Opinion 91-27

This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

COUNTIES -- Real Property (sale of unneeded real property without public bidding)
LOCAL LAWS -- Real Property (authority of county to supersede sale and lease provisions of County Law, §215)
REAL PROPERTY -- Conveyances Generally (authority of county to supersede sale and lease provisions of County Law, §215) -- Sales (of unneeded county real property without public bidding)

COUNTY LAW, §§2(b), 215(5), (6); MUNICIPAL HOME RULE LAW, §10(1)(i): A non-charter county may not supersede section 215 of the County Law by local law to authorize the conveyance of real property in a manner other than that provided by subdivision 6 of that section.

This is in reply to your letter concerning the proposed conveyance of real property by a non-charter county to an historical association. You state that the county has commenced eminent domain proceedings to acquire certain real property of the historical association necessary for the construction of a sewage treatment plant. The county wishes to convey two parcels of real property, also obtained by eminent domain, to the historical association as partial settlement in the amount of $16,500 of the eminent domain proceedings with the association. You state that the county district paid $10,500 to acquire these two parcels and has expended $6,000 to demolish a building and clear the property. You ask whether the county may make the proposed conveyance in view of the requirement of County Law, §215(6) that county real property be sold only to the highest responsible bidder.

County Law, §215(3) authorizes the county board of supervisors to acquire, by purchase or condemnation, real property for lawful county purposes. 1989 Opns St Comp No. 89-29, p 69, generally discusses the authority of a municipality to acquire real property for the purpose of re-conveyance. In this instance, however, since the county has already completed eminent domain proceedings to acquire the property to be exchanged, we will assume that the acquisition of the property was permitted by the County Law.

County Law, §215(5) provides that when the board of supervisors determines that any county real property is no longer necessary for public use, the board, by resolution adopted by two-thirds vote, may sell or convey the property. Pursuant to County Law, §215(6), such property may be sold or leased only to the highest bidder after public advertisement.

It has been held that a municipality may not, without specific legislative authorization, permit property acquired or held for municipal purposes to be conveyed for private use (Lake George Steamboat Co. v Blais, 30 NY2d 48, 330 NYS2d 336; Downey v Motor Vehicle Accident Indem. Corp., 43 AD2d 168, 350 NYS2d 821). Thus, as a general rule, a municipality may not convey municipal real property unless it is no longer needed for a municipal purpose (1985 Opns St Comp No. 85-37, p 51). Subdivision 5 of County Law, §215 is a codification of this general principle.  Accordingly, prior to the conveyance of these two parcels to the historical association for the association's private use, the county board must first determine that the parcels are no longer needed for county purposes.

With respect to the application of bidding requirement of County Law, §215(6) to the conveyance of unneeded county real property, this Office has previously expressed the opinion that both charter and non-charter counties, by the adoption of a local law subject to permissive referendum, may authorize the sale of real property at private sale (see, e.g., 1980 Opns St Comp No. 80-400, unreported; 1980 Opns St Comp No. 80-190, unreported; 34 Opns St Comp, 1978, p 75; 24 Opns St Comp, 1968, p 969; 20 Opns St Comp, 1964, p 261). These opinions were based on our analysis of a county's home rule power under section 10(1)(i) of the Municipal Home Rule Law.

Section 10(1)(i) provides that a county may adopt local laws relating to its "property, affairs or government", provided that such local laws are not inconsistent with the State Constitution or any general law. A "general law" is defined as "[a] state statute which in terms and in effect applies to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages" (Municipal Home Rule Law, §2[5]; NY Const, art IX, §3).

In our prior opinions, we concluded that the conveyance of real property is clearly a matter pertaining to the "property, affairs or government" and that County Law, §215(6) was not a general law because at least one county has a county charter which permits the conveyance of real property by private sale (see Westchester County Charter, §3[2]). Therefore, it was our opinion that section 215(6) could be superseded by any county pursuant to section 10(1)(i) of the Municipal Home Rule Law. While it continues to be our opinion that the conveyance of real property would relate to the "property, affairs or government" of a county, we now believe, based on a review of subsequent court cases, that the existence of an inconsistent charter provision, by itself, does not make section 215(6) of the County Law a special law which can be superseded by the adoption of a local law in a non-charter county.

Section 2(b) of the County Law provides, in part, that the provisions of that chapter shall apply to all counties, except that:

... in so far as they are in conflict with or in limitation of a provision of any alternative form of county government heretofore or hereafter adopted by a county pursuant to section two of article  nine of the constitution, or any administrative code, county government law or civil divisions act enacted by the legislature and applicable to such county as now in force or hereafter amended, or in conflict with any local law heretofore or hereafter adopted by a county under an optional or alternative form of county government, [they] shall not be applicable to the county, unless a contrary intent is expressly stated in this chapter (see also County Law, §1001[3]).

In discussing the validity of a local law adopted by a charter county, the court in Long Island Liquid Waste Ass'n v Cass, 115 AD2d 710, 496 NYS2d 527, app dsmd 67 NY2d 870, 501 NYS2d 664, characterized section 2(b) of the County Law as follows:

[t]his provision effectuates the design of the County Law which, unlike most general laws, is intended to provide rules of local government in instances where a county has not done so by adopting an alternate form of government... Thus, where a county has adopted its own form of government, the provisions of that county's duly adopted local laws apply instead of those of the County Law (emphasis added) (see also Blass v Cuomo, 145 Misc 2d 670, 547 NYS2d 997; Municipal Home Rule Law, §34[3][g]).

Thus, the court, having given due regard to County Law, §2(b), concluded, in dicta, that the County Law is a general law.

Consistent with the court's analysis in Cass, supra, several other cases have held that a law may be a general law if it applies "in terms and in effect" uniformly to all counties, cities, towns or villages within a reasonable classification governed by prescribed conditions related to the subject of the statute (see, e.g., Rozler v Franger, 61 AD2d 46, 401 NYS2d 623, affd 46 NY2d 760, 413 NYS2d 654; Radich v Council of City of Lackawanna, 93 AD2d 559, 462 NYS2d 928, affd on other grnds 61 NY2d 652, 472 NYS2d 82; see also Uniformed Firefighters Ass'n v City of New York, 50 NY2d 85, 428 NYS2d 197; cf. Farrington v Pinckey, 1 NY2d 74, 150 NYS2d 585).

Rozler, supra, involved the Village Law, which is analogous to the County Law in that it applies to all villages except those which have contrary charter provisions. The court determined that the Village Law was a general law despite the exception from its operation of charter villages by the savings clause of section 23-2202 of the Village Law. The court stated as follows:

The fact that twelve chartered villages are, by virtue of the savings clauses (Village Law, §§23-2200, 23-2202), exempted from operation of the Village Law does not, as the village trustees contend, make it any less a general law. The exception to the operation of the Village Law for chartered villages is based on a reasonable classification and the law applies uniformly to all other villages throughout the state (citations omitted; 61 AD2d at 51, 401 NYS2d at 626).

We believe County Law, §2(b), in effect, similarly establishes two classes of counties: those which are governed by an optional or alternative form of government and all other counties. Therefore, since the County Law applies uniformly in terms and in effect to that class of counties not governed by an optional or alternative form of government, we believe it is a general law. It is also our opinion, therefore, that a provision of the County Law does not become a special law as it applies to non-charter counties solely because one or more counties operating under an optional or alternative form of government may have chosen to supersede that provision by local law.

Based on the foregoing, we conclude that while charter counties, consistent with section 2(b), may supersede County Law, §215(6) by local law (Martin v Eagle Hill, 111 AD2d 372, 489 NYS2d 357), non-charter counties may not supersede that provision by local law unless there is evidence that section 215(6) is a special law because it does not apply in terms and effect to all non-charter counties. In this regard, there is nothing on the face of subdivision 6 (cf. County Law, §215[3], containing an exception for Cattaraugus County) which would render that provision a special law as it applies to non-charter counties. Further, we are not aware of any special legislation granting a non-charter county general authority to convey real property in a manner other than that provided in subdivision 6. Accordingly, it appears that the county may convey the two parcels at private sale only if authorized by the State Legislature. Opn Nos. 80-400, 78-433 and other prior opinions are hereby superseded to the extent inconsistent herewith.

In reaching the above conclusion, we are aware that the Court of Appeals decision in Resnick v County of Ulster, 44 NY2d 279, 405 NYS2d 625, and Court's affirmance of the lower court decision in Nydick v Suffolk County Legislature, 36 NY2d 951, 373 NYS2d 554, affg on opn at 81 Misc 2d 786, 367 NYS2d 632, may be read to suggest that the County Law is not a general law to the extent that charter counties may supersede its provisions. Nydick, supra, and Resnick, supra, involved, respectively, the authority of a charter and a non-charter county, by local law, to supersede the provisions of County Law, §400(7) which provides for the Governor to fill vacancies in elective county offices (cf. Carey v Oswego County Legislature, 91 AD2d 62, 458 NYS2d 283, affd 59 NY2d 847, 466 NYS2d 312). In Resnick, the Court of Appeals also stated that "it would be contrary to the spirit of home rule to allow the issue of whether county legislatures may adopt provisions relating ... to 'affairs or government' to turn on the existence or non-existence of county charters" (44 NY2d at 287, 405 NYS2d at 628). We believe for the reasons set forth below, however, that Resnick and Nydick, supra, should be limited to local laws pertaining to the selection of local officials.

In Nydick, supra, the Court deemed section 400 of the County Law a special law based on the specific authority granted to charter counties by section 33(2) of the Municipal Home Rule Law to provide for the appointment of county officers and their selection. The Court, however, does not suggest that all provisions of the County Law which may be superseded by a charter county are special laws. Moreover, we note that the Court's conclusion that section 400 is a special law was unnecessary since the county in question was a charter county, which, as noted, is expressly permitted to supersede most provisions of the County Law pursuant to section 2(b) of that statute.

In Resnick, supra, the Court was principally addressing whether article XIII, §3 of the State Constitution, which states that "the legislature shall provide for filling vacancies in office", limited the power of counties to provide, by local law, for the filling of vacancies in the county legislature. The Court, in reaching its decision, appeared to rely on the fundamental right of "local governments to determine the mode of selection of their officers" (44 NY2d at 289, 405 NYS2d at 629; also see NY Const Art 9, §1[b] which provides that all local government officers "whose election or appointment is not provided for by this constitution shall be elected by the people of the local government...or appointed by such officials of the local government as may be provided by law."). The question of the authority of a non-charter to supersede a provision of the County Law was not analyzed by the Court, in part, because the Court relied on the holding in Nydick, supra (see footnote 2, 44 NY2d at 288, 405 NYS2d at 628). Further, the Court appeared convinced that a county's ability to exercise this fundamental right should not hinge on technical distinctions between a charter and non-charter county. We also note that Resnick and Nydick, supra, were both decided before Cass and Rozler, supra, and that the later cases suggest that Resnick and Nydick may not have been correct when they concluded that County Law, §400 is a special law.

Finally, we note that the relative values of the properties to be exchanged is a question of fact which cannot be determined by this Office (see also Eminent Domain Law, articles 3, 5). The board may wish, however, to obtain one or more appraisals of the parcels to be conveyed to aid in establishing the value of this property (see 1989 Opns St Comp No. 89-64, p 140).

June 5, 1991
Bartley J. Costello, III, Esq.
Washington County Sewer District