NY 2012-10 2012-09-13

If a charter county wants to sell county-owned property by local law instead of using the standard County Law procedure, does the local law need a two-thirds supermajority or just a simple majority?

Short answer: A simple majority is enough. A charter county can supersede County Law § 215's two-thirds requirement, but it cannot supersede the simple-majority floor that the Municipal Home Rule Law sets for any local law.

Disclaimer: This is an official New York Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed New York attorney for advice on your specific situation.

Plain-English summary

Suffolk County wanted to sell a county-owned skilled nursing facility. Selling under the default rule, County Law § 215, would have meant public-bid sale to the highest bidder and a two-thirds vote of the county legislature to approve. The county wanted to do something different: negotiate a deal directly with a buyer, write the entire deal (price, terms, use restrictions, declaration of surplus, all of it) into a local law, and pass that local law. The county attorney asked the AG which voting threshold applied to that local law: the two-thirds rule from County Law § 215(5), or the simple-majority rule from Municipal Home Rule Law § 20.

The AG said simple majority. Two layers of analysis got there.

First layer: a charter county like Suffolk can supersede County Law by local law, except where the County Law expressly forbids supersession. County Law § 2(b) says so, and courts had upheld charter-county local laws displacing County Law § 215. So the county legislature's choice to set up an alternative sale procedure was lawful.

Second layer: even though the county can supersede the supermajority requirement, it cannot supersede the Municipal Home Rule Law's procedural floor. Section 20(1) requires every local law to be passed by at least a simple majority of the legislative body's total voting power. Section 4(3)(g) of the Municipal Home Rule Law expressly bars a charter from superseding the Municipal Home Rule Law itself. So a local law authorizing the sale needed at least a simple majority, but not more.

For Suffolk's 18-member legislature, that meant at least 10 affirmative votes, rather than the 12 that would be required under County Law § 215(5).

Currency note

This opinion was issued in 2012. 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's the difference between a "resolution" and a "local law" in this context?

County Law § 215(5) talks about authorization "by resolution," using the standard county procedure: declare surplus, advertise, take bids, sell to the highest bidder. A local law is a more formal instrument that can supersede the County Law's procedural defaults. The opinion distinguishes the two and explains why the local-law route uses a different vote threshold.

Why can a county supersede County Law but not the Municipal Home Rule Law?

Charter counties have constitutional and statutory authority to enact local laws that displace inconsistent provisions of the County Law. County Law § 2(b) confirms that a local law trumps a conflicting County Law provision unless the County Law expressly says otherwise. The Municipal Home Rule Law operates at a different level: it governs how local laws themselves are made, and it expressly bars a charter from superseding it. Municipal Home Rule Law § 4(3)(g).

Is the AG's view reviewable in court?

Yes. AG informal opinions are persuasive but not binding. The cases the opinion cites, Henry v. Noto and Martin v. Eagle Hill Foundation, are the binding judicial authority confirming that charter counties can supersede County Law § 215.

Does the negotiated sale skip the public-bid requirement?

The opinion does not bless any specific sale; it answers a procedural vote-counting question. The supersession analysis means a charter county can use a different procedure than § 215's competitive bid, but the county still has to ensure the deal serves a valid public purpose and meets the constitutional fair-and-adequate-consideration standard.

Why the policy concern about supermajority requirements?

The AG's earlier opinions (Op. Att'y Gen. (Inf.) No. 98-37; No. 2007-5) had taken the same view: a county or city cannot lock in a higher vote threshold for adopting local laws because that conflicts with the simple-majority rule the Municipal Home Rule Law sets statewide. The reasoning is that the simple-majority rule is part of how the state structures local lawmaking, not part of any particular substantive policy.

Does this rule apply outside charter counties?

Charter counties are the population the opinion addressed. Non-charter counties have less supersession power and would generally be bound by County Law § 215. Cities and towns operate under different procedural frameworks but share the simple-majority rule under the Municipal Home Rule Law.

Background and statutory framework

County Law § 215 establishes the default procedure for selling surplus county-owned property: declare it surplus, advertise publicly, take bids, sell to the highest bidder, and approve the sale by a two-thirds vote of the county legislature. Subsection (5) is the supermajority requirement; subsection (6) sets the public-advertisement and high-bidder requirements.

The supersession framework: County Law § 2(b) provides that a county's local laws supersede the County Law where they conflict, unless the County Law expressly says it cannot be superseded. County Law § 215 does not contain that kind of express prohibition. Courts had already confirmed the supersession in Henry v. Noto, 74 A.D.2d 604 (2d Dep't 1980), modified and aff'd, 50 N.Y.2d 816 (1980); Martin v. Eagle Hill Foundation, 111 A.D.2d 372 (2d Dep't 1985); and Devitt v. Heimbach, 109 Misc. 2d 463 (Sup. Ct. Orange Co. 1981).

The Municipal Home Rule Law's procedural floor: section 20(1) requires that "[n]o local law shall be passed except by at least the majority affirmative vote of the total voting power of the legislative body." That is a statutory floor on local-law adoption. Section 4(3)(g) prevents a county charter from superseding the Municipal Home Rule Law, which means a charter cannot raise (or lower) the simple-majority requirement for passing a local law. Earlier informal AG opinions on the same point: Op. Att'y Gen. (Inf.) No. 98-37; No. 2007-5.

For Suffolk's 18-member legislature, "majority affirmative vote of the total voting power" works out to 10 votes. Two-thirds would be 12.

Citations

The default sale procedure: County Law § 215 (subsections (5) and (6) for the supermajority and public-bid rules). The supersession authority: County Law § 2(b), confirmed by Henry v. Noto, 74 A.D.2d 604 (2d Dep't 1980), Martin v. Eagle Hill Foundation, 111 A.D.2d 372 (2d Dep't 1985), and Devitt v. Heimbach, 109 Misc. 2d 463 (Sup. Ct. Orange Co. 1981). The procedural floor for local laws: Municipal Home Rule Law § 20(1), with Municipal Home Rule Law § 4(3)(g) preventing charter supersession of that floor.

Source

Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
Original PDF: https://ag.ny.gov/sites/default/files/opinions/2012-10_pw.pdf

Original opinion text

County Law §§ 2(b), 215, 215(5), 215(6); Municipal Home Rule Law §§ 4(3)(g), 20, 20(1)

A local law that contains the complete terms of a sale of specified surplus countyowned property can be adopted by the county legislature of a charter county upon a vote of a simple majority pursuant to Municipal Home Rule Law § 20(1).

September 13, 2012

Dennis M. Cohen
County Attorney
County of Suffolk
PO Box 6100
Hauppauge, NY 11788-0099

Informal Opinion
No. 2012-10

Dear Mr. Cohen:

You have requested an opinion relating to the number of votes required for the County Legislature to pass a local law authorizing the sale of county-owned property. County Law § 215 establishes a procedure for selling surplus county property which would require sale to the highest bidder after public advertisement, § 215(6), and approval by two-thirds of the members of the County Legislature, § 215(5). But the County wishes to use a different procedure for the sale of a county-owned and -operated skilled nursing facility. You have explained that this alternative procedure will allow the County to sell the property for fair and adequate consideration. Under the County's procedure, after the terms of the transaction are negotiated, a local law will be enacted approving the entire transaction, including any declaration of surplus, the price, contract terms, and use requirements and restrictions. Your question is whether such a local law may be passed by a simple majority, as required for adoption of a local law by Municipal Home Rule Law § 20, or whether it must be passed by the supermajority required by County Law § 215(5). As explained below, we are of the opinion that adoption of the local law requires only a simple majority.

First, the County may by local law adopt a procedure for selling surplus county property that differs from that established by County Law § 215. The County has a charter, and its local laws supersede the provisions of the County Law to the extent of any conflict unless a contrary intent is expressly stated in the County Law. County Law § 2(b); Henry v. Noto, 74 A.D.2d 604, 605 (2d Dep't), modified and aff'd, 50 N.Y.2d 816 (1980). County Law § 215 does not contain an express contrary intent, and courts have upheld local laws adopted by a charter county that superseded the requirements of County Law § 215(5) and (6). Martin v. Eagle Hill Found., 111 A.D.2d 372 (2d Dep't 1985); Devitt v. Heimbach, 109 Misc. 2d 463 (Sup. Ct. Orange Co. 1981).

Second, Municipal Home Rule Law § 20 governs the procedure for adopting a local law by a legislative body. It provides that "[n]o local law shall be passed except by at least the majority affirmative vote of the total voting power of the legislative body." Municipal Home Rule Law § 20(1). This statutory requirement of a simple majority may not be changed by a local government. Op. Att'y Gen. (Inf.) No. 98-37; see also Op. Att'y Gen. (Inf.) No. 2007-5; cf. Municipal Home Rule Law § 4(3)(g) (a county charter cannot supersede the Municipal Home Rule Law).

In summary, the County may supersede the provisions of County Law § 215(5) and (6) but cannot supersede the provisions of Municipal Home Rule Law § 20(1). We therefore are of the opinion that a local law that contains the complete terms of a sale of specified surplus county-owned property can be adopted by the County Legislature upon a vote of a simple majority pursuant to Municipal Home Rule Law § 20(1). With the County's 18-member Legislature, the local law must receive at least 10 affirmative votes to pass, whereas 12 affirmative votes would be needed to pass a resolution adopted pursuant to County Law § 215(5).

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions