Village Incorporation: The Five W’s: Who, What, Where, When, Why and How.
Village government is the government closest to the people, where residents know and directly communicate with their elected representatives.
There are currently 574 villages in New York State. ranging in size from 50 to 50,000 estimated population. The majority of villages have populations less than 2,500. Since 1948,25 villages have been created. Three of those have since dissolved. Since 1961, eight villages have been created in the Town of Ramapo in Rockland County.
The last village incorporated in NYS was the Village of East Nassau, in Rensselaer County in 1998. The last on Long Island was the Village of West Hampton Dunes in 1993. Since 1960, five villages have been created on Long Island, one, Pine VaHey, has since dissolved.
WHY ARE VILLAGES FORMED?
The earliest villages in New York were created because clusters of people in otherwise sparsely settled towns wanted to secure fire or police protection or other public services. Those inhabitants receiving the fire or police service, and not the whole town, paid for such services.
Forming a village is a matter of local choice. A village is a unique form of government in New York State.
WHEN IS A VILLAGE FORMED?
Villages are created for a variety of reasons. Generally, the population in a neighborhood or hamlet unites over a particular need or issue, such as zoning and development; police and/or fire protection; water and sewer services; watershed concerns; traffic; code enforcement; environmental concerns. The issue is usually unique to the area.
WHERE ARE VILLAGES FORMED?
Villages are formed all over NYS; generally in areas of growing and concentrated populations. Twenty percent of all the villages in the State -95-- are located on Long Island. In Nassau County there are 64 villages; in Suffolk County there are 31. There is also a concentration of villages in Westchester (23), Rockland (19), and Orange (17) counties; Jefferson (20), Oneida (19) and Onondaga (15) counties; and Erie (16) and Chautauqua (15) counties.
Village government serves an important purpose that is, providing an enhanced level of government service to concentrated populations who, without a village, would not receive the necessary level of government services. For example, many towns do not provide the public safety services needed by population centers. Virtually all villages provide water, sewer and fire protection services and approximately one-half provide police protection.
WHAT IS A VILLAGE?
Usually, but not always, a defining event spurs village incorporation. Maybe it's the enactment of new zoning regulations by the town that adversely effect development in a particular area of the town. Or maybe it is a reaction to rampant commercial development in the town and its impact on a particular neighborhood or hamlet. No matter the reason, the opportunity to establish a village is available under NYS law. Specifically, Village Law Article 2.
In New York State: a village is a general purpose municipal corporation formed voluntarily by the residents of an area in one or more towns, to provide municipal services. When a village is created, its area still remains a part of the town where it is located, and its residents continue to be residents and taxpayers of that town.
WHO FORMS A VILLAGE?
Usually a group of concerned citizens united by a cause or concern will be the engine that spurs the creation of a village.
Incorporation of a village is one of the few actions in New York State that can be undertaken solely on the initiative of residents without any discretionary interference or approval from other governing bodies at the state or local levels. While state law specifies certain procedures that must be followed, there is no authority for anyone but local residents to decide the question of whether to incorporate. However, once the village is fonned, its structure and operation are matters that are regulated in nearly every respect by state law.
When a village incorporates, it remains a part of the town. All village residents continue to be entitled to vote in the town and take part in any services which are provided on a town-wide basis, and continue to be required to pay town taxes to support their share of the cost of such services (general government, recreation, library, etc.).
The major exceptions are services that are provided by the town through the operation of "special districts." Any portion of a special district (such as sewer, water, fire, etc.) which falls within the area of the new village will cease to be a part of that district. Virtually all of the special district functions can be continued by contracting with the town, provided that both the village and the town can reach agreement. Where special district services are received by only a portion of the proposed new village, the village can set up special assessments to continue to provide funding for those services.
While incorporation fosters a sense of community identification, and permits a degree of local control over many matters, incorporation will not alter social and economic developments which are in process prior to the incorporation. In recent years, the most commonly cited reason for seeking incorporation is the desire to control or limit local development, principally by getting more localized control over zoning. Local zoning powers are not absolute, and are limited by State law as well as court decisions. Those seeking to control and guide development through incorporation are well-advised to proceed carefully to make certain that their wishes fall within the effects that are possible and legal, and to be certain that they take actions that will not produce unwanted side effects.
Operation of a village government with the many administrative mandates and restrictions is very different from the operation of a neighborhood civic or improvement association. Municipal government is time-consuming and intense effort and includes policy development, service expansions and community amenities. Incorporation is not a panacea. Proponents must keep in mind that the benefits of local control and identity bring with them a great deal of serious responsibility.
During the period of public discussion prior to an incorporation referendum, it is wise to actively seek out and consider the opinions of those who disagree with the activists who are promoting the formation of the new village. Formation of a new municipal government is a serious step. All participants should maintain a realistic, practical perspective while attempting to understand a very complex set of potential outcomes.
HOW IS A VILLAGE FORMED?
Village government is the only form of government that New York residents can incorporate and dissolve directly, by vote of the people.
There are very few instances in which residents have the power to collect signatures on a petition and cause a referendum to be held.
One is on village incorporation.
A second one is on village dissolution.
A proceeding for the incorporation of a territory as a village begins with a petition.
The requirements for such petition are as follows:
Petitioners can consist of either one or both of the following two groups of persons
1. At last 20% of the residents of the territory qualified to vote for town officers in a town in which all or part of the territory is located; or
2. The owners of more than 59% in assessed valuation of the real property in the territory assessed upon the last completed town assessment roll in which the territory is located.
The petition must contain the following information:
1. A statement of the basis on which the petition is signed.
2. The name of the proposed village.
3. A statement that the territory contains a population of at least five hundred regular Inhabitants.
4. The manner in which the area requirements of Village Law §2-200 are satisfied.
5. A designation of at least one but no more than three persons, giving full names and addresses, on whom and at which addresses all papers required to be served in connection with the proceeding for incorporation, shall be served. A majority of these designees must reside in such territory.
6. Each page of the petition and all exhibits and certifications must be securely fastened together.
Each copy of the petition must have attached to it before the signature pages the following exhibits and certifications:
1. A description of such territory sufficient to identify the location and extent of such territory with common certainty and which shall be in one of the following forms or a combination thereof:
(a) A metes and bounds description;
(b) a description made with reference to existing streets and navigable waters or a combination of same; or
(c) a map showing existing streets and navigable waters or a combination of same forming boundaries or metes and bounds or the entire boundaries of one or more districts of an entire town.
2. A list of the names and address of the regular inhabitants of such territory
PRE-INCORPORATION TIME LINE
• Petition for incorporation filed with town supervisor.
• Within 20 days of petition filing, supervisor must post and publish notice of a public hearing upon petition.
·Public hearing must be held not less than 20 nor more than 30 days from posting and first publication of notice.
• Petition must be available for public inspection from date of receipt through date of hearing.
• The hearing may be adjourned but must be concluded within 20 days from the date fixed in original notice and publication.
• Within 10 days after conclusion of hearing, supervisor must make a written determination as to the sufficiency of the petition.
• The original written decision, copies of the notice of hearing together with affidavits of publication and posting of same, written objections, and minutes of the hearing including signed testimony must be filed with the town clerk within 15 days after the conclusion of the hearing.
• Any proceeding to review the decision must be initiated within 30 days of filing with the town clerk.
• An election to determine the question of incorporation must be held not later than 40 days after either the expiration of 30 days from the filing of a decision sustaining the petition or from the filing of a judicial order sustaining the petition.
• Within 10 days after the right to election is determined the town clerk must post and publish notice of an election.
• Date of election must be not less than 20 nor more than 30 days after date of posting and first publication.
• At least 10 days before the election, the town clerk must serve the supervisor wi th list of inspectors of election and the town board must designate alternate inspectors.
• At least 10 days before the election, the town clerk must make and file a list of qualified voters.
• Within 10 days after the right of election is determined, the clerk must post and publish notice of date when list of voters qualified to vote in election will be available for public inspection which cannot be a Sunday and must be at least 3 days prior to election.
• At least 3 days prior to election but not on a Sunday, the list of voters must be available for inspection.
• Before 9:30 a.m. the day after election, the inspectors shall file certificate of election and canvass with town clerk.
• Any action to challenge election results must be brought not more than 10 days after filing of certificate of election.
• After 10 and within 15 days from filing of certificate of election certifying majority voted for incorporation or within 15 days from a judicial determination upholding electoral vote, the town clerk shall prepare and deliver a report of incorporation to Secretary of State, State Comptroller, State Board of Real Property Services, County Clerk and County Treasurer.
• The village shall be incorporated as of date Secretary of State certifies receipt of report.
• Within five days of the date of incorporation, the town clerk shall appoint a village clerk.
• Within three days of appointment, the village clerk must file an oath of office with the town clerk.
• Within 10 days of appointment the clerk must post and publish a notice of election for mayor and four trustees and appoint four inspectors of election.
• Inspectors of election must file an oath of office within three days of appointment.
• Within 60 days from the appointment of the clerk, there shall be an election to choose a mayor and four trustees.
• As soon as practicable after the election, the mayor and trustees shall meet to appoint a clerk and treasurer.
Immediately upon incorporation, a village board is conferred the following powers:
• To appoint a village clerk, treasurer, and attorney;
• To hold meetings of the board of trustees;
• To appoint a zoning commission;
• To engage necessary clerical assistants to the clerk;
• To designate an official newspaper;
• To fix and pay all compensation, salaries, fees, costs and disbursements in connection with the foregoing, And to borrow by tax anticipation notes as needed to make such payments; and
• To enact local laws, rules and regulations.
While the village will be incorporated as of the date of the filing of the report of incorporation with the Secretary of State the incorporation will become effective on the following dates for the following purposes:
FROM THE DATE OF INCORPORATION:
• to perform any and all acts authorized in Village Law §§ 2-236 through 2-250
• to appoint a village clerk, treasurer, attorney
.• to hold meetings of the board of trustees (once board members are elected)
• to appoint awning commission
• to engage necessary clerical assistants to the clerk
• to designate an official newspaper
• to fix the compensation of and to pay all salaries, fees, costs and disbursements in connection with any of the foregoing and to borrow by tax anticipation notes in the manner provided in the local finance law, such money as may be needed to make such payments, and
• such officers, commission, and employees as are authorized by this paragraph shall have power to perform their necessary duties.
FROM THE FIRST DAY OF JANUARY NEXT SUCCEEDING THE DATE OF INCORPORATION:
• to perform all acts and fulfill all requirements of Real Property Tax Law, Article 14, Title 2, entitled "Levy and Collection of Taxes;"
• to perform all acts and fulfill all requirements of Village Law, Article 5, entitled "Finances";
• to pay all necessary costs and disbursements in connection with the foregoing and to borrow by tax anticipation notes in the manner provided in the local finance law, such money as may be needed to make such payments.
FROM THE FIRST DAY OF JUNE FOLLOWING THE FIRST DAY OF JANUARY NEXT SUCCEEDING THE DATE OF INCORPORATION:
• to have and exercise all the rights, powers, duties, privileges and immunities granted villages by the Constitution or any other provision of law.
Once the village clerk is appointed, the town clerk must provide the certificate of incorporation for permanent inclusion in the official records of the village.
If the incorporation is unsuccessful, the expenses incurred by the town for payment of cost of posting, publishing and serving required notices, stenographic services and services of inspectors of election must be paid from the fund deposited with the town supervisor. If the fund is insufficient to pay all of the expenses, the excess costs will be a general town charge. Any unexpended balance will become a part of the general fund of the town.
If the proceedings result in incorporation, the deposit must be returned by the town supervisor to the person or persons making the deposit.
If the incorporation of the village is successful, the following expenses incurred in the proceedings will be a charge against the village:
• The reasonably necessary expenses, including attorney fees, incurred in sustaining the petition in a proceeding brought under Village Law § 2-210, (review of decision) not exceeding $500.00.
• The cost of posting, publishing and serving required notices, stenographic services and services of inspectors of election, and the reasonable expense of the outline map and description required by Village Law § 2-232(c).
• The reasonably necessary expenses, including attorney fees, incurred in a proceeding brought to determine the validity or regularity of the election under Village Law § 2-224 where an election result against incorporation was set aside or an election result in favor of incorporation was sustained, not exceeding $500.00.
APPOINTMENT OF THE VILLAGE CLERK
Within five days after the filing of the certificate of incorporation in the office of the town clerk, the town clerk must appoint a resident of the village to serve as village clerk until a successor is chosen by the first elected village board of trustees. A copy of the appointment must be provided to the village clerk and a copy must be filed in the office of the town clerk. Within three days of appointment, the village clerk must file an oath of office with the town clerk with whom the certificate of election was filed.
FIRST ELECTION OF OFFICERS, TERMS OF OFFICE
A special election must be held in the village no more than 60 days after the appointment of the village clerk. A mayor and four trustees must be chosen at this first election.
If the first election is held on or after the first Monday in April and before the first Monday in October, the terms of office of two of the trustees will expire at noon on the first Monday in April next succeeding the first election.
If the first election is held at any other time, the terms of office of two trustees will expire one year after the first Monday in April next succeeding the first election. The terms of office of the mayor and the other two trustees will expire at noon on the first Monday in April next succeeding the expiration of the terms of office of the first two trustees. The terms of office begin as soon as they have qualified as outlined below.
Within 10 days after appointment, the village clerk must post in at least six public places in the village and publish at least once in a newspaper of general circulation, a notice of the election including the time and place of the election, the hours of opening and closing the polls which must be from 12:00 noon to 9:00 p.m., and the offices and the terms to be filled.
The village clerk must also appoint four qualified voters to serve as election inspectors. The inspectors must file their oath of office with the village clerk within three days after their appointment.
Anyone qualified to vote for town officers and who have been residents of the village for 30 days prior to the election may vote for village officers. The election inspectors must conduct the election as provided by Election Law Article 15 and must be paid at the same rate as inspectors at the last preceding general election.
The newly elected mayor and trustees must meet as soon as practicable after the election to appoint a clerk and treasurer and such other officers as are authorized by law.
TOWN LEGISLATION TO CARRYOVER
For two years following the date of incorporation, all local laws, ordinances, rules or regulations of the town will remain in effect in the village as if they had been adopted by the village board of trustees. All such legislation must be enforced and administered by the town until the first day of June following the first day of January next succeeding the date of incorporation at which time responsibility for enforcement and administration will shift to the village.
Beginning from the date of incorporation, the village is authorized to enact local laws, resolutions, rules, and regulations. Therefore, any carried-over town legislation will remain in effect in the village unless the village enacts local laws which cover the same subject matter of any town legislation.
Town and district services (a town improvement district, fire district, fire protection or fire alarm district) will continue to be provided in the area of the newly incorporated village until the first day of June following the first day of January subsequent to incorporation.
Any district wholly within or coterminous with the limits of a village will cease to exist at the end of the fiscal year next succeeding the first day of June following the first day of January subsequent to incorporation.
The cost of these services will be budgeted, levied upon, assessed against and collected from the entire town or district, as if the village had not been incorporated. In budgeting these costs and expenses, the town or district must provide for a full year's cost and expense of providing the functions and services in the incorporated area.
The town collector or receiver of taxes and the county treasurer will continue to perform their duties with respect to the property included in the incorporated area until all taxes and assessments extended and levied against the property prior to the village incorporation or subsequent thereto, have been collected.
The town collector or receiver of taxes and the county treasurer must, on the first day of June following the first day of January next succeeding the date of incorporation, pay over to the village treasurer seven-twelfths of the collected taxes and assessments extended and levied against the real property in the incorporated area for the aforementioned functions and services.
The town receiver of taxes and the county treasurer will, beginning on the first day of July following the first day of January next succeeding the date of incorporation, pay over to the village treasurer monthly, as collected after the first day of June, 7/12 of the taxes and assessments extended and levied against the real property in the incorporated area for the aforementioned services. However, the village, town and district or any of them may agree to a different amount or manner of payment or both.
All sums received by the village treasurer must be deposited in the general village fund.
EFFECT OF INCORPORATION ON DISTRICTS WITHIN THE VILLAGE
If on the date of incorporation the boundaries of the village are coterminous with the boundaries of, or wholly include, the area of a district, the district will cease to exist at the end of the fiscal year of the district next following the first day of June following the first day of January next following the date of incorporation. The powers and duties of the governing body will also terminate at that time. However, the obligations and contracts of the district and the town will not be impaired.
If the village includes part of a town special district, the village must bear its proportionate share of liability or indebtedness incurred for special district purposes while the area was a part of the special district. This obligation will continue until the liability is discharged, or indebtedness is paid. The village treasurer will pay the moneys collected for this purpose to the town supervisor to discharge this liability. The town collector or receiver of taxes and the county treasurer will continue in the execution of their duties in connection with the district until taxes authorized or assessed for the year of the incorporation have been collected.
If the village includes part of a town special district, the proportion of the bonded debt incurred by the town will be assumed by the village. The apportionment of personal and real property belonging to the special district will be determined according to the relative assessed valuation of the property in that portion of the special district outside the village and that portion within the village. If, within six months of the village's incorporation,
the town board and the village trustees are unable to agree on the proportion of debt and the apportionment of personal and real property, then the Supreme Court will determine the division and enforce an award in the same manner as a suit in equity brought by either of the parties.
While villages have no responsibility for the levy and collection of town taxes, village residents are obligated to pay a portion of town property taxes. The general rule is that village property owners must pay taxes for all expenditures in the town budget unless a state statute requires or permits an expenditure to be a part-town (or town-outside-village) charge.
Several sections of State law require, in certain specific circumstances, certain town expenditures to be part-town charges. Refer to the section of law cited for specific guidelines.
• Building Inspection (Town Law § 138)
• Board of Health (Public Health Law §304)
• Registrar of Vital Statistics (Public Health Law §4124)
• Library (Education Law §256)
• Zoning and Planning (Town Law §261)
• Police Department (Town Law § 150)
• Joint Police Department (General Municipal Law § 12l-a)
• Recreation (General Municipal Law Article 13)
• Refuse and Garbage Collection (General Municipal Law § 120-w; Town Law Article 12 or 12-a)
• Repair and Improvement of Highways -- Town Highway Budget, Item #1 (Highway Law §277)
• Youth Bureaus/AgencieslPrograms (General Municipal Law §95 or 240; Executive Law §412
• Fire Alarm System (Town Law §64(11-c)
• Suburban Town Improvements (Town Law §56)
• Joint Town-Village Parking Garage (General Municipal Law §72-j (5»
• Joint Town-Village Memorial Building (General Municipal Law §72-b)
• Joint Town-Village Public Docks (General Municipal Law § 120-x)
• Joint Town-Village Hospital (General Municipal Law § 126-a)
Village residents may be exempt from financing certain other town expenditures, at the option of the town board:
• Purchase, Repair and Custody of Highway Equipment - Town Highway Budget Item #3 (Highway Law §277»
• Snow removal -- Town Highway Budget, Item #4 (Highway Law §277)
Municipal Cooperation Agreement (General Municipal Law § 119-0
REQUIRED VILLAGE FUNCTIONS
Required Public Officers: Mayor, four trustees, treasurer, and clerk.
The Board of Trustees may, subject to permissive referendum, increase or decrease the required number of trustees.
The Board of Trustees may consolidate the offices of assessor (an optional office), clerk and treasurer, or any two of the offices.
OPTIONAL VILLAGE FUNCTIONS
Village Officials and Employees - The appointment of all other village officials and employees, including building inspector and code enforcement officers and village attorney, is discretionary.
Planning Board - The village board is authorized to create a planning board and may provide for the referral of any municipal matter to the planning board for its review and report prior to final action. Additionally, the village board may establish a procedure for referral to the planning board of all applications for rezoning, variances and special use permits. The planning board can also have an advisory role in preparing and amending comprehensive plans, zoning regulations, official maps, long-range capital programs, special purpose controls and compliance with the State Environmental Quality Review Act (SEQRA). Further, the village board may grant the planning board such regulatory functions as control of land subdivision, site plan review and issuance of special use permits.
Zoning Board of Appeals - A village is required to establish a zoning board of appeals, if a local zoning law is enacted.
Zoning Commission - In order to adopt its first zoning law, a village must appoint a zoning commission which must make a report to the board of trustees prior to the adoption of a first zoning law.
Real Property Assessment· A village may appoint an assessor or it may abolish itself as an assessing unit, requiring the town to assume this function. The village is not required to pay the town for this service.
Police· A village is authorized to establish a police department and to employ necessary personnel; establish ajoint police department with other municipalities; or may contract with the town within which it is located for the provision of police services. In the absence of any of the foregoing, the town in which the village is located is responsible to supply police protection to a village, the extent and intensity of which is within the discretion of the town.
Fire· The Board of Trustees is authorized to create a volunteer or paid fire department.
Dog Control· The provision of a dog control officer is optional, unless a village has determined to issue dog licenses.
Trash Collection· Villages are authorized, but not required, to provide trash collection or to purchase land for the establishment of a public waste disposal site or plant and to operate the same. A village is authorized to contract with any other municipal corporation or public or private corporation or individual for the construction or operation of a resource recovery facility, for the processing of solid waste, or for a system of collection and disposal of municipal solid waste through resource recovery. A village is also authorized to contract with any other municipality for the use of a municipally operated public dump.
Sewage Treatment and Disposal· The Board of Trustees is authorized to establish, maintain and extend a sewage system.
Water Supply - A village may provide for the development of a water supply system.
Highways· The streets of a village are under the exclusive control and supervision of the Board of Trustees or another officer to who control is delegated by the Board. Repair and maintenance may be performed by the village, or the village may contract with another municipal corporation or private entity for services. The Board of Trustees is authorized to apportion the costs of the repavement of a street wholly at the expense of the village, wholly at the expense of the owners of the adjoining land, or partly at the expense of each. A village may also petition for the creation of a transportation improvement district.
Snow Removal - A village is authorized to provide for snow removal or to contract with the town within which it is located or with a private concern or individual.
Recreation· A village may establish a recreation commission to equip, operate, and maintain recreation centers.
Libraries· A village may organize and establish public libraries.
Private Contracts/Cooperative Contracts· Generally, a village may contract with a private entity or with another municipal corporation for the delivery of services.
Dissolution - If the Board of Trustees so decides, or by the filing of a petition, a village may be dissolved following a referendum on the issue.
Justice Court - A village may establish a village justice court with up to two justices and one acting justice. If a court is not created, the town justice court has jurisdiction over offenses committed in the village, but any fine money collected for violation of village local laws is returned to the village.