Opn. No. ( 1981 )

Henry J. Holley, P.C. Town Attorney, Deerpark

You have asked whether the 1978 amendment to General Municipal Law, § 856, (L 1978, ch 143, § 1), which authorized an increase in the membership of Industrial Development Agencies, applies automatically to the Deerpark Industrial Development Agency.

The Deerpark Industrial Development Agency was established in 1971 pursuant to General Municipal Law, § 915. This law specifically states "[i]t shall be organized in a manner prescribed by and be subject to the provisions of title one of article eighteen-A of this chapter." This is stated again in the last sentence of section 915: "* * * its operations and activities shall in all respects be governed by the provisions of * * * article eighteen-A * * *". (Emphasis added.)

General Municipal Law, § 856(2) (found in Article 18-A) reads: "* * * an agency shall consist of not less than three nor more than seven [originally five] members who shall be appointed by the governing body of each municipality * * *".

The bill jacket for the Industrial Development Agency amendment spells out the purpose of the amendment. Vincent J. Reade of the Economic Development Board (Letter of May 15, 1970 to Judah Gribetz, Counsel to the Governor, p 2) made representative comments which mirror the legislative background:

"It is anticipated that this legislation will allow for a broadening of the base of representation on the industrial development agencies * * *. This legislation should provide for ease in establishing the quorum [necessary to conduct business]."

In Citybank N.A. v City of New York Finance Administration, 43 N.Y.2d 425,431, (1977) revd on other grounds, 440 U.S. 447 (1979), the Court said: "It is a well-established proposition of law that an amendment is a re-enactment of the statute amended, albeit without any break in the continuity between the statute before amendment and the statute after amendment". Under this proposition, the law today permits an agency to have seven members instead of five. Therefore, the Town of Deerpark may increase the membership of its Industrial Development Agency to seven. If the Town chooses to increase the number of directors, it must, of course, follow the procedures outlined in General Municipal Law, §856 (2) for appointment and file a certificate of appointment with the Secretary of State.