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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

STATE COMPTROLLER -- Approval by (for proceeding to improve road pursuant to Town Law, §200)

STREETS AND HIGHWAYS -- Improvements (financing expenses for street improvements against abutting owners); (necessity to obtain approval of State Comptroller pursuant to Town Law, §200)

TOWN LAW, §200: The approval of the State Comptroller is not required in connection with a proceeding for the improvement of a road pursuant to Town Law, §200.

You ask whether the approval of the State Comptroller is required in connection with a proceeding for the improvement of a private road pursuant to Town Law, §200 when it is proposed that the improvement will be financed by the issuance of obligations.

Article 12 of the Town Law (§§190 et seq.) contains provisions relating to the formation of town special districts upon petition and, in the case of the establishment or extension of special districts which are proposed to be financed by the issuance of obligations, requires the approval of the State Comptroller (Town Law, §194; see also Town Law, §209-f in connection with special districts formed upon town board motion, subject to permissive referendum). Town Law, §200, which is also contained in article 12 of the Town Law, authorizes a town board, either upon petition of fronting or abutting property owners or upon the board's own motion, to improve a street, highway, private road or right-of-way, and assess the expense against the benefited properties in proportion to the amount of benefit conferred (see also Town Law, §202[2]). The improvement may include construction of sidewalks, curbs, gutters and culverts, or the construction or paving of the street, highway, private road or right-of-way.

In the case of an improvement to a private road, the town must acquire title to the private road by dedication or condemnation before the improvement is commenced (1979 Opns St Comp No. 79-703, unreported; 23 Opns St Comp, 1967, p 537; Memorandum of the Department of Audit and Control to the Governor re: L 1963, ch 706). Further, any private road improved under section 200 must be thereafter maintained as a public highway (Town Law, §200[14]).

Section 200 details a number of procedural requirements, including: the adoption of a town board order setting forth, among other things, the maximum amount proposed to be expended for the improvement and the area benefited thereby (Town Law, §200[7]); a public hearing (Town Law, §200[7], [8]); the preparation of definite plans and specifications for the improvement (Town Law, §200[8], [10]); and, in the case of action by board motion, a permissive referendum (Town Law, §200[10]). Although section 200 is contained within article 12 and the procedures set forth in section 200 are in many respects analogous to those prescribed for the formation of special districts (see, e.g., Town Law, §§191, 193, 209-d, 209- e[3]), section 200 does not contain a requirement for approval by the State Comptroller (1951 Opns St Comp No. 5474, unreported; 1946 Opns St Comp No. 1590, unreported; but see Local Finance Law, §104.10[3], requiring the approval of the State Comptroller in connection with the issuance of certain obligations by certain towns within the Adirondack Park).

In reaching this conclusion, we recognize that section 200(10) provides for the town board to adopt a resolution providing for the preparation of plans, specifications, an estimate and a proposed contract, and to cause the improvement to be constructed "all in the same manner as hereinbefore in this chapter provided for the construction of trunk sewers, drains and water systems". In our opinion, however, the reference to the previous provisions of the Town Law relates to Town Law, §197 which contains procedures for the preparation of plans, specifications and an estimate, and for the letting of contracts for the performance of the work for a special district improvement, and not to those provisions requiring the approval of the State Comptroller.

March 22, 1994
Robert H. Antell, Esq., Special Counsel
Town of Perinton