Informal Opinion No. ( 1987 )

William J. Better, Esq. Town Attorney, New Lebanon

You have asked what procedure should be followed in the transfer of land by a town under section 72-h of the General Municipal Law.

Section 72-h provides, notwithstanding the provisions of any general, special, or local law, that a town board may sell, transfer, lease or exchange real property with a municipal corporation, school district, board of cooperative educational services, fire district, the State of New York or the government of the United States. Under this section, a sale or transfer may be made without consideration and upon such terms and conditions as are approved by the town. Section 72-h specifically excludes from its provisions any real property that is made inalienable under the provisions of any general, special, local law or charter.

Thus, section 72-h specifically provides for the sale of real property under terms, conditions and procedures determined by the town board. It follows that a transfer under this provision may be authorized by resolution. (Compare this provision with section 64[2]) of the Town Law providing that a resolution to sell or lease real property is subject to permissive referendum.) It appears that section 72-h recognizes that gifts by municipalities to other public entities are not prohibited by the Constitution (NY Const, Art VIII, § 1). In our view, however, a transfer under the provisions of section 72-h of the General Municipal Law must be in the public interest.

We conclude that the procedure and terms and conditions for sale of real property by a town under section 72-h of the General Municipal Law are determined by the town board.