Does a New York village need town consent to condemn property in another town for an electric utility project?

Plain-English summary

The Village of Bergen wanted to condemn property in the neighboring Town of Sweden, Monroe County, to construct electric utility services. Village Law § 4-412(3)(1) authorizes village condemnation for drainage culverts but conditions extraterritorial acquisitions on consent of the other municipality's governing body. The village attorney asked whether the village had to get town consent before condemning for electric utility purposes too.

The AG said no. Two layers of analysis:

First, the village's authority for an electric utility project comes from General Municipal Law Article 14-A, not from Village Law § 4-412(3)(1). § 360(2) authorizes any municipal corporation to operate public utility services within or outside its territorial limits. § 360(6) implements this with extraterritorial acquisition authority, by purchase or condemnation, including specifically for transmission lines. The constitutional underpinning is Article IX, § 1(e), which authorizes extraterritorial municipal condemnation for transmission lines.

Second, Village Law § 4-412(3)(1)'s consent requirement applies only to its narrow subject matter: drains and culverts to prevent floodwater damage. The provision does authorize extraterritorial acquisition for that purpose, and conditions it on town consent. But the consent requirement does not bleed over to acquisitions for other purposes governed by other statutes.

The applicable procedural statute for the electric utility project is the Eminent Domain Procedure Law (EDPL). EDPL § 101 declares the EDPL "the exclusive procedure by which property shall be acquired by exercise of the power of eminent domain" in New York. General Municipal Law § 363 dovetails with this by directing that municipal public-utility acquisitions follow the same procedures as other authorized public improvements. So the village proceeds under EDPL, not under any village-law specific procedure, and no town consent is required.

The AG also flagged that the project is not a "major utility transmission facility" under Public Service Law § 120(2), so Article VII of the Public Service Law (which governs siting of major transmission facilities) does not apply. The village can condemn under EDPL alone.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why doesn't the village need town consent?

Because § 4-412(3)(1) is a single-purpose statute (drainage culverts), and its consent requirement is part of that single purpose, not a general extraterritorial-acquisition rule. The village's authority for the electric utility project comes from a different statute (GML Art. 14-A) with its own extraterritorial provisions that do not require town consent.

Is the village free to take any property it wants?

No. The EDPL requires public hearings, formal findings, and adherence to procedures designed to protect property owners. Just compensation is constitutionally required. The village must go through the full EDPL process. The 1999 opinion addresses only whether town consent is an additional prerequisite; it does not relax any of the EDPL's substantive or procedural requirements.

What's a "major utility transmission facility" and why does it matter?

PSL § 120 defines major utility transmission facilities (large transmission lines based on voltage and length thresholds). Article VII of the Public Service Law sets up a State siting board process for those. The village's project did not meet the thresholds, so the State siting process was not triggered. The AG opinion would have changed substantially if it had been an Article VII project.

Could a town block the project some other way?

The town can challenge the public-use determination at the EDPL hearing. It can also seek to influence the public-interest balance through political and procedural channels. But there is no separate "consent" gate it controls.

Does the same answer apply to villages condemning for water systems?

Generally yes; municipal water utility authority parallels electric. The specific statutory framework should be checked because water provision often has additional local statutes (e.g., water district statutes) that may add procedural steps.

Background and statutory framework

NY Constitution Article IX, § 1(e) is the constitutional authorization for extraterritorial municipal condemnation. The provision was added in the 1938 constitution overhaul and reflects the policy that local utilities sometimes need to acquire property outside their borders.

General Municipal Law Article 14-A is the municipal public utility statute. § 360 et seq. authorizes municipal corporations to construct, lease, purchase, own, acquire, use, or operate public utility services. § 360(6) is the extraterritorial acquisition authority including transmission line acquisitions. § 363 cross-references the procedures applicable to other public improvements, which by EDPL § 101 means the EDPL.

The Eminent Domain Procedure Law (EDPL) is the uniform procedural statute for all eminent domain in New York. Enacted in 1977, it consolidated dozens of different condemnation procedures into one statewide framework. § 101's "exclusive procedure" language is the keystone: any municipal condemnation in New York runs through the EDPL.

Village Law § 4-412(3)(1) is a remnant of the older patchwork of village-specific condemnation procedures. It survives but is limited to its specific drainage-culvert subject matter.

Citations

• NY Const., art. IX, § 1(e) (extraterritorial municipal condemnation authority).
• Eminent Domain Procedure Law § 101 (EDPL as exclusive procedure).
• General Municipal Law Article 14-A (municipal public utility services).
• General Municipal Law § 360(2) (municipal corporation may operate public utility within or without territorial limits).
• General Municipal Law § 360(6) (extraterritorial acquisition by purchase or condemnation, including transmission lines).
• General Municipal Law § 363 (acquisition procedures follow other authorized public improvements).
• Public Service Law § 120(2) (definition of major utility transmission facility).
• Village Law § 4-412(3)(1) (village extraterritorial acquisition for drainage; town consent requirement).
• 1969 Op Atty Gen (Inf) 74 (constitutional authority for extraterritorial condemnation).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-44_pw.pdf

Original opinion text

Opn. No. 99-44
NY CONST, ART IX, § 1(e); EMINENT DOMAIN PROCEDURE LAW § 101; GENERAL
MUNICIPAL LAW, ART 14-A, §§ 360, et seq., 363; PUBLIC SERVICE LAW § 120(2); VILLAGE
LAW § 4-412(3)(1).
A village seeking to acquire property in a town for the purposes of public utility service under article 14-A of the General Municipal Law must use the procedures set forth in the Eminent Domain Procedure
Law. Section 4-412(3)(1) of the Village Law does not apply.
December 31, 1999
Leon Katzen, Esq.
Lacy, Katzen, Ryen & Mittleman, LLP
Attorneys for the Village of Bergen
The Granite Building
130 East Main Street
Rochester, New York 14604-1686

Informal Opinion
No. 99-44

Dear Mr. Katzen:
You have advised us that the Village of Bergen (the "Village"), pursuant to article 14-A of the
General Municipal Law, desires to condemn property located in the Town of Sweden, Monroe County
(the "Town"), for the purpose of constructing electric utility services. You have inquired whether the
village must seek permission from the town, pursuant to Village Law § 4-412(3)(1), prior to
condemning property located in the town. We conclude that Village Law § 4-412(3)(1) does not apply in
these circumstances. The governing procedures are those set forth in article 14-A of the General
Municipal Law and the Eminent Domain Procedure Law.
Preliminarily we note that, because you have advised us that the project the village contemplates
is not a "major utility transmission facility" within the meaning of Public Service Law § 120(2), it is not
subject to the provisions of article VII of the Public Service Law relating to the siting of major utility
transmission facilities.
Article 14-A of the General Municipal Law (General Municipal Law §§ 360, et seq.) authorizes
municipal corporations to establish, own and operate certain public utility services and sets forth certain
procedures that must be followed in connection therewith. It specifically authorizes the extraterritorial
acquisition of land for public utility service and does not subject such acquisition to approval of the
governing body of the municipality in which the property is located. Section 360(2) authorizes any
municipal corporation to "construct, lease, purchase, own, acquire, use and/or operate any public utility
service within or without its territorial limits" for the purpose of furnishing public utility services.
Section 360(6) implements this grant of authority by providing that a municipality may for such purpose
acquire land or the public utility service of any public utility within or without its territorial limits by
purchase or by condemnation in the manner provided by law for condemnation of private property for a
public use. Section 360(6) further provides that a municipal corporation, by purchase or condemnation,
has power to acquire land to construct transmission lines or acquire existing lines connecting it with any
source of electric power. Thus, section 360(6) provides the authority for extraterritorial condemnation of
property for construction of transmission lines as required by article IX, section 1(e) of the Constitution
of the State of New York. See also, 1969 Op Atty Gen (Inf) 74. It also authorizes extraterritorial
purchase of land.
Village Law § 4-412(3)(1) does not limit those provisions. Section 4-412(3)(1) provides generally
that a village board of trustees may acquire property within or without the village to construct drains or
culverts to prevent damage from floods. Although section 4-412(3)(1) authorizes acquisition of such
property by purchase or in the manner provided for by the Condemnation Law (now the Eminent
Domain Procedure Law), it conditions any such acquisition outside the corporate limits of the village on
the consent of the governing board or body of the city, town or village in which the property is situated.
This section, however, including its consent requirement, plainly applies only to the acquisition of
property for the purpose of constructing drains or culverts.
Instead, the applicable procedure for acquisition and condemnation is set forth in Article 14-A and
the Eminent Domain Procedure Law. General Municipal Law § 363 provides that the "acquisition . . . of
such public utility service shall, in so far as is practicable, be effected by such municipal corporation in
the same manner . . . as other authorized public improvements are effected for and by such corporation."
Section 101 of the Eminent Domain Procedure Law provides that its purpose is "to provide the exclusive
procedure by which property shall be acquired by exercise of the power of eminent domain" in New
York State.
Accordingly, we conclude that a village seeking to acquire property in a town for purposes of
constructing public utility services under article 14-A of the General Municipal Law must use the
procedures set forth in the Eminent Domain Procedure Law. The procedures set forth in section 4-412(3)
(1) of the village Law do not apply. Therefore, approval of the governing body of the town is not
required.
The Attorney General renders formal opinions only to officers and departments of the State
government. This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,
WILLIAM E. STORRS
Assistant Solicitor General