N.Y. County Law § 227: Legalizing acts

§ 227. Legalizing acts. 1. Power to legalize. The board of supervisors

of any county shall have power to legalize and validate any act had and

taken in connection with a lawful municipal purpose or for a lawful

municipal object or purpose, by the governing board or other local body,

officer or agency of a municipality wholly within the county if, after a

public hearing held in the affected municipality pursuant to notice and

upon the evidence given thereat, the board of supervisors shall find

that the defect sought to be cured was: (a) failure to perform an act

within the time prescribed by law; (b) that the form of any notice

required by law was defective; (c) that the service, posting or

publication of any notice was not performed within the time and in the

manner required by law; (d) that through an intentional act performed in

good faith to meet an emergency situation or through inadvertence,

mistake or error in accounting methods or otherwise, a fund or

appropriation account has been overdrawn, and the fund or account has

been reimbursed by transfer thereto of unobligated moneys from another

municipal fund or account; (e) that through inadvertence, mistake or

error a mandatory appropriation was omitted from an adopted budget and

the budget was later amended and appropriation made to cure the defect;

(f) that an adopted budget was amended to include a discretionary

appropriation after a public hearing pursuant to notice; (g) that

through inadvertence, mistake or error an act was recorded at a later

date than was prescribed by law, or otherwise that a defect existed in

the manner or method of recording the same; (h) that through

inadvertence, mistake or error, the governing board or other local body,

officer or agency of a municipality charged by law with the duty failed

or neglected to submit a referendum to the electors when required by law

and either at least two years have elapsed since the completion of the

project and payment of the cost thereof, or, in any other case, at least

two years have elapsed since the date when the referendum should have

been held; (i) that through an intentional act performed in good faith

to meet an emergency situation or through inadvertence, mistake or error

in accounting methods or otherwise, obligations have been incurred

against a fund or account in excess of the total amount appropriated or

lawfully transferred thereto; that the officer, body or agency,

incurring such excess obligation, or his or its successor, has furnished

a detailed sworn explanation in writing of the intentional act performed

in good faith to meet an emergency situation or the inadvertence,

mistake or error and has made application for additional funds to pay

such obligation and that the governing board or other local body, after

a public hearing on notice in the same manner as provided in subdivision

two hereof, by at least a two-thirds vote of the whole number of the

members thereof has approved the presentation of a petition to the board

of supervisors to validate and legalize such obligation and to obtain

authorization for its payment.

2. Procedure to legalize. Any municipality or local officer or agency

seeking relief under this section shall present to the board of

supervisors of the county a petition duly verified setting forth the

facts and praying for the relief authorized by this section. Attached to

such petition shall be certified copies of all acts done and proceedings

had in relation to the subject matter sought to be legalized. The board

of supervisors may direct the governing board or officers to do that

which should have been done in the first instance and the time

prescribed by law for the performance of the act shall be deemed

extended to allow compliance therewith, and such acts shall not be

legalized until proof is submitted of such compliance. Notice stating

the time, place and purpose of the public hearing shall be published at

least once in a newspaper designated by the board with due regard for

circulation in the municipality affected, and posted in at least three

public conspicuous places in the municipality at least five days before

the date set for the public hearing. One of such notices shall be posted

upon the bulletin board of the respective city, village or town clerk's

office. The power to conduct such public hearing may be delegated to a

standing or special committee of the board which shall file with the

board a transcript of the evidence produced together with its

recommendations thereon. The board of supervisors or such committee

shall have power to compel the production of, and shall consider, any

documents or other evidence deemed pertinent to the inquiry and may

adjourn from time to time. The legalizing act must be adopted by the

affirmative vote of two-thirds of the whole number of the members of the

board at a regular or special meeting, provided, however, that

legalizing action taken pursuant to paragraph (i) of subdivision one of

this section shall be by local law, and provided further where on

request of the board the state comptroller submits to it his certified

findings and approval of a petition presented pursuant to paragraph (i),

such local law may be adopted by the affirmative vote of a majority of

the whole number of the members of the board. The legalizing act shall

recite the filing of the petition and all proceedings taken thereon and

shall contain the text of the act sought to be legalized and the method

of, and the maximum maturity of the bonds or capital notes, if any, for

financing the obligation or obligations so legalized and validated. It

shall state the intentional act, mistake, error or omission cured by the

legalizing act; that such intentional act, mistake, error or omission

was not the result of fraud and that no substantial hardship will result

therefrom and the determination thereon by the board of supervisors

legalizing and validating the same. A copy of the legalizing act

certified by the clerk of the board shall be published at least once a

week for two consecutive weeks in a newspaper designated by the board

with due regard for circulation in the municipality affected, the first

publication of which shall be had within twenty days after the

legalizing act is adopted. The petition and related papers, or certified

copies thereof, shall be filed in the office of the county clerk.

Subject to limitations or restrictions prescribed by the board of

supervisors, the amount of any obligations legalized and validated

hereunder may be paid from available funds or shall be deemed to be a

settled claim within the meaning of subdivision thirty-three of

paragraph a of section 11.00 of the local finance law which may be

financed by the issuance of bonds or capital notes, provided, however,

that the maximum maturity of any such bonds shall not exceed six years

from the date of issuance of such bonds or from the date of issuance of

the earliest bond anticipation note issued in anticipation thereof,

whichever date is the earlier, and provided further, however, that the

cost shall be charged against the area normally responsible for the

payment of the obligation which had been legalized and validated. The

cost of all publications under this section shall be a charge upon and

be paid by the petitioner. A copy of the legalizing act duly certified

by the clerk shall be filed with the state comptroller and with the

petitioner. The term "municipality" as used in this section shall

include a city, town or village or a fire district, special district,

special improvement district or other local governmental agency or

authority created by or pursuant to law.

3. Review by the court. Within thirty days after the first publication

of the legalizing act of the board of supervisors, a proceeding may be

brought under article seventy-eight of the civil practice act to review

the same. The legalizing act may be contested only upon the grounds that

the act was not performed in the exercise of a lawful object or purpose,

or that the finding that the act was performed in good faith and no

substantial hardship of fraud resulted is against the weight of

evidence, or that there existed a jurisdictional defect beyond the power

of the board of supervisors to legalize, or that the board of

supervisors did not comply with law in legalizing the same.

4. Application. The provisions of this section shall not apply to

action had or taken by any such governing board or other local body,

officer, or agency of a municipality when a remedy to legalize and

validate the same already exists in law; nor shall it apply to any

action had or taken in violation of the provisions of the state

constitution; nor shall it authorize the board of supervisors to

legalize or validate fraudulent acts of the governing board or other

local body, office or agency of a municipality; nor shall it authorize

the board of supervisors to legalize and validate any act resulting in

unusual hardship to the qualified voters of the petitioner. It is hereby

declared and determined that the powers conferred upon the boards of

supervisors of counties under this section are powers of local

legislation within the meaning and intent of article nine of the

constitution and that the exercise of such powers shall be deemed to be

the exercise of a lawful county function. Nothing in this section

contained shall be construed to restrict the powers of the legislature

in relation to cities, towns, villages or other local governmental

agencies created or established by law.