Opn. No. ( 1977 )

HON. JOSEPH J. CASSATA City Attorney, Tonawanda

This is in response to your request for an opinion of the Attorney General whether the Common Council of the City of Tonawanda may order a street to be paved and assess the full cost of such paving to abutting landowners.

Section 20(7) and (11) of the General City Law, empower every city:

"7. To lay out, establish, construct, maintain, operate, alter and discontinue streets * * *.

* * *

"11. To construct and maintain public buildings, public works and public improvements, including local improvements, and assess and levy upon the property benefited thereby the cost thereof, in whole or in part."

Section 3-a of the Tonawanda City Charter empowers the Common Council, on its own motion by two-thirds vote of all its members, to cause any streetto be paved in the manner as it shall determine. This section contains no requirement that the abutting landowners first petition the Council. Except as provided in section 9 of the Charter, the expense of suchpaving shall be borne by the owners of the property abutting on that part of the street. One half of the cost of repaving with brick or other specified materials undertaken at the direction of the Common Concil shall be paid for by the City at large and the other half by the abutting landowners. Paving or repaving costs at intersections are borne entirely by the City at large.

Section 9 of the City Charter prescribes the procedures to effectuate the foregoing assessments.

Section 2 of the City Charter mandates that the Common Council give proper notice of an intention to cause improvements in response to a proper petition. Such notice must be posted in ten public places and also published in the official newspaper in at least two issues. Section 3-a requires no such notice when the Common Council is about to act on its own motion. However, "due process" would require similar protection to the public under section 3-a as provided for in section 2.

Accordingly, we conclude that the Common Council of the City of Tonawanda upon proper notice is authorized on its own motion by a two-thirds vote of all of its members to provide for the paving of City streets and assessing the full cost for such paving against the abutting landowners.