Opinion 94-28

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Powers and Duties (authority to pay expenses associated with advance planning undertaken for existing or proposed district or extension)

SEWER DISTRICTS -- Powers and Duties (duty to reimburse county general fund for costs associated with advance planning to study feasibility of county-wide wastewater treatment)

COUNTY LAW, §250 et seq.; GENERAL MUNICIPAL LAW, §99-d: Expenses incurred by a county for advance planning pursuant to General Municipal Law, §99-d may be paid, in the first instance, from the county's general fund. However, to the extent that the advance planning is undertaken for purposes of an existing improvement district or extension, or a proposed district or extension which is ultimately established, the district or extension must reimburse the general fund.

You state that the county board of supervisors has authorized a contract with an engineering firm to conduct a study of the feasibility of providing comprehensive, county-wide wastewater treatment. Presently, there exists only one sewer district within the county. The study was undertaken pursuant to General Municipal Law (GML), §99-d in connection with planning a possible future capital improvement. You ask whether the cost of the study is charged against the county's general fund or against the sewer district.

With respect to planning for future capital improvements, GML, §99-d(1) provides as follows:

Notwithstanding the provisions of any general, special or local law, the governing board or other appropriate authority of a municipal corporation ... may authorize the preparation of surveys, preliminary plans and detailed plans, specifications and estimates necessary for planning for a capital improvement which it is contemplated might be undertaken in the future and may provide for the manner in which the cost thereof shall be financed, subject, however, to the applicable provisions of any general or special law respecting the issuance of bonds or notes. (see also County Law, §252[1][3], authorizing a county sewer agency to assemble data relating to the sewerage collection problems of the county).

Further, as to charging the expenses incurred, section 99-d(4) provides as follows:

If the advance planning is undertaken for the purpose of an existing or proposed county ... improvement district, or any extension thereof, the existing district, or the proposed district when created, or the extension thereof, shall reimburse the county ... for the cost of such advance planning, including any interest on any obligations issued to finance such cost....

This Office has previously expressed the opinion that, pursuant to the above provisions, expenses incurred pursuant to section 99-d, in the first instance, may be paid from the municipality's general fund (1989 Opns St Comp, No. 89-28, p 66; 1976 Opns St Comp No. 76-124, unreported; 30 Opns St Comp, 1979, p 180). However, to the extent the advance planning is undertaken for purposes of an existing district or extension, or a proposed district or extension which is ultimately created, subdivision four of section 99-d requires reimbursement by the district or extension to the general fund (id.). In this regard, we note that a county has no authority to purchase or construct a sewer improvement other than through its sewer districts and extensions (County Law, §§215, 250 et seq.; 1984 Opns St Comp No. 84-63, p 79). Therefore, the contemplated capital improvements would necessarily involve increases or improvements to the facilities of the existing district (County Law, §268), the formation of one or more extensions to the existing district (County Law, §274), and/or the formation of one or more additional districts (see County Law, §256).

Accordingly, based on the foregoing, the cost of the advance planning in this instance initially may be paid from the county general fund. However, to the extent that the planning relates to the existing sewer district, including possible increases or improvements to district facilities, the county must reimburse the general fund from district funds. To the extent the planning relates to a proposed district or extension, the district or extension similarly must reimburse the general fund if and when the proposed district or extension is established. Finally, if all or part of the planning relates to a proposed district or extension which ultimately is not established, there would be no reimbursement and the county general fund would bear that portion of the expense.

December 31, 1994
Courtenay W. Hall, Esq., County Attorney
County of Saratoga