19 January 2005
Greater Buffalo Commission
Erie County-City of Buffalo-Merger
AN ACT, authorizing amendment of the charter of the county of Erie to effect a merger of functions, of the city of Buffalo and the said county, and to grant certain powers to the said county.
Note
This is a proposed enabling act of the State Legislature, authorizing, but not requiring, the County Legislature to effect the proposed merger by local law amending the County Charter, subject to approval at a split referendum as described below. Its purpose is to enable a merger of the City of Buffalo and the County of Erie so as to create a stronger and more effective government, capable of acting for and representing with a single voice both the historical urban core and the broader suburban and rural region of the greater Buffalo area.
The People of the State of New York represented in Senate and Assembly, do enact as follows:
§ 1. Notwithstanding the provisions of any other law, general, special or local, the charter of the county of Erie may be amended, pursuant to section 33 of the municipal home rule law and this act, to merge functions of the city of Buffalo and the county of Erie so as to form a regional government, to be known as the Regional City of Buffalo.
Note
The only way in which the present City and County governments can be merged under the New York Constitution is pursuant to Article IX § 1 (h) of the Constitution, which empowers the State Legislature to authorize the creation of alternative forms of county government, in which functions may be transferred and other units of local government may be abolished notwithstanding otherwise applicable constitutional principles protecting the existence and essential functions of the traditional local governments. See N.Y. Const. Article IX § 1 (a) and (b), Article VIII § 3; People ex rel. Hon Yost vs. Becker, 203 NY 91 (1911); People ex rel. Town of Pelham v. Village of Pelham, 215 NY 374 (1915). The exercise of this power is subject to two important conditions. First, if the state law authorizing a county to adopt such an alternative form of county government is a special law, which in terms and effect does not apply to all counties (other than the five boroughs of the City of New York), it may be enacted only upon a county home rule request. Second, if an alternative form of county government transfers a function from an existing local government, it is subject to a split referendum, requiring separate majorities of (a) the voters of the cities, considered in the aggregate, and (b) the voters outside the cities. If it transfers a function from one or more villages, a third majority is required, that is, a majority of the voters of the villages so affected, considered in the aggregate. The State Legislature could not merge the City and the County except in compliance with these conditions. Moreover, it will be necessary to transfer the City's constitutional taxing power to the County, and this would not be accomplished by an act of the State Legislature simply dissolving the City, even if that were possible.
Pursuant to Article IX § 1 (h) of the Constitution, Section 33 of the Municipal Home Rule Law empowers counties to design and adopt their own forms of alternative county government and, in that context, to transfer functions among the units of local government within the county. It does not, however, authorize the abolition of an entire unit of local government without further authorization by state law. Since the proposed merger would not abolish the City of Buffalo as a formal legal entity, it might conceivably be effected without necessity of an enabling act. An enabling act is proposed, however, so as to foreclose legal challenge to the proposed merger of functions as the practical equivalent of abolition, and to reduce legal risk to other aspects of the merger.
§ 2. For purposes of the constitution and laws of the state of New York, the Regional City of Buffalo shall be deemed to be a county, and it shall be governed by the amended county charter, which upon its effective date (as specified by the local law amending the county charter) shall become the charter of the regional city.
Note
Although named the Regional City of Buffalo, the new government will be a county government in the eyes of the law. As noted above, the New York Constitution would not permit the merger except as an alternative form of county government.
§ 3. Upon the effective date of the merger (as specified by the local law amending the county charter), all of the functions of the city of Buffalo shall be transferred to the regional city except to the extent such functions are reserved to the municipal services district pursuant to sections 6 and 7 of this act; the city of Buffalo shall not be abolished but shall thereafter be a city whose functions are performed by the regional city and the municipal services district, and the existing government of the county of Erie, as modified by the amended county charter, shall be continued as the government of the regional city.
Note
This is a legislative declaration of the legal effect of the merger, which should serve to mitigate legal confusion and risk.
§ 4. The charter of the regional city shall recognize the city of Buffalo as a municipal services district comprising the territory of the city of Buffalo and shall authorize the regional city, subject to sections 6 and 7 of this act, to exercise any of the powers of the city of Buffalo in relation to the district, including (without limitation) the power to levy taxes, charges and assessments upon real estate within the district and the power to contract indebtedness, which shall be a charge upon such real estate. Such powers to contract indebtedness and levy taxes upon real estate shall be exercised only for city (that is, municipal services district) purposes and subject to the limitations set by sections four and ten of article VIII of the constitution of the state of New York for cities of one hundred twenty-five thousand inhabitants or more, and shall be in addition to the powers of the regional city to contract indebtedness and levy taxes for county purposes under the constitution.
Note
After the merger, the Regional City will exercise two sets of functions, those of the present county government and those of the present city government. The first set of functions will be exercised for the most part on a county-wide basis, the second only within the municipal services district. The latter functions will correspond generally to services provided and paid for by the town, village and two other city governments elsewhere in the county, and they will also include financial support of the Buffalo public schools. For reasons of equity and political necessity (and perhaps to stay within the County's tax limit), the costs of those functions will have to be charged for the most part to the taxpayers of the municipal services district.
The New York Constitution limits the powers of its local governments to tax real property and to incur indebtedness. Cities and counties have traditionally been responsible for different sets of services. The Constitutional debt and tax limits have been set at levels deemed sufficient to afford both cities and counties adequate fiscal capacity to fulfill their respective responsibilities. The Regional City cannot perform two sets of services with only one set of taxing powers. Even if the City of Buffalo were abolished, its constitutional taxing power could logically be transferred to the new government. To mitigate legal risk in that respect, however, the enabling act has been drafted so as to preserve the City of Buffalo as a vestigial municipal corporation, and to transform it into the municipal services district of the Regional City without interruption of its corporate continuity. This will also serve to reduce risk of interruption of state and federal aid to the City of Buffalo.
§ 5. The charter of the regional city shall establish a district legislative board to act as the legislative body of the municipal services district insofar as functions are reserved to the district. After the restructuring of the Regional Legislature described below, the board shall consist of the members of the regional legislature elected from legislative districts within the municipal services district. Notwithstanding the provisions of section 10, subd. 1 (ii) a (13) (f) of the municipal home rule law or any other provision of law, the charter shall provide that, subsequent to the merger, the regional legislature shall be restructured and reapportioned by local law on the basis of the last decennial federal census, so as to create one set of legislative districts wholly within and another set wholly outside the municipal services district, with a total of not more than 21 districts. The charter shall further provide that during a transitional period until such restructuring takes effect, the Common Council of the City of Buffalo shall serve as the district legislative board, with such compensation and staff arrangements as may be provided by the charter. A local law restructuring or reapportioning the regional legislature shall not be subject to section 6 of this act.
Note
In accordance with fundamental principles of democratic representation and responsibility, basic policy making power in relation to functions to be exercised and taxes raised solely in the municipal services district should be vested in representatives elected by the residents of the district, as distinguished from the residents of the entire Regional City, two-thirds of whom will live outside the district. Accordingly this section provides for a district legislative board, consisting of members of the regional legislature whose legislative districts include some part of the municipal services district. This would better serve the interests of efficiency, simplicity and regional cohesion than an independently-elected district legislative body. This section further provides that the regional legislature shall be restructured after the merger so as to create one set of legislative districts wholly within and another set wholly without the municipal services district. During a transitional period, until such restructuring has been effected, the Common Council (rather than the members of the regional legislature elected from the municipal services district) will serve as the district legislative board. Although the restructuring of the legislature could conceivably be provided for in the charter amendments effecting the merger, that would encumber the merger process with the political conflict almost inevitably associated with reapportionment of a legislative body, and is better left until after the merger has taken effect.
§ 6. The charter of the regional city shall provide:
(a) that the annual tentative budget of the regional city shall include, as a separate component, a balanced plan of: (i) revenues raised by (A) taxes, charges, and assessments levied upon property or activities within the district as such, (B) that portion of the county sales tax allocated to the district as such, and (C) state, federal and other financial assistance attributable to the district as such; and (ii) expenditures for services and facilities provided within the district as such (including but not limited to (A) payments of principal and interest on debt incurred for purposes of the municipal services district and (B) contributions to the support of the Buffalo city school district);
(b) that items of appropriation (but not revenue estimates, which shall be an executive function) in the district component of the tentative budget shall be subject to amendment by, and only by, the district legislative board, subject to approval of any increase in an item of appropriation or any additional item of appropriation by the elective chief executive officer of the regional city, and in the event of disapproval, reconsideration and re-passage by the affirmative vote of at least two-thirds of the voting strength of the district legislative board;
(c) that any resolution authorizing the regional city to contract indebtedness to become a charge upon real estate within the district as such may be adopted only upon the affirmative vote of two-thirds of the voting strength of the district legislative board as well as two-thirds of the voting strength of the regional legislature;
(d) that any local law, ordinance or non-budgetary resolution of the regional legislature that relates primarily to activities or property within the district as such and does not relate to a regional planning matter may be adopted only upon the affirmative vote of a majority of the voting strength of the district legislative board as well as a majority of the voting strength of the regional legislature, subject to approval of the elective chief executive officer of the regional city, and in the event of disapproval, reconsideration and re-passage by the affirmative vote of at least two-thirds of the voting strength of the district legislative board, as well as at least two-thirds of the voting strength of the regional legislature;
(e) that the district legislative board shall be empowered to enact, by the affirmative vote of two-thirds of its voting strength, regulatory ordinances consistent with local laws and ordinances of the regional city, to be effective within the district, subject to approval of the elective chief executive officer of the regional city, and in the event of disapproval, reconsideration and re-passage by the affirmative vote of at least three-fourths of the voting strength of the district legislative board;
(f) that any power previously held by the common council of the city of Buffalo in relation to any public body, public benefit corporation, not-for-profit organization or other organization may be exercised by the district legislative board.
Note
This section empowers the district legislative board:
1. to amend that part of the regional budget that funds district services from district revenues, that is, (a) taxes, charges and assessments levied within the district as such, (b) the district's share of the sales tax, and (c) state and federal aid attributable to the district.
2. to approve bond resolutions when the debt is to be paid by taxation of real estate within the district as such (as distinguished from taxation throughout the Regional City). (Under the Local Finance Law, a bond resolution requires a two-thirds vote.)
3. to approve local laws and other actions of the regional legislature applicable solely to the district.
4. to enact regulatory ordinances (e.g., zoning) effective within the district, consistent with applicable regional local laws. (Such ordinances could also be enacted by concurrent majorities of the district legislative board and the entire legislature. To foster regional cohesion, consensus building and active responsibility for the urban center on the part of the entire legislature, this section encourages the district legislative board to utilize the latter form of legislative action by requiring a two-thirds vote if it chooses to act alone, and a three-fourths vote to override an executive veto.)
5. to exercise powers formerly held by the Common Council of the City of Buffalo to confirm or appoint members of public bodies and corporations associated with City government, e.g. the Buffalo Sewer Authority.
§ 7. The charter of the regional city shall empower it to apportion all or any part of the cost of any service, facility or function upon any portion of the area of the regional city.
Note
The purpose of this section is to facilitate the provision of services by the Regional City in areas desiring such services, either directly or pursuant to inter-municipal agreement, by enabling the Regional City to charge the cost of such services to the area benefited. The County already has limited authority to do so for some services through somewhat cumbersome and inflexible procedures for formation of local improvement districts (e.g. the county sewer districts). Section 10(5) of the Statute of Local Government which empowers local governments generally to levy charges on local property, appears (especially when read in light of Article IX § 1 (g) of the Constitution) to authorize the County to charge the costs of any appropriate services directly to the areas benefited without necessity of creating a local improvement district, but is phrased in hedged terms and has not been tested. This section is intended to remove any doubt in that regard.
§ 8. The charter of the regional city shall empower it to spend money for any public purpose.
Note
To facilitate more limited consolidation of services, not involving the abolition of local governments or the transfer of their functions to the new government, this section would authorize the Regional City to spend funds for any public purpose, thereby enabling it to perform services now provided by city, town and village governments, without curtailing their powers to continue to perform such services if they wish to do so. Although city governments already enjoy general spending powers (see Section 20, subd. 5 and Section 21 of the General City Law), counties have traditionally been restricted to specific purposes expressly authorized by the State Legislature. (But see Opinions of Attorney General, Informal, 1992, No. 92-4.)
The Regional City will need a full array of urban powers throughout its territory, not just in the municipal services district. Granting it a general spending power will not eliminate or restrict any of the existing powers of city, town and village governments, but will enable the Regional City to meet regional needs either by direct provision of services or by participation in inter-municipal agreements with city, town and village governments, and even school districts.
§ 9. The charter of the regional city may empower it to adopt and implement regional land use and development plans and policies relating to matters of significant regional impact, and to establish appropriate citizens' planning boards and regulatory bodies, standards and procedures to implement such plans and policies, provided, however, that no such plan or policy shall limit the powers of any village except to the extent provided by law at the time of the merger or by subsequent act of the state legislature. The regional planning agency shall consist of a board of at least five members, representative of urban, suburban and rural areas of the regional city.
Note
The draft enabling act would empower the Regional City to adopt binding regional land use plans. This would result in a two-tier system of land use planning and control akin to that proposed by the American Law Institute's Model Land Development Code. Cf. Wambat Realty v. Adirondack Park Agency, 41 NY2d 490, 393 NYS2d 949 (1977). An extremely rudimentary form of a two-tier system already exists in the requirement of review by county planning departments of city, town and village planning actions affecting land within 500 feet of a county or state facility or a municipal boundary. General Municipal Law §§ 239-l, et seq.; cf. Town of Smithtown v. Howell, 31 NY2d 365, 339 NYS2d 949 (1972). Pursuant to the enabling act, the Regional City would have final authority over land use control matters of significant regional impact, and the cities and towns over matters predominantly affecting local communities. The district legislative board, together with appropriate citizens boards appointed by it, would exercise land use planning functions at the district level.
Since the villages are already virtually fully developed, they are exempted from compliance with regional plans and policies, thereby averting the necessity for a third majority in the split referendum to approve the merger.
§ 10. Effective upon such merger:
(a) no action for or against the city of Buffalo shall abate, but each such action or claim shall be defended, compromised or paid by the regional city, and any payment on account thereof shall be funded by appropriation in the municipal services district component of the budget of the regional city;
(b) the outstanding debts and obligations of the city of Buffalo shall be assumed by the regional city and shall continue to be a charge upon the taxable property of the municipal services district, to be paid pursuant to appropriation in the municipal services district component of the budget of the regional city, and the regional city shall have all powers with respect to such debts and obligations as the city of Buffalo would have had if the merger had not been effected, including (without limitation) the power to issue bonds to redeem bond anticipation notes or to refund bonds issued by the city of Buffalo;
(c) the property of the city of Buffalo shall vest in the regional city;
(d) for purposes of apportioning state and federal financial assistance, the municipal services district shall be deemed to be a city, and there shall be no reduction of such assistance as a result of the merger.
Note
These are probably unnecessary assurances regarding the effect of the merger. It is recognized that the State Legislature cannot bind the federal government, but insofar as federal grant programs recognize state law, this may help.
§ 11. Effective upon such merger:
(a) all city of Buffalo police department employees shall be transferred, pursuant to section 70, subds. 2 and 5, of the civil service law, to employment by the regional city (as sole employer) in the office of sheriff, which shall be deemed to be a police agency, or in a department of public safety, which shall be deemed to be a police agency, as provided by the charter of the regional city;
(b) all other employees of the city of Buffalo shall be transferred pursuant to section 70, subd. 2, of the civil service law, to employment by the regional city, in appropriate administrative units; and
(c) the regional city shall be deemed the sole employer of all such transferred employees for all purposes arising under the civil service law, and shall not be subject to any collective bargaining agreement entered into by the city of Buffalo.
Note
This is probably unnecessary but is designed to assure that employees of the City of Buffalo will be transferred to the Regional City without impairment of their status and seniority under the Civil Services Law, and that the Regional City will not be subject to prior collective bargaining agreements of the City of Buffalo. As an act of the State Legislature, this would prevail over any inconsistent interpretation of the Taylor Law.
§ 12. The charter of the regional city may make any appropriate transitional provision in relation to such merger, including without limitation:
(a) abolition of bodies, offices and administrative units of the city of Buffalo and assignment of their powers and duties to appropriate bodies, offices and administrative units of the regional city; provided that this clause shall not be deemed to prohibit the continuation of any such body, office or administrative unit as a body, office or administrative unit of the regional city.
(b) provision for transfer of the records, books and papers of the city of Buffalo to the regional city;
(c) provision that any or all local laws, ordinances, rules, regulations and resolutions of the city of Buffalo in effect on the date of the merger shall remain in effect and shall be enforced by the regional city within the limits of the municipal services district, provided that the regional city shall have the power at any time to amend or repeal such local laws, ordinances, rules, regulations or resolutions subject to any provision of the said charter pursuant to section 6 of this act;
(d) provision that taxes, assessments, fees and charges of the city of Buffalo may be levied and collected by the regional city in the same manner as previously levied and
collected by the city of Buffalo or in the same manner as regional city taxes, assessments, fees and charges;
(e) any other provision that may be appropriate to accomplish any one or more of the purposes of this act or the charter of the regional city.
Note
These are self-explanatory transition provisions.
§ 13. A special charter revision commission shall be created to draft a proposed charter of the Regional City of Buffalo by amendment of the charter of the county of Erie pursuant to this act. The commission shall be composed of a chair and ten other members, including the mayor or a designee of the mayor and the president of the common council or a designee of the president of the common council of the city of Buffalo, the county executive or a designee of the county executive, the chairman of the legislature or a designee of the chairman of the legislature of the county of Erie, and a citizen chair and six other citizen members appointed by the said mayor, president of the common council, county executive, and chairman of the county legislature. All such appointments shall be made within twenty days after the effective day of this act.
The members of the commission shall receive no compensation for their services but shall be reimbursed by the county for the actual and necessary expenses incurred by them in the performance of their duties. The commission shall receive such staff assistance and funding for expenses as may be provided by the county or the city. The commission shall submit its report and proposed charter amendments to the county legislature no later than 120 days after the effective date of this act. The local law adopted by the county legislature to amend the county charter pursuant to this act shall provide for its submission to the electors of the county, pursuant to subdivision 7 of section 33 of the municipal home rule law, at the next general election or at a special election, occurring not less than sixty days thereafter.
Note
This section provides for the creation of a special charter revision commission to draft the charter of the Regional City, which will take the form of an amended County charter. The charter will provide in detail for the organization of the Regional City consistent with the basic principles set forth in the enabling act. The proposed merger has been led by the chief executive and legislative officers of the City of Buffalo and County of Erie and a group of private citizens they have appointed to form the Greater Buffalo Commission. The special charter revision commission will maintain the continuity of the political leadership of the merger effort.
§ 14. This act shall be liberally construed. Each power granted by this act shall be in addition to and not in limitation of every other power granted by this act or held by the county of Erie or the city of Buffalo. This act shall apply notwithstanding any inconsistent provision of any state or local law, ordinance or regulation.
Note
This is simply an expression of legislative intention that the authority granted by this enabling act is not to be limited by existing laws.
§ 14. This act shall take effect immediately.
Note
Although this enabling act would take effect immediately upon passage by both houses of the State Legislature and approval by the Governor, the merger would not take effect until the enactment of a local law amending the County Charter and approval by the voters in a split referendum.
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