Does a New York town need to hold a referendum before its consolidated sewer district conveys an easement to a private developer like Home Depot?

Plain-English summary

The Town of Penfield had a town-wide consolidated sewer district with sanitary and storm sewers running through an easement on a parcel that Home Depot wanted to develop. Home Depot was willing to install larger replacement sewers at its own expense in a different location, which would then be dedicated to the sewer district. The legal question was procedural: did the conveyance of the old easement to Home Depot require a permissive referendum?

The AG answered no. A municipality may conduct a referendum only when the Constitution or a statute expressly authorizes one. Representative government is the rule; direct citizen action is the exception. The Court of Appeals stated that principle in Matter of McCabe v Voorhis, 243 NY 401 (1926), and Mills v Sweeney, 219 NY 213 (1916).

For improvement districts specifically, Town Law § 198(12) governs the sale or lease of district-owned real property. It does not include a referendum requirement. What it does require is a public hearing when the value of the property to be sold or leased exceeds $1,000. The AG found no referendum authorization for this transaction.

The opinion treats the easement question by tying it to real property doctrine. An easement is an interest in and over real property under Real Property Law § 240(2) and Todd v Krolick, 96 AD2d 695 (3d Dept 1983), affd, 62 NY2d 836 (1984). It can be extinguished only by abandonment, conveyance, condemnation, or adverse possession (Gerbig v Zumpano, 7 NY2d 327, 330 (1960)). The conveyance of an easement falls within the "sale" category of § 198(12) and follows the same procedural rules.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does a town need express authority to hold a referendum?

New York follows the representative-government default: voters elect officials to make decisions, and citizens vote directly only when the Constitution or a statute says they may. Matter of McCabe v Voorhis and Mills v Sweeney are the canonical statements of that rule. A town cannot create a referendum out of whole cloth, even for a meaningful question.

What does Town Law § 198(12) actually require?

It authorizes the sale or lease of improvement district property without a referendum. It requires a public hearing when the property to be sold or leased has a value exceeding $1,000. The hearing is the public-participation mechanism the Legislature chose; it is not a vote.

Is an easement a "property" sale for purposes of § 198(12)?

Yes. An easement is an interest in real property under Real Property Law § 240(2). Conveying an easement is a conveyance of a property interest. § 198(12) applies the same procedural rules to sales and leases of improvement district property.

Was the deal substantively sensible for Penfield?

The opinion describes larger replacement sewers to be installed by Home Depot at no cost to the district and dedicated to it after acceptance. It addresses whether conveying the easement requires a referendum; it does not evaluate whether the exchange is desirable.

What would have triggered a referendum requirement?

For the easement conveyance at issue, the AG found no referendum requirement or authority under Town Law § 198(12). The opinion does not analyze other property transactions.

Did the AG address advisory referendums?

No. The opinion does not discuss advisory referendums. It cites earlier AG opinions only for the general rule that a municipality needs constitutional or statutory authority to conduct a referendum. It concludes that no referendum is required or authorized for this easement conveyance. See the original opinion.

Background and statutory framework

Town Law § 198 lays out the general powers of town improvement districts. Subdivision 12 specifically governs the sale or lease of district property: it authorizes the transaction without a referendum but requires a public hearing for property valued over $1,000.

Real Property Law § 240(2) defines real property interests broadly, including easements. New York case law (Todd v Krolick, Gerbig v Zumpano) confirms that easements are property interests with the same protections and conveyance rules as other real property interests.

Referendum authority is governed by the McCabe-Mills doctrine: representative government is the rule, referendum the express exception. Matter of Grossman v Town of Southampton, 170 Misc 2d 822 (Sup Ct Suffolk Co 1996), is a more recent application of the same principle.

Citations

• Real Property Law § 240(2) (real property interests including easements).
• Town Law § 198(12) (sale or lease of improvement district property; public hearing over $1,000; no referendum).
• Matter of McCabe v Voorhis, 243 NY 401 (1926) (representative government default; referendum requires express authority).
• Mills v Sweeney, 219 NY 213 (1916) (same).
• Matter of Grossman v Town of Southampton, 170 Misc 2d 822 (Sup Ct Suffolk Co 1996) (modern application of referendum rule).
• Todd v Krolick, 96 AD2d 695 (3d Dept 1983), affd, 62 NY2d 836 (1984) (easement as property interest).
• Gerbig v Zumpano, 7 NY2d 327, 330 (1960) (easement extinguishment limited to abandonment, conveyance, condemnation, or adverse possession).
• Op Atty Gen (Inf) No. 90-24 (referendum authority must be express).
• 1981 Op Atty Gen (Inf) 154 (same).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-42_pw.pdf

Original opinion text

REAL PROPERTY LAW § 240(2); TOWN LAW § 198(12). There is no requirement or authority for a referendum on the conveyance by a town improvement district of an easement in real property. October 1, 1997

Richard J. Horwitz, Esq.
Town Attorney
Town of Penfield
3100 Atlantic Avenue
Penfield, New York 14526-9798

Informal Opinion
No. 97-42

Dear Mr. Horwitz:
By letter and subsequent clarifying telephone conversation, you have requested an opinion regarding a commercial development in the Town of Penfield. The Home Depot desires to develop property over an easement possessed by a town-wide consolidated sewer district in which sanitary and storm sewers had served a prior commercial development. Home Depot is being required to install in a different location larger replacement sewers that will accommodate its store and serve area businesses. All work in installation of the new sewers will be performed by the developer at no expense to the sewer district. Once completed and accepted by the sewer district, the new sewers will be dedicated to and become part of the consolidated sewer district. You have asked whether conveyance of the property subject to the easement to Home Depot for its construction is subject to a permissive referendum. We conclude that no referendum is required or authorized. A municipality may conduct a referendum only when there is a constitutional or statutory grant of power to do so. Op Atty Gen (Inf) No. 90-24; 1981 Op Atty Gen (Inf) 154. Representative government is the general rule and direct action by the people, through a referendum, is the exception and must be expressly authorized by State law. Matter of McCabe v Voorhis, 243 NY 401 (1926); Mills v Sweeney, 219 NY 213 (1916); Matter of Grossman v Town of Southampton, 170 Misc 2d 822 (Sup Ct Suffolk Co 1996). An easement is an interest in and over real property (Todd v Krolick, 96 AD2d 695 [3d Dept 1983], affd, 62 NY2d 836 [1984]; Real Property Law § 240[2]) which is "created by grant, express or implied, [and] can only be extinguished by abandonment,

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conveyance, condemnation, or adverse possession [and] . . . it remains as inviolate as the fee". Gerbig v Zumpano, 7 NY2d 327, 330 (1960). Under Town Law § 198(12), sale or lease of property located in an improvement district, such as the consolidated sewer district, is not subject to a referendum. However, a public hearing is to be conducted when the value of the improvement district property to be sold or leased exceeds one thousand dollars ($1,000). Id. We conclude, then, that there is neither a requirement nor authority for a referendum on the conveyance by a town improvement district of an easement in real property. The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of the views of this office. Very truly yours,

JULIA RYAN CHRIST
Assistant Attorney General