Opn. No. ( 1981 )

George C. Valette, Esq. City Attorney, Fulton

You have asked whether the City of Fulton may discontinue use as a street of certain city-owned land acquired by deed and sell or exchange the land by private negotiation.

The State Legislature has control over streets and highways and may close them and altogether relinquish their use by the public (Coster v TheMayor, 43 N.Y. 399, 414 [1871]). The State Legislature has empowered cities to establish and discontinue streets (General City Law, § 20 [7]).

We note that if a municipality acquires real property by dedication for street purposes, once it is discontinued as a street it ordinarily reverts to the dedicator (McQuillin, Municipal Corporations, 3rd Edition, Vol 11, § 33.65). Since the city's real property in question was acquired by deed, this principle does not apply.

Your other question is answered by the Fulton City Charter which provides that city-owned real estate may be sold or leased only at public auction to the highest bidder. The sale or lease must be subsequently approved by resolution of the common council and by the mayor (Charter of the City of Fulton, chapter 18, §§ 18-1 and 18-2). (We note that section 23 [2] [b] of the General City Law provides that city-owned real property may be sold or leased only at public auction to the highest bidder. We do not deal with the question of whether section 23 [2] [b] is a general or special law since you have not asked whether a city, by local law, may supersede that provision [see Municipal Home Rule, § 10].)

We conclude that the City of Fulton may discontinue use of city-owned real property as a street. City-owned real property, by the provisions of the city charter, may be sold only to the highest bidder at public auction.