As noted in the previous piece in this series on the village of Hempstead’s current effort to incorporate as a city, there has not been a new city incorporated in New York State since 1942. This is despite multiple attempts by more than a dozen communities to win state approval for city status in the intervening decades. The second piece in this series considers the process through which municipalities incorporate, the reasons that previous attempts have failed in that process, and the challenges that new city incorporations face.
The incorporation of cities in New York State is not governed by general law but requires a special act of the state legislature in response to local request.1 Securing a special act may appear deceptively simple, but it is a highly political endeavor. First, the potential city must propose a city charter. Second, the charter must be approved by an act of the state legislature and signed by the governor upon sufficient evidence of local support, which typically includes a home-rule message in support from other impacted governments. Third, the charter must be submitted for approval at a public referendum of the voters of the proposed city.2
Adopting a proposed charter is in and of itself no simple task, and the drafting may take up to two full years. While most city charters contain similar elements, as the governing document the charter must be tailored to the needs and conditions of the specific community.3 Charters typically address a range of issues (including the organization of city government, the powers, qualifications, and terms of city officers, the city legislative body, and employees, the creation of departments, scope of city powers and authority over commercial property, land use, and zoning, the levying and collection of taxes and assessments, acquisition and management of real property, the dissolution of the village, and the discharge of any indebtedness or obligations). Deficiencies (even hyper-technical ones) in the proposed charter may provide cover for its rejection by town, county, or state officials not in favor of the incorporation.
It is the disruption to the political status quo of local authority… that results in most new incorporation efforts dying in legislative committee.
There are exemplars for the charter commission to study. A proposed charter for a city of Hempstead was introduced during the 2001, 2003, and 2005 legislative sessions. All three bills were introduced by Senator Kemp Hannon (R-6th Senate District).4 Although the 2003 senate bill made it to a third reading, the final step before a floor vote of the entire senate (or assembly), none progressed out of committee, and none had the necessary companion bill introduced in the assembly. The village of Hempstead was represented at the time by Representative Earlene Hooper (D-18th Assembly District). In addition to the partisan difference in the legislators representing the village, the town of Hempstead included portions of nine assembly districts, which may explain the lack of support from the many assembly members who represented areas of the town-outside-of-the-village.
Politically, the state legislature is often deferential to local home rule request. In the case of new municipal incorporations, that means that the request must be supported by the elected officials who represent the territory of the proposed city. But it also means that other affected municipal units, including the town, county, and local school boards, need to be in substantial support before any new incorporation request has a chance of approval by Albany. It is the disruption to the political status quo of local authority (and the balance of partisan representation in some cases) that results in most new incorporation efforts dying in legislative committee. Simply put, and as further described below, the residents and elected officials of other impacted municipalities can pressure the state legislature or governor to reject the proposed incorporation through contradictory assertions of home rule interests.
Those few incorporation requests which do gain legislative support are subject to gubernatorial veto. For example, in 1987, the legislature passed a special act to incorporate the village of Newark and town of Arcadia as the city of Newark-Arcadia. The measure was vetoed by Governor Mario Cuomo who indicated that, despite being “eager to sign” what he believed was a “well-intentioned” bill, he found the proposed charter deficient. Specifically, the charter failed to adequately address issues of statewide concern such as the administration of courts and contradicted state taxation and real property laws.5 As importantly, the governor wrote that he was aware that the Arcadia town supervisor, the Association of Towns, the State Board of Equalization and Assessment, and the Office of Court Administration were all opposed to the effort. Thus, he concluded that both deference and additional study were required. Village leaders subsequently tried to revive the effort, pushing for a referendum as a display of local desire, but acknowledging that “if town, school, and county officials reject the city proposal, there is nowhere to go but backward.”6
A community seeking city status is effectively divorcing itself from the embracing town (or towns). From a town perspective, new incorporations sever that area from the town’s (or towns’) tax base and reduce town population. When villages reincorporate as cities, residents no longer pay taxes to the town, and the town loses that portion of state or federal assistance because city population (unlike village population) is not counted toward the town. The shift in town revenues means that town-outside-of-the-village (now city) taxes may need to re-levied to fund town-wide services, which may also cause friction. Although town residents outside of the city do not have a vote on the new charter referendum, their local officials are likely to voice opposition on their behalf.
The fact that no new city has been created since the incorporation of the city of Rye in 1942, despite more than a dozen city incorporation efforts, suggests that, not only has the demand for new city creations dissipated, but there may be little legislative appetite for wading into local tensions that typically accompany the proposed creation of new cities.
There is also little incentive to support new city formations from the county or state-level perspective. Indeed, the recent focus of state-level municipal reform has been on the elimination and consolidation of governmental entities.7 Approval of a new city is tantamount to either a redistribution or increase in AIM funding—a program for which the state legislature has kept funding levels flat since 2009. Counties too, may be unwilling to support the creation of new cities, which would then, in turn, claim an increased share of county sales tax revenues—a development that may result in an increase in the county tax levy to blunt the effects.
The fact that no new city has been created since the incorporation of the city of Rye in 1942, despite more than a dozen city incorporation efforts, suggests that, not only has the demand for new city creations dissipated, but there may be little legislative appetite for wading into local tensions that typically accompany the proposed creation of new cities. It is worth noting that the incorporation of the city of Rye was initially opposed by the town of Rye until a local political compromise was reached requiring the new city to continue to pay a percentage of the town welfare costs.8 But since then, no other community has succeeded although more than a dozen have tried over the past 70 years, including many in non-metro-adjacent, rural counties.9 A review of some of these more recent efforts confirms that political opposition from other impacted municipalities renders most new city proposals a political nonstarter.
Perhaps New York’s most dramatic, relatively recent city incorporation effort was the quest to incorporate Staten Island (a borough in the incorporated city of New York) as an independent city in the 1980s-1990s. The secession effort was described as the “longest of long shots,” but was championed by local representatives with the sympathy of some state officials (mostly Republicans) who coveted the critical support that Staten Island—the smallest and most conservative of New York City’s five boroughs—provided in statewide races. After a 1988 ruling of the United States Supreme Court invalidated equal borough representation on the New York Board of Estimate as a violation of federal equal protection standards, Staten Island residents, fearing further erosion of their representation within New York City government, pushed for independent city status.10
In 1990, under pressure from Staten Island representatives, the state legislature approved, and Democratic Governor Mario Cuomo signed, a special act authorizing Staten Island to conduct a local referendum on the question of forming a study commission on city incorporation. In response, New York City’s mayor, Edward Koch, proclaimed that Albany was “plunging a dagger into the city’s heart.”11 Reports speculated that gubernatorial approval of the study was a calculated step to appease Staten Island voters taken with the secure knowledge that the legislature was unlikely to ultimately approve the incorporation.12 The residents of Staten Island approved the referendum on the study commission in 1993 (with 83 percent in favor), and in a subsequent vote, approved secession through the approval of a new city charter (with 65 percent in favor). Republican Governor George Pataki pledged support and the Republican-held senate passed the enabling legislation (the state special law incorporating Staten Island as a city). The incorporation was blocked however, when Democratic Assembly Speaker Sheldon Silver made it clear that the assembly would not pass the companion bill without a home rule message of support from the City of New York.13
The 2004 effort to reincorporate the village of Wellsville led to the introduction of legislation in both the assembly and state senate that then languished in committee.14 After initially supporting the effort, the Allegany County legislature subsequently rescinded its home rule resolution in support, fearing a diversion of county sales tax revenue. Reports suggested that at least some members of the county board had only supported the effort based on the belief that the state legislature would never seriously entertain the request. 15
Whereas New York offers grant funding to municipalities for the study and implementation of consolidation and dissolution, there is no dedicated state funding to assist in the study of incorporation.
There have been multiple efforts to make Port Chester a city, tracing all the way back to the 1930s when Governor Franklin Roosevelt vetoed special legislation granting the village city status.16 Port Chester’s desire was motivated, in part, by its frustration that the community was not dissimilar from the city of Rye (whose successful city incorporation they initially opposed). Most of Port Chester’s cityhood efforts were aborted, including a 2009 attempt, due to pushback from the local school board. The mayor of Port Chester blamed the resistance of school boards as the “major reason” there had been no new city incorporations since 1942.17
Whereas New York offers grant funding to municipalities for the study and implementation of consolidation and dissolution, there is no dedicated state funding to assist in the study of incorporation. Some communities, such as Dansville in 2012, for example, have been able to include the exploration of city incorporation as an alternative in funded consolidation or dissolution studies. The village of Cobleskill (Schoharie County), with a population of 4,073, is similarly using a 2008 consolidation study as a “springboard” for a renewed look at city incorporation in 2022.18 Like the village of Hempstead, the motivations are largely fiscal. Particularly given the high number of tax-exempt properties in the village, Cobleskill officials also see the enhanced state assistance for cities, as well as securing a greater portion of the county sales tax, as the best (or only) path for securing new revenues.
Conclusions
As reflected in recent cityhood efforts, state legislators have been reluctant to intervene in local disputes over municipal creation and dissolution or to adopt reforms for a comprehensive state-level review of local boundary changes. Moreover, funding for local government assistance programs have remained stagnant and even vulnerable to reductions in times of state budgetary shortfalls. Until AIM appropriations are increased or funding formulas reevaluated, municipalities are in competition for finite resources to be more equitably distributed, and those seeking cityhood are unlikely to secure the necessary political support for reincorporation. In short, while the financial advantages for the village of Hempstead and other municipalities to pursue cityhood may be sound, new city incorporation remains a politically quixotic quest. The lack of recent success, combined with the time and cost of study and charter drafting, dissuades many villages from even making the effort.
ABOUT THE AUTHOR
Lisa Parshall is a fellow at the Rockefeller Institute of Government and a professor of political science at Daemen College.
[1] The New York Constitution, in Article IX, §9, vests the state legislature with the authority to provide for the organization of cities. Whereas incorporation of villages has, since 1847, been provided for under General Village Law, the incorporation of cities requires a special act of the state legislature initiated by local request. The expansion of local authority under the Municipal Home Rule law has given existing cities the ability to adopt new or revised charters through local action. There are, however, state limits on both the adoption and amendment of city charters, including adherence to the New York State Constitutional and general laws of the states. The processes for charter commissions, review, and revision are outlined in Chapter 36 and 37 in the Municipal Home Rule Law.
[2] In Lane v. Johnson, 283 N.Y. 244 (1940), the New York Court of Appeals held that there was no constitutional requirement that legislation incorporating a city be subject to popular referenda. The case involved challenges to L. 1938 Ch 194 (incorporating the city of Peekskill). In its ruling, the state’s high court determined legislative authority over the incorporation of cities to be plenary. See also, New York v. Livingston Platt (1940) similarly affirming, without opinion, that L. 1940 Ch 505 (incorporating the city of Rye) was not required to be submitted to referenda as altering the Westchester County board under Article IX §2(d) of the New York State Constitution. See, Reports of Cases Decided in the Court of Appeals of the State of New York (Volume 283, 1940, p. 770–1). The 2012 effort to reincorporate the village of Dansville as a city in 2012 (undertaken as part of a study of multiple reorganization options including a village-town merger) raised the question of whether the 1964 Constitutional Home Rule Amendment (to Article IX) requires that a village-to-city reincorporation be submitted to referenda in the surrounding town(s) and county as well in the absence of a consolidation (merger with another municipal entity) or the annexation of new territory. It is not clear that there is a formal, constitutional requirement to do so. However, as a matter of practice, state actors may require such as a condition of their approval. When Governor Roosevelt vetoed the incorporation of the city of Port Chester in 1931, he found that the charter “violates the spirit of this provision” by not giving residents of the territory outside of the village to be annexed as part of the new city a vote in the referendum. Even allowing “a referendum to the entire new city,” he feared, meant that the “vote within the present limits of the existing village will, of course, far out-number those in the surrounding territory” (Vote Memorandum filed with Senate bill Int. No. 992, Pro No. 1782, Public Papers Of Franklin D. Roosevelt Forty-Eighth Governor Of The State Of New York, Second Term 1931, 289–90). Roosevelt also expressed concern over the creation of a city school district, suggesting that the support of area school districts ought to be determined before the state approved. Moreover, the state legislature has traditionally required such referenda as consistent with general municipal law and home rule protections. For example, the consolidation of village and town into a new municipal entity under General Municipal Law Article 17-A requires a vote of the constituents of each municipal entity. Similarly, the annexation of annexation of territory requires approval of the voters of the territory to be annexed at referendum under the New York State Constitution Article IX, §14.
[3] It should also be noted that charters can be either long-form or short-form in character. A “short-form charter provides only for the structure and powers of the city government, establishes the basic offices and sets forth general operating arrangements. The details of organization and operations, and for implementing the powers and carrying out the functions of the city government, are left to an administrative code enacted by the legislative body as a local law. As a general rule, the charter is subject to voter approval, but an administrative code is not, since it assigns no powers but only specifies how powers are to be exercised and how duties are to be carried out” (See “Revising City Charters in New York State,” Office of Local Government Services, 2021, 15). While short form charters have become increasingly popular, in the case of reincorporation of a village, residents and state legislators may have concerns that are better addressed through a long-form charter. The Charter Revision Committee will need to weigh the options and determine what needs to be included in order to secure the necessary support.
[4] S03620 (no same as), referred to Local Government, January 9, 2002; S07044 (no same as), advanced to third reading and committed to Rules, June 22, 2004; and S04800 (no same as), committed to Committee on Cities, January 4, 2006.
[5] Veto Messages #48 (filed with S.3909) and #49 (filed with S.5055-B). State of New York: Public Papers of Governor Mario M. Cuomo, 1987, 313–6.
[6] Quoted in “Village Officials Support Pirelli’s Proposal,” Courier Gazette, September 23, 1988.
[7] During the 1967 Constitutional Convention, an effort to enact a general law to provide for the incorporation of cities was rejected in favor of retaining state authorization via special legislation (Proposition No. 602, A Proposition To Amend Section Seventeen of Article Three of The Constitution, In Relation To The Incorporation of Cities by General Law). Proposition 602 faced opposition on the grounds that it defeated the goals of regional cooperation and too readily allowed communities to defensively incorporate to try thwart the expansion of larger, urban city centers. See, Proceedings of the Constitutional Convention of the State of New York, 1967, Vol. 7, 643.
[8] The town of Rye reversed its initial support for the incorporation following a charter amendment that required the new city to continue paying a percentage of the town welfare costs through the year 1947. See, “Rye Village Seeks Action on Charter: Town Backs Move,” New York Times, February 6, 1940. The village of Ossining also flirted with city status in the 1930s but was dissuaded by fears of increased highway costs for cities. See, “Ossining Seeking to Become a City,” New York Times, March 2, 1930.
[9] City incorporation efforts in rural counties post 1942, include Waverly (Tiago) in 1965; Lake George (Warren) in 1966; Massena (St. Lawrence) in 1963 and 1968; Wellsville (Allegany) in 2004; Monticello (Thompson/Sullivan Counties) in 1994; Dansville (Livingston) in 2012; and Cooperstown (Otsego) in 2015.
[10] The case was Board of Estimate of City of New York v. Morris, 489 U.S. 688 (1988).
[11] See L. 1989, Ch. 773. See also, “Cuomo Approves a Secession Vote for Staten Island.” New York Times, December 16, 1989. The approved referendum was limited to the residents of the borough of Staten Island and protested as a potential violation of New York City’s home rule authority.
[12] Legislative approval was also viewed as a “favor” to State Senator John J. Marchi, representative to Staten Island.
[13] In Straniere v. Silver, 218 A.D.2d 80, 637 N.Y.S.2d 982 (1996), the appellate division of the supreme court of New York upheld the assembly speaker’s authority to make home rule determinations as “within the purview of legitimate legislative activity.” Study commission legislation was reintroduced in the New York City council in 2019 and 2022. The 2022 bill would “create a task force to study the feasibility of an independent city of Staten Island and to produce a report addressing the financial cost of secession, the legislative and political considerations necessary for secession, the service demands, allocation of resources, and the overall cost to the city of New York and to Staten Island of creating an independent and self-sustaining city of Staten Island.”
[14] A10687A/S07262-A. The bills were recommitted to the committee on cities. The sponsoring memo provides no justification aside from it having been at local request and provides no fiscal analysis of the effect of city incorporation.
[15] “Resolution Backing City Status for Wellsville Rescinded,” Buffalo News, June 12, 2007. The village of Wellsville also had the support of the town. See “Town Backs City of Wellsville Bid,” Buffalo News, April 4, 2007.
[16] Port Chester won state legislative approval for incorporation in the late 1930s. The legislation, however, was vetoed by Governor Franklin D. Roosevelt. Port Chester had joined the town of Rye in opposed the incorporation of the city of Rye, viewing it as an effort of its wealthier residents to avoid supporting the less affluent residents of the town of Rye. See, “Port Chester Scorns Rye Secession Plan.” The town of Rye reversed support for the incorporation following a charter amendment that required the new city to continue paying a percentage of the town welfare costs through the year 1947. See, “Rye Village Seeks Action on Charter: Town Backs Move.” The village of Ossining also flirted with city status in the 1930s but was dissuaded by fears of increased highway costs for cities. See, “Ossining Seeking to Become a City.”
[17] “Trustee Answers Publisher,” Courier Gazette, September 12, 1986.
[18] “Cobleskill Explores Cityhood for the First time in 15 Years.” Daily Gazette, October 23, 2022. Schoharie County has no other city governments which means there are no inter-municipal comparisons to highlight how cities fare relative to villages within that county (as there is in comparing the funding received by the village of Hempstead to that received by the smaller cities of Glen Cove and Long Beach). While Cobleskill is much smaller than Hempstead, and would seemingly have less of a case for cityhood, the dynamics and resulting level of opposition, may be more muted given situational context and the presentation of city status as one of several potential reorganization alternatives.