Donald R. Blydenburgh, Esq. Town Attorney, Smithtown

You have asked whether a town may adopt regulations permitting it to secure or repair an unsafe building. You are concerned that the proposed regulations will be inconsistent with the provisions of section 130(16) of the Town Law, which establishes a procedure for the removal of unsafe buildings upon the failure of the owner to repair or remove the building.

Section 130(16) of the Town Law authorizes a town board to enact regulations dealing with unsafe buildings and collapsed structures. Under this section, upon a finding after inspection by an official of the town that a building is dangerous or unsafe to the public, a notice is served on the owner or his representative stating the particulars in which the building is unsafe or dangerous and ordering that the building be made safe and secure or removed. If after a hearing before the town board, the owner or his representative fails or refuses to repair or remove the building, the town is authorized to remove the building (id., § 130[16][f]). All costs and expenses incurred by the town in connection with the proceedings and in removing the building are to be assessed against the land on which the building is located (id., § 130[16][g]).

Thus, under the provisions of the Town Law, upon the failure of the owner to repair or remove the building, the town is authorized to remove the building itself and assess the costs against the owner. Your town proposes to enact regulations providing the additional flexibility to repair or secure the building.

A town is authorized to adopt local laws amending or superceding provisions of the Town Law relating to its property, affairs or government or to other matters in relation to which it is authorized to adopt local laws notwithstanding that such provision is a general law unless the Legislature expressly has prohibited the adoption of the proposed local law (Municipal Home Rule Law, § 10[1][ii][d][3]). All local governments, including towns, are authorized to adopt local laws in relation to the government, protection, order, conduct, safety, health and well-being of persons or property therein (id., § 10[1][ii][a][12]). This is the delegation of police power to local governments. In our view, the regulation of unsafe buildings clearly is an exercise of the police power. Thus, we believe that a town by local law may amend section 130(16)(f) of the Town Law to provide that upon the failure of the owner to repair or remove an unsafe building, the town may repair, secure or remove the building. We believe that this authorization serves the public interest by permitting flexibility. For example, in some instances securement or repair may be less expensive than removal. Further, it may be beneficial to preserve the structure to maintain neighborhood appearance and cohesion and to preserve property values.

We conclude that a town by local law may amend section 130(16) of the Town Law to authorize the securing, repair or removal of an unsafe building or collapsed structure.