Solid Waste Facility Operating Agreement Not a Lease—No Permissive Referendum Required

The Third Department determined that a Solid Waste Facility Operating Agreement between the Town of Colonie and Capital Region Landfills, Inc (CRL) was not a lease, and therefore a permissive referendum was not a pre-requisite to the agreement.  The Third Department wrote:

Town  Law  § 64 (2) provides that, upon adopting a resolution, a town board may “convey or lease real property in the name  of the town, which resolution shall be subject to a permissive referendum.” The petition and amended petition  allege  that, as  the  agreement  is “the  functional equivalent of a lease,” the Town violated Town Law § 64 (2) by adopting  the resolution and  entering into the agreement  without first conducting  a  permissive referendum … . * * *

In view of the significant restrictions on CRL’s authority and control of the landfill and the rights and powers retained by the Town, the agreement does not convey “absolute control and possession” to CRL and is not a lease as a matter of law….

Accordingly, petitioners’ claim  that a  permissive referendum was required by Town Law § 64 (2) is without merit. Matter of Connors v Town of Colonie, 516058, 3rd Dept 7-3-13