberations,the public does not have the right to speak board even though he or she is not a member of the board at town board meetings except as provided by rules and does not have a vote on matters coming before the created and adopted by the town board. According to the board.If,for some reason,the clerk or the deputy town clerk New York State Comptroller's Office: is not present,the town board may designate someone,other than a town board member,to act as deputy town clerk and A town board has the right to promulgate rules of take minutes (see Town Law§30[10]). procedure for the orderly conduct of its meetings and for the proper management of the business §3-11.Role of Town Supervisor;Deputy Supervisor. and affairs of the town (Town Law§63).The town board may invite and permit residents of A.The town supervisor presides at all town board the town to participate therein so long as such meetings. In the supervisor's absence,the deputy participation is orderly and constructive and does supervisor acts as the presiding officer;however,if there not interfere with the business and purpose of is no deputy supervisor or the deputy is not present,the the meeting.To carry out its purposes,the town town board members present may designate one of their board may prepare and circulate an agenda members to act as temporary chairperson. Please note limiting the time and scope of the discussion by that the deputy supervisor has no authority to vote persons attending such meetings.This unless he or she is also a town board member. In that Department has stated that`in general,the public case,he or she votes by virtue of his or her position as a is free to attend[] town board meetings,'but councilmember,not as deputy supervisor. does not have a right to speak at a town board meeting except as provided by board rules.`The B. The supervisor is a member of the town board and town board may adopt rules and procedure like any other member of the town board must vote on mlimiting discussion of matters before the board.' matters before the town board.There is a common (22 Op.St. Comp. 311, 1966) misconception that the supervisors vote acts as a tiebreaker or carries more weight;however,this is not In comparison,the public does have a right to true.The supervisor's vote carries no more or less weight participate in public hearings.Per the New York State than any other vote and is counted the same as any other Comptroller's Office: town board member. The term`public hearing'has been variously discussed or defined as follows: (a) " ...A statutory direction that a notice of 38 39 r .I public hearing be published means that a fair and not followed;the town supervisor may contact a local law impartial hearing be held pursuant to such notice enforcement agency.Often,the presence or possibility of and that all interested parties attending the the presence of an officer will encourage decorum.If a hearing be accorded an opportunity to be heard. person continues to interrupt,the Committee on Open a Government has opined that the town supervisor could (b) "'Public hearing'means a right to appear and ask the officer to remove the person or persons from the give evidence and the right to hear and examine meeting(see OML-AO-3295). witnesses ... (c) "'Public hearing.'Any hearing open to the §3-13.Use of Cameras,Video and Audio public,or any hearing, or such part thereof,as to Equipment.The public and the media have the right which testimony or other evidence is made to photograph and to use recording equipment available or disseminated to the public by the (video,audio,etc.)to document town board meetings agency." (see Public Officers Law,§103 [d] [11).However,the (d)"'Its very purpose [the public hearing] is to town board may adopt reasonable rules for the use of give the public an opportunity to express its such equipment. (See Public Officers Law§103 [d] views and to make inquiries in respect to budget [2],) matters,hence,the public may freely participate in such meetings.' (See 69-405,Dept.of Audit and §3-14.Broadcasting,Webcasting and Streaming Control,6/6/69.) Town Board Meetings.The town board is authorized to broadcast,webcast or stream its own B.Reasonable rules of procedure for public meetings [Town Law,§63; Public Officers Law, participation. Rules pertaining to public participation §103(d)(2)].In addition,the Public Officers Law must be reasonable and uniformly enforced.They should expressly authorizes the public and the media to be made widely available to the public beforehand and broadcast,webcast or transmit by audio public read at the beginning of a public comment period. Rules meetings [Public Officers Law,§103(d)(2)]. typically indicate at what point during the meeting public comment will be permitted (e.g.at the beginning or end §3-15.Open Meetings Law. Open Meetings Law mandates of a meeting).The rules might also include the amount of that meetings where a quorum of the public body is present time each person may speak and whether they may must be open to the general public. speak on any issue or just issues on the agenda.In addition,the Committee on Open Government has noted A. Applicability to town board and other bodies.The that the town board could clearly adopt rules to prevent Open Meetings Law applies not only to town boards and verbal interruptions,shouting or other outbursts,as well other town bodies and commissions performing a as slanderous or obscene language or signs and governmental function,but to committees and movement during the meeting in order to ensure an subcommittees thereof consisting of two or more orderly meeting and provide the clear ability for those in individuals (Public Officers Law§ 102[21). attendance to hear and observe the discussions and proceedings (see OML-AO-2974).The Committee on B. Meeting defined.Public Officers Law§102(1) defines Open Government has further opined that if the rules are the term"meeting"to mean"the official convening of a 40 41 � I I public body for the purpose of conducting public business.""Meeting"has been broadly interpreted by the 2.Deliberations of political committees,conferences courts,and they have found that any gathering of a and caucuses quorum of a public body for the purpose of conducting public business is a"meeting"that must be convened a) "Deliberations of political committees, open to the public,whether or not there is an intent to conferences and caucuses"means a private take action and regardless of the manner in which a meeting of members of the town board who gathering may be characterized (see Orange County are members or adherents of the same Publications v. Council of the City of Newburgh, 60 AD 2d political party,without regard to (i)the 409,affd 45 NY 2d 947 [1978]). subject matter under discussion,including discussions of public business, (ii) the 1.Work sessions.The application of the Open majority or minority status of such political Meetings Law to"work sessions,""workshops" committees,conferences and caucuses or(iii) or"agenda meetings" often creates some whether such political committees, confusion.The statute does not contain any conferences and caucuses invite staff or reference whatsoever to work sessions.It guests to participate in their deliberations. ... merely defines the term"meeting."The Court of A political conference or caucus may be held Appeals has agreed with lower courts that the in private even if all of the members of the definition of"meeting"is broad enough to town board are of the same political party include a work session or workshop,etc.The (but see Buffalo News, a Div. of Berkshire important elements of a meeting are the Hathaway Inc. v. City of Buffalo Common convening of a majority of the members of the Council, 154 Misc 2d 400 [Sup Ct 1992]; public body and the discussion of public Comm.on Open Gov't.OML-AO-2808 business. Even if a vote is not taken at such work [November 10, 1997]) and even if the subject sessions,the court considered them to be of the discussions and deliberations include meetings,and consequently,open to the public public business. However,while the state (see Orange County Publications,Div. of Ottaway Legislature found that a"private,candid Newspapers,Inc. v. Council of City of Newburgh, exchange of ideas and points of view among 60 AD2d 409 [2d Dept 1978] affd sub nom. members of each political party concerning Orange County Publications,Div. of Ottaway the public business to come before legislative Newspapers,Inc. v. Council of City of Newburgh, bodies"promotes the public interest,when 45 NY2d 947 [1978]). what occurs at such a meeting goes beyond a candid discussion and amounts to the C. Exceptions.There are three types of meetings that conduct of public business,the Open are exempt from Open Meetings Law: Meetings Law is violated(see Humphrey v. Posluszny, 175 AD2d 587 [19911). 1.Judicial or quasi-judicial proceedings,except proceedings of the public service commission and 3. Any matter made confidential by federal or state zoning board of appeals; law. 42 43 , I sufficient detail to enable the public to know whether an a)An attorney-client relationship is executive session is appropriate;however,the motion is considered confidential under Civil not required to identify the person or persons who are Practice Law and Rules§4503;thus, the subject of discussion(see Comm. On Open Gov't.AO when attorney and client,which may 2966). include town attorney and town board,establish privilege of C. Items that may be discussed.Only the following relationship,communications made matters specified in Public Officers Law§105 may be pursuant to that relationship are discussed and acted on in an executive session: confidential under state law and exempt from the Open Meetings Law. 1.A matter that will imperil the public safety if it is This privilege is,however,applicable disclosed; only when the client(town board) seeks the professional,legal advice of 2.A matter that may disclose the identity of a law the attorney acting in his or her enforcement agent or informer; capacity as an attorney(Comm.on Open Gov't.OML-AO-1223 and 1189). 3.Information with respect to investigation or Thus,the board may meet privately prosecution of a criminal offense that would with its attorney before or after a jeopardize effective law enforcement if disclosed; town board meeting for the express purpose of securing an opinion of law, 4.Discussions relating to proposed,pending or legal services or assistance in a legal current litigation; ! proceeding(Comm.on Open Gov't. OML-AO-1189). S.Matters relating to collective negotiations under the Taylor Law; §3-16.Executive Sessions. 6.Medical,financial,credit or employment history of A. Definition."Executive session"is a portion of an a particular person or corporation,or relating to open meeting during which the public may be excluded appointment,promotion,demotion,discipline or (see Public Officers Law§ 102[3]). removal; B. Procedure.The procedure to call an executive 7.Preparation,grading or administration of session is set forth in Public Officers Law§ 105(1).A examinations; town board member must move to enter into executive session,and the motion must be approved by a majority 8.Acquisition,lease or sale of real property or of the entire town board.Additionally,the motion must securities when publicity would substantially affect identify the general area or areas of the subject or the value. subjects to be considered during executive session. A motion for entry into an executive session must provide D. Personnel matters or litigation.Executive sessions 44 45 i j are most frequently used to discuss personnel matters or purposes of discussing"proposed,pending or current litigation. litigation." In construing this language,one court stated that the purpose of paragraph (d) is "to enable 1.First,Public Officers Law§ 105(1)(f) authorizes a public body to discuss pending litigation privately, the town board to enter into executive session to without baring its strategy to its adversary through discuss what is commonly referred to as"personnel mandatory public meetings." (Mtr of Concerned matters."The statutory language,however,does not Citizens to Review Jefferson Val.Mall v. Town Board of include the word"personnel."The actual statutory Town of Yorktown,83 AD2d 612,613 [2d Dept. language (as noted above) reads as follows: "the 1981]).Therefore,the town board may discuss a medical,financial,credit or employment history of a litigation strategy behind closed doors but may not particular person or corporation,or matters leading discuss issues that may have only the potential to to the appointment,employment,promotion, lead to litigation. demotion,discipline,suspension,dismissal or removal of a particular person or corporation."The E. Minutes. Committee on Open Government offered the following comments regarding the proper language 1.Summary minutes must be made of any final to use when entering into executive session to determination taken by formal vote,including the discuss personnel matters: date and the vote thereon; however,such summary should not include any matter that is not required to Due to the presence of the term be made public under the Freedom of Information `particular'in§ 105(1)(0,it has been Law.Such summary minutes shall be available to the j advised that a motion describing the public within one week from the date of the executive subject to be discussed as'personnel'or session. as a'specific personnel matter'is j inadequate,and that the motion should be 2. If no formal action was taken in an executive based upon the specific language of§ session,as is often the case,then no executive session 105(1)(f).For instance,a proper motion minutes need be taken. For example,if the session might be: 'I move to enter into an consisted of a discussion of a personnel matter,but executive session to discuss the no final action or determination was agreed to or employment history of a particular made,then no minutes are required.There would,of person (or persons).'Such a motion course,be minutes of the open meeting at which the would not[in the Committee's opinion] motion and vote to go into the executive session was have to identify the person or persons made. I who may be the subject of the discussion (Comm.on Open Gov't. OML AO-2444, F. Public monies.Public monies cannot be 1995). appropriated by formal vote in an executive session. 2.Public Officers Law§ 105(1)(d) authorizes the town G. Attendance.The Open Meetings Law provides that board to enter into executive session for the attendance at executive sessions must be permitted to 46 47 ,i any member of"the public body" (i.e.,the town board members) and any other individuals authorized by such body.Therefore,opinions of the state comptroller(78- Chapter 4 254 and 78-462)have concluded that the town clerk has FISCAL MATTERS no right to attend such sessions but that the town board may,in its discretion,allow the clerk to attend.If the ARTICLE I. General Provisions. clerk is not allowed to attend,someone should be designated to take any necessary minutes. §4-1.Responsibility of the Town Board.The Town Law places with the town board the responsibility for the general management and control of the finances of the town.So,it is the town board's function to raise monies through the imposition of a real property tax to fund the town's budget,if necessary and,additionally,ensure that the town's monies are expended in a proper and legal manner. §4-2.Responsibilities of the Supervisor.Town Law§29 provides that the town supervisor acts as treasurer and disbursing officer for the town and any special district within the town.The supervisor also serves as the town's budget officer,although he or she has the ability to delegate this authority and appoint any person to serve as budget officer. §4-3.Budget and Fiscal Year. A. Fiscal year;budget.The town's fiscal year runs from January 1 to December 31.The monies to run the town government are raised,among other ways,through real property taxes.The funds necessary for the fiscal year are determined by the town budget,which is prepared and adopted during the fall of the preceding fiscal year. Real property taxes are levied and collected beginning in January of each fiscal year to fund the town budget. B. Expenditures.Every expenditure or commitment of town monies must be within the provisions expressed in the annual town budget.No monies may be spent or contracted to be spent,nor any liability incurred, involving the expenditure of money unless otherwise provided for in the annual budget. 48 49 q1 =1 ' 9.Submit to OSC Before Before General §4-4.Town Budget Calendar. information adoption of adoption of Municipal Law i necessary for final budget final budget section 3-C ' Action Date Towns in Town Law calculating tax levy Westchester limit &Monroe 10.Enact tax cap Before Before General Counties override local law, adoption of adoption of Municipal Law 1.Budget officer if necessary final budget final bud et section 3-C furnishes heads of 9/1 10/1 Recommended 11.Adoption of 11/20 12/20 Section 109 administrative budget by units(depts.and officials)with estimate forms ARTICLE II.Real Property Tax Cap. 2.Departmental 9/20 10/20 Section 104 submission of estimate by §4-5.Overview.In 2011,the Legislature enacted the real 3.Budget officer Section 106(2) property tax cap,which established a limit on the annual reviews and 9/30 10/30 growth of property taxes a local government or school prepares tentative budget;files with district may levy to either 2 percent or the rate of inflation, town clerk by whichever is less.This prohibits a town from imposing a 4.Town clerk Section 106(3) property tax in excess of 2 percent or the rate of inflation of presents tentative 10/5 11/10 the prior year's levy,unless the town has enacted an annual budget y town board b local law by a supermajority of the board overriding the tax S.Review and Upon Section 106(4) cap.In 2015,the Legislature extended the sunset date of the revision by town completion of real property tax cap to June 2 02 0.In recent years,the levy board;preparation review and limit has been well below 2 percent,with the 2016 limit of preliminary modification of capped at 0.73 percent. budget;filed in tentative town clerk's office budget §4-6.Applicability.The real property tax cap applies to all 6.Notice of public At least five At least five section 108 hearing days prior to days prior to local governments outside of New York City,including all hearing hearing counties,cities,towns,villages,fire districts,school districts 7.Public hearing by Thursday Section 108 (with certain exclusions)and special districts. following 12/10 Election Day; may be §4-7.Special Districts.As previously indicated,the tax cap adjourned,but applies to most special districts including,among others, not beyond sewer,water and fire protection districts.Generally 11 1S speaking,if a special district has a separate,independently 8.Final revision of After public Section 108 elected board or a board that is appointed by the town that is preliminary budget hearing but 12/15 prior to permitted to levy a tax,either on its own or by a adoption of municipality,the special district is subject to the tax cap. final bud et Often,a town has questions regarding whether certain 50 51 I i i special districts should be included in the town's tax cap factor. calculation or if the special district's tax cap calculation . Next,add any PILOTs receivable from the prior year. stands on its own. If the budget of a special district is funded . Multiply this amount by the allowable levy growth by revenue generated from its own taxing authority,or from factor(either 2 percent or the rate of inflation, the tax levy that the town is required to impose on its behalf whichever is less). (e.g.a fire district),it is included within the special district's . Then,subtract any PILOTs receivable in the tax cap. If,however,the special district budget is funded by upcoming fiscal year. revenue derived from the town,and the town is not required . Lastly,add any available carryover from the prior to levy on behalf of the district,the town must include the fiscal year.Available carryover allows a local special district's budget in its tax cap calculation. government that levied less than their allowable limit Additionally,if a special district is established,administered in a fiscal year to carry up to 1.5 percent of that � and governed by the town,such district must be applied to amount over to the next year. the tax levy limit of the town.If a special district is funded • It should be noted that a local government may adjust solely through user fees,such district is not subject to the tax its tax cap calculation for any transfers of function cap. that have occurred between local governments; if this It is important to note that although the statute provides that occurs,the comptroller's office will notify the affected the tax levy limit does not apply to the first fiscal year of jurisdictions of the costs and savings to apply to their newly created special districts (see General Municipal Law§ tax cap calculation. 3-c [4] [c]),the comptroller's office has indicated,based upon guidance from the Department of Taxation and Finance,that §4-9.Exclusions.General Municipal Law§ 3-c allows local a town must include the levy of a newly created special district in its tax cap calculation. governments to exclude certain expenditures from their tax levy limit.Specifically,local governments may exclude: §4-8.Formula-Calculating the Levy Limit. General . Tort Costs-Any costs that arise from a court order Municipal Law§3-c sets forth a complex formula for local or judgment against the town stemming from a tort governments to calculate their tax levy limit.To begin: action may be excluded; however,the exclusion • Take to thevy 's ear *and multiply that revious le applies only to those costs that exceed 5 percent of p year's number by the tax base growth factor put forth by the total prior year's tax levy. the Department of Taxation and Finance.The tax . Pension Costs-Any pension costs associated with base growth factor is determined by the quantity the annual growth in the system average actuarial change factor,which looks to the development and increased assessed valuation that has occurred employer contribution rate that exceeds 2 percentage within a municipality. points. o *Note that any reserve offsets or reserve amounts set aside in the prior fiscal year due §4-10.Legislative Override. Local governments that are to an erroneous calculation must be unable to comply with the tax cap have the ability to override calculated with the prior year's levy before the tax levy limit.To override,the town board must adopt a i multiplying the figure by the tax base growth local law by a supermajority(60 percent)vote of the board. 52 53 i i While there is not specific language required of the local law, that unit.The forms utilized to prepare the estimates are it must contain language that clearly evinces the intent to determined and put forth by the budget officer. override the tax cap. Once the local law is adopted,the board may adopt a budget in excess of the cap. §4-15.Tentative Budget. §4-11. Filing with the Comptroller's Office.Towns must A. Review of estimates by budget officer.After submit any information necessary for calculating the tax levy estimates are submitted,Town Law§ 106 requires the limit with the state comptroller's office prior to adopting the budget officer to review the estimates. He or she may budget. require the head of any unit to furnish additional information and answer relevant questions. §4-12.Errors in Tax Levy Calculation.If a local government makes an error in their tax cap calculation and B. Required items.The budget officer then prepares exceeds the cap without a local law on the books authorizing the tentative budget and includes his or her an override,the excess funds must be placed into a reserve recommendations.The tentative budget must show by account in accordance with the state comptroller's funds: requirements. 1.Proposed appropriations and estimated revenues; For additional information on the Real Property Tax Cap, please seethe Department of Taxation and Finance's guidance 2.Estimated fund balances; document titled"The Property Tax Cap:Guidelines for Implementation." 3.The amount of taxes to be levied; ARTICLE III.Budgeting Process. 4.Salaries of elected officers; §4-13.Start of Process;Procedural Requirements.The 5.Such other information pertinent to the above as first steps in the adoption of a town budget begin in prescribed by the state comptroller. September.The budget process requires actions to be taken within specific time parameters,as indicated in the chart in§ C. Budget message;filing.Budget officers may attach a 4-4.All actions taken by the town board in connection with budget message explaining the main features of the the budget process must be taken at either a regular or tentative budget and include any additional information special meeting of the board. they deem advisable. On or before September 30 (October 30),they must file in the town clerk's office the §4-14.Submission of Estimates. Pursuant to Town Law§ tentative budget with the budget message,if any,and the 104,the head of each administrative unit must submit an estimates and schedules. estimate of revenues and expenditures of such administrative unit for the upcoming fiscal year to the budget D. Presentation to and review by town board.The officer on or before September 20 (October 20).If the head of town clerk is required to present the tentative budget to an administrative unit fails to submit the required estimates the town board at a regular or special meeting held on or by that date,the budget officer prepares the estimates for before October 5 (November 10).As a practical matter, 54 55 i board members may already have received a copy of the budget from the supervisor,since many opt to release the 5.Any other pertinent information prescribed by the budget to the press at the same time it is filed with the state comptroller. town clerk. B. Contingencies.The budget may contain an 1.The town board may call upon the budget officer appropriation for contingencies in both town-wide and and the head of any administrative unit to discuss the town-outside-village funds.A contingent appropriation tentative budget and the estimates as originally may not exceed 10 percent of total appropriations,less submitted.Additionally,the head of any the amount for debt service and judgments,estimates for administrative unit may request,in writing,that he special district purposes and for the repair and or she be permitted to explain his or her estimates to improvement of town highways. the town board. C. Highway funds.Amounts to be raised for highway 2.The board then reviews the tentative budget and purposes must be within the limitations of Highway Law may make any changes,alterations and revisions it §271. considers advisable that are not inconsistent with law.Upon completion of the review,the tentative D. Additional information.The preliminary budget budget,as modified by the town board,becomes the shall include any other data that the town board may preliminary budget and must be filed in the town require. clerk's office.The town clerk reproduces as many copies of it for public distribution as the town board §4-17.Fire District Budgets.The boards of fire directs. commissioners must file their estimates with the budget §4-16.Preliminary Budget. officer on or by November 7. Pursuant to Town Law§ 105, the fire district budget must be in the same format as the town budget.The budget officer must affix the fire district A. Required items.Town Law§ 107 requires the budget to the annual town budget.The town board and the preliminary budget be in the form prescribed by the state budget officer may not alter or change the fire district comptroller and,like the tentative budget,must show by budget. funds: §4-18.Public Hearing. I.Proposed appropriations and estimated revenues classified as prescribed by the Uniform System of A.Public hearing required.Town Law§ 108 sets forth Accounts for Towns; that the town board must hold a public hearing on the preliminary budget on or before the Thursday following the 2.Estimated fund balances; November general election (December 10). I Taxes to be levied; B. Notice. 1.A notice of the public hearing must be published in 4. Salaries of elected officials; the town's official newspaper, or if none has been 56 57 i i i� designated,in any newspaper having general contingent purposes must be within the 10 percent circulation in the town.At least five days must elapse limitations,and taxes for highway purposes must be between the first publication of notice and the date within the limitations of Highway Law§271). specified for the public hearing.The town board may, by resolution,require additional publications of the B.The budget must be adopted by November 20 notice of hearing. (December 20) and be recorded in the minutes of the town board.It then becomes the annual budget of the 2.The notice must state: town for the next fiscal year. If the town board fails to adopt a budget by November 20 (December 20),the (a) The time and place the hearing will be held; preliminary budget,with such changes as the town board may have made,will constitute the budget for the (b) The purpose of the hearing; ensuing fiscal year. (c) That a copy of the preliminary budget is §4-20.Tax Levy.Pursuant to Town Law§ 115,the town available at the town clerk's office,where it may clerk is required to prepare and certify in duplicate the be inspected during office hours; and annual budget as adopted by the town board,together with the annual budget of each fire district located within the (d) The proposed salary for each member of the town,as well as the estimates,if any,for special town board,an elected town clerk and an elected improvement districts.Within five days from the date the town highway superintendent. budget is adopted by the town board,the clerk is required to deliver two copies to the supervisor. The supervisor must 3.At least five days before the day designated for the present such copies to the county legislature or the county public hearing,a copy of the notice must be posted on board of supervisors within 10 days after receipt thereof the signboard of the town. from the clerk,for levy with county taxes. C.Adjournment.The hearing may be adjourned,but not §4-21.Benefit Districts.Budgets for special improvement beyond November 15 (December 15). districts are prepared at the same time as the general town budget.An exception to this exists in the case of special D.Public participation.Members of the public must be improvement districts organized on a benefit basis,in which allowed to comment at the public hearing,and any person case the town board(or commissioners if the district is may be heard in favor of or against the preliminary budget or operated by a separate board of commissioners) prepares any item in it. detailed budget estimates for maintaining these districts for the ensuing year. §4-19.Final Revision and Adoption of Budget. ` A.Preparation of assessment roll.After these I A.After the public hearing,Town Law§ 109 provides estimates are prepared,the town board or the that the town board may alter and revise the preliminary commissioners assess the costs against the real property budget,subject to the restrictions of Town Law§ 107 in the district benefited in proportion to the benefits it (i.e.,must be in the prescribed form,appropriations for determines each will derive,and then prepares an 58 59 I i assessment roll listing the properties,their owners and the assessment so levied on each.Note that no ! assessment roll is required in Westchester County if the §4-22.Appropriations and Transfers. anticipated expenditures do not exceed$500. A.Supplemental appropriations. B.Filing of estimates and assessment roll;public hearing.The estimates and assessment roll are filed by 1.During the fiscal year,the town board may,by the town board with the town clerk between September resolution,make supplemental appropriations from 1 and 15 each year.Thereafter,the town board must hold unexpended balances of other appropriations,from a public hearing regarding the assessment roll (see Town an appropriation for contingencies,from Law§239).Notice of such hearing must be published at unanticipated revenues or from unappropriated cash least 10 and not more than 20 days before the date surplus within a fund,or from borrowings pursuant specified for the hearing. to the provisions of the Local Finance Law.However, unanticipated revenues or unappropriated cash C.Objections.The town board must meet at the time surplus may be used only to the extent that the total and place so specified and consider any objections to the of all revenues of a fund,together with cash surplus, assessment roll.It may change or amend the same,or exceeds the total of all revenues and appropriated may annul the same and prepare a new roll. If a new roll cash surplus as estimated in the budget(see Town is prepared,notice must be given of a new public hearing. Law§ 112). Notice must also be mailed to each property owner, apprising them of the hearing. 2.The town board may direct the supervisor to pay to the county treasurer monies from any source D.Adoption of assessment roll;filing.The assessment (except borrowings) not otherwise committed or roll must be adopted (whether amended, changed or appropriated to reduce the levy for county purposes. prepared anew) at least 30 days before the annual Such monies must be paid to the county treasurer meeting of the board of supervisors (or county legislative prior to the levy of taxes. body) at which taxes are levied in the county(see Town Law§202-a [5]). Once adopted,it must be filed in the 3.State and federal aid and gifts that are required to office of the town clerk.The town clerk prepares and be expended for a particular object or purpose,and certifies duplicate copies at the same time he or she insurance recoveries received for the loss,theft, performs this duty in connection with the annual budget, damage or destruction of real or personal property, to be filed in the clerk's office and delivered to the may be appropriated by the town board by resolution supervisor. The supervisor must deliver the roll to the at any time for such objects or purposes. board of supervisors (or the county legislative body) along with the annual budget,for levy of taxes against the B.Transfers (Town Law§ 113 and Highway Law§ properties benefited. 285-a). 1.The town board may,by resolution,transfer surplus monies,contingent appropriations and f 60 61 i unexpended balances as follows: (a) From General Fund,Town-Wide to any of the ARTICLE IV.Compensation of Officers and Employees. highway funds or accounts for which taxes are levied on the entire area of the town;and §4-23.Notice of Amounts;Increases.Salaries of the supervisor and town board members,an elected town clerk (b) From General Fund,Town-Outside-Villages to and an elected town superintendent must be set forth in the any of the highway funds for which taxes are notice of public hearing on the preliminary budget.Those levied solely on the area of the town outside salaries cannot be set at an amount greater than that which villages; and appears in the notice.However,the town board may increase these salaries once during the year by adopting a local law (c) Between highway fund accounts authorized subject to permissive referendum pursuant to the Municipal by Highway Law§ 141,except for a town that has Home Rule Law.It should be noted that the salaries listed in exempted villages from taxes for Items 3 and 4 the notice of public hearing on the preliminary budget may (machinery and snow removal). be fixed at lesser amounts than those listed,so long as the elected official's salary is not reduced during his or her term 2.There is no authority for the transfer of funds from of office.The salaries of town officers and employees any item in the highway fund to the town general generally may not be fixed at or increased to an amount fund. greater than the amount appropriated for such purpose (see Town Law§ 117).The proposed salaries of town justices,tax C.Encumbering appropriations. Each department head collectors and receivers,a town attorney,a town engineer,an is required to file a list of unpaid obligations with the appointed town clerk or an appointed town superintendent supervisor at the close of the fiscal year. In turn,the of highways are not required to be specified in the notice of supervisor is required to encumber the applicable public hearing. appropriation account balances to the extent the obligations are unpaid.The town board may require the §4-24.Salaries.The budgetary provision for salaries of encumbering of appropriation accounts at more frequent town officers does not of itself establish these salaries at the intervals (see Town Law§ 110). amounts set forth in the annual budget.Additional town board action is required to fix these salaries. D.Lapse of appropriations.Balances of appropriations which are not encumbered lapse at the close of the fiscal A.Establishment;modification.Salaries of town year,except that an appropriation for a capital purpose officers (elective and appointive) and of employees and continues in force until the purpose for which it was their pay periods are fixed each year by resolution of the made has been accomplished or abandoned (see Town town board at its organizational meeting at the first of Law§ 111). the year.Town Law provides that these salaries may be fixed"from time to time,"which means that the town board may increase or decrease salaries throughout the year,subject to the limitations discussed below(see Town Law§ 27 [1]). Should the town wish to make a i 62 63 t I I . I I I salary adjustment during the fiscal year,it is 1' recommended to contact the town attorney to discuss 3.Police department.In towns in which no police the legalities involved. department has been established,the town board may compensate its constables and special B.Yearly changes.Under the budget system,salaries of policemen: town officers can be altered from one fiscal year to the next. However,it is important to note that: (a) By a fixed salary for all services,requiring I such officers to turn over to the supervisor all 1.Town justices'salaries cannot be reduced during fees,per diem or other compensation received by their terms of office. them from any source; or 2. In several other instances involving substantial (b) It may permit such constables and special reductions in the salaries of elected officials at the policemen to retain fees and other compensation beginning of a term,the town board cannot for services rendered by them in civil actions and arbitrarily reduce salaries when the effect may be to proceedings only,and fix their salaries for all discourage one from taking office or continuing to other services. hold town office. 4.Registrar of vital statistics.The town board may fix 3.The town may reduce an elected official's salary a salary for the office of registrar of vital statistics,or (not including the town justice) during their term of it may provide that the compensation for such office office only by enacting a local law that is subject to shall be the fees authorized under the Public Health mandatory referendum. Law. j C.Specific salaries. S. Dog control officer.A dog control officer is compensated on a salary basis fixed by the town 1.Town justices.The town board may fix the salary of board. one justice at a larger amount than that of the other, although there must be a rational basis for doing so. 6.Budget officer.The budget officer may receive,in addition to any other compensation,a salary as 2.Town councilmembers or assessors.There is no budget officer. provision in the town law for fixing the salaries of town councilmembers or assessors (where elected D.Fees excluded from salary.Aside from the assessors have been retained) in different amounts, exceptions noted above,the compensation of all town except the salary of the chairman of the board of officers is by salary,and that salary"shall be in lieu of all assessors may be in an amount greater than that of fees,charges or compensation for all services rendered to the other assessors.However,the state comptroller the town or any district or subdivision thereof' (see has opined that the town board may fix a higher Town Law§27).Any fees or monies received by a town salary for a board member based on additional duties officer or employee shall be the property of the town and assigned for that office. paid over to the supervisor,except such fees and monies r 64 65 I .i .I it the application of which is otherwise provided by law. a detailed statement of all money received and disbursed for such month,and must file a copy in the office of the ARTICLE V.Accounting. town clerk. i §4-25.Duties of Supervisor(Town Law§125). §4-26.Comptroller as Accounting officer(Town Law§ 124). A.Duties enumerated.The supervisor shall: A.In a town where the office of town comptroller has 1. Keep his or her records in the manner and form been established and a comptroller has been appointed, prescribed by the state comptroller; the town board may determine by resolution that he or h' she shall be the accounting officer and the accounting I 2.Show on every check the fund against which it is duties of the supervisor shall be transferred to and drawn and the appropriation chargeable; performed by the comptroller. (Although the supervisor is not relieved of his or her duties as treasurer of the 3. Not permit any fund or appropriation to become town,he or she may pay out town monies only upon overdrawn nor charge one fund or appropriation to warrant of the town comptroller,and every officer pay a claim chargeable to another; required to submit a monthly statement to the supervisor pursuant to Town Law§27 must furnish a 4.Pay out money only upon warrant,order or draft of copy to the town comptroller.) the town clerk after audit and allowance of the town board,unless there is a town comptroller.Where B.Record and reporting requirements. C there is a town comptroller,the supervisor shall pay out money only upon warrant,order or draft of the 1.The town comptroller,as accounting officer,shall: town comptroller. (a) Keep detailed accounting records. B.Payment without prior audit.The supervisor, �I without prior audit,may pay principal and interest on (b) Render a detailed monthly report to the town indebtedness; salaries of officers or employees; and board of all receipts and disbursements and file a amounts due on contracts for periods exceeding one copy in the town clerk's office. year.Note that the town board may,by resolution,also authorize the payment in advance of audit of claims for (c) Prepare and file with the town clerk by public utility services such as gas,electric,water,sewer, January 31 each year an annual financial report of fuel oil and telephone services,as well as for postage, the monies received and disbursed,with bank ifreight and express charges (see Town Law§ 118 [2]). certifications showing the amount of money on Claims for these payments shall be presented at the next deposit and publish a copy of the report in the regular meeting for audit. official newspaper. C.Monthly statement required.At the end of each 2.In lieu of preparing the report as described above, month,the supervisor must provide the town board with within 60 days after the close of the fiscal year,the 66 67 i town comptroller may file with the town clerk a copy by law or those necessary to carry out a legal power or of the annual financial report to the state duty of the board.Such expenditures are often referred comptroller. to as proper town charges,and as will be seen later,the ' town board,in its audit of claims against the town,must, 3.Within 10 days after receipt thereof,the town clerk before authorizing payment,determine whether such shall publish in the official newspaper and in such claims represent proper town charges. other newspapers as the town board may direct, either a summary of such report or a notice that the B.Itemized vouchers required.No claim shall be paid report is available in the town clerk's office for public unless an itemized voucher in the form prescribed by the inspection and copying(see Town Law§29 [10-a]). town board,or the town comptroller,shall have been I C.Additional responsibilities.In addition to the above, presented to the town board and shall have been audited and allowed.Vouchers shall be accompanied by a the town board may also provide(by ordinance or local statement by the officer whose actions gave rise or origin law)that either or both of the following powers and to the claim that the officer approves the claim and that duties of the supervisor shall fall upon the town the service was actually rendered or supplies or comptroller: equipment actually delivered.The town board may 1.Keeping appropriation accounts and preventing require by resolution that vouchers be certified or overdrafts; verified. 2. Drawing upon funds and appropriations,provided C.Utility bills.If a utility bill contains a net and a gross amount when payment is made after a specified date,the checks are countersigned by the supervisor. town board should consider authorizing advance D.Assistance to supervisor.Town Law§34 (2) payment.When payment is made after the net date,the town is liable for the gross amount even if the net provides that the comptroller must provide the payment date is less than 30 days from receipt of the bill. supervisor with any information and data necessary to enable the supervisor to perform his or her duties. §4-28.Audit of Claims (Town Law§119). ARTICLE VI.Claims and Payments. A.Town board audit.In a town in which there is no §4-27.Claims(Town Law§ 118). comptroller,claims presented for audit should be numbered consecutively by the town clerk and should be A.Proper town charges.After its adoption,the annual available for public inspection at all times during office town budget is the financial yardstick of the town for the hours.The town board is not required to audit any claim ensuing year.As previously discussed,the functions of until 30 days after presentation to the town clerk.As a the town must be carried on within the appropriations practical matter,the board generally audits claims at the made in such budget,and the town officers are held same meeting at which they are presented. strictly accountable in this respect.The purposes for which this money can be spent are only those specified 1. In considering a claim,the town board may require the person presenting it to give evidence under oath 68 69 i ! I as to the justness and accuracy of he claim and may voucher must be approved by the town officer who subpoena witnesses to give evidence regarding the incurred the obligation.If required by town board claim. resolution,it must be certified (or verified)to be true and 2.After audit,the town clerk must file the claims in correct by or on behalf of the claimant.Additionally,each i claim must be itemized. the clerk's office in numerical order.He or she must prepare an abstract of audited claims,listing for each: 1.The degree of itemization of a voucher should be i the number,name of the claimant,amount allowed sufficient to permit intelligent examination and and the fund and appropriation account chargeable. understanding of the transaction for which the claim The abstract includes a warrant authorizing and is made. directing the supervisor to pay to the claimants the amounts allowed. (a) At a minimum,the following information 3.No warrant shall be drawn against a fund or should be shown: appropriation account to pay claims chargeable to another. 1) The date the expense was incurred; B.Role of town clerk.The statutory duties of a town 2) A description of the nature of each clerk relative to the audit of town claims may be item so that its legality is apparent; and transferred to another town official only by local law subject to mandatory referendum.Ministerial pre-audit 3) The amount. functions,such as checking for mathematical accuracy, may be delegated by town board resolution to a town (b) It is incumbent upon those making charges official other than the clerk. against a town to make plain that such charge was authorized by law. For le,it C.Town comptroller audit.In a town in which there is a recommended that whenever possible,l paid bills, comptroller,all of the duties and powers listed above for in relation to town officer or employee expense the town clerk and the town board are performed by the accounts,be attached to vouchers. comptroller.The comptroller is required to keep a separate account for each budget appropriation. He or she may not allow any orappropriation p §4-29.Payments by Credit Card.Pursuant to General ppro riation account to Municipal Law§5,the town has the authority to,by local be overdrawn or draw against one fund or appropriation law,ordinance or resolution,enter into agreements with account to pay a claim chargeable to another fund or financing agencies or card issuers to allow for the acceptance appropriation account. of credit cards as a means of payment for obligations owed to D.Form of claim.Town Law§ 118 requires that each the credit card,although permittedn. The town is use of uch fee may not exceed he costs claim against the town that is subject to audit shall be incurred by the town in allowing for the payment by credit made by a voucher in a form prescribed by the town card. t board or town comptroller.As mentioned previously,the 70 71 �} security procedure under this provision of §4-30.Online Payments,Electronic Transactions/ Banking. General Municipal Law§5-b authorizes towns to the UCC is a"[p]rocedure established by accept certain payments via the town's website or the agreement of a customer and a receiving bank website of a third-party vendor that has contracted with the for purposes of(1)verifying that a payment town to receive such payments on its behalf.Such payments order or communication amending or maybe collected"in a manner and condition"defined by the canceling a payment order is that of the town,but any method of payment must comply with the customer,or(2) detecting error in the State Technology Law transmission or content of the payment order gY (particularly governing the use of or communication." It is important to note electronic signatures and protection of personal privacy).At a minimum,the method used to receive Internet payments that a mere comparison of signatures alone must authenticate the identity of the sender,ensure the does not constitute a"security procedure" security of the information transmitted and provide a under this provision. confirmation page to the taxpayer(if the online transaction is for the payment of taxes).The town must ensure that any 2. The bank or trust company processing the g for online transfer must provide to the officer ordering user's information is secure when providing the electronic transfer or disbursement written confirmation of each transaction no Additionally,General Municipal Law§5-a authorizes certain later than the business day after the business officers of local government to disburse or transfer by day on which the transaction was made. electronic means any funds that they are authorized to disburse or transfer by conventional means.So,any funds 3. Finally,it is the duty of the town board to that can be disbursed by check may also be disbursed develop internal controls for reporting and i electronically.The electronic disbursements or transfers are documenting all electronic transactions. subject to the same rules that would apply to all other disbursements or transfers,in addition to the following rules: I. The town board must enter into a written agreement with the bank or trust company where the funds have been deposited.The written agreement must prescribe:the manner in which the electronic transfers will be accomplished;identify the number and names of the accounts involved;identify the j' officers who are authorized to make such transfers;and implement a security procedure in accordance with the Uniform Commercial Code (see N.Y. UCC§4-A-201).A 1 72 73 I recorded in or otherwise become a part of the records t ARTICLE VII.Payrolls. of such public office or public servant. I §4-31.Certification or Verification.Town Law§120 Offering a false instrument for filing in the first degree requires that all payrolls or other claims for compensation is a class E felony. for personal services shall be certified by the person having ` supervision of the claimant,unless the town board ARTICLE VIII.Petty Cash Funds. determines by resolution that such payrolls and claims must be verified.Certification is a much simpler procedure than §4-32.Purpose. Pursuant to Town Law§64 (1-a),town verification and merely requires the signature of the official boards may,by resolution,establish petty cash funds for possessing knowledge of the facts below the certification town officers,heads of departments or offices in the town statement.A verification,on the other hand,must be for: notarized after execution by the town official.There are significant consequences if any officer knowingly submits a A.The payment,in advance of audit,of properly itemized payroll or claim containing false information. Penal Law§§ and verified or certified bills for materials,supplies or 175.30 and 175.35 provide as follows: services furnished to the town for the conduct of its affairs,which materials and supplies must be paid for on §175.30 Offering a false instrument for filing in delivery; and the second degree.A person is guilty of offering a false instrument for fling in the second degree when B.The purpose of making change when required in the knowing that a written instrument contains a false performance of official duties. statement or false information, he offers or presents it to a public office or public servant with the knowledge §4-33.Amount.The amount of a petty cash fund for a or belief that it will be filed with, registered or receiver of taxes and assessments in a town of the first class recorded in or otherwise become a part of the records shall not exceed$1,000,and shall not exceed$500 for any of such public office or public servant other officer or office or department head.Of course,a town board may create such a fund in any lesser amount if it sees Offering a false instrument for filing in the fit,depending on the size of the town and the complexities of second degree is a class A misdemeanor. the office. It may also increase such amounts by adoption of a local law under its home rule authority. §175.35 Offering a false instrument forflling in thefirst degree. §4-34.Setup and Use.Upon the adoption of the appropriate A person is guilty of offering a false instrument for resolution creating a petty cash fund,the supervisor would filing in the first degree when, knowing that a written draw a check payable to the respective officer for the full instrument contains a false statement or false amount of the fund as so created.The town officer would information, and with intent to defraud the state or then cash the check into the currency denomination needed any political subdivision thereof, he offers or presents it and place the same in a cash box or cash register in his or her to a public office or public servant with the knowledge office. or belief that it will be filed with, registered or 74 75 I I I A. If the petty cash fund is used only for the purpose of does not reimburse the petty cash fund for such making change,it should always total the authorized disallowances,amounts shall be withheld from his or her amount. salary and paid into the petty cash fund until it is completely reimbursed. B. If the petty cash fund is used for paying for small purchases or items for which payment is due on delivery, C.Cash book.Some town officers find it necessary to it will diminish in cash amount and will have to be keep a cash-book record of expenditures from petty cash. replenished as described below. This is particularly desirable in the case of a large petty cash fund from which many payments are made.The C. When a payment from a petty cash fund is made, cash book leaves town officers with a record after they evidence or proof that the payment was actually made is have submitted their claims for reimbursement with all required.The law provides that at the time any payment of the bills attached.There is always the possibility that is made from a petty cash fund, "a bill in form sufficient one of the supporting bills may be misplaced or lost,and for audit by the town board as required by law"shall be the cash-book record provides a means of identifying required to be furnished to the officer for whom the fund supporting bills and the opportunity to obtain a was created.The phrase"as required by law"refers to duplicate. Town Law§ 118.The law requires the bill be itemized and certified (or,if the town board has so determined by resolution,verified). §4-35.Claims for Reimbursement.The law requires each town officer for whom a petty cash fund has been created to make a claim for reimbursement at each town board meeting. A.Form; contents; reimbursement.The claim is made on a regular town claim form.It should list all the expenditures made since the last meeting of the board. All the bills that were received when these expenditures u were made should be attached to the claim.After the town board has audited and allowed the claim,it will direct the supervisor to reimburse the petty cash fund from the appropriate budgetary items.To this extent,the i petty cash fund is a revolving,continuous fund. B.Refused claims.If the town board refuses to audit or allow any such expenditures from the petty cash fund, they become the personal liability of the town officer and must be paid out of his or her own pocket. If the officer I 76 77 , I I i town records;fees of court officers; expenses of training §4-36.Exception in Case of Petty Cash Fund for Tax schools for town officers and employees; dues for the Collectors in Towns of the Second Class.The life of a petty Association of Towns; publication and distribution of reports cash fund in the case of tax collectors in towns of the second of the fiscal affairs of the town; and the purchasing or leasing class ends prior to the making of their return to the county of labor-saving devices.It is proper to ensure there is treasurer at the end of the collecting period. Before making statutory authority prior to making a determination that a the return to the county treasurer,the collector in a town of claim presented or anticipated to be presented is a proper the second class must return to the town supervisor the full town charge.However,in addition to finding statutory amount of any petty cash fund established.To do this,the authority,a claim must also have an appropriation for the collector should secure full reimbursement from the town expenditure for it to be a proper town charge. board for any expenditures made from the petty cash fund as described above.Upon paying over the full amount of the cash fund to the supervisor,the collector should §4-38.Prohibited Contracts and Expenditures.Unless a petty p provision has been made in the annual budget or a receive a receipt from the supervisor. Once collectors are supplemental appropriation has been provided,no officer, finished collecting taxes and are ready to make the return of board,department or commission may expend,or contract to unpaid taxes,they have no further use for a petty cash fund expend,any money or incur any obligations for any purpose until the start of the next tax collection period.When they except leases or contracts as may have been entered into by again have use for it,the fund can be re-established by town the town for a term exceeding one year.Any contract,either r board resolution. B that time,a new collector may be in Y Y verbal or written,made in violation of this principle will be place. (Note:This same provision does not apply to a receiver null and void (see Town Law§ 117). of taxes whose collecting duties are on a year-round basis.) §4-39.Judgments. The town board has the authority to pay ARTICLE IX.Town Charges. for any final judgments or for any actions,proceedings or j claims that have been compromised or settled against the §4-37.Charges Authorized by Statute; Other Authorized town pursuant to Town Law§68-which grants the board Expenses. Generally speaking,pro er town charges are the authority to compromise or settle actions,proceedings or either expenditures made pursuant to a specific statutory claims-by taxation or by borrowing pursuant to the Local authority or expenses incurred in the accomplishment of Finance Law(see Town Law§ 121). powers or duties given to or imposed upon town boards by statute.Town Law§§64 and 116 provide a broad grant of ARTICLE X.Purchasing and Contracting. authority for the incurring of proper town charges. Additional authority to incur further charges exists §4-40.Competitive Bidding. j throughout the law. For example,Town Law§ 116 authorizes towns to incur expenses for items including A. Public works and purchase contracts,thresholds. compensation and expenses of town officers and employees; General Municipal Law§ 103 requires all contracts for damages recovered against a town officer for any act public works that exceed$35,000 and all purchase performed in good faith;insurance for loss of public monies contracts that exceed$20,000 be awarded to either the through theft; examination of animals for infectious diseases; lowest responsible bidder or the bid that represents the sobriety tests for drunken driving; independent audit of best value (if complying with certain conditions) after 78 79 i ' i i advertising for bids.Generally speaking,a public works contract is a contract that encompasses the provision of §4-41.Competitive Bidding Procedures.The competitive services,labor or construction,while a purchase contract bidding law sets forth the procedures to follow when going applies to the procurement of commodities,materials, out to bid for purchases or contracts for public works. It is equipment and supplies. important to comply with the procedures set forth,as any contract awarded in violation of General Municipal Law§ B. Town building construction contracts.Town Law§ 103 will likely be invalidated by the courts,with the town 222 requires the town board to award contracts for the facing liability for damages. construction,alteration or remodeling of all town buildings to the lowest responsible bidder after A.Bid solicitation.An advertisement must be published advertisement for bids if the project exceeds$35,000. in a town's official newspaper,or if the town does not have an official newspaper,in a newspaper of general i C. Improvements in special improvement districts. circulation throughout the town designated for such Town Law§ 197 requires compliance with General purposes.The advertisement must be published at least Municipal Law§ 103 on contracts involving five days prior to the date of the bid opening. In addition improvements in special improvement districts that to publication,bid specifications may also be mailed to exceed$35,000. prospective bidders,so long as it is done in good faith- that is,it should be sent to all known bidders within D. Contracts involving both goods and services. reasonable limitations. When a contract involves the acquisition of both goods and services,such as a commodity that requires 1.Purchase contracts.The advertisement should installation,the town should look to the total character of contain a fair description of the article to be s the contract to determine where it falls on the purchased and state where the particular competitive bidding spectrum. That is,if the public specifications can be seen and obtained. If,in the case works component of the contract is minor and the of machinery,for example,the town proposes to purchase aspect is significant,the town should apply the trade in an existing piece of equipment,this fact and $20,000 threshold when determining whether the where this equipment can be seen should be stated. contract is subject to bidding requirements.Conversely, if the purchase component of the contract is minor and a) Use of brand names.A town is permitted the public works aspect is significant,the town should to list a specific brand name in its product apply the$35,000 threshold. specifications,so long as the brand name listed represents an industry-wide standard and the bid specifications include an equivalency clause.An equivalency clause sets forth that a bid will be accepted if it is the lowest responsible bidder/bidder that represents the best value and provides for either the brand name listed or its reasonable equivalent. 80 81 i ' b)Standardization.Under General Municipal 2. Public works contracts.The advertisement must Law§ 103 (5),a town board may provide for describe the project,and where required,specify the standardization within its bid specifications, divisions of work and state where the specifications wherein it uses a particular brand in its bid can be seen. specifications,so long as the board has adopted a resolution by three-fifths of the a)The Wicks Law.General Municipal Law§ board asserting that,for purposes of 101,commonly referred to as the Wicks Law, efficiency or economy,there is a need for sets forth that when a town enters in to a standardization of certain equipment, public works contract for the erection, materials or supplies. construction,reconstruction or alteration of a c) Location of bidders.A town may not building exceeding$1.5 million in Nassau, r restrict its invitation to bid on purchase Suffolk and Westchester counties and f contracts of more than$20,000 to suppliers $500,000 throughout the rest of the state,the who reside in the town or whose town must prepare separate bid establishments are within the town specifications as they relate to: h� boundaries.Where the cost of delivery is 1. plumbing and gas fitting, involved,the town can provide in the 2. heating and cooling systems,and advertisement for bids that the supplier must 3. electric wiring. have a place of business within a radius of a certain number of miles from the delivery 3.Improvement district projects.The advertisement point in the town.However,in such cases this must describe the project and state that the plans and radius distance should not be drawn specifications for the work shall be exhibited publicly arbitrarily so as to exclude a particular place in the office of the town clerk,where all who desire to of business just a short distance beyond the examine the same shall have reasonable opportunity line which was drawn. to do so. d) Used equipment.In advertising for used equipment,among the specifications that may B.Advertisement content.The time when and the place ' be properly included are:requirements as to where the bids will be received, opened and read must be condition of the item; requirements as to stated in the bid advertisement. mileage or time used; a provision that equipment must be produced or marketed 1.Purchases and public works.At least five days must not earlier than a particular year;a elapse between the date of the advertisement and the requirement that the successful bidder opening of the bids. On larger public works jobs,a furnish a written guarantee that the substantially longer period of time should be allowed equipment has been reconditioned and is in to permit prospective bidders time to prepare their good working order;and a provision fora bids carefully,although this is not statutorily municipal officer or employee to inspect the required. item (see 17 Opn.St.Comp. 1961,p 135). 2. Improvement district projects.There must be at 82 83 least 10,and not more than 30,days between the first person or entity that receives a copy of the plans and publication of the advertisement� and theenin of o p g specifications from the town to deposit a sum of up to i bids. $100,to guarantee the safe return of the plans and d specifications. Once the contract is awarded,the town C.Bid submission.All bids must be submitted in sealed must return the deposits within 30 days to all envelopes prior to the time specified in the unsuccessful bidders that return the plans and advertisement.Additionally,towns have the authority to specifications in good condition. accept bids on purchase contracts electronically, as long as the town has adopted a resolution authorizing F.Non-collusive bidding certification. In order to electronic acceptance.If accepting bids electronically,the ensure confidentiality of the bidding process,every bid advertisement for bids must indicate how the electronic or proposal must contain a statement of non-collusion bids will be received (e.g.,via the town website or asserting that the bid prices were arrived at through a certain e-mail address).Of course,the town must still accept written bids,and any electronic bids independently,without collusion,the prices were not Law. knowingly disclosed prior to the bid opening and that the must comply with Article 3 of the State Technology bidder did not induce any other person or entity to D.Bid deposits.While there is no statutory provision submit or not submit a bid. requiring bid deposits,it is a good practice to require a q G.Performance security.There is no statutory bidder to accompany his or her bid with a certified check provision requiring performance bonds in competitive a or bond obligating him to execute the contract if it is bidding contracts. However,it is recommended that the awarded to him or her. town require a performance bond guaranteeing the }i j completion of the work be furnished by the successful 1. Purchases and public works.A certified bidder upon awarding of the contract.If the town does check,money,bonds or other obligations or security require a performance bond,such information must be deposited to secure a bid shall be retained under the included in the advertisement for bids and in the bid i jurisdiction and control of the chief fiscal officer or specifications. other officer of the town or district having custody of f its money,until returned to the bidder or forfeited H.Iran Divestment Act of 2012. General Municipal Law (General Municipal Law§ 105). § 103-g now requires every bid made to a local government contain a statement that asserts,under the 2. Improvement district projects.If the bidder fails to penalty of perjury,that the bidder is not affiliated with enter into the contract or to give further security as entities invested in the Iranian energy sector. The town above described,the check deposited shall be may not consider any bids that do not conform with this forfeited to the town as liquidated damages and the requirement,although the town may consider a bid that supervisor shall collect the same or enforcea ment of the bond. p y fails to conform if any dealings with the Iranian energy sector occurred prior to 2012 or,alternatively,if a E.Deposits on plans and specifications. Pursuant to determination is made by the town board in writing that General Municipal Law§ 102,the town may require the acquisition of the goods or services are necessary for y q any the town to perform its functions,and such goods or 84 85 i I services are not available from an other source. It is Y as to who is the lowest responsible bidder and important to ensure that potential bidders are aware of whether or not the bid meets the required this requirement;to this end,it is recommended to specifications. In a leading case on this point,the include information in the advertisement for bids that all court held that"the term 'lowest responsible I bids must include the statement of non-investment as bidder' does not mean one who is only required by General Municipal Law§ 103-g. pecuniarily responsible,but one who also y possesses moral worth.It implies skill,judgment I.Bid opening.The bids must be publicly opened at the and integrity,g ity,as well as sufficient financial j time specified and read aloud.The opening and reading resources."In the absence of a showing to the of bids is a ministerial act that can be delegated by the contrary,it will be assumed that the discretion ' awarding body. exercised by the town was exercised with an honest desire to award the contract to the lowest i J.Award.A contract should be awarded to the lowest responsible bidder.The question of the actual responsible bidder furnishing the required security or to financial responsibility of the lowest bidder can the bid that represents the best value, depending upon be taken care of by requiring that a bid bond or what the bid specifications set forth.The submission of other security be furnished with the bid,along the lowest bid does not in and of itself create a with a performance bond guaranteeing the full contractual relationship.A contractual relationship with completion of the contract. If the lowest bidder is a bidder is not created until the town actually awards the not responsible for any of the reasons suggested contract. herein,the contract may be awarded to the next 1. Purchases and lowest bidder meeting specifications and found to public works.The bid should be p be responsible.If the town board is in doubt as to awarded to the lowest responsible bidder who either of these facts,it should reject all bids and complies with the specifications as advertised, or in re-advertise. certain instances,to the bid that represents best value.Whether a bid complies with specifications (i) On the award of a contract to purchase involves a factual determination by the awarding machinery or equipment,the next question to board or officer,and the courts will generally not arise is whether a bidder's bid meets the upset that determination except where fraud or bad specifications. In these cases,it must be faith are present.A town may decline bids that fail to determined whether the bidder has comply with the literal bid specifications or, substantially complied with the alternatively,it may waive a technical noncompliance specifications. if it is in the town's best interest.Material variance between specifications and a submitted bid that gives (ii)Where there is some disagreement or a bidder a substantial,unfair advantage cannot be argument on the awarding of a contract,the waived. town board should be careful to include in the record the facts and circumstances it a) Selecting lowest responsible bidder.Many considered and a clear statement as to why factors can enter into the town board's decision the lowest bidder did not comply with the 86 87 specifications or was not found to be responsible. filed in conformity with the law and the published notice,and the contract or contracts shall be awarded (iii)A disqualified bidder is entitled to notice to the lowest responsible bidder. and an opportunity to be heard on the issue K.Identical or single bids.Where there are identical of whether the town finds the bidder to be responsible or whether the bidder has bids,the town board may award to either bidder or it may reject all bids and re-advertise. If there is a single bid complied with the bid specifications. received,the town board may likewise award to this bidder,or,if it is not satisfied with the bid,it may reject it b) Best value.Pursuant to General Municipal and re-advertise. _ Law Section 103,a municipality may award j purchase contracts and contracts for service L.Bid mistake or error. work on the basis of best value,so long as the municipality has enacted a local law authorizing 1.Where a unilateral error or mistake is discovered sg the utilization of best value in procurement. by someone who has submitted a bid,such bid may However,best value may not be utilized for be withdrawn after a showing of all the following: purchase contracts necessary for the completion of a construction contract governed by Article 8 a.The mistake is known or made known to the of the Labor Law.Accordingly,any contract for town prior to the awarding of the contract or the purchase of a non-construction-related good within three days after the opening of the bid, may be awarded on the basis of best value. Under whichever period is shorter; State Finance Law section 163 (1) (j),best value enables a municipality to award a contract on the b.The bid price was based on an error of such basis of the quality,cost and efficiency of the magnitude that enforcement would be offer,as opposed to solely looking to the lowest unconscionable; responsible bid. Often,the best value will be synonymous with lowest responsible bid. In the c.The bid was submitted in good faith and the instances where the lowest responsible bid may bidder submits credible evidence that the not be the most cost-effective bid,best value mistake was a clerical error as opposed to a offers a municipality greater flexibility to ensure judgment error; that purchase and service contracts will be carried out in an optimal manner.If the town d.The error in the bid is actually due to an wishes to award a contract on the basis of best unintentional and substantial arithmetic error or value,the bid specifications must indicate as an unintentional omission of a substantial much. quantity of work,labor,material or services made 2. Improvement district projects.The board shall directly in the compilation of the bid,which determine the lowest responsible bidder or bidders unintentional arithmetic error or unintentional whose bid and check or bond have been made and omission can be clearly shown by objective evidence drawn from inspection of the original 88 89 work paper,documents or materials used in the unfair advantage over other bidders and prospective preparation of the bid sought to be withdrawn; bidders who did not have the same opportunity.In and addition,generally,a contractor may not recover for additional work not contemplated by the original e.It is possible to place the town in status quo contract unless the additional work itself was subject to ante (i.e.,not expose the town to serious competitive bidding(see 16 Op. St. Compt. 1960,p. 265). prejudice or consequences). Nevertheless,it is recognized that,as work goes forward, it is sometimes necessary to make some changes from 2.The sole remedy for a bid mistake shall be the initial plan.Where the change relates to details or withdrawal of that bid and the return of the bid bond relatively minor particulars and is merely incidental to or other security,if any,to the bidder.Thereafter,the the original contract,a change order may be issued town may,in its discretion,award the contract to the without competitive bidding even if the increased cost next lowest bidder or rebid the contract.Any exceeds the bidding limit. However,no important general amendment to or reformation of a bid or contract in change may be made that so varies from the original plan order to rectify such an error or mistake is strictly or alters the essential identity or main purpose of the prohibited. contract as to constitute a new undertaking.For example, the state comptroller has recognized the issuance of M.Negotiation with bidders.As a general rule,a change orders without competitive bidding where the municipality may not negotiate with a bidder during existence of unanticipated utility line obstructions was the bidding process.However,post-bid negotiations with discovered in the course of construction (see Op.St. the lowest responsible bidder may occur when: (1) there Compt. No.80-130) and where it became necessary to is no suggestion of favoritism,fraud or corruption; (2) cover an increased area under a bus transportation the public interest is advanced through an actual or contract due to unanticipated increased school potential savings on project costs;and (3) there is no enrollment(see Op. St.Compt. No. 77-24,unreported), material departure from the original specifications and among other situations.The dollar amount of the change no concessions to the negotiating bidder.A municipality order,while it might be some evidence of whether a new j may not engage in post-bid negotiations with a bidder undertaking is involved,would not necessarily be the other than the lowest responsible bidder. conclusive determining factor.The propriety of a change order depends on the surrounding facts and N.Award of contract creates binding obligation; circumstances in each particular instance. change orders.Where a contract is subject to competitive bidding requirements,the award of a O.Security on improvement district projects.For contract creates a binding contractual obligation in improvement district projects,the advertisement for bids accordance with the terms of the bid specifications.Thus, must contain a provision requiring all bidders to file with as a general proposition,entering into a contract that their bids a certified check for a sum equal to 5 percent of materially varies from the bid specifications or materially the estimated expense of the improvement,payable to amending an existing contract would constitute,in effect, the supervisor,or a bond with sufficient sureties to be a material alteration of the specifications after the approved by the supervisor,in a sum equal to 5 percent bidding process and would give the successful bidder an of the estimated expense of the improvement, 90 91 conditioned that the bidder will execute such further 227).An exception to the prevailing wage requirement security as may be required for the faithful performance exists if the public works project is completed by a sole of the contract. proprietor that does not have any employees.The Department of Labor determines the prevailing wage P.Assignment. General Municipal Law§ 109 requires all schedule each year,which varies by county.As for bid specifications to contain a provision prohibiting building service contracts,any contract that exceeds '4 the contractor from assigning or otherwise disposing of a $1,500 must be paid in accordance with the prevailing j contract or of his or her right,title or interest therein wage schedule put forth by the Department of Labor(see without the previous consent,in writing,of the board or Labor Law§§230-239-a). officer awarding the contract. B.Progress payments on public works projects.All �i Q. Requirements and market rate contracts. Often, contracts for public works must contain a clause for the town may find it necessary to enter into a making periodic payments by the town to the contractor requirements contract,wherein the town agrees to for work performed or materials furnished in accordance ' purchase goods from a vendor,the amount of which is with the schedule of progress payments set forth in the i, determined on a case-by-case basis,depending upon the contract and in accordance with the detailed provisions town's needs.A requirements contract must contain a of General Municipal Law§ 106-b.The contract must also minimum and maximum amount of goods to be provide for periodic payments by the contractor to the purchased,so as to ascertain the range of costs. If the subcontractor. purchase threshold of$20,000 is implicated in a 12- month period,the requirements contract is subject to C.Retained percentages.Where a percentage of competitive bidding. progress payments is withheld under a contract as a form of security for the town,the contractor may withdraw the Additionally,there are times when the exact cost of a same by substituting therefor U.S.bonds or notes,New contract cannot be ascertained,as the rate of the York State bonds or notes or bonds or notes of any commodity purchased is dictated by the market.Since political subdivision.At the direction of the chief fiscal cost cannot be determined,the contract would instead officer,the bonds and notes can be deposited by the reference the market rate.In this instance,the town may contractor with a designated bank.The town or the bank include a market rate requirement in its bid is required to clip coupons and remit payment to the specifications. contractor.The bank or political subdivision may charge a reasonable fee for this service,which may not exceed §4-42.Payment on Public Works Projects. the amount ordinarily charged for such service by a bank (see General Municipal Law§§ 106, 106-a). General ! A.Prevailing wage.As a general rule,prevailing wage Municipal Law§ 106-b places certain limits on the must be paid in any contract for public work and any amount which may be retained from each progress building service contract exceeding$1,500.The cost of a payment to a contractor. public works contract does not matter; even if the competitive bidding thresholds are not triggered,a town §4-43.Exceptions to Competitive Bidding.There are must still pay prevailing wage (see Labor Law§§220- certain statutory and common law exceptions to the formal 92 93 j bidding requirements.The principal ones are as follows: E.Emergencies. If the purchase or work is required by A. State contracts.The town does not have to comply virtue of a public emergency arising out of an accident or with competitive bidding requirements if it purchases other unforeseen occurrence,the town does not have to materials,commodities,technologies,equipment,food comply with competitive bidding requirements.A t products or supplies and printed materials in excess of carefully drawn resolution,clearly establishing the facts $500 through New York State's Office of General Services that bring the emergency within this exception,should be (OGS) (see General Municipal Law§ 104). adopted by the town board prior to the purchase or the letting of the work(see General Municipal Law§ 103 B.County contracts.A town does not have to engage in [4]). competitive bidding for contracts for public work if utilizing a county contract,so long as the county contract F.Professional services.Contracts for professional was let in accordance with competitive bidding laws. services or those requiring special or technical skill, Additionally,towns are permitted to procure goods and training or expertise are exempt from competitive services from counties without engaging in bidding,so bidding requirements.Some factors to consider when long as the county governing board has adopted rules determining whether a service falls within the and regulations regarding the terms and conditions professional services exception include: under which such procurements may be made (see County Law§408-a,General Municipal Law§ 103 [3]). 1.Whether the services are subject to state licensing or testing requirements; C.Federal contracts.Towns are permitted to purchase off of federal General Services Administration (GSA) 2.Whether substantial formal education or training is contracts for information technology and a necessary prerequisite to the performance of the telecommunications hardware,software and services; and professional services and law enforcement contracts (see General Municipal Law§ 103 [1] [b]).Additionally,the 3.Whether the services require a personal town may purchase certain materials from GSA related to relationship between the individual and municipal natural disasters as part of a disaster preparedness plan, officials. as well as materials related to counter drug,homeland security and emergency response activities. G.Sole source.Where the subject of the contract is controlled by a sole source so that there is no possibility D.Other government contracts. General Municipal Law of competition,a monopolistic situation exists,and the § 103 (16) permits local governments to purchase courts do not require local governments to engage in apparatus,materials,equipment,and supplies and to competitive bidding. contract for additional services related to those supplies, off of any local,state or federal government contract,so H.Surplus and secondhand supplies,materials and long as the contract was let in a manner that is consistent equipment.A town does not have to engage in with the competitive bidding laws and has been made competitive bidding for purchases of surplus or available to other governmental entities. secondhand supplies,materials or equipment from the 94 95 I federal government,the State of New York or from any highways and purchasing director.The policies are to be other political subdivision,district or public benefit reviewed annually.Each town should carefully consider its corporation(see General Municipal Law§ 103 [6]). own particular circumstances in developing its procurement policy. I.Leases,licenses and concessions.Leases are not purchases,and thus,a true lease is not subject to General ARTICLE XI.Annual Accounting. Municipal Law§ 103.Towns should be careful that an agreement with a vendor is not cast in terms of a"lease" §4-45.Required Statements,Books and Records for when the substance of the contract is really a purchase. Examination by Town Board.On or before January 20,all town officers and employees that received or disbursed any j The substance of the agreement will prevail over its moneys in the previous fiscal year must file detailed form.Lease-purchase arrangements as authorized by statements of all such receipts and disbursements,and I General Municipal Law§ 109-b (see§4-58) must be additionally,must produce all pertinent books and records competitively bid. for audit by the town board. However,the town justice is not required to file a statement showing receipts and Additionally,licenses and concessions are not subject to disbursements.The statements must be recorded in the competitive bidding,as they do not involve the minutes. On the same day,the town justices must produce expenditure of municipal funds. their dockets for examination by the town board (see Town Law§ 123). J.State agency contracts.A town does not have to engage in competitive bidding and directly enter into a §4-46.Exception to Audit Requirement.The requirement contract with any state agency(see General Municipal for an annual audit does not apply to towns having a town Law§99-r). comptroller or towns that,prior to January 20, engage the services of a certified public accountant or public accountant §4-44.Procurement Policies.If the town is making a to make an annual audit to be completed within 60 days after purchase or entering into a public works project that does the close of the town's fiscal year(see Town Law§§62 and not trigger the competitive bidding thresholds,the town 123). must still comply with the intent and spirit of competitive bidding through its procurement policy.General Municipal ARTICLE XII.Borrowing. Law§ 104-b requires goods and services not required to be competitively bid to be procured in a manner"so as to assure §4-47.Sale of Municipal Obligations. the prudent and economical use of public monies."To reach that objective,town boards,by resolution, "shall adopt A.Budget considerations.Town boards sometimes find internal policies and procedures governing all procurements themselves in a position where a proposed purchase or not required to be made pursuant to the competitive bidding contract for public works is too costly to be fully paid for requirements"of General Municipal Law§ 103.The town from a single year's budget.Under certain circumstances, board must solicit comments on its procurement policy and such purchases or contracts may be financed by the procedures from any of its officers involved in the sale of town obligations,with the cost thereby spread procurement process,such as the superintendent of over a period of years. If this occurs,the budgets of 96 97 subsequent years must include revenue to pay the principal and interest charges of the obligation each year until the ARTICLE XIII.Capital Improvements. obligation is paid off. B. Other considerations.There are several factors to §4-48.Financing Capital Improvements.Towns generally consider when contemplating the sale of municipal finance capital improvements through the issuance of certain p obligations,including capital notes,bonds and/or bond obligations.The subject matter is complex and technical, anticipation notes. In issuing any of these obligations,it is and it is recommended that the town consult with its important to ask the following questions: municipal attorney or bond counsel to assist in drafting the necessary resolutions,certificates,notices and note A.Does the project(considered an"object or purpose" or bond forms,among other things.Note that the under the Local Finance Law)being financed constitute a financing described in the following sections is merely an proper town purpose? overview;a much more in-depth analysis is often necessary to understand the complexities of the Local B. Does the particular object or purpose to be financed Finance Law. Some questions to consider: - � have a period of probable usefulness assigned to it by 1.What type of obligation will be issued? Local Finance Law? 2.For how long a period can they be issued?The C. Does the proposed object or purpose plus the town's outstanding debt comply with the town's constitutional various items that a town needs to purchase and the debt limit?Article VIII,Section 4 of the New York State I different types of public works projects they need to undertake have,under the law,va in Constitution provides that a town's indebtedness may ry g periods of not exceed 7 percent of the five-year average full Probable usefulness,"which determine the time valuation of the taxable real estate in the town.This is within which the obligation must be paid. I computed by taking the last completed assessment roll and the four preceding rolls,applying the equalization 3.Does the town have the authority to issue rate to each as determined by the Department of obligations to finance the desired object? Taxation and Finance and then dividing the result by five. It should be noted that few,if any,towns have debt limit 4.Would the proposed sale of obligations be within concerns. the town's debt limitation? I 5. Can the obligations be sold at private sale,or must D. Does the law require the particular object or purpose to be financed from current funds or by current a public sale be held? appropriation rather than by the issuance of obligations? 6.Would a down payment be required? §4-49.Capital Notes.The capital note is a method of 7.Is a referendum required? financing any public improvement for which bonds could be issued,assuming the town can afford to pay the principal amount over a period of two years. It should be noted that capital notes are rarely utilized as a financing method,given 98 99 the other options available to local governments. are among the most common debt obligations issued by i local governments A. Maturity.The maximum maturity of a capital note is two years from the date of issue.At least half of the total B.Purpose of serial bonds.Serial bonds are typically amount of the capital note must be paid in the first fiscal utilized to either: 1) redeem outstanding Bond year succeeding the fiscal year in which the note was Anticipation Notes or Bond Anticipation Renewal Notes; issued,unless authorized and issued in a fiscal year 2) pay the cost of all or a portion of a capital project; or subsequent to the adoption of the budget for the next 3) a combination of redemption and capital project costs. fiscal year.The requirement for maturity by the second fiscal year that succeeds the year in which the note wad C.Payments and maturity.Generally speaking,annual - issued still applies. principal payments must be made on serial bonds. 1 However,the first principal payment on a serial bond B. Sale.Capital notes can be sold at private sale,at not need not be made until the second anniversary of the less than par,without any public bidding. No referendum, first borrowing;this functions to require a local ' mandatory or permissive,is required.A two-thirds vote government to make a principal payment within two of the town board is required for the adoption of a capital years from the date the serial bond is issued.All ' note resolution,but a majority vote is sufficient to payments must be made pursuant to an annual authorize the renewal of a capital note. appropriation by the town board. i C. Redemption.Capital notes must be redeemed out of Serial bonds,as their name suggests,mature taxes and assessments levied or to be levied for the fiscal sequentially: one follows the other,in their stated year in which the notes mature or,additionally,may be principal amounts,on a yearly basis until the final i redeemed from revenues derived from that fiscal year maturity date.The maximum maturities of bonds cannot (such as sales tax revenue). exceed the period of probable usefulness assigned to the particular object or purpose by Local Finance Law§ D. Issuance for more than one purpose. Local Finance 11.00,computed from the date of the bonds or the date of Law§31.00 (d) provides that the issuance of serial the first bond anticipation note,whichever is earlier. bonds or capital notes for two or more specific objects or Furthermore,no annual installment of serial bonds shall purposes (or classes of objects or purposes) may be be more than 50 percent in excess of the smallest prior authorized by a single bond or capital note resolution installment(see Local Finance Law§21.00 [d]). jwhen the period of probable usefulness is less than five years,or where the resolution would not be subject to D.Adoption by town board;referendum either a mandatory or permissive referendum. requirements. §4-50.Bonds and Serial Bonds. 1.A town board resolution authorizing the issuance of bonds must be adopted by a two-thirds vote of the A.Advantages.Financing public improvements through entire board,unless the bond resolution is subject to bonds or serial bonds provides towns with more time to a mandatory referendum,in which case,a majority pay the cost of the capital improvements.Serial bonds vote of the board is sufficient. 100 101 issuance of capital notes.There are certain exceptions to 2.All bond issues of a town are subject to a the down payment rule where the down payment rule is permissive referendum except: not applicable,the two most common being: j a) Bonds with a proposed maturity of not more 1.Where the bonds have a maximum period not than five years; exceeding one-half of the maximum period b) Bonds for any district or special improvement prescribed bylaw; or authorized by Town Law Article 3-A(suburban 2.Where the bonds are issued for a purpose that has towns),Articles 12 or 12-A(special districts), a period of probable usefulness of five years or less Article 12-C (sewer or water improvements); or pursuant to Local Finance Law§ 11.00. for any such improvement authorized by any other general or special law where the cost is to F.Sale.Bonds may be sold at public or private sale, be assessed on benefited real property; although there are restrictions in place if the amount exceeds$1 million.Should the bond issue exceed$1 c) Bonds for street or highway improvements million,it must be sold publicly and competitively,in where part of the cost is paid by the county or compliance with Local Finance Law and the regulations state pursuant to the Highway Law,or is to be levied against property within any village within put forth by the New York State Comptroller.The sale of bonds at private sale is permitted in the case of issues not the town (Local Finance Law§35.00); exceeding$1 million or where the sale is to the U.S. Government,the NY Municipal Bond Bank,or the NYS d) Bonds for the payment of judgments or Environmental Facilities Corporation.The total amount compromised or settled claims. of bonds that may be sold at private sale in any fiscal year may not exceed$1 million. However,where a town 3. Bond resolutions authorizing bonds for highway officer is also an officer of the purchaser,it must be improvements not exceeding$15,000 in any one year shown that there are at least two other banks unwilling are not subject to any referendum (permissive or or unable to purchase the bonds at an interest rate equal mandatory) if the maturities are not to exceed five to or less than that at which the purchaser proposes to years. buy(see Local Finance Law§60.10). 4. Bond resolutions to finance street and sidewalk §4-51.Statutory Installment Bonds.Statutory installment improvements under Town Law§§200 and 200-a bonds function as a simplified type of serial bond.The same are also exempt from the referendum requirement. basic laws and limitations that apply to serial bonds apply E. Amount of cost to be covered b bonds. Generally generally to statutory installment bonds. Statutory y y installment bonds,however,are limited to$1 million in any only 95 percent of the total estimated cost can be handled by the issuance of bonds.The other 5 percent fiscal year,subject to the foregoing special requirement where a town officer is also an officer of the purchaser.They must be made by a so-called "down payment,"which can are issued in a single-bond form with provision for principal either be made available from current funds or by the and interest payments both to be noted on the bond form or ' 102 103 i i a sheet attached thereto.Such bonds must provide for the payment of both the principal and interest upon presentation issued until a proper bond resolution has been adopted. of the bond for notations of such a Such bond resolution may include the authorization for payments [except when issued to the U.S.government).The form of statutory the notes,or a separate bond anticipation note resolution installment bond is set forth in full in Local Finance Law§ maybe adopted at the same time.When a separate bond 62.10. anticipation note resolution is adopted,a majority vote of the members of the town board is sufficient for its §4-52.Bond Anticipation Notes and Bond Anticipation approval. Renewal Notes. D.Sale.BANS may be sold at a public,competitive sale or A.Purpose; maturity;renewal.Bond anticipation notes privately,regardless of the amount of the bond. If the (BANS) and bond anticipation renewal notes (BARNS) town sells the BAN publicly,notice of the sale must follow both Local Finance Law§60.00 and the state usually mature within a year and are a single,fixed-rate comptroller's rules. debt obligation.However,BANS and BARNS can be issued for more than one year,up to a period of five years,so i long as there is an annual principal payment.BANs and §4-53.Registered Obligations.The Federal Tax Equity and i BARNS are renewable annually at maturity at then- Fiscal Responsibility Act of 1982 (TEFRA) requires that after July 1, 1983,tax-exempt municipal obligations that mature current interest rates.A BAN is a new debt obligation, more than one year after issue be issued in registered form. while a BARN is its renewal.BANs and BARNS have principally been used in the past as a means of financing, Failure to comply with TEFRA registration requirements ` carries penalties against both the issuer and the holder of on a temporary basis during the period of construction or : acquisition,a project undertaken by the town.They are unregistered securities. Essentially,they lose their tax- also often used for large equipment purchases.Upon the exempt and capital gains status.The town board has two j completion of the project,the bonds for the permanent options in handling the registration requirement; it can act as its own agent, or it may contract with a bank to perform this financing are issued,and the bond anticipation notes are function.The process of registration and re-registration is paid off.BANs have allowed towns to delay the issuance r and sale of bonds until it knew exactly how much moneycomplex and requires expeditious return of the reregistered the town was going to need to accomplish the project, obligation (i.e., 72 hours).The state comptroller has strongly and also,to avoid the necessity of paying interest on the advised against a municipality acting as its own registration „ full amount of the ultimate obligation until all the money agent.The town should consult with bond counsel should it was needed. decide to act as its own agent. ARTICLE XIV.Noncapital Financing. B.Issuance;proceeds.BANs may be issued by towns in anticipation of the sale of bonds.The proceeds of such notes can be expended only for the same object or §4-54.Types of Noncapital Financing; Sale; Deposit of purpose for which the proceeds of the bonds may be Proceeds.Noncapital financing by towns can be divided into expended. three types:budget notes;tax anticipation notes; and revenue anticipation notes. Generally speaking,all budget C. Bond resolution.Bond anticipation notes cannot be notes,tax anticipation notes and revenue anticipation notes I may be sold at public competitive sale or by private sale ' ! 104 105 I without limitation as to interest.Any town that issues bonds deficiency budget notes to finance the local share of or notes should be aware that the Local Finance Law also supplemental appropriations for one or more contains various statutory provisions with respect to the purposes authorized by or under the Social Services deposit of the proceeds from bond or note offerings. Law,or the local share of financing a Town Highway Improvement Project(Highway Law Article VIII-A).A §4-55.Budget Notes. town may also issue deficiency budget notes on behalf of a town improvement district for A.Purpose.A town is permitted to issue budget notes expenditures for which no appropriation or an during a fiscal year to cover expenditures when there is insufficient appropriation was contained in the an unanticipated emergency,when funds are insufficient improvement district's budget.The amount of such or when no provision has been made in the budget for notes which may be issued on behalf of an such expenditure(s). However,there is no authority to improvement district is subject to a limit of 5 percent issue a budget note for any revenue shortfalls. Budget of the district budget. notes typically indicate some sort of fiscal stress within a local government. C.Adoption.A budget note resolution requires the affirmative vote of at least a majority of the town board. B.Types.There are two types of budget notes: There are no referendum or publication requirements emergency budget notes and deficiency budget notes. when the town board adopts a budget note resolution. 1.Emergency budget notes maybe issued in any D.Payment. Budget notes must be paid by the close of fiscal year to finance any unforeseeable public the fiscal year next succeeding the year in which they emergency in such year,such as an epidemic, were issued,except where authorized and issued in a conflagration,riot,storm,flood,earthquake or other fiscal year subsequent to adoption of the annual budget unusual peril to the lives and property of the citizens for the next year,in which case,they must be paid no of the town.Emergency budget notes,however,may later than the second fiscal year next succeeding the year not be issued by a town on behalf of a town of issue.Thus,in either the next year succeeding the year improvement district.The emergency budget notes of issue or the following year(depending upon the exact may be issued in any amount determined necessary time of issuance of the budget note),the town is going to by the town board to deal with the particular be faced with a town budget that provides not only for its emergency. normal operations for that year,but also for paying off the budget note. Obviously,the budget for that year will 2.Deficiency budget notes.Deficiency budget notes be rather burdensome.Budget note financing is deficit ' may be issued for an expenditure for which an financing-a type of financing that should be avoided insufficient or no provision was made in the annual except under the most dire circumstances,as its use town budget.Local Finance Law§29.00 limits the signals a red flag to rating agencies. amount of such notes that may be issued to an amount not to exceed 5 percent of the town's annual E.Redemption.The redemption of budget notes can budget,excluding amounts levied for improvement come from revenues of that fiscal year legally available district purposes. In addition,towns may issue for such purpose (sales tax revenues,for example),as 106 - 107 i i well as out of taxes and assessments levied or to be advance of a fiscal year must be paid by the end of the levied for the fiscal year in which the notes mature. fourth fiscal year succeeding the year in which the j Further information on budget notes can be found in original note was issued.In the case of TANs issued in a Local Finance Law§51.00. fiscal year against taxes levied for such fiscal year,the TANs or the renewals thereof must be retired within five §4-56.Tax Anticipation Notes. years after their date of original issue,and in any event, not later than five years after the close of the year for A.Purpose.Tax anticipation notes (TANs) are debt which taxes or assessments were levied and against instruments that are typically utilized because a town's which such TANs were issued. receipt of property taxes does not line up with its cash flow expenditure requirements within the fiscal year E.Proceeds.The proceeds of TANs may only be utilized cycle. for the purposes for which the taxes and assessments were levied. B.When authorized; amount.A town may borrow against uncollected taxes (1)within 10 days prior to the §4-57.Revenue Anticipation Notes. beginning of a fiscal year or,if the fiscal year is a calendar year,within 30 days of the commencement of the fiscal A. Purpose;issuance.Revenue anticipation notes year,in anticipation of the taxes levied in such fiscal year (RANs) are another type of debt instrument utilized for (2) at any time in a fiscal year against taxes levied for cash flow purposes.RANs may be issued by a town in such fiscal year or(3) during any fiscal year in anticipation of taxes (other than real estate taxes),sewer anticipation of the collection of taxes and assessments or water rents,or monies to be received from the state or levied in the four prior fiscal years.When borrowing in the United States government,from county sales taxes or the pre-fiscal-year 10-day period,the limit of the amount from any type of income-producing facility or operation that may be borrowed is the total of the taxes and owned by the town. assessments as fixed in the adopted budget.Where the borrowing is made in the fiscal year against taxes levied B.Adoption.A majority vote of the town board is for such fiscal year,the limit for towns is the total sufficient to issue a RAN.There are no referendum or I4 amount of taxes and assessments levied and remaining publication requirements.The RAN resolution must I uncollected,less any other outstanding tax notes issued specify the specific type of revenue for which the RAN is against such levy. being issued (i.e.sales tax,sewer rents). C.Adoption.A majority vote of the town board is C.Maturity; renewal.RANs must mature within one sufficient to issue a TAN. There are no referendum or year and may be renewed for a period not exceeding one publication requirements. year. The RAN and the renewal thereof cannot extend beyond the close of the second fiscal year following the D.Maturity;renewal.TANs may be issued with a fiscal year in which the RAN was issued. maximum maturity not to exceed one year,and then may be renewed yearly from time to time for like periods.The D.Proceeds.The proceeds of revenue anticipation notes last renewal of TANs issued in the 10-day period in may be used only for expenditures payable from the type 108 109 ` 1 i of revenue for which the RANs were issued.For represents a proportionate interest or the right to receive a { additional information on RANs,please see Local Finance proportionate share in lease,rental,installment or other Law§25.00 periodic payments made by the town pursuant to an installment purchase contract. ARTICLE XV.Installment Purchase Contracts. There are financial limitations on the amount a town can §4-58.Purpose;Advantages; Limits.General Municipal finance through installment purchase contracts.That is,the Law§ 109-b authorizes a town to utilize an installment amount of the periodic payments on the installment purchase contract to finance equipment,machinery or other purchase contract,plus the town's outstanding indebtedness apparatus.An installment purchase contract can function as and any additional unpaid periodic payments on outstanding a lease-purchase agreement,an installment sales agreement installment purchase contracts may not exceed 115 percent or any other agreement that allows the town to make of the limit set forth in Local Finance Law§ 104.Moreover, } periodic payments. Installment purchase contracts provide unpaid periodic payments on installment purchase contracts fan alternative means of financing a town's capital equipment may not exceed 40 percent of the amount put forth in Local needs.Installment purchase financing may or may not be Finance Law§ 104. accomplished at rates of interest which are better than or competitive with the methods of debt financing discussed previously. Installment purchase contracts cannot be used to avoid referenda or competitive bidding requirements,nor ' the prevailing wage rule of the Labor Law. Installment purchase contracts may not exceed the period of probable usefulness of the machine,apparatus or equipment acquired as set forth in Local Finance Law§ 11.00. Installment purchase contracts are subject to competitive bidding requirements,and if the bidding thresholds are triggered,the town must engage in competitive bidding. Note that it is the cost of the commodity being purchased,not the financing,that is subject to the bidding thresholds. To enter into an installment purchase contract,the town must adopt a resolution,and if the financing mechanism utilized to enter into the installment purchase contract requires an approval of a supermajority of the board,the resolution authorizing the installment purchase contract must also be by supermajority. Towns are authorized to execute"certificates of participation" (COPS) in conjunction with an installment purchase contract.COPS function as a security that 110 111 i f Capital reserve funds are established by resolution of the ARTICLE XVI.Reserve Funds. town board.There are referenda requirements when utilizing a capital reserve fund,the timing of which depends §4-59.Purpose.Reserve funds are a mechanism that allows upon whether it is a"specific"or"type"reserve fund.A p towns to accumulate cash to finance future capital outlays, "specific"reserve fund is one established for acquiring a infrastructure projects,equipment and other allowable particular piece of equipment or for a particular capital expenditures. Generally speaking,reserve funds are a improvement(such as the highway garage or a snowplow), planning tool that allows towns to make future purchases whereas a"type"reserve fund is one established for a without having to rely on debt issuances. general category of capital improvements or equipment (such as buildings or snow removal equipment).If the town §4-60.Types and General Requirements.There are establishes a"specific"reserve fund,it is subject to various types of reserve funds authorized by statute. Each permissive referendum upon the establishment of the fund. has its own legal requirements for the establishment of the After the establishment of the"specific"reserve fund,any P fund and for the expenditure of monies from it.Generally,all expenditures therefrom are not subject to permissive monies in such funds must be deposited and secured in the referendum.In contrast,the establishment of a"type" manner required by General Municipal Law§ 10.The town reserve fund is not subject to permissive referendum,while should develop a written policy regarding reserve funds that any expenditure therefrom is subject to permissive addresses why monies are being set aside,the town's goals in referendum,unless the period of probable usefulness is less establishing the reserves,the optimal funding level and the than five years-at which point there would be no conditions upon which the funds will be utilized. Reserve permissive referendum requirement(see General Municipal J funds must be invested in accordance with General Municipal Law§6-c).Note that there are special requirements for d Law§ 11. The following sections contain a brief description towns located wholly or partly in the Adirondack Park that of a few of the more common reserve funds. may require the consent of the state comptroller prior to the { establishment of,and expenditures or transfers from,a r §4-61.Capital Reserve Funds.A capital reserve fund may capital reserve fund in the town. be established for accumulating funds over a number of years to finance,in whole or in part,the acquisition or §4-62.Insurance Reserve Funds.An insurance reserve construction of a"specific"or"type"capital improvement or fund may be established for the payment of all or part of the item of equipment.A"capital improvement"includes any cost of any loss,action,judgment or compromised or settled physical improvement and any related preliminary studies claim,as well as for expert services and the deductible and surveys;lands or rights in land;any furnishings, portion of insurance.An insurance reserve fund may not be equipment,machinery or apparatus for any physical used to pay for uninsured losses,claims,actions or improvement acquired at the time when the improvement is judgments for which certain insurance is authorized constructed,.reconstructed or acquired. "Equipment" including,among others,accident and health insurance, includes any machinery,equipment or apparatus not fidelity and surety insurance,workers'compensation and encompassed within a capital improvement that has a period employers'liability insurance and title insurance (see of probable usefulness as established by Local Finance Law§ General Municipal Law§6-n). 11. 112 113 � I -- i i The supervisor,town comptroller and their deputies are i §4-63.Reserve Funds for Payment of Unemployment generally prohibited from having any interest in a bank or Insurance.Towns also have the ability to establish reserve trust company designated as a depository.However,if such funds for payment of unemployment insurance (see General officials have an interest in a bank that is the only bank in Municipal Law§6-m),workers' compensation claims (see town,it may be designated as a depository,provided that General Municipal Law§6-j) and for nonrecurring repairs of written disclosure of any such interest is made to the town capital improvements or equipment(see General Municipal board.In other words,a conflict of interest will not force the Law§6-d). designation of a bank outside of the town limits,so long as full and complete disclosure of such interest is made known §4-64.Tax Stabilization and Contingency Reserve Funds. to the town board and incorporated in the town board Towns are authorized to establish tax stabilization and minutes.If the bank where an interest is held is located contingency reserve funds,by resolution subject to outside the jurisdictional limits of the town,even though permissive referendum. Expenditures from such a reserve closer than the next nearest bank,it may not be designated need a two-thirds vote of the town board after a as a depository for town funds. (For additional information, recommendation by the town supervisor.Monies can be see Chapter 2,Town Officers and Employees,Article VI, expended only for unanticipated revenue losses or Ethics and Conflicts of Interest.) { expenditures,with certain limitations.They may also be used ! j to lessen a property tax levy increase of greater than 2.5 §4-66.Investment of General Fund Monies;Purpose; percent.The balance in a contingency and tax stabilization Considerations.Many towns are able to realize substantial reserve cannot exceed 10 percent of the town's annual revenue from the temporary investment of general fund budget. If the balance of a contingency and tax stabilization monies as authorized by General Municipal Law§11. reserve fund exceeds 10 percent of the budget,the excess Revenue received from temporary investments maybe must be used to reduce the amount of real property taxes applied in town budgets as anticipated revenue,and as such, needed to finance the budget for the next fiscal year. used to reduce the amount to be raised by tax. Care must be taken,however,to ensure that only the specific obligations ARTICLE XVII.Depositories and Investments. prescribed below are bought,and also,that their redemption periods are such that the invested monies will be available §4-65.Statutory Requirement; Designation.General when needed for necessary application to appropriate Municipal Law§ 10 requires local governments to designate budget item expenses. Careful thought and planning is one or more banks or trust companies for the deposit of imperative;if the town board finds that it must sell these public funds. This designation often occurs at the town's obligations prior to their maturity date,penalties may be organizational meeting,by a resolution adopted by a imposed or interest forfeited. If this occurs,the budget item majority of the town board.All public deposits in excess of of anticipated revenue in this regard would not be available, the FDIC-insured amounts must be secured by a pledge of and the town budget could be thrown substantially out of eligible securities by the bank or trust company.Note that balance. there is no authority to designate a credit union as the town's official depository. 114 115 I I d I greater than the amount of the moneys §4-67.Authorized Investments. invested by the local government through I the bank or trust company. A. Types. 2. Investments may also be made in the following: 1. General Municipal Law§ 11 provides for the temporary investment of general fund monies not a) Obligations of the United States of America or o required for immediate expenditure.These in obligations guaranteed by agencies of the investments may be: United States where the payment of principal and interest is guaranteed; a) Special time deposit accounts or certificates of { deposit issued by a bank or trust company b) Obligations of the State of New York; i located in and authorized to do business in this state; or c) Obligations guaranteed by agencies of the United States where the principal and interest are I b) In accordance with the following conditions: guaranteed by the United States.of America; and i. The moneys are invested through a bank d)Tax anticipation notes (TANS) or revenue or trust company located and authorized anticipation notes (RANS) issued by another to do business in New York; municipality,school district or district ii. The bank or trust company arranges for corporation,provided approval is obtained from the deposit of the moneys in certificates the state comptroller. of deposit in or more banking institutions I (as set forth by Banking Law§9-r) for the 3.In addition,monies in any reserve fund may be account of local government; invested in obligations of the town that established iii. The full amount of principal and accrued the reserve. interest of each such certificate of deposit must be insured by the federal deposit B.Time deposits and certificates of deposit.Time insurance corporation; deposits and certificates of deposit must be payable iv. The bank or trust company acts as within such time as the proceeds shall be needed to meet custodian for the local government with expenditures for which such monies were obtained,and respect to such certificates of deposit the deposit must be secured by a pledge of eligible issued for the town's account; and securities in the same manner as required by General V. At the same time the town's moneys are Municipal Law§ 10 (3) for all public funds. J deposited and the certificates of deposit are issued for the account of the town,the C.State,local or federal government obligations. bank or trust company receives an Investments in United States Treasury obligations, amount of deposits from customers of obligations of the State of New York,TANS or RANS of other financial institutions equal to or other municipalities or in one's own reserve funds must 116 117 'I i' be payable or redeemable at the option of the owner within such time as the proceeds will be needed to meet authorized expenditures,and in the case of obligations Chapter 5 purchased with bond or note proceeds,shall be payable STATE ENVIRONMENTAL or redeemable in any event,at the option of the owner, QUALITY REVIEW(SEQR)ACT within two years of the date of purchase. No manual for town supervisors and town boards could be D. Custody.In addition,unless these obligations are complete without some mention of the State Environmental registered or inscribed in the name of the town,they Quality Review Act(SEQR) (Environmental Conservation { must be purchased through,delivered to and held in Law Article 8; 6 NYCRR Part 617).However,SEQR can be an custody of a bank or trust company in New York State, extensive process warranting an entirely separate manual, j { and are to be sold or presented for payment only by the and this manual provides only very general information. bank or trust company upon receipt of written More information on SEQR can be obtained from the instructions from the officer of the town authorized to Association of Towns or from New York State's Department make the investment. of Environmental Conservation website. The physical custody and safekeeping of the evidence of § 5-1.Purpose;Scope. investments authorized under General Municipal Law§ A.SEQR establishes a process that requires the h 11 can be held,per authorization of the town board,in consideration of environmental factors early in the the custody of: planning stages of any action directly undertaken,funded or approved by a local,regional or state agency.By a. Any bank or trust company incorporated in New incorporating a systematic approach to environmental York,or review in the early planning stages,projects can be b. Any national bank located in New York,or modified as needed to avoid adverse impacts on the , c. Any private banker duly authorized by the environment. superintendent of financial services of New York B.The basic purpose of SEQR,as expressed by the I to engage in business in New York(see General Municipal Law§ 11 [4]). Legislature,is: " ...to declare a state policy which will encourage productive and enjoyable harmony between man and his environment;to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding of the ecological systems,natural, human and community resources important to the people of the state." C.All agencies of government at the state,county and local levels in New York,except the state Legislature and the courts,must comply with SEQR. 118 119 i i P� I §5-2.Decisions Subject to SEQR.All discretionary listed as Type I or Type II,it is an Unclassified Action,which decisions of town boards and decision-making bodies-such is the largest category of actions,and is subject to review by as a planning board or zoning board of appeals-to approve, the lead agency to determine whether it may cause fund or directly undertake an action that may affect the significant environmental impacts. environment are subject to review under SEQR. § 5-4.Lead Agencies and Involved Agencies.The lead A.Action:What's considered an"action"is extremely agency is"principally responsible for undertaking,funding or broad. Actions may include: approving an action."Thus,the lead agency is responsible for 1.Physical actions that may affect the environment determining whether an environmental impact statement by changing the use,appearance or condition of ("EIS") is required in connection with the action and for natural resources or structures,whether those preparing and filing the EIS if one is required.An"involved actions are directly undertaken by an agency,involve agency"is an agency that has jurisdiction by law to fund, funding or require approvals. approve or directly undertake an action. For example,a town board may designate itself as the lead agency for a variance; 2. Planning or policy-making activities that may affect however,the zoning board of appeals,as the board that has the environment and create a course for future the authority to grant or deny a variance,would be an decisions;for example,significant amendments to a involved agency. town's comprehensive plan. §5-5.Environmental Assessment Form(EAF). 3.Adopting rules,regulations and procedures-that Environmental review starts with an EAF,which is a is local laws,codes, ordinances, executive orders and checklist of potential areas where environmental impacts 1 resolutions-that may affect the environment. could be significant.There are two different versions: (1)the long-form EAF,which must be used for Type I actions,and at 4.Any combination of the above;for example,site 1 the discretion of the lead agency,may also be used for plan review where a zoning variance or change is lalso required. unlisted actions or for projects where the short-form EAF will not provide sufficient information and (2)the short-form §5-3.Classification: Once it is determined that an action is EAF,a much smaller form designed for use with small, subject to SEQR review,the action must be classified as unlisted actions.EAFs are filled out by the project sponsor. either a"Type I,""Type II"or"Unlisted"action. How an action is classified is important because it directs which § 5-6.Declarations.Once the lead agency reviews the forms to use,and what level of environmental review is completed EAF,it must make a positive or negative appropriate.The list of Type I actions may be found in 6 declaration.A positive declaration means that adverse V impacts will be "significant,"while a"negative declaration" NYCRR 617.4.Type I actions require further environmental review because these types of actions are most likely to have means that they will not.A positive declaration means that . � a negative environmental effect.The list of Type II actions SEQR review must continue and an Environmental Impact maybe found in 6 NYCRR 617.5. Additionally,a town may Statement("EIS") must be prepared.A negative declaration ends SEQR review.Alternatively,the lead agency may issue a adopt its own list of Type II actions to supplement what's found in the state regulations. If an action is classified as conditioned negative declaration. A conditioned negative Type 11 no further review is necessary. If an action is not declaration may be used only for unlisted actions,and only in limited circumstances when a lead agency concludes that a 120 121 r Nabob" - - - —- - -- -- - - - - ; i I i proposed action may have a potentially significant adverse impact on the environment that can be eliminated or i mitigated by conditions imposed by the lead agency. If the Chapter 6 lead agency issues a conditioned negative declaration,there TOWN LEGISLATION are further procedural requirements that must be followed. Declarations must be in writing,contain"a reasoned Town boards serve as the legislative branch of town elaboration" of the basis for the declaration and demonstrate government and in this capacity,one of the main functions that the decision-making body"thoroughly analyze[d] the and duties of a town board member is to enact local identified relevant areas of environmental concern." legislation.Generally speaking,the town board will § 5-7.Environmental Impact Statement and Public encounter three types of local legislation:resolutions, Comment.An"EIS"identifies and analyzes all potential ordinances and local laws. significant adverse environmental impacts,alternatives to the project as proposed and actions that could mitigate When enacting local legislation,it takes the votes of a environmental impacts,among other things.An EIS may go majority of any fully constituted board (that is,not just a through several drafts before the lead agency accepts it. For majority of those present)in order for a town board or body example,the lead agency may ask the project sponsor to take to take any action (General Construction Law§41).This a look at potential impacts in greater depth,and the sponsor means that three"aye"votes are necessary for five-member would need to submit another draft EIS.Once the lead agency boards to take even the most basic action,such as the accepts the draft EIS,it must be made available to the public, payment of bills.In certain circumstances,a two-thirds or and comments must be accepted for at least 30 days.A public other supermajority vote may be required.Note that failure hearing may also be held on the draft EIS.After the comment to muster three affirmative votes-such as with a 2-2 tie-is period and public hearing(if any),the project sponsor must effectively a denial. submit a final EIS. §5-8.Findings.Once the final EIS is filed with the lead ARTICLE I.Resolutions. agency,each involved agency must submit a SEQR findings §6-1.overview.Of the three types of action taken by a town statement before a final decision is rendered.A positive j board in its legislative and administrative capacities, finding means the project or action is approvable,and the resolutions project avoids or minimizes adverse environmental impacts resolutions involve the least amount of formality and routine. o the maximum extent practicable. If the action is not Resolutions can be introduced and passed at the same approvable,the lead agency must prepare a negative findings meeting,and typically cover the including transferring money from one budget account to day-to-day business of town, statement listing the reasons for the denial.The findings can another,establishing salaries,designating a depository and be finalized no sooner than 10 days following the filing of the approving employee bonds,among other things. Notice of Completion of the Final EIS,and if the action f involves an applicant,the lead agency's findings must be §6-2.Form and Procedure of Resolutions.In addition to made within 30 days from the filing date.Findings of each being used for the day-to-day workings of a town,resolutions A agency must be filed with all other involved agencies and the are also utilized to introduce ordinances and local laws into applicant. the town board proceedings and to formalize its ultimate 122 123 i ! i a 'I adoption or rejection of ordinances and local laws after other formalities,such as conducting a public hearing,are handled. §6-3.Motions.Resolutions are often confused with motions. Motions are the vehicle by which laws,ordinances and Preamble. It is a best practice to state the reasons for the resolutions are brought before a town board for action. proposed action,which would be done as a preamble to Resolutions and motions are often used interchangeably in the resolution in an opening paragraph beginning with fulfilling the administrative functions of the board,such as the word"WHEREAS." However,the reasons for the approving claims for payment.For instance,a town board resolution are often obvious,and the subject matter may"adopt a resolution" calling for payment of all claims is rarely controversial,removing the need for a preamble. presented,or a board member may simply"move"their i approval for payment.Resolutions may be and frequently are Body.The body of the resolution should be clear and prepared in advance. concise and contain all of the details of the issue. ARTICLE II.Ordinances. Bond resolutions.Resolutions authorizing a borrowing must comply with strict legal requirements.The Local §6-4.Overview and Authority.An ordinance is a legislative Finance Law sets forth the required form and contents of act of the town board that is applicable within the a borrowing resolution,and this formal resolution should jurisdictional limits of the town. Town Law§ 131 sets forth be recorded in the minutes. Generally,a bond resolution that"a town ordinance also includes a rule or regulation of is drafted by a bond attorney,and since its provisions the town board,for the violation of which a penalty is cover specific statutory requirements,it should be imposed." Ordinances are more formal than a resolution but entered in the minutes without alteration.A bond carry less weight and authority than a local law. resolution usually begins by enumerating the date, amount and purpose,followed by the specifics required Ordinances are typically used for actions of a more for the particular purpose. permanent nature.The authority to enact and enforce ordinances is set forth in Town Law§§ 130-134,as well as Town Law§§264-265 as the ordinances relate to zoning. §6-5.Subject Matter of Ordinances;Licenses.Town Law § 130 contains specific subject areas in which a town board is # specifically authorized to enact ordinances.Those subject areas include: Building Code Plumbing Code • Electrical Code Housing Code Sidewalks j • Fire prevention 1 124 125 I' I' ii ,I • Public dumps and dumping grounds • Use of streets,highways,sidewalks and public Town Law§§264-265 grants towns specific authority to places enact zoning ordinances. Towns also possess the authority i • Driveways to enact ordinances regulating specific topics whenever • Smoke,gases and wastes indicated in state law.These areas include (but are not • Animals limited to): • Malicious mischief . Games of chance and bingo (General • Peace,good order and safety Municipal Law Articles 9-a&14-H) • Amusements � • Dogs (Agriculture and Markets Law Article 7) , • Beverages and eating places . Traffic regulations (Vehicle and Traffic Law • Slaughtering and rendering works §§ 1622, 1660, 1660-a and 1662-a) • Promotion of public welfare • Environmental quality review • Excavated lands (Environmental Conservation Law Article 8) • Unsafe buildings and collapsed structures • Wetlands (Environmental Conservation Law • Vessels,personal watercraft and specialty Article 24) proPcraft • Shellfish • Trespass Towns may also enact ordinances regulating occupations an I businesses through licensing.Town Law§ 136 grants towns i • Hotels,inns and boarding houses the explicit authority to regulate: • House trailer camps,tourist camps and house trailers • Auctioneers,employment agencies,collateral • Airports and flying fields loan brokers,junk dealers,taxicabs and • Sand pits,quarries,topsoil and other soliciting excavationsRetail sales from canal boats or on banks of • Riding stables and riding academies canals • Building lines • Circuses,theaters,motion picture houses, • Air guns shows or other exhibitions,billiard and pool • Billiard rooms (subject to permissive rooms,bowling alleys,shooting galleries, s referendum) skating rinks and amusement parks { • Loitering • Public halls and opera houses V • Plumbing,heating,ventilating and electrical work • Operation of restaurants Dance halls • Hotels • Tourist camps • Trailer camps I 126 127 • Riding academies • Garbage collection hearing will be held.Such notice must describe the • Mink raising ordinance in general terms and be published at least 10 days prior to the date of the hearing in a • Excavations and stripping of topsoil in certain newspaper of general circulation throughout the towns;and town. • Laundromats in certain towns The town board must meet at the time and place The town may charge a fee when issuing licenses related to specified in the notice of the hearing on the the aforementioned occupations. The fee must be reasonable ordinance.At this hearing,the town clerk should and should function to cover only the costs associated with read the proof of publication of the notice of hearing issuing the license;such fees cannot be set at an amount that on the proposed ordinance. If the ordinance is would discourage anyone from entering into the activity,nor complicated,the supervisor,town attorney or the may the fees be used as a source of revenue covering the member of the town board who introduced the general cost of government of the town. ordinance should be ready to discuss the purpose and intent of the ordinance,as well as its numerous §6-6.Procedure for Adopting an Ordinance.Town Law provisions. Article 9 governs the method and procedure to follow when enacting ordinances. The town must adhere meticulously to Anyone attending must be allowed to comment on the procedure outlined; otherwise,it could be invalidated by the proposed ordinance.The ordinance does not � the courts. need to be voted on at the close of the public hearing. In fact,it might be necessary for the town board to Introduction:After a town board has agreed to the defer its decision to be able to give careful thought to general purpose and intent of a proposed ordinance, any suggestions made by all who appeared and spoke the ordinance should be drafted and introduced at a at the hearing. regular or special meeting of the town board in accordance with the town's rules of procedure.A Voting/Adoption:The vote on the question of the i town board member initiates the ordinance by adoption of an ordinance is a vote by the town board I moving the adoption of a resolution introducing it. members alone.Whether the ordinance is adopted The resolution should include the proposed when the hearing is held or at a subsequent meeting 0 ordinance in full.This resolution should be adopted of the town board,the ordinance must be adopted in by the affirmative vote of a majority of the town the form in which it was presented at the hearing. I board and entered in the minutes of the town board Any substantive changes may not be adopted without proceedings. the reintroduction of a proposed new or amended Public Hearing:After the ordinance is introduced,a ordinance,followed by another public hearing. public hearing must be held on the question of the When the town board has determined to adopt an adoption of the ordinance.The town clerk must ordinance,the adoption of the ordinance is publish a notice of the time and place the public accomplished by the introduction of an additional resolution and its subsequent adoption by a majority 128 129 jl I ,� I vote of town board members. county or state park or public housing project must be given to the clerk or other person performing similar duties of such After adoption,the ordinance must be entered in full municipality or government unit at least 10 days prior to the in the town board minutes. In addition,the town date of the public hearing.All parties in interest,citizens and clerk must enter a copy into a book known as the " any municipality or unit served as noted above shall have the ordinance book."It is permissible to have the right to appear and be heard at the public hearing. newspaper run an extra copy of the print of the ordinance,or the town clerk may cut a copy of the Additionally,the town clerk is required to maintain a ordinance from the newspaper for insertion in the separate file or filing cabinet for each zoning map adopted in ordinance book. It must be an exact copy of the connection with a zoning ordinance,which must be available ordinance and must be entered immediately after for public inspection. adoption by the town board. General Municipal Law grants county planning boards the Publication:To become effective,the text of the authority to review zoning ordinances if they affect property ordinance or amendment,or a summary or abstract within 500 feet of municipal boundaries or county-or state- thereof,must be published in the official newspaper, owned land,parks or rights-of-way.If there is no county or if there is none,in a newspaper designated by the planning board,then such review is made by the town board having general circulation in the town. metropolitan or regional planning board having jurisdiction Affidavits of publication of ordinances are still of the territory of the town,if any(see General Municipal required to be filed with the town clerk(Town Law Law§239-1).Notice of the proposed zoning ordinance or of §§ 133, 134,264,265).The ordinance becomes the proposed issuance of any permits or variances pursuant effective 10 days after such publication,but it shall to a town's zoning regulations must be given to a county � take effect from the date of its service as against any planning board or metropolitan or regional planning board. person served personally with a copy thereof, The board will have 30 days to review and make a certified by the town clerk under the corporate seal recommendation. If no recommendation is made in such of the town and showing the date of its passage and period,the town may proceed without such report.If the entry in the minutes. county,metropolitan or regional board to which the matter has been referred disapproves of the proposal,the local An ordinance,once adopted,is amended or repealed board of the town contemplating action may not proceed by the adoption of another ordinance or local law � except by a majority plus one vote.A resolution setting forth Q amending it or repealing it,following the same the reasons for such contrary action must be approved and procedural steps required on the adoption of any sent on to the county or regional planning agency within other ordinance. seven days (see General Municipal Law§239-m). §6-7.Additional Requirements or Zoning Ordinances. uiremtf §6-8.Preemption of Ordinances by State Law.Itis There are a few additional procedural steps with which to important to note that while towns possess the authority to comply when adopting a zoning ordinance.Specifically, enact ordinances,they may not enact ordinances that written notice of any proposed change affectingproperty p p tY directly conflict with a state statute or relating to a field within 500 feet of the boundaries of any other municipality, where the state has assumed full regulatory responsibility 130 131 I i i I (such as the sale of alcoholic beverages).A town may not request,meaning that during a trial,a town does not have to legislate on any subject matter where the state has demonstrate formal proof of legal adoption.Additionally, preempted the field,either expressly or impliedly. local laws can be enacted more quickly than ordinances and j can go into effect at any point. Once a local law is enacted,it j tary of State;there is no §6-9.Enforcement.An ordinance is only as good as its is filed with the New York State Secre enforcement. Accordingly,it is important to ensure that all requirement to publish it in the town's official newspaper. ordinances adopted are enforced. There are several methods of enforcement of a town ordinance,including: §6-11.Protection of Town Home Rule Authority. + Restriction on state's ability to pass special laws 1.Fines and/or imprisonment.When a violation is regarding towns:The enactment of a home rule article in declared by the ordinance to be a"misdemeanor" or the state Constitution granted towns immunity from state an"offense"against the ordinance,the most common legislative action.This immunity means that the state method of enforcement is for the ordinance to Legislature is prohibited-except on a certificate of necessity i provide for the imposition of a fine or for from the governor-from adopting any law that relates to the imprisonment or for both,as a criminal penalty in the "property,affairs or government" of a town,whenever that case of a proved violation. state law did not apply to every town of the state,unless the 2. Civil penalties.The ordinance may provide for a law is requested by the town or towns concerned. civil penalty instead of a criminal penalty. 3.Injunctions.A town may maintain an action in A special law that relates to the"property,affairs court to compel compliance or to restrain further government of a particular town maybe enacted b by the violations. State Legislature only in the following instances: A fairly unique enforcement authority exists in the case of a 1.By a home rule request initiated and approved violation of a town zoning ordinance.Three taxpayers of a by a two-thirds vote of a town board; district may institute an appropriate action or proceeding 2 B a home rule request by the town supervisor against a violator if,after 10 days,written request to the of the town concurred in by a majority vote of the proper local enforcement officer or board to so proceed,no such action or proceeding has been started (see Town Law§ town board; or 268). 3.On a certificate of necessity from the governor a ARTICLE III.Local Laws. of the state. w uI §6-10.Overview and Authority.A local law is the highest Protection of Statute of Local Governments.The Statute of form of legislation a local government can enact,and it Local Governments,which became effective July 1,1965, carries the same weight and authority as a state statute provides another important safeguard to local governments enacted by the state Legislature.The enactment of the from state legislation.The statute is a repository of the basic Municipal Home Rule Law granted towns the ability to powers of local governments.A power,once granted in the legislate in a vastly broader field of subject matters than by Statute of Local Governments,may not be diminished or ordinance. Local laws are subject to judicial notice without impaired by a single act of the Legislature.Similar to 132 133 I' I i i , i constitutional amendments,action by the Legislature is with general laws applicable to all towns,and additionally, b required in two calendar years in order to repeal,diminish, there has been no statutory restriction on such local impair or suspend a power granted in the statute.It also legislation.Briefly,these include: requires two approvals by the governor. 1.Powers,duties,qualifications,number,mode of Courts and Municipal Home Rule Law:The courts of New selection and removal,terms of office, York State have treated the home rule enactments with a compensation,hours of work,protection,welfare degree of skepticism and restraint.They have tended to find and safety of town officers and employees; that certain subject matters- such as salaries of district attorneys and land use matters in the Adirondack Park-do 2.Membership and composition of town boards; not fall within the general ambit of the "property,affairs or government of local government,"but rather,are matters of 3.Transaction of business; state concern,thus allowing the Legislature to enact laws without regard to the home rule law protections.Similarly, 4.Incurring of town obligations (except in courts have too readily looked to the innumerable state laws connection with financing by issuance of in subject areas such as local highway funding to conclude obligations,which must be consistent with the Local that a subject area has been"preempted" so that local laws Finance Law); on that same subject may not be enacted by local government without specific enabling authority.Despite the 5.Presentation,ascertainment,disposition and lukewarm treatment of the home rule power by the courts,it discharge of claims; ° still holds great promise for imaginative town governments with problems to solve. It is important to recognize that 6.Acquisition,care,management and use of + towns have a source of authority beyond the specific highways,roads,streets,avenues and property; provisions of Town Law or other similar enabling statutes such as the General Municipal Law. 7.Acquisition of transit facilities and the ownership and operation thereof; §6-12.Areas of Town Board Local Law Authority.Town boards may adopt local laws concerning the property,affairs 8.Levy,collection and administration of local taxes or government of the town,provided such local law is not and assessments; and assessments for local inconsistent with a general law enacted by the Legislature. improvements authorized by the Legislature; "General,"in this case,is defined as a law applicable to all towns alike.Under this authority,it is possible for a town 9.Fixing,levy,collection and administration board to adopt local laws that may change provisions of state rentals,charges,rates or fees,penalties and rates tes of law not generally applicable to all towns in the state, interest thereon,liens on local property in provided the subject matter falls within the ambit of the connection therewith and charges thereon; "property,affairs or government." j 10.Wages,salaries,hours of work or labor and the In addition,towns may adopt local laws concerning a number protection,welfare and safety of persons employed of subjects,so long as such local laws are not inconsistent by any contractor or subcontractor performing 134 135 i I i work,labor or services for the town; addressed using a town's home rule authority.Terms of office,the abolition or creation of new positions,and the 11. Protection and enhancement of its physical and alteration of various procedural mandates can all now be visual environment; changed by local law.The only caveat is that the local law specify which section and paragraph of the Town Law is 12.The government,protection,order, conduct, being superseded.Additionally,there may be procedural safety,health and well-being of persons or property, issues to consider; some local laws may require a mandatory including the power to provide for the regulation or or permissive referendum prior to their enactment.The licensing of occupations or businesses: scope of the supersession authority is limited regarding a town zoning board of appeals granting area or use variances. a)This is limited to the area of the town outside New York's highest court has ruled that for reasons of villages. standardization,the variance standards in the State Village ' Law,and by extension the Tow ,cannot be Saddle Rock, NY2d erseded b)Where any county is specifically authorized to [Cohen v.Board of Appeals of Villageof regulate or license an occupation,the exercise of 395,795 N.E.2d 619,764,NYS2d 64 (2003)]. such power shall not relate to a town(outside of j any villages therein) during such time as the §6-14.Effect of Local Laws on Ordinances.Town boards ' town is regulating or licensing such business or may still legislate by ordinance.The granting to towns of ' occupation; home rule local law powers in no way affected the town's ' u ability to legislate by ordinance.The Municipal Home Rule 13.Apportionment of its legislative body, Law specifically provides,however,that anything a town composition and membership,terms of office of board is empowered to accomplish by ordinance may now members thereof,areas from which representatives alternatively be accomplished by the enactment of a local are to be chosen and voting powers of individual law,including the amendment of ordinances previously members; enacted. 14.Powers granted in the Statute of Local §6-15.Restrictions on Adoption of Local Laws.In Governments. addition to the general"preemption limitation on local law powers mentioned previously,Municipal Home Rule Law§ §6-13.Authority to Supersede Town Law.Perhaps the 11 contains specific subject areas wherein a local law cannot most useful element of home rule local law power is the supersede a state statute.The town cannot adopt local laws Municipal Home Rule Law§10 (1) (ii) (d) (3) grant of that would: authority to towns to supersede or amend any provision of Town Law,with certain exceptions.Those exceptions include A.Change debt or tax limits; the provisions in Town Law relating to: (i) improvement districts; (ii)the creation of areas of taxation; (iii) B.Remove a restriction regarding the issuance of bonds authorizing or abolishing referendum requirements; or(iv) or other obligations; town finances.Thus,the whole structure of town government,even those defined by Town Law,can be C.Affect the education system or teachers'benefits; 136 137 i i I i .I I I II A proposed local law is introduced by a member of the town D.Change the number or term of members of a county board at a town board meeting or as otherwise prescribed by board of supervisors chosen in a town,except in the case the town board's rules of procedure. of an alternative form of county government; A proposed local law must be in final form on the desks or I E.Apply to courts; table of town board members for seven calendar days, exclusive of Sundays,or be mailed to each member at least F.Apply to or affect the: 10 days,exclusive of Sundays,prior to passage,unless the town supervisor certifies as to the necessity for its 1. Election Law§8-100; immediate passage.A local law passed immediately upon certificate of necessity by the supervisor requires a two 2. Labor Law; thirds approving vote by the town board.In ordinary cases, only a majority vote is necessary. 3. Hours and holidays of certain firemen and policemen; "On the desks,"which prescribes a seven-day aging requirement,means either physically on the desks of the 4.Volunteer Firefighters'Benefit Law; town board members or by delivery via electronic means, such as through a file sharing service (this does not include 5.Workers' Compensation Law. delivery via e-mail). g proposed Mailing the ' I G.Change any provision of the Multiple Residence Law; p posed local law,which prescribes a 10-day aging requirement,means either delivery through the United H.Affects powers of the state comptroller relative to State Post Office or via e-mail.To introduce a local law auditing or examination of municipal accounts,or through e-mail,the local law must be in Portable Document approval of districts; Format(PDF).Additionally,the town must adopt a unanimous resolution authorizing delivery through e-mail, I.Impact grade crossings or terminal facilities; ensure that each town board member has an a-mail address, and publish such e-mail addresses on the town clerk's J.Relate to judicial review of dismissals from civil service. bulletin board. §6-16.Procedure for Adopting a Local Law.Municipal After the local law is introduced,a public hearing must be Home Rule Law Article 3 sets forth the procedure to follow held before the town board on public notice through when enacting a local law.This procedure should be publication in the town's official newspaper. Five days must meticulously adhered to,as procedural deficiencies could elapse between the date of publication of the notice in the 7 render the local law invalid upon challenge.Below is a paper and the date of the public hearing,although the town synopsis of the steps required to enact a local law; of course, board may,by local law,shorten the notice period to three one should carefully review Article 3 and/or consult with the days. town attorney to ensure all legal requirements are met. After the public hearing,the board may vote on the local law. 138 139 i The vote is by"ayes"and"noes."Names of members present and their votes must be entered in the town board minutes. 20 days after its final adoption or approval.A local law is not The local law must be certified by the town clerk after effective until it is filed with the Secretary of State.Only the passage. Note that the town attorney no longer needs to number,title and text of the local law should be filed,on a certify the local law in order for the law to be valid,although form provided by the Department of State. the town may still utilize the attorney to certify the law. For the purpose of filing with the Secretary of State,local If the local law is subject to mandatory referendum or laws should be numbered consecutively,beginning with submitted to election as a result of petition,the proposition number"1"each calendar year.This numbering is on such local law must be submitted as described below and independent of any identifying numbers that may be used affirmed by a majority of the electors voting thereon. while a proposed local law is being considered for adoption. Each copy of a local law filed with the Secretary of State must Within 20 days after a local law has finally been adopted, have affixed to it a certification by the clerk of the board of town clerks must file one certified copy in their office and supervisors or the town clerk or other officer designated by one certified copy with the Secretary of State. No local law is the town. Certification forms can be provided by the effective until itis filed with the Secretary of State.Subject to Department of State. A copy of each local law may be mailed that filing requirement,a local law otherwise takes effect on or delivered to: the 20th day after final adoption, unless a different time is specified within the law. NYS Department of State i Division of Corporations,State Records and Uniform a) If the local law was subject to mandatory Commercial Code i referendum,then such local law must be filed as One Commerce Plaza,99 Washington Avenue above described within 20 days after approval Albany,NY 12231 of electors. a §6-18.Local Laws Subject to Mandatory Referendum. b) If the local law was subject to permissive Certain local laws are subject to mandatory referendum, referendum and no petition is filed,the filing,as which requires approval at a general or special election by above described,must be accomplished within the town's electorate. Local laws that are subject to 20 days after the time for filing a petition has mandatory referendum must comply with the general expired. enacting procedure set forth above,as well as certain additional requirements. The certified copies filed as above should contain the text of the local law only(i.e.,without brackets or italics that may Specifically,the local law must be submitted at the general appear in the original draft).The town clerk must record all election held not less than 60 days thereafter,unless: local laws filed in his or her office in a separate book or books,which must be indexed. 1.The local law provides for submission at a special election; or §6-17.Filing of Local Laws.An original, certified copy of each local law must be filed with the Secretary of State within 2•Within 30 days after adoption,a petition is submitted requesting its submission at a special 140 141 r 1 election.Such petition must be: subject to mandatory referendum J because such law would,in effect,be a) Signed by electors of the town who were changing the veto power; registered to vote in the last general election. The petition must contain the signatures of at c) Changes the law of succession to the office least 10 percent of the number of votes cast of town supervisor; for governor at the last gubernatorial r election; d)Abolishes an elective office,or changes the method of nominating,electing or b)Authenticated; removing an elective officer; changes the term of an elective officer,or reduces the c) Filed with the town clerk; and salary of an elective officer during his or her ! term of office; d) Certified by the town clerk to the town board within 30 days after the date of its e)Abolishes,transfers or curtails any power ti filing or 45 days before the day of election, of an elective officer; whichever is earlier,to the effect that he or she has examined it and found that it f) Creates a new elective office; or complies or does not comply with all the requirements set forth by law. g) Changes a provision of law relating to public utility franchises. 3.Within five days after the last day,the clerk can file his or her certification; objections to the i certification may be taken to the Supreme Court or §6-19.Local Laws Subject to Permissive Referendum- any justice thereof. Municipal Home Rule Law.A permissive referendum on a local law enacted under the town's home rule authority is A local law is subject to mandatory referendum if it: required when a statute authorizes the voters to submit a petition requesting a vote on a local law prior to its a) Changes membership or composition of enactment or,in the alternative,when a statute authorizes the town board or increases or decreases the town board to,by resolution,put the issue before the the number of votes any member can cast; voters. b) Changes the veto power of the chief Any petition put forth by the voters must be filed with the executive officer.NOTE:Towns do not town clerk within 45 days of the local law's adoption by the presently have a chief executive officer as town board.If no petition is filed within this timeframe,the defined in the Municipal Home Rule Law(that local law becomes effective upon the date set forth within the is,an officer who has veto power).However, law.If a petition is filed within 45 days from the date of the it would appear that a town could enact a adoption,it must be: local law giving the supervisor veto power f 142 143 9JL `l I I a) Signed by electors of the town who were bidding,purchase or contract. registered to vote in the last general election.The petition must contain the c) Changes a provision of law relating to signatures of at least 10 percent of the assessment of real property or benefit number of votes cast for governor at the last assessments for local improvements. gubernatorial election; d) Changes a provision of law relating to the b)Authenticated; exercise of the power of condemnation. i c) Filed with the town clerk;and e) Changes a provision of law relating to authorization or issuance of bonds or other d) Certified by the town clerk to the town , obligations. board within 30 days after the date of its filing or 45 days before the day of election, f) Changes a provision of law relating to the whichever is earlier,to the effect that he or auditing of the accounts of the town. she has examined it and found that it complies or does not comply with all the g) Changes a provision of law relating to the requirements set forth by law. alienation or leasing of real property of the town. As is the case with a mandatory referendum,objections to h) Increases the salary of an elective officer { the certification may be taken to the Supreme Court or any during his or her term of office. justice thereof within five days after the last day the clerk can file his or her certification. i)Concerns reapportionment. If a petition is properly filed,the proposition on such local §6-20.Reconsideration of a Local Law Subject to law must be submitted at a general election held not less Referendum. At any time within 15 days of an election on a than 60 days thereafter-unless the petition requests and proposition on a local law subject to mandatory or j another local law is adopted to submit such proposition at a permissive referendum,the town board may reconsider its special election held not less than 60 days after adoption of action and repeal such local law,in which case no this latter law. proposition for approval shall be submitted,or,if submitted, approval by voters shall be ineffective. A local law that does the following is subject to permissive referendum pursuant to Municipal Home Rule Law: §6-21.Acts and Resolutions of the Town Board Subject to Permissive Referendum-Town Law Article 7.While a) Dispenses with a provision of law requiring a some local laws are subject to permissive referendum public notice of hearing as a condition precedent requirements as set forth by Municipal Home Rule Law, to official action. Town Law Article 7 provides that any acts and resolutions of the town board subject to permissive referendum b) Changes a provision of law relating to public requirements in Town Law must adhere to the procedure 144 145 I I elucidated in Article 7. Specifically,any petition put forth by the voters must be filed with the town clerk within 30 days Chapter 7 from the date of the act or resolution. If no petition is filed PLANNING AND ZONING within this timeframe,the act or resolution becomes effective. If a petition is filed within 30 days from the date of adoption,it must be: ARTICLE I.Introduction. a) Signed by electors of the town,with the signatures §7-1.Overview.Through planning and zoning,towns have of at least 5 percent of the number of votes cast for the authority to plan for and regulate the development of and governor at the last gubernatorial election,although use of real property for the community's health,safety and not less than 100 in a town of a first class,and not welfare.The basic premise of planning and zoning balances less than 2 S in a town of the second class; the well being of the community against individual property b)Authenticated; and interests by adopting local laws that are in line with the c Filed with the town clerk. ) needs of the area and the town's vision for development, whether it be maintaining open space or fostering industrial If a written objection to the petition is filed with the town development.Article 16 of Town Law is the primary source clerk within five days of its filing,—and a verified petition for planning and zoning authority and allows towns to setting forth the objections to the petition is presented to the "regulate and restrict the height,number of stories and size supreme court or any justice thereof,such court or justice of buildings and other structures,the percentage of lot that 1 must determine any question or issue brought forth by the maybe occupied,the size of yards,courts,and other open s objection within 20 days from the date of the verified spaces,the density of population,and the location and use of petition and make any order as required. buildings,structures and land for trade,industry,residence If no objection to the petition is filed,a proposition for the or other purposes," (Town Law§261). approval of such act or resolution must be submitted at a §7-2.Limitation on Zoning Authority.The central tenet of biennial town election that occurs 60 to 75 days from the zoning is its concern with land use but not who uses or date of the filing of the petition. If no biennial election is occupies the land (see Sunrise Check Cashing v. Town of occurring within that timeframe and a petition is filed at any Hempstead,20 NY3d 481,485 [2013]). other time,a proposition for the approval of such act or resolution must be submitted at a special town election to be §7-3.Comprehensive Plan.A comprehensive plan means held not less than 60 nor more than 75 days after the petition the materials (written and/or graphic) including but not is filed. limited to maps, charts,studies,resolutions,reports and other descriptive material that identify the goals,objectives, principles,guidelines,policies,standards,devices and instruments for the immediate and long-range protection, enhancement,growth and development of the town located outside the limits of any incorporated village or city(see Town Law§272-a[2]). In other words,the comprehensive plan provides a longer term guide on how a town will be 146 147 i :i i developed.As such,towns must adopt their local zoning laws after a public hearing(see Town Law§267[9]).This means i in accordance with the comprehensive plan (see Town Law§ that before the town board can remove a ZBA member,it 272-a[11]).Although there is no specific timeframe within must hold an administrative-type hearing and produce which towns must review their comprehensive plans,Town Law§272-a(10) does call for"periodic review" (see Town factual evidence substantiating just cause for removal (see Law§272-a [101). If a town plans to adopt or amend its Adamkoski v. Town Bd. of Town of Perth,47 AD2d 783,783 [3d Dep comprehensive plan,it must hold a public hearing on at least [3d Dept 1975]). 10 days'notice (see Town Law§272-a[6]).Additionally, adopting or amending a comprehensive plan is subject to §7-7.Residency and Oath of Office.ZBA members are SEQRA review(see Town Law§272-a [8]). considered public officials (see 1997 Ops Atty Gen(Inf) 1125 [1997]) and thus subject to the residency requirements ' §7-4.Role of the Town Board.The town board,as the found under Public Officers Law§3 as well as Town Law§ legislative body,adopts local planning and zoning laws and 23. i ordinances.The town board also appoints members to the zoning board of appeals (ZBA) and planning board and may §7-8.Terms of Office. If the ZBA is newly created,terms are assign certain tasks to those boards such as planning board fixed so that one member's term expires at the end of the review of special use permit applications.Significantly,if the calendar year in which ZBA members were initially town board does not agree with a ZBA or planning board appointed.The remaining members'terms shall be so fixed decision,it has no authority to review or change the decision. that one member's term expires at the end of each year The appropriate means of challenging a planning or zoning thereafter. In other words,when a ZBA is created,one board decision is for an individual with standing,such as the member serves for one year,another member serves for two years,another member serves for three years and so on. applicant or an aggrieved neighbor,to commence an Article � 78 proceeding. At the expiration of each original member's appointment,the § 7-5.State Environmental Quality Review Act(SEQRA). replacement member is appointed for a term equal in years Most actions taken by the town board,planning board and to the number of members of the board (see Town Law§267 zoning board of appeals are subject to SEQRA review. Please [4],[5]).Thus,on a seven-member board,the term of office is refer to Chapter 5 of this manual for more information on seven years,and on a five-member board,the term is five i what SEQRA entails. years. ARTICLE II.Zoning Board of Appeals (ZBA). §7-9.Training.ZBA members must annually complete at least four hours of town board-approved training(see Town §7-6.Membership and Removal.The ZBA is a three-or Law§267 [7-a]).Training hours may be carried over in any five-member board comprised of individuals appointed by one year(see id.),and the town board may also waive the the town board (see Town Law§267 [2]).The town board training requirements if it is deemed in the best interest of also designates the chairperson of the ZBA and may,by local the town (see Town Law§267-[7-a][c]). law or ordinance,create the position of and appoint an alternate (see Town Law§267 [2],[11]). Once appointed,a §7-10.Responsibilities.The ZBA is in charge of deciding ZBA member may be removed from office only for cause and area and use variance applications and interpreting the local zoningcode. It is important to note that under Town Law P � § 148 149 I I 1III I IIS 267-b,a ZBA has appellate authority only.This means that a also consider: ZBA does not determine matters in the first instance. For example,if an applicant wants to build a structure that 1.Does the variance create an undesirable change in exceeds the size limitations set by the town,he or she would character of neighborhood,or is it detrimental to first have to apply for a permit,have that permit denied and neighboring properties? then seek a variance from the ZBA. 2. Can the applicant's goal be achieved some other A. Use Variances (Town Law§267-b):A use variance way? allows property to be used in a way that a local zoning code prohibits. To be granted a use variance,an 3.Is the area variance substantial? applicant must demonstrate an unnecessary hardship.To prove that there is an unnecessary hardship,an applicant 4.Is there an adverse effect on physical/ must show: environmental conditions of the neighborhood? 1. that the property cannot yield a reasonable return S.Is the alleged hardship self-created? as currently zoned-referred to sometimes in courts ,I as"dollars and cents proof;" As with a use variance,the ZBA may impose reasonable conditions and restrictions that(1) directly or 2. that the hardship is unique and does not apply to incidentally relate to the proposed use of property(2) most of area; are consistent with the intent of zoning law,and(3) are imposed to minimize any adverse impact the variance 3. that,if granted,the variance will not alter essential may have on the neighborhood or community. character of neighborhood; C. Interpretations: The ZBA has the authority to 4.that the alleged hardship is not self-created. interpret a town's local zoning code (see Town Law§ 267-b[11). Interpretations should be reasonable/have a The ZBA can impose reasonable conditions and rational basis,and courts have said that zoning restrictions that(1) directly or incidentally relate to the ordinances must be"construed as a whole,reading all of proposed use of property(2) are consistent with the its parts together,all of which should be harmonized to intent of zoning law,and (3) are imposed to minimize ascertain legislative intent,and it should be given its any adverse impact the variance may have on the plain meaning,avoiding a construction that renders neighborhood or community. superfluous any language in the ordinance," (Saratoga I County Economic Opportunity Council,Inc.v. Vil.of B.Area Variances(Town Law§267-b):An area Ballston Spa Zoning Bd. of Appeals, 112 AD3d 1in the langue langu 37 ! variance allows a deviance from a zoning code's [3d Dept 2013]).Furthermore,ambiguity age dimensional standards.When reviewing an area variance of the ordinance should be construed in favor of the application,a ZBA must balance the variance's benefit to property owner (see id.). the applicant versus the detriment to health,safety and welfare of neighborhood/community.The ZBA must 150 151 i ARTICLE III.Planning Board AD2d 783,783 [3d Dept 1975]). §7-11.Creation and Abolishment.Towns are not required §7-13.Residency and Oath of Office. Planning Board to have planning boards;however,the town board may members are considered public officials and thus subject to create one by local law or ordinance (see Town Law§ 271[1]). If a town opts not to have one,the town board or the residency requirements found under Public Officers Law another body may assume the functions normally reservedas well as Town Law§23 (see 1961 Ops Atty Gen No 138 [ 10, 1961]). for the planning board. Once created,the town board also [Aug.[ has the power to abolish the planning board (see Conklin v. §7-14.Training Requirement.Under state law,planning Town Bd. of Town of Warwick, 59 AD2d 532, 533 [2d Dept board members must annually complete at least four hours 1977]).However,this is not unfettered authority,and a town of town board-approved training(see Town Law§271 [7- board may not abolish a planning board simply for the a]).Training hours maybe carried over in any one year(see purpose of creating another one and appointing new ' members (see AG Opinion 78-585). id.),and the town board may also waive the training I requirements if it is deemed to be in the best interest of the §7-12.Membership and Removal.The town board may town (see Town Law§271-[7-a][c]). create either a five-or seven-member planning board.Should §7-15.Responsibilities.The planning board may perform i the town board decide to increase the number of positions just the tasks assigned to it by the town board.Most from five to seven or decrease the number from seven to five, commonly,town boards,through local law or ordinance,task it can do so either by local law or ordinance (— Law see Town L 271[6],[7]). the planning board with site plan review(see Town Law§ 274-a),making determinations on special use permit applications (see Town Law 274-b),and performing The town board appoints members of the five-or seven- subdivision review(see Town Law§276).The town board person board and also designates one of the planning board may also seek recommendations from the planning board. J members as chairperson (see Town Law 271[1]). Under Town Law§271(13),the planning board may make Additionally,the town board may,by local law or ordinance, recommendations to the town board on any subject matter create the position of planning board alternate and appoint over which the planning board has jurisdiction.The town an individual to that position (see Town Law271 15 a § [ ][ ]) board may also task the planning board to prepare proposed If the alternate is unable to participate because of a conflict amendments to the town's comprehensive plan (see Town of interest,then the chairperson of the planning board may Law§272-a);however,as the legislative body of the town, designate a substitute for the alternate (see Town Law§271 the town board makes the final determination on whether to [15][b]). adopt those proposals. A planning board member may be removed only for cause ARTICLE III.Tools Used in Zoning and Planning. and after a public hearing(see Town Law§271 [91).This means that before the town board can remove a planning board member,it must hold an administrative-type hearing §7-16.Site Plan Review(Town Law§274-a).Site plan and produce factual evidence substantiating just cause for review may be done by the town board or delegated to another body such as the planning board.A site plan shows removal (see Adamkoski v. Town Bd.of Town of Perth,47 the arrangement,layout and design of a proposed use of a 152 153 - 1 i i � I parcel of land. It's a tool used to ensure that proposed development properly fits and conforms to the character of the final action is taken. the neighborhood.Site plan review alsorotects against p g D.Decisions:The reviewing body must make a decision , adverse impacts on neighboring properties that may result on the application within 62 days after a public hearing from development.A town's local code should clearly list or if no hearing has been held,within 62 days of which uses,if any,require site plan review including what receiving the application.This time may be extended by elements,such as parking,signs,landscaping,may be reviewed as part of the review(see Town Law§271-a[2]). mutual consent of the applicant and the reviewing board. The decision of the board must be filed in the town Site plan review is subject to SEQRA review. clerk's office within five business days of being rendered and a copy mailed to the applicant(see Town Law§274- A.Conditions: In order to ameliorate potential unwanted effects,the planning board,town board or a[8]). other administrative body tasked with site plan review ! � p §7-17.Special Use Permits (Town Law§274-b).Unlike a i may impose reasonable conditions and restrictions variance,a special use permit does not involve deviating directly related to and incidental to a site plan (see Town from what's allowed in the local zoning code (see§7-8, ! Law§274-a[4]). However,this authority is restricted, infra).Rather,a special use permit adds another layer of and there must be a connection between the condition review for certain uses allowed under the town's local code imposed by the board and the problem that it attempts to to ensure that the community's character and other public alleviate. health,safety and welfare concerns are protected.This gives B.Public Hearing: Public hearings are not re uired b towns flexibility and promotes diversity in the type of uses q y allowed in a district while still maintaining uses compatible state law on site plan review applications;however,the with neighboring properties. For example,gas stations in a town may re uireublic hearings in its own local law (see Town Law§274- a[8]).If required the public, mixed residential zone are often subject to special use permits.Special use permits are subject to SEQRA review. hearing must be held within 62 days of the application i being received by the reviewing body(see id.). A.Conditions: Like site plan review,the body that Additionally,the authorized board must mail the approves special use permits may impose reasonable applicant notice of the hearing at least 10 days before conditions and restrictions directly related to and and give public notice in a newspaper of general incidental to a special use permit(see Town Law§274- circulation in the town at least five days before the public b[4]),and the town code should list what uses require a hearing(see id.). special use permit. C.Notice to County Planning Board:At least 10 days B.Public Hearing:A public hearing must be held within before the public hearing,notice must be given to the 62 days of the application being received by the county planning board in accordance with General reviewing body(see Town Law§274-b[6]).Public notice Municipal Law§239-m along with a full statement of the proposed action (see Town Law§274-a[9]).In the event must be published in a newspaper of general circulation a public hearing is not required,the proposed action in the town at least five days before the public hearing should be referred to the county planning board before (see id.).Additionally,notice must be given to the applicant at least 10 days prior to the hearing(see Town 154 155 1 Law§274-b[7]). Towns have the authority to define the term"subdivision" for those divisions of property or alteration of lot lines that C.Notice to County Planning Board:At least 10 days require subdivision approval (see Town Law§276[4][a]). before the public hearing,notice must be given to the Furthermore,subdivisions may be defined and delineated by county planning board in accordance with General local regulation as either"major"or"minor"with the review Municipal Law§239-m along with a full statement of the, procedures and criteria for each set forth in the town's local proposed action(see Town Law§274-b[7]). code (see id.).Local regulations may also require an D.Decisions: The reviewing body must make a decision applicant to submit a preliminary plat before submitting a on the application within 62 days afinal plat that shows road and lot layout and approximate after a public hearing. dimensions,key plan,topography and drainage etc.for This time maybe extended by mutual consent of the applicant and the reviewing board.The decision of the approval before reviewing a final plat and final plat approval � (see Town Law§276 [4], [5],[6]). Towns should be sure to board must be filed in the town clerk's office within five perform the requisite SEQRA review(see Town Law§276 business days of being rendered and a copy mailed to the [5], [6]) and take note of all the public hearing and timing j applicant(see Town Law§274-a[8]). requirements found in Town Law§§276,277. Additionally, Y §7-18.Subdivision Review(Town Law§276).The town towns must comply with the county notification board may,by resolution,authorize and empower the requirements found in General Municipal Law§ 239-m (see planning board to approve preliminary and final plats of also Town Law§276 [10]).Towns may refer to the Department of State's publication"Subdivision Review in subdivisions showing lots,blocks or sites,with or without New York State"or call the Association of Towns for further streets or highways,within that part of the town outside the information on subdivision review. limits of any incorporated village.Subdivision review has been described as follows: §7-19. Nonconforming Uses.Sometimes property will be Subdivision control attempts to guide the systematic used in a certain way,and a zoning law will be adopted that d development of a community or area while encouraging the prohibits that use of the property. In other words,the property no longer conforms to the local zoning code and is provision of adequate facilities for the housing,distribution, thus referred to as a nonconforming use. Landowners have a comfort and convenience of local residents.It reflects a legislative judgment that the building up of unimproved and vested right to continue to use their property in that way,and thus the nonconforming use may continue; however,it undeveloped areas ought to be accompanied by provision for may not be expanded.Additionally,one nonconforming use roads and streets and other essential facilities to meet the may not be replaced by another nonconforming use. In basic needs of the new residents of the area.Subdivision certain circumstances,towns may terminate a control is aimed at protecting the community from an uneconomical develo ment of land,and assurin nonconforming use through amortization. Amortization p g persons period"refers to a designated period of time granted to living in the area where the subdivision is sought that there owners of nonconforming uses during which they may phase will be adequate streets,sewers,water supply,and other out their operations as they see fit and make other essential services Marx v.Zoning Bd. ofAppeals of Vil. of Mill arrangements.The validity of an amortization period Neck, 137 AD2d 333,336-37 (2d Dept 1988) (internal citations omitted). depends on its reasonableness (see Vil. of Valatie v.Smith,83 NY2d 396,400 [1994]). 156 157 §7-20.Variances.See§7-8(A)(B) (supra). Some zoning enforcement officers may also be charged with enforcing the NYS Uniform Fire Prevention and Building ARTICLE IV.Enforcement. Code and are referred to as Code Enforcement Officers (CEO) (see Executive Law§381[2]).CEOs require special training, §7-21.Enforcement Authority.Under Town Law§268,a must be certified and are subject to continuing education town board can,by local law or ordinance provide for the requirements (see 19 NYCRR 1208-3.1 through 19 NYCRR enforcement of its planning and zoning laws.A town has two 1208-3.5).The enforcement officer can administer the law only as written,and he or she has no authority to modify or options to obtain compliance with its zoning law: (1)an waive zoning regulations.If the law is ambiguous or requires injunctive action in Supreme Court or(2) a prosecution in the local justice court,and a town simultaneously may an interpretation,a permit should be denied,and the maintain an injunctive action in Supreme Court and a enforcement officer's decision should be appealed to the prosecution in a justice court. ZBA. w A.Fines.If pursing prosecution in justice court,a violation of Town Law Article 16 or of a local law, ordinance or regulation is considered an offense, punishable by a fine not exceeding$350 or imprisonment for a period not to exceed six months,or both for conviction of a first offense. For the conviction of a second offense,both of which were committed within a period of five years,it is punishable by a fine not less than$350 nor more than$700 or imprisonment for a period not to exceed six months,or both;and,upon conviction for a third or subsequent offense,all of which were committed within a period of five years,it is punishable by a fine not less than$700 nor more than $1,000 or imprisonment for a period not to exceed six months,or both. For the purpose of conferring jurisdiction upon courts and judicial officers,generally, violations of Town Law Article 16 or of such local law, ordinance or regulation shall be deemed misdemeanors, and for such purpose,only all provisions of law relating to misdemeanors apply to such violations. §7-22.Enforcement Officer.Towns may appoint an enforcement officer who is in charge of enforcing the codes, ordinances,rules and regulations of the town's zoning code (see Town Law§ 138,268. This may include issuing permits. 158 159 i i 'I districts and watershed protection districts (see Town Chapter 8 Law§ 190). Also,a harbor improvement,public dock or beach SPECIAL IMPROVEMENT DISTRICTS SEWER AND WATER IMPROVEMENTS erosion control district may be established or extended in any town which borders or contains navigable waters ARTICLE I.General Provisions. of the state. (Id.) Under certain circumstances and under a special procedure,water storage and distribution §8-1.Purpose.Towns may create improvement districts to districts and sewage disposal districts may similarly be established or extended by a town board (see Town Law provide to particular property owners services that are not §§ 190-a; 190-b). otherwise needed or wanted by other property owners in the town.They are supported solely by the real property taxpayers whose properties are located within the B.Wastewater disposal.Towns may also create and extend wastewater disposal districts and improvements boundaries of the district.Therefore,the costs of operating pursuant to Town Law Articles 12, 12-A and 12-C.These these districts are not general town charges but special wastewater disposal improvements are intended for district charges. operation of on-site private wastewater disposal systems §8-2.Administration. Most town improvement districts are (septic systems)under governmental administration governed by the town board (see Town Law§§198; 342). where itis not feasible to construct a regular public sewer system.The procedure for establishing and Improvement districts created prior to 1932 or by special act of the state Legislature may be governed by separately operating wastewater disposal systems is essentially the elected commissioners.The town board also has the same as for a sewer system.A sewer district may also authority to create a board of commissioners to assist the include a wastewater disposal system in its plan(see town board in the administration of ambulance districts (see Town Law§§ 190-e, 1904,etc.). d Town Law§198 [10-fl). C. Water quality treatment.Towns may also establish §8-3.Specific types of improvement districts. water quality treatment districts,pursuant to petition only,for the purpose of installing,servicing and monitoring a water treatment device in a private water A.The following types of improvement districts may be well.The expense of acquisition,installation and established or extended by a town board: sewer, servicing of such water treatment device is chargeable to drainage,water,park,public parking,lighting,snow the bene removal,water supply,ambulance,sidewalk,fallout benefited property,namely,the property in which such device is installed and maintained (see Town Law§ shelter,refuse and garbage 1,aquatic plant control 190-g). 1 A refuse and garbage district also includes the authority to address "carbon components of energy waste from residential properties and the performance of energyaudits and theurchase installation nstallation of energy efficiency improvements on such residential properties"(see Town Law §§198(9)[b];209-i). 160 161 i i i Sidewalk* §8-4.Limitations on Establishment. . Public dock I . Beach erosion control* A.A district may not be established or extended into a . Fallout shelter city(see Town Law§ 190). . Water storage and distribution • Aquatic plant growth control* B.A district may not be established or extended,wholly • Harbor improvement or partly,in an incorporated village unless the village • Ambulance consents by a village local law,ordinance or resolution • Watershed protection improvement district subject to a referendum on petition under Municipal Home Rule Law§24,or a permissive referendum under *NOTE: If the petition or order for their Village Law Article 9. However,in the case of a water establishment so requires,the district may also be on the quality treatment district a village local law or resolution benefit basis. consenting is not subject to any referendum(see Town Law§ 190). B. Benefit districts.In benefit districts,benefited ' properties are charged in proportion to the benefit C. A water supply district cannot be established or � extended to include lands situated within the boundaries received to defray the cost,including operation and of a water district(see Town Law§ 190). maintenance,of a special improvement district(see Town Law§§202[2]; 202-a[2]).Districts within this §8-5.Ad Valorem and Benefit Districts.There are two category are: basic types of improvement districts: "ad valorem"and • Sewer(including trunk sewer) "benefit." • Sewage disposal • A.Ad valorem districts.An ad valorem levy is a charge Drainage (including drainage system). Wastewater disposal (septic tank) imposed on benefited real property in the same manner . Water quality treatment(private water wells) and at the same time as taxes for municipal purposes to defray the cost,including operation and maintenance,of ARTICLE 11.Establishment or Extension of Districts. a special improvement district. (see Town Law§§202[3] and 202-a[1]). Districts within this category are: §8-6.Procedures. • Park • Public parking* A.Petition or town board motion.Under Town Law • Lighting* Article 12,an improvement district may be established or • Water* extended by petition.Alternatively,under Town Law • Snow removal Article 12A,the town board may initiate establishing or • Refuse and garbage* extending a district by motion.The procedure in Town I Law Article 12-A was devised to eliminate the long delays • Water supply associated with securing properly executed petitions 162 163 I I I i li the required under Article 12.The descriptions outlined and distribution district,or by 5 percent tuat d with n each below provide a general overview of the procedure and owners of taxable real property the town board should consult with the town attorney to such district,whichever is less; or in the case of a make sure the town meets all procedural requirements. water district governed by a separate board of water commissioners,the petition must be signed by a majority of the separate board(see Town Law§190- §8-7.Article 12 Petition Method. ma] C). A. Boundary description; costs.The petition should I1 describe the boundaries of the district or extension.If the C. Supporting documentation. petition requests constructing or acquiring an 1.Maps and plans:A map or plan prepared by a p q g q g etent engineer must accompany every petition compimprovement,such as water mains and appurtenances,it p must state the maximum proposed amount to be for the establishment or extension of a sewer, drainage,wastewater disposal or water district(see expended. If the petition requests the performance or g y supply of a service,like street lighting,it may(but need Town Law§192).A map and plan is not specifically state the maximum proposed amount to be required in other districts;however,itis advisable to not , ) p p p showing the boundaries � expended annually for such service.A petition for the include some kind of a ma establishment or extension of a park or public parking of the district with the petition so that those asked to sign the petition know whether their property will district must,in addition,describe the property proposed benefit from the proposed district or extension. to be acquired for the park or parking district(see Town � Law§ 191). Additionally,in the case of a sewer,drainage, B. Signatures. wastewater disposal or water district,before the 1.The petition must be signed by the owners of petition is presented,the town board may t a taxable real property located in the proposed district resolution,subject to a permissive referendum, or extension that own,in the aggregate,at least one- appropriating a specific amount for the preparation of the map and plan.This appropriation comes from half of the assessed valuation of all the real property on the establishment of in the proposed district or extension.Additionally,if general town funds,and,up there are any resident owners,the petition must the district,the amount appropriated should be include the signatures of such resident owners deemed part of the cost of the improvement.The g owning taxable real property aggregating at least town will be reimbursed in the amount paid or a one-half of the assessed valuation of the taxable real portion of that amount as the town board,at the property in the proposed district or extension owned public hearing on the question of the establishment by residents (see Town Law§ 191). or extension of the district,allocates against such new district or extension(see Town Law§ 191-a). 2.In the case of a petition to establish a water storage dies.Under Town Law§190-c,with respect to and distribution district,the petition must be signed 2.Stu by at least 25 owners of taxable real property proposed water storage or water distribution districts,upon petition,the town board must,or after situated within each water district or water supply y district proposed to be included in the water storage a public hearing may on its own motion,make a study 165 164 d J 1 of the proposal and for the following purposes : facilities as shown on the maps and a) Assemble data relating to the water plans. resources available to the town and the v.The method of financing the same, possibility of developing such resources. including estimates of revenue to be derived annually from the sale of b) Conduct investigations,make inquiries and water to water and water supply conduct public meetings upon such notice districts within the water storage and as it shall deem proper for the purpose of distribution district,and revenue to ° examining whether further action is be derived from the sale of water to a necessary. village or from any other source; estimates of the cost of maintenance c) Cause maps and plans to be prepared.The and operation and of debt service. maps and plans must show: D.Acknowledgement.All petitions must be i.The identity and boundaries of the acknowledged or proved in the same manner as a i water districts that stand to benefit recorded deed (see Town Law§ 191). I most by the establishment or extension of a water storage and E.Public hearing;publication of estimated costs; distribution district,from the town determination. board's point of view. 1.Order.When presented with a petition to establish ii.A written description,as in a deed or extend a district,the town board must adopt an of conveyance,of the boundaries of order reciting the fact that it was presented with a the proposed district or extension. petition,the boundaries of the proposed district or extension,the improvements or services proposed, iii.The source of water supply and a the maximum amount proposed to be expended if a description of the lands,streams, maximum amount is stated in the petition,the water and water rights and facilities, estimated cost of hookup fees (if any),the cost of the if any,to be acquired therefor;the district or extension to the typical property and,if mode of constructing the proposed different,to the typical one- or two-family home. water works and the location thereof, including reservoirs,water The order must also specify the time and place of the purification or treatment works, public hearing where the town board will meet to standpipes,wells,pumping stations, consider the petition.The order must be published in aqueducts and mains. the official newspaper of the town and also posted on the town clerk's signboard at least once not less than iv. Estimates of the cost of 10 nor more than 20 days before the date of the construction or acquisition of the hearing(see Town Law§ 193). 166 167 i 2.Estimated costs. Before publishing the order accomplished by filing a certified copy(in duplicate) of containing the estimated costs,the town board must the resolution establishing the district within 10 days prepare and file with the town clerk a detailed after its adoption and an application with the state explanation of how the estimated costs were comptroller. computed (see Town Law§ 193). e 1.The application,in duplicate,must include the 3.Determinations.Pursuant to Town Law§ 194,after following: holding the public hearing' must the town board a) A certified copy of the notice of public hearing, make the following specific determinations by a formal resolution: with proof of publishing and posting and a certified copy of the petition; a) Whether the petition is signed and b) In the case of a sewer,drainage or water 9 acknowledged or proved as required by law and is otherwise sufficient; district,a certified copy of the map,plan and report; b)Whether all the property and property owners within the proposed district or extension are c)An itemized statement of outstanding benefited; indebtedness for all town purposes; c) Whether all the property and property owners d) The amount of indebtedness anticipated to be benefited are included within the limits of the contracted for the proposed district; proposed district or extension;and e)A statement of the aggregate assessed d)Whether itis in the public interest to grant in valuation of the real property of the proposed i whole or in part the relief sought. district; 4.Additional Hearings.Special provision is made for fl A statement of the average full valuation of the an additional hearing in the event the town board taxable real property of the town; finds that any property or property owners in the g) A statement of the proposed method for district are not benefited or that certain property or property owners benefited have not been included in financing the improvement; and the district(see Town Law§ 194[2][b]). In cases where no borrowing will be involved,or where F. Consent of state comptroller.In cases where the the costs of such financing to typical properties for borrowing is necessary to finance the cost of the similar types of districts falls below the average costs for proposed improvement,permission from the state such districts as annually computed by the comptroller,it is not necessary to obtain consent from the comptroller. comptroller to establish or extend the district maybe If the state comptroller grants permission,the town required pursuant to Town Law§ 194.This is board may adopt an order establishing or extending the 168 169 a district. If permission is denied,the town board must 2.In cases involving the supplying of services only, ex adopt an order denying the petition (see Town Law§ the maximum amount to be expended annually may 194).Additional information can be found in the be increased by an order of the town board,provided Regulations of the State Comptroller 2 NYCRR Part 85. the town board shall,after a public hearing, determine that it is in the public interest to authorize G.Filing of final order of town board.Within 10 days the increase.No petition,permissive referendum or a of the town board adopting the final order establishing order of the state comptroller is required(see Town the district or extension,the town clerk must file a Law§§202-d [2]; 209-h [2]). certified copy in the county clerk's office and in the office of the state comptroller(see Town Law§ 195[1]). §8-8.Article 12-A Town Board Initiative. IJH.Final plans; estimate of expenses; contracts to A.Similarities with Article 12 procedure.The perform work.After the final order is filed,the town procedure for establishing or extending an improvement board may proceed.This involves having the engineer district under Article 12-A is essentially the same as the prepare definite plans and specifications and a careful procedure described above under Article 12.The basic J estimate of the expense,working with the attorney difference has to do with the steps involved in initiating employed by the town and preparing a proposed the proceeding, (i.e.,by town board motion compared to contract.Towns must abide by the competitive bidding a petition). requirements set forth in Article 5-A of the General Municipal Law discussed in Chapter 4 of this manual.The B.Maps,plans and reports.The establishment or town board may not award contracts if the cost of the extension of an improvement district is based on a map, contract,plus the services of the engineer,attorney and plan and report prepared in a manner and detail related expenses,will exceed the estimated maximum determined by the town board. The map,plan and report costs stated in the petition or final order(or as stated in must be filed in the office of the town clerk(see Town the resolution of town board if the procedure described Law§209-c). below in Article 12-A is followed) (see Town Law§ 197). The law provides procedures for increasing the 1. Maps,plans and reports of a sewer,drainage or maximum amount to be expended,but this requires: water district must be prepared by a licensed engineer and show the boundaries,the general plan 1. In the case of constructing improvements,either and the proposed method of operation of the district one of the following two alternatives: (a)the (see Town Law§209-0. execution of a new petition and a new public hearing; or(b) an order of the town board on its own motion 2.For all other districts,the maps,plans and reports after a public hearing and subject to a permissive may be prepared by town officials or by an outside referendum. Both alternatives also require an order firm (see Town Law§§209-b; 209-c). of the state comptroller approving such increase before holding a public hearing(see Town Law§§ 3. In the case of a sewer district,a copy of the map 202-d [1]; 209-h). and plan must be submitted to the New York State Department of Health for approval before any sewer 170 171 i I system is constructed (see Town Law§209-c). extension,or by 100 owners,whichever is less (Town Law§209-e). For the purposes of this subsection,a 4.The procedure described in connection with corporate owner of such taxable real property is Article 12 for the appropriation of general town considered one owner for the purpose of a petition monies to cover the preparation costs of maps,plans requesting a referendum and is entitled to one vote and reports in connection with sewer, drainage and to be cast by an officer or agent of the corporation or water districts is extended to allow such other duly authorized person designated by appropriations for the preparation of maps,plans appropriate resolution of such corporation. and reports for districts proposed to be established or extended under Article 12-A procedure (see Town 2. If a referendum is required and the proposal is Law§209-b). approved,or if no petition for referendum is filed C.Order.After filingthe within the required time,the town board resolution map,plans and report in the becomes effective,and the town board proceeds in office of town clerk,the town board must adopt an order the same manner as discussed under Article 12. describing the district or extension,the improvements or services proposed,the maximum amount to be expended, E. Application for permission of state comptroller to the proposed method of financing,and the fact that the establish or extend district.Within 10 days after a map,plans and report have been filed in the town clerk's town board adopts a resolution approving the district, office.The order should also specify the time and place the town clerk must file an application with the state where the town board will meet and hold a public comptroller for permission to establish or extend the hearing on the proposed district or extension. If the order calls for the performance or supply of a service district if the cost is to be financed by the issuance of I only,it may(but need not) state the maximum amount bonds or notes,or if the cost to typical properties I, exceeds the statewide average for that type of district proposed to be expended annually for such service. (see Town Law§209-0. Publication and posting requirements are the same as described under Article 12 (see Town Law§209-d; cf. § 1.A certified copy of the resolution of the town board,in duplicate,must accompany the application. D.Determinations.After the public hearing,the town 2.The application,in duplicate,must include the board must make the same determinations outlined following: above in§8-7 [E][3].The subsequent procedure is the same,except the resolution of the town board approving a) A certified copy of the notice of public the establishment or extension of the district is subject to hearing,with proof of publishing and posting; a permissive referendum in the manner provided in Town Law Article 7 (see Town Law§209-e). b) In the case of a sewer,drainage or water district,a certified copy of the map,plan and 1.A petition requesting a referendum must be signed report; by at least 5 percent of the owners of taxable real property situated in the proposed district or c) An itemized statement of outstanding 172 173 �i i I indebtedness for all town purposes; or provided pursuant to Article 12-C.The powers contained in Article 12-C are in addition to,and do not d) The amount of indebtedness anticipated to be limit or supersede,those in Town Law Articles 12 and contracted for the proposed district; 12-A. I e) A statement of the aggregate assessed B.Cost of providing improvements.The cost of valuation of the real property of the proposed providing improvements may,under proper district; circumstances,be raised on a benefit or ad valorem basis. This differs from Articles 12 and 12-A,which provide f) A statement of the average full valuation of that the expense of the establishment of a sewer district the taxable real property of the town; must be on a benefit basis.No part of these costs may be charged to any property in a village (see Town Law§ I' g) A statement of the proposed method for 209-q). financing the improvement; C.Method of proposal.Any improvement may be h) Under Article 12-A,a town clerk's affidavit proposed by a resolution of the town board or by a evidencing that no petition was timely filed petition of resident taxpayers. requesting a referendum,or if a special election was held,certified copies of the official result. D.Action by town board. 1.Supporting documentation.A town board If the state comptroller grants permission,the town resolution proposing an improvement must be board must adopt an order establishing the district. If the supported by plans,reports and maps. state comptroller denies permission,the town board must adopt an order terminating its proceedings (see a)The plans,reports and maps must be filed Town Law§209-f[5]). in the town clerk's office.Thereafter,the town board must adopt an order which shall Ili ARTICLE III.Article 12-C Sewer,Wastewater Disposal, include: Water and Drainage Improvements as Town Functions. i.A recital of the proposed §8-9.Overview. improvement,a description of the boundaries of the proposed benefited A.Statutory authority.Town Law Article 12-C, area,if any; specifically Town Law§209-q,authorizes any town board to provide for sewer,water,drainage or ii.The maximum amount proposed to wastewater disposal improvements as a town function in be expended for the improvement; the entire area of the town or in an area within the town iii.The proposed method of outside a village.The town board is responsible for the management,maintenance,operation and repair of any apportioning the costs; such sewer or water improvement acquired,constructed 174 175 ' III I it iv.The proposed method of financing; the cost be financed by the issuance of bonds or notes,the approval of the state comptroller v.A statement that a plan,report and is required(see Town Law§209-q[6][13]). map are on file in the town clerk's The resolution must state the manner in office for public inspection;and which the costs are to be apportioned,and if the board determines that any part of the cost vi.The time and place of the public is to be raised by special benefit assessments, hearing. then the boundaries of the benefited area as well (see Town Law§209-q[61). b)A copy of the order must be published in II the official newspaper(see Town Law§209- E.Proposal by petition. q[3] for all of the requirements) and posted ill on the bulletin board in the town clerk's 1.supporting documentation.Pursuant to Town office. Law§209-q[10],a proposal by a petition must be signed by five resident owners of taxable property located ,SII 2.Changes to proposal.After the public hearing,the within the area of the town outside of the village.The town board may change the proposal if some petition must be acknowledged or proved in the same property in the proposed area will not be benefited,if manner as a deed to be recorded or authenticated in the some property that will be benefited has not been manner provided by the Election Law for the included or if the town board determines that the authentication of nominating petitions.The town board apportionment of costs should be changed. If changes may direct that a plan,report and map be prepared,or it are proposed,another public hearing must be held may,by resolution,describe in general terms the filing of between 15 and 25 days after the first hearing.The the petition and the proposed improvement.If the town notice of hearing must specify the changes and board determines that the proposed improvement is in the time and place for this second hearing(see Town the public interest and economically feasible and where a Law§209-q[4]). plan,report and map have not been prepared,then it must direct the preparation of a general plan,report and 3.Determination.After the hearings,the town board map. ° must determine whether to make such improvement(see Town Law§209-q[6]). 2.Public hearing.A public hearing must be initiated in the same manner as provided in Town Law§209-q[3]. A a) If the town board determines that it is not in the public interest,the board must adopt a 3.Deposit.The petitioners must deposit nposting with resolution to that effect. the petition to cover the costs of publishing and d p notices of meetings of the town board to consider the b) If the town board determines that it is in petition.If the town board decides to proceed with the the public interest,it must adopt a resolution proposed improvements,the total deposit shall be authorizing the sewer,water or drainage returned to the petitioners; if the petition is denied,only improvement.If the proposal requires that the balance shall be returned after expenses have been 176 177 ,i I 1� paid. 4.Apportionment of costs (Town Law§209- 2.Optional referendum.Except as noted above,the (81[a]) q town board may provide that any resolution a)a) The cost of the improvement shall be borne authorizing such an improvement shall be subject to thecostfmanner: a mandatory or permissive referendum.The following referendum must be held in the entire area of the town outside any villages,except that if the i. Entirely by the area of the town authorizing resolution provides that a part of the cost outside the village; of the improvement is to be borne by an area less than the entire town outside any villages,the ii.Partly by the area of the town resolution may provide for the referendum to be held outside the village and partly by the 'I in the lesser area(see Town Law§209-q[11][b]). lands benefited; or iii.Entirely by the lands benefited. 3.Approval required.A resolution submitted to a referendum must be approved by a majority of the owners of taxable real property located in the area b)At any time after the improvement is designated by the town board.A petition requesting complete and after a public hearing,the town the referendum must be signed by at least 10 percent board may,by resolution,change the of such owners.The town clerk must have the forms apportionment of the costs between the for a petition prepared for distribution to anyone benefited area and the area of the town requesting them (see Town Law§209-q[11][c]). outside the village (see Town Law§209- q[8][c]). However,this authority is limited to G.Approval of state comptroller(see Town Law§ allowing an increase in the share borne by the 209-q[131). area of the town outside the village,with a q[ �� corresponding decrease in the share borne b the benefited area. y 1.Under Town Law Article 12-c approval of the state � comptroller is required when it is proposed or required 1 F.Referendum. that the town finance the cost of any sewer,drainage or water improvement by the issuance of bonds,notes, certificates or other evidences of indebtedness of the 1.Referendum required.A resolution adopted by town therefor.Additionally,where the total estimated the town board authorizing an improvement is expense of such improvement(including any increase in subject to a permissive referendum if all or part of the cost is to be borne by the entire area of the town the maximum amount) exceeds one-tenth of 1 percent of the full valuation of the taxable real property in the area outside of any villages.After the completion of the I of the town outside of villages,approval from the state improvement,a resolution of the town board to comptroller is required. change the apportionment of cost is also subject to a permissive referendum (see Town Law§209- 2.Within 10 days after adopting a resolution where q[11][a]). approval of the state comptroller is required,the town 178 179 �I i clerk must file a certified copy of the town board's resolution authorizing the sewer or water improvement sewer project,to issue debt and to charge rates and fees for ! the use of its services and facilities.This authority technique with the Department of Audit and Control.The co is designed as an alternative to existing authorizations for the resolution must be accompanied by an application for the purpose of constructing,reconstructing or rehabilitating approval.The application must be executed and verified by the supervisor or such other officer as the town board water supply and/or sewer systems. ; and must contain the information required by the state comptroller. 3.The state comptroller determines whether the public interest will be served by providing the improvement in the manner proposed and also whether the cost of such improvement will be an undue burden upon the property bearing the cost. 4.The state comptroller must file an order granting or denying approval for the establishment of the improvement with the town clerk.The town clerk must notify the town board of the order's receipt and the decision of the state comptroller. ARTICLE IV.Consolidation and Dissolution. Town improvement districts may be consolidated or dissolved pursuant to the procedure set forth in Article 17-A of the General Municipal Law. Please see the section in Chapter 10 regarding consolidation and dissolution. I ARTICLE V.Local Water and Sewer Authorities. §8-10.Statutory Authority; Creation;Powers and Duties. Public Authorities Law Article 5,Title 8-A,provides the procedure for creating and operating a local water or sewer authority.Such local authority would be established by special act of the state Legislature upon request by,and for the benefit of,the sponsoring municipality.Such local authority,after creation and appointment of an administering body by the sponsoring municipality,would be ! empowered to construct and operate a water supply or 180 181 i i town's website, 10 to 20 days prior to the hearing.The notice must include a description of the proposed district or Chapter 9 extension,the estimated rate per thousand dollars of FIRE PROTECTION AND EMERGENCY AMBULANCE assessed valuation projected to be assessed,levied and SERVICES collected,as well as the time and the place the public hearing will occur. Additionally,a detailed explanation of the §9-1.Purpose.Generally speaking,towns are not estimated rate of assessment for the proposed district or authorized to provide fire protection as a town function extension must be made available for public inspection at the (although there are a few towns that do have town fire town clerk's office. departments). Instead,fire protection is provided in towns outside of villages by means of a fire,fire alarm or fire A fire district or an extension thereof must be outside of protection district(see Town Law§§ 170, 171).A fire district an incorporated village or city or existing fire,fire alarm or provides fire protection services within the district as a fire protection district.On the creation or extension of a fire "political subdivision" or"district corporation,"separate and district,the approval of the state comptroller is required if apart from the town (see Town Law§ 174 [7]),while a fire any expenditure of the district is to be financed by the alarm district or fire protection district is a geographic area issuance of bonds,notes,certificates or other evidences of in which the town board must contract on behalf of to indebtedness (see Town Law§173 [2]). The resolution of provide firerotection services see Town Law§§ 170 )171 the town board to create or extend the district,whether the A town may contract with any city,village,fire district or town board proceeds by petition or by its own initiative,is incorporated fire company to furnish fire protection within not subject to a permissive referendum.It should be noted fire alarm districts and fire protection districts (see Town that a fire district may not be extended until the written Law§§ 183, 184). consent of a majority of the fire district commissioners is obtained. §9-2.Fire Districts. ' Once the resolution establishing or extending the fire A.Creation or extension;public hearing district is adopted by the town board,the town clerk must requirements.A fire district may be created or extended file a certified copy of the resolution in the county clerk's either on petition by resident taxpayers owning taxable real office.Additionally,the town clerk must file a certified copy amounting to at least one-half of the assessed of the resolution with the state department of audit and property g valuation of the taxable real property encompassed within control within 10 days from the date the resolution is the proposed district,or by the town board on its own adopted. motion. In each case,a public hearing before the town board on notice is required; specifically,the town board must B.Status;administration;budget.After a fire district is publish notice in a newspaper of general circulation created,it becomes an independent unit of government, throughout the town 10 to 20 days before such hearing. possessing independent taxing,borrowing and purchasing powers.It is administered by a separate board of five elected Additionally,the town clerk must post notice of the fire commissioners.This board annually prepares the budget public hearing on the town sign board,as well as on the for the operation of the fire district during the ensuing year. A public hearing on the budget must be conducted on the 182 183 i I I 'I I I� third Tuesday in October.The board of commissioners must amount in excess of the amount authorized by Town Law§ adopt the budget on or before November 4.Once the fire 176 (18).If there is such a proposition,it must state the district budget is adopted,the fire district secretary must maximum amount that may be expended annually in excess deliver two certified copies of the budget to the town clerk of the amount authorized under Town Law§ 176 (18). within three days from the date of adoption.The town board is prohibited from making any changes to the fire district So,if the fire district wishes to hire employees within budget and must append it to the town budget as is (see its appropriations,it may do so without a proposition, Town Law§ 181). although the hiring of paid fireman is subject to public hearing requirements.If the district wishes to hire C.Expenditures; employees;public hearing employees that exceed the appropriations therefore,such requirements.Town Law limits the amount of fire district additional expenses are subject to a proposition pursuant to revenues that may be expended annually without the Town Law§179 (1) (d). adoption of a proposition. Pursuant to Town Law§ 176 (18) (4),a fire district has the authority to expend funds D.Fire departments within districts.Fire districts appropriated,without proposition,for the compensation of generally have their own fire departments. However,fire paid fire district officers,fire department officers,firemen districts possess limited power,in certain cases,to contract and other paid personnel.Moreover,Town Law§ 176 (18-a) for fire protection,emergency service and general ambulance provides that the fire district may employ such individuals as service to be furnished within the district.Their fire may be necessary to effectuate the objects and purposes of companies need not be incorporated,but may be after public the district.If such person to be employed is a paid fireman, hearing and the consent of the board of fire commissioners. the fire district must conduct a public hearing regarding the The chief officers of the fire department must be approved by , employment,publishing notice of the public hearing in the the board of fire commissioners,and the volunteer official newspaper at least once not more than 20 and no less firefighters elected by the fire companies also must receive than 10 days prior to the hearing,and such notice shall board approval.The fire districts may contract to furnish fire, include the time,date and location of the hearing,as well as emergency and general ambulance services outside the the number of paid firemen to be employed and the total district,and the fire department,subject to any restrictions annual amount to be spent for the salaries or other imposed by the board of fire commissioners,may answer compensation of such firemen. calls for assistance outside the district. Accordingly,the fire district has the authority to hire E.Boundary lines.When adjoining fire districts employees and personnel without a referendum or mutually agree to alter their common boundary line,they proposition,so long as the district stays within the confines must obtain town board approval before the alteration takes of the amount appropriated for such fiscal year.Should the place.Also,where a dispute arises between two fire districts district wish to exceed the amount appropriated,the as to location of their boundary line,the town board makes a procedure is governed by Town Law§ 179,which provides decision after a survey and a public hearing on this issue (see that the board of fire commissioners may,upon its own Town Law§§172-a and 176 motion and upon petition,submit at a special or annual fire district election,a proposition to,among other things, expend in any one fiscal year,or to expend annually,an 184 185 i 1 I� I I I { I §9-3.Fire Protection Districts. such fire corporation furnishes fire protection outside of the boundaries specified inits certificate of A.Creation or extension.A fire protection district may incorporation,it and the members f shall be be created or extended by the town board in the same under the exclusive control of the town board of the manner as described above in the case of a fire district town in which the fire corporation maintains its except in certain towns in the Adirondack Park.As in the apparatus,and the town board may restrict the case of a fire district,a fire protection district may not service of such corporation outside the boundaries include territory in an incorporated village or city or described in its certificate of incorporation. existing fire,fire alarm or fire protection district. 2.A court decision has held that a town may be liable B.Provision of services.It is not necessary to have a fire for the negligence of a volunteer firefighter who was company in a fire protection district.The protection is a member of fire company with which the town furnished pursuant to a contract and may be for fire board had a fire protection contract on behalf of a fire protection,emergency service and general ambulance protection district.At the time of the claimed service.The contract may be entered into either with a negligence,the volunteer firefighter was responding fire district or a city,village or incorporated fire company to a mutual aid call in his personal vehicle.In order to maintaining adequate and suitable apparatus and protect against possible similar liability,when appliances for the furnishing of fire protection.This entering into a fire protection contract with a contract may be for a period up to five years'duration, volunteer fire company,the town board should and the amount of the contract must be for a definite sum consider requiring the fire company to obtain liability (i.e.,a specific dollar amount) and cannot be determined insurance naming the town as insured,or else obtain by some formula or other technique that depends upon its own insurance coverage at district expense. future conditions.That does not mean that a contract could not provide for the town's providing gasoline in 3.A town board may not purchase or authorize the exchange for the fire protection services as long as purchase of equipment or apparatus for the fire precise,definite terms are used as to dollar value and departments contracting to furnish services in the quantity.The proposal for the contract must be fire protection district,although the town has broad advertised by the town board,and a public hearing must powers to aid the district in natural disaster cases.A be held thereon. re protection district has no power to borrow money.The town board,after a public hearingos on 1. If the contract is with a fire company located in the notice,may contract on behalf of the district fire protection district,that company must be period not o exceed five years for a supply of water incorporated.This requires the consent of the town and hydrant service.Where such a water supply board and a public hearing on notice.The individuals cannot be suitably supplied by contract,provision is named in the certificate of incorporation of such a I made for acquisition of water rights and for fire corporation constitute the original membership. construction and maintenance of fire suction pools, Thereafter,other eligible individuals may l be elected a cisterns,fire wells,pipes,pumps,hydrants and as members of the fire corporation,but such election i other facilities,but money may not be borrowed for must be confirmed by the town board.Where any that purpose.In certain towns in the Adirondack I 186 187 i Park,the above-mentioned contracts,as well as contracts for fire protection,must be approved by the causes other than enemy attack."This authority is separate state comptroller. and apart from a town supervisor's authority in declared emergency situations pursuant to Executive Law Article 2-B. 1 §9-4.Fire Alarm Districts.A fire alarm district is created or §9-8.Emergency Ambulance Services.A town has many extended in the same manner as a fire district. While the law options when it comes to providing emergency ambulance provides for fire alarm districts,they are incredibly rare. services. General Municipal Law§ 122-b provides towns a Alarm systems may be provided in these districts and they with the ability to provide their own emergency medical have many of the powers of fire protection districts. services or contract with one or more individuals,municipal corporations,associations or other organizations to provide i §9-5.Benefits.Where a fire protection or fire alarm district emergency medical services,general ambulance services or � is furnished service by a fire company or fire department any combination thereof.Under this authority,a town may enter into an agreement with a private ambulance company Pursuant to a contract with another entity, or by an incorporated fire company located outside of such fire to provide emergency response services. The provision of i ambulance services under General Municipal Law§ 122-b is protection or fire alarm district,such contract must include a negotiated amount for the increase in cost of providing the a town-wide charge. benefits under the Volunteer Firefighters'Benefit Law.If the benefits are provided under a county self-insurance plan,the Additionally,under articles 12 and 12-A of the town law,a I additional cost is not included in the contract(see Volunteer town can create ambulance districts to provide emergency medical services within the boundaries of the established Firefighters Benefit Law§30 [12]). districts. Once the districts are created,Town Law§ 198 (10- board has §9-6.Water Supply in Fire Districts. Instead of charging �with private ate a tit es to es that the n provide hese services.Town Law e authority to act for water,the town board,in its discretion,may,without with p I requires parcels in an ambulance district to be assessed on charge,permit the use of water from hydrants of a water an ad valorem basis (see Town Law§202 [3]). That is,the district for fire purposes in all or any part of the area of a fire parcels have to be assessed in the same manner and at the 11 district,fire protection district,fire alarm district or same time as other town charges (e.g.taxes).While unprotected area"that is wholly or partly included within ambulance districts have to be assessed on an ad valorem the area of the water district. basis,the town does have the ability to impose additional fees on individuals utilizing the ambulance service. §9-7.Appropriations for Forest Fires and Natural Disasters.Pursuant to Town Law§64 (15-a),the town A town does not have the authority to establish an board is authorized to appropriate not more than$1,000 in ambulance district outside of its borders,with the exception any one year for equipment for the prevention of forest fires. of a village that is encompassed within the town.Article 17-A of the General Municipal Law,also known as the Government Additionally,a town may purchase and operate equipment itself for natural disaster emergencies, "such as flood, � Reorganization and Citizen Empowerment Act,was enacted fire, earthquake,hurricane,windstorm I in 2010 to address consolidation and dissolution of local drought,tidal wave, or other storm,landslide or other catastrophe arising from governments. This act has provided local governments with I the ability to potentially establish a joint ambulance district. 188 189 To do so,neighboring local governments would first have to create and establish their own respective ambulance district within their borders under articles 12 and 12-A of the Town Chapter 10 Law,as previously discussed. Then,under Article 17-A,the MUNICIPAL COOPERATION local governments would dissolve the individual districts and §10-1.Overview.For decades,towns have shared services, consolidate into one joint district.Note that the Association used intermunicipal agreements,and worked together and of Towns is unaware of any local governments that have with other municipal governments to provide the best undergone this process; however,there is the possibility that services to their residents,in the most efficient manner and it could be done. at the lowest cost.Municipal cooperation can be thought of in two different ways-functional or structural."Functional" Under Town Law§ 184,the town may also contract with any cooperation refers to things like service agreements or joint city,village,fire district or incorporated fire company to agreements,whereas"structural" refers to consolidation or provide emergency ambulance services within a fire f dissolution. protection district under a fire protection contract. In this instance,the entity providing the emergency ambulance A.Functional Cooperation.As mentioned above, services must also provide fire protection within the fire functional cooperation refers to service agreements, district(see also General Municipal Law§209-b). where one municipality agrees to provide services to another for a fee or for an exchange of resources and Lastly,the town has the option to not provide for emergency services,or joint agreements,where municipalities work ambulance services. together to provide a service. 1.Authority.Article IX,Section 1(c) of the New York State Constitution and General Municipal Law Article 5-G authorize towns to provide joint services with other municipalities or to provide services on a contract basis or pursuant to an agreement.Pursuant to these sections,with the authority to perform any function on its own,a municipality can carry out that function with another municipality that has the same authority.There are other statutes scattered throughout the law that allow for joint or shared services; for example,Town Law§284 specifically authorizes intermunicipal cooperation in land use and comprehensive planning.General Municipal Law Article 5-G is,however,the primary source of authority in most instances. 2.Procedure.Any agreement entered into pursuant to General Municipal Law Article 5-G must be approved by the governing body of each participating 190 191 unit. For example,if a town and village agree to 2. Board-Initiated Consolidation: The procedure to share office space,the town board and village board commence a board-initiated consolidation is must approve the agreement.If a municipality would outlined in General Municipal Law Article 17-a,Title have to hold a public hearing,mandatory or 2.To summarize,the process starts with the creation permissive referendum_or other special procedure if and adoption of a proposed joint consolidation it were providing the service on its own,it must abide agreement by the governing bodies of each local by those requirements before undertaking a joint government involved.A public hearing must be held effort. on the proposed agreement and the local 3.Agreements.Intermunicipal agreements should governments may approve the agreement,amend it contain all of the matters involved in the or terminate the consolidation process. Once the arrangement,such as a method or formula for agreement is approved,the local governments must equitably allocating expenses and revenues to cover set a date for a referendum; however,consolidation financing costs and operating expenses.The of special districts need not go to referendum. If the agreement may also cover how to handle personnel, referendum passes,the local governments will be operation and maintenance of the facility,fixing and consolidated. If it fails,there is a four-year waiting collecting charges,rates,rents or fees, establishing period until the process can start again. necessary rules and regulations,insurance and 3.Voter-Initiated Consolidation:The voter-initiated liability issues,performance standards and consolidation process starts with the filing of a limitations on service.The duration of intermunicipal petition that meets the requirements set forth in agreements is limited to five years,except where General Municipal Law§757.If the petition does not issuance of debt is involved (then the agreement may satisfy those requirements,the petition should be extend up to the period of probable usefulness for the rejected.However,if it does,the local governments object or purpose for which the debt was issued. must hold a referendum. If the referendum fails, Periods of probable usefulness are found in Local there is a four-year waiting period until the process Finance Law§ 11.00). can start again.If it passes,the local governments B.Restructuring authority. General Municipal Law must approve a consolidation plan and hold a Article 17-A authorizes local governments (a town, hearing on it.After the public hearing,the local village or special improvement district)to dissolve governments may either amend or approve the (terminate its existence) or consolidate (combine two or consolidation plan. Once the plan is approved,there more local government units). may be a petition filed for a permissive referendum on the consolidation plan.If that occurs,and there is C.Consolidation Procedure.Below is the general a procedure for consolidating local government entities. a referendum on the consolidation plan,then the For more information on the process,please call theconsolidation fails. If it passes,consolidation occurs. i Association of Towns'office. D. Dissolution Procedure. Below is the general procedure for dissolving a local government entity found 1. Commencement: Consolidation proceedings can in General Municipal Law Article 17-a Title 3.Please note be commenced either by a joint resolution or elector that a town may not dissolve; only a village,fire district, initiative (see General Municipal Law§751). ! fire protection district,fire alarm district,special 192 193 1 f i i i improvement district or other improvement district, library district or other district created by law may do so. 1.Commencement: Dissolution-proceedings can be commenced either by a joint resolution or elector initiative (see General Municipal Law§773). 2. Board-Initiated Dissolution:The process starts by the governing body creating and passing a resolution endorsing a proposed dissolution plan.A public hearing must be held on the proposed plan,and after the hearing, the plan may be approved,amended, or it may terminate the dissolution process. Once the plan is approved,the local governments must set a date for a referendum; however,dissolution of special districts need not go to referendum.If the referendum passes,the local government/village will be dissolved.If it fails,there is a four-year waiting period until the process can start again. 3.Voter-Initiated Consolidation:The voter- initiated dissolution process starts with the filing of a petition that meets the requirements set forth in General Municipal Law§779(1).If the petition does not satisfy ' those requirements,the petition should be rejected. However,if it does,the local government that will potentially dissolve must hold a referendum. If the referendum fails,there is a four-year waiting period until the process can start again. If it passes,the dissolving I' local government must approve a dissolution plan and hold a hearing on it.After the public hearing,the dissolving local government may either amend or approve the dissolution plan.Once the plan is approved, there may be a petition filed for a permissive referendum on the dissolution plan. If that occurs,and there is a referendum on the dissolution plan,then the dissolution I fails.If it passes,the local government is dissolved. I, I 194 195