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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

VILLAGES -- Powers and Duties (advisory referendum on becoming a city)

REFERENDUM -- Advisory (village becoming a city)

VILLAGE LAW, §§1-102, 4-412, 9-912: Absent an act of the State Legislature, a village may not conduct an advisory referendum on the question of whether the village should become a city.

You ask whether a village may conduct an advisory referendum on the question of whether the village should become a city.

It has been consistently held in this State that a municipality may not submit a question to a referendum, either advisory or binding, in the absence of express statutory authority (McCabe v Voorhis, 243 NY 401; Mills v Sweeney, 219 NY 213; Kupferman v Katz, 19 AD2d 824, 243 NYS2d 773, affd 13 NY2d 932, 244 NYS2d 217; Greene v Town Board of Town of Warrensburg, 90 AD2d 916, 456 NYS2d 873, lv den 58 NY2d 604, 459 NYS2d 1027; Citizens For An Orderly Energy Policy v County of Suffolk, 90 AD2d 522, 455 NYS2d 32, appeal dsmd 57 NY2d 1045, 457 NYS2d 787). Based upon these cases, we have stated that referenda which are neither authorized nor required by statute are improper and without effect and that municipal moneys may not be expended for such purposes (1991 Opns St Comp No. 91-58, p 160; 1990 Opns St Comp No. 90-64, p 145; 1988 Opns St Comp No. 88-70, p 137; 1987 Opns St Comp No. 87-80, p 120; 1986 Opns St Comp No. 86-8, p 14; 1981 Opns St Comp No. 81-344, p 376).

There is no State statute which authorizes a village to conduct an advisory referendum on the question of whether to seek to become a city (cf. Village Law, §9-912; L 1989, ch 773 as amended by L 1990, ch 17, and City of New York v State of New York, 76 NY2d 479, 561 NYS2d 154, relating to the conduct of a referendum on determining Staten Islanders' interest in becoming a separate city). Accordingly, it is our opinion that, absent an act of the State Legislature, the village may not conduct an advisory referendum on the question of whether the village should become a city. Our reference to an act of the Legislature is for informational purposes only and is not a recommendation of this Office with respect to any particular measure.

September 18, 1996
Anthony Cerreto, Esq.,Village Attorney
Village of Port Chester