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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

ACTIONS AND PROCEEDINGS -- Authority To Institute (by town to challenge establishment of private landfill)

TOWNS -- Powers and Duties (acceptance of gift to defray expenses of lawsuit)

REFERENDUM -- Landfill (establishment of private landfill)

TOWN LAW, §§64(8), 65(1), 90: A town may not institute a lawsuit for the benefit of residents who are opposed to the establishment of a landfill by a private corporation within the town. Actions by a town are authorized only when property or governmental powers of the town are affected.

You state that a citizens group has requested the town board to hire an attorney for the purpose of commencing legal action to enjoin a private corporation from using property within the town for a landfill. You inquire whether town funds can be expended for this purpose. If town funds can be so expended, you inquire whether the town can accept a gift of money from the citizens group to help defray legal expenses. Finally, you ask whether the town can hold a special election to determine whether a majority of the voters are opposed to the landfill. We understand that the private corporation has applied to the New York State Department of Environmental Conservation for a permit in connection with its proposed landfill operation.

The authority for towns to participate in litigation is found in Town Law, §65. Subdivision 1 of section 65 provides in part:

"The town board of any town may authorize and direct any town officer or officers to institute, defend or appear, in any action or legal proceeding, in the name of the town, as in its judgment may be necessary, for the benefit or protection of the town, in any of its rights or property."

As was discussed in 1979 Opns St Comp No. 79-651, p 127, however, this authority does not, as a general rule, permit a town or other municipal corporation to maintain an action in a matter which does not affect it in its corporate character or in which it has no interest as an organ of local government (see Town of Remsen v Albright, 82 Misc 2d 470, 370 NYS2d 287). Thus, a town has no authority to institute a taxpayers' action on behalf of its citizens. Rather, the institution of a legal action by a town is generally permitted only if the property or governmental powers of the town itself are affected (see also 1980 Opns St Comp No. 80-342, unreported; Esopus Property Holders within New Paltz Central School District v Potter, 60 AD2d 948, 401 NYS2d 320, app dism 44 NY2d 789, 406 NYS2d 39).

Similarly, under the doctrine of sovereign immunity it has generally been held that a municipality, as a creature and instrumentality of the State, has no standing to maintain an action or proceeding against the State or one of its agencies. Accordingly, the town may not have standing to maintain any action or proceeding which is brought to challenge a determination made by the Department of Environmental Conservation. We note, however, that the courts have created exceptions to this general rule, and have found that there are situations where the immunity doctrine is not applicable (see Jeter v Ellensville School District, 50 AD2d 366, 377 NYS2d 685; Town of Black Brook v State of New York, 41 NY2d 486, 393 NYS2d 946; Town of Moreau v County of Saratoga, 134 Misc 2d 380, 510 NYS2d 990).

The question of whether, in this instance, a particular action can be maintained by the town can only be answered upon examination of all relevant facts and applicable principles of substantive law. Ultimately, this determination can only be made by the courts. For these reasons, we express no opinion as to whether the town would possess adequate standing to maintain the action described in your inquiry. Nonetheless, if the town board reasonably determines it to be advisable, town funds may be expended for the purpose of inquiring into the propriety of commencing litigation on behalf of the town (see Graves v Lombardi, 70 Misc 2d 1053, 335 NYS2d 189, affd 42 AD2d 700, 345 NYS2d 146). If, after such inquiry, the town board reasonably determines that the town possesses requisite standing, then an action may be commenced on behalf of the town pursuant to the authority of Town Law, §65.

If it is determined that the town may prosecute the action, then it may accept a gift of monies from the citizens group to aid in the payment of legal fees and expenses (1982 Opns St Comp No. 82-336, p 426; see also Atlantic Beach P.O.A. v Town of Hempstead, 3 NY2d 434, 165 NYS2d 737). In this connection, we note that Town Law, §64(8) expressly authorizes a town board to accept a gift:

"... for any public use, upon such terms or conditions as may be prescribed by the grantor or donor and accepted by said town, and provide for the proper administration of the same."

Finally, we note that it has been consistently held in this State that a municipality may not submit a proposition to referendum in the absence of express statutory authority (see 1986 Opns St Comp No. 86-8, p 14, and cases cited therein). There is no authority for a referendum on the question of whether a private corporation should be permitted to open a landfill in the town, and therefore such a referendum may not be held (cf. Town Law, §§81, 220[5] which provide for the establishment of a town public dumping ground by adoption of a resolution subject, in certain instances, to permissive referendum).

May 11, 1988
Anna L. Conkey, Town Clerk
Town of Argyle