January 6, 2005
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 section33 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 ArticleIX §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), ArticleVIII §3; People exrel. Hon Yost vs. Becker, 203NY91 (1911); People exrel.Town of Pelham v. Village of Pelham, 215NY374 (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 NewYork), 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 ArticleIX§1(h) of the Constitution, Section33 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 NewYork, 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 articleVIII of the constitution of the state of NewYork 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 NewYork 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 section6 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.