Can voters force a referendum on consolidating two New York towns by signing a petition, or does it take action by both town boards?

Plain-English summary

The Town of Canadice and the Town of Richmond were thinking about combining into a single town. The Canadice Town Attorney asked the AG about referendum procedure. Town Law Article 5-B governs town consolidation. "Consolidation" under § 79-b(1) means a physical combination of two or more towns into a single town, with each constituent town ceasing to exist as a governmental entity and being replaced by the new combined town.

The procedure runs through several steps. Under § 79-d(2), "[t]he town boards of the several towns in the same county may submit a proposition for consolidation at a general or special election." The proposition must be approved by a majority of the electors of each of the towns; that means the two consolidating towns each vote, and a majority is required in each. Before the election, the town boards must hold a joint public hearing with at least ten days but not more than twenty days notice, published in the official newspaper of each town (or a newspaper of general circulation if the town has no official newspaper). That is § 79-g.

The Canadice attorney's specific concern was whether the citizens of one or both towns could file a petition to force the referendum onto the ballot, even if a town board declined to submit the proposition. The AG read Article 5-B carefully and found no such authority. The statute places the power to submit a proposition with each town board, and it requires a board resolution in each town. If one board refuses, there is no consolidated proposition to vote on, and the process ends. The opinion is explicit: "if the town board of one of the two towns proposing to consolidate does not approve the submittal of a proposition to its electors, the process of consolidation ends."

Under the procedure the opinion describes, the referendum cannot occur unless each town board authorizes submission of the proposition. The opinion identifies no elector-petition route under Article 5-B.

Currency note

This opinion was issued in 1998. 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

What happens if both town boards submit a proposition?

The boards must hold a joint public hearing before the election, on the notice described in Town Law § 79-g. A majority of electors in each town must then approve the proposition.

Can voters petition to place town consolidation on the ballot?

The opinion says Article 5-B provides no authority for an elector petition to submit a consolidation proposition to referendum. Each town board must first approve submission to its own electors.

What if one town board does not approve submission?

The AG says the consolidation process ends under the procedure it analyzed.

Did the opinion address a lawsuit against a town board that declines to act?

No. It discusses the statutory referendum procedure and gives no view on a lawsuit, standing, or any remedy outside that procedure.

Background and statutory framework

Town Law Article 5-B defines consolidation as combining towns into one new town. The opinion quotes § 79-d(2) on town board submission of the proposition and approval by a majority in each town, and § 79-g on the joint public hearing and published notice. Its conclusion is limited to consolidation of towns under that article.

Citations

• Town Law § 79-b (definitions; "consolidation" defined).
• Town Law § 79-b(1) (definition of consolidation).
• Town Law § 79-d (procedure for submitting consolidation proposition; voter approval requirement).
• Town Law § 79-d(2) (majority approval in each town required).
• Town Law § 79-g (joint public hearing requirement, notice requirements).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-46_pw.pdf

Original opinion text

TOWN LAW, ART 5-B, §§ 79-b, 79-d, 79-g. The town board of each town proposing to consolidate must act to submit a proposition to consolidate to the electors of the town. There is no authority for a petition by the electors to submit a proposition for consolidation to the electors of the town for approval. November 2, 1998

David G. Retchless, Esq.
Town Attorney
Town of Canadice
P. O. Box 790
Honeoye, NY 14471-0790

Informal Opinion
No. 98-46

Dear Mr. Retchless:
In a telephone conversation on September 23, 1998, you explained your request for an opinion of the Attorney General concerning the consolidation of the Towns of Canadice and Richmond. Your concern is the procedure for conducting a referendum on the proposed consolidation of these towns. You defined consolidation as the combination of the two towns into a single town. The consolidation of towns is governed by Article 5-B of the Town Law. "Consolidation" is defined as "a physical combination of two or more towns into a single town, in which each such town ceases to exist as a governmental entity and is replaced by the single town." Town Law § 79-b(1). The process of consolidation begins with action by the town boards of the towns proposing to consolidate. "The town boards of the several towns in the same county may submit a proposition for consolidation at a general or special election." The proposition must be approved by a majority of the electors of each of the towns. Id., § 79-d(2). Prior to the election on the proposition to consolidate, the town boards of the towns are required to hold a joint public hearing on notice of at least ten, but not more than twenty days, published in the official newspaper of each of the towns or, if there is no official newspaper, in a paper having general circulation within the town. Id., § 79-g. It is clear under this procedure that the first step in consolidation is for the town board of each town to pass a resolution to submit a proposition for consolidation to the electors of the town. Upon such action by each town board and

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after a public hearing, the proposition to consolidate must be approved by a majority of the electors of each of the towns. There is no authority for a petition by electors of a town to submit a proposition for consolidation to a referendum. The referendum may be held only if the town board of each town proposing to consolidate authorizes submittal of the proposition to consolidate to the electors of the town. Therefore, if the town board of one of the two towns proposing to consolidate does not approve the submittal of a proposition to its electors, the process of consolidation ends. We conclude that the town board of each town proposing to consolidate must act to submit a proposition to consolidate to the electors of the town. There is no authority for a petition by the electors to submit a proposition for consolidation to the electors of the town for approval. The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office. Very truly yours,

JAMES D. COLE
Assistant Attorney General
In Charge of Opinions