William L. Burke, Esq. Couty Attorney, Madison County
You have asked whether a county may construct an animal shelter and thereafter lease it through a lease-purchase agreement to a humane society. The society would, on behalf of the county, impound dogs in the building to carry out the provisions of Article 7 of the Agriculture and Markets Law and would pay the county a rental in an amount that, over ten years, would amortize the cost of constructing the building. In return, space in the building would also be available for other humane society purposes. The society would have an option to purchase the building at the expiration of a five year lease and subsequent five year renewal thereof.
Counties may appoint dog control officers to control dogs and enforce the provisions of Article 7 of the Agriculture and Markets Law (Agriculture and Markets Law, § 114). Alternatively, a county may contract with another municipality or with a humane society for dog control officer services (ibid.). Similarly, a county may establish and maintain a pound or shelter for dogs or contract with another municipality or humane society for impoundment services in performing its custodial responsibilities after seizure of unidentified or unlicensed dogs (id., §§ 115, 118).
We are not aware of any authorization for a county to construct a building for the purpose of entering into a lease-purchase agreement with a private humane society that would utilize a part of the building exclusively for humane society purposes. Municipalities hold all property in which the public is interested in trust for use by the public (McQuillin, Municipal Corporations, 3rd Edition, § 28.38a). Generally speaking, public land should not be leased or sold except upon a finding by the local legislative body that it is no longer needed for public use (Informal Opinion of the Attorney General, No. 81-37; McQuillin, supra, § 28.38). It is clear under this principle that surplus land may be leased or sold once it has served its public function. However, the immediate lease or sale of a new public building to a private entity without specific enabling authorization would, we believe, contravene this principle.
We believe that current authority permits a county to contract with a humane society to run the county's pound and a county may contract with a humane society for impoundment services at the latter's facilities (Agriculture and Markets Law, § 115).
We conclude that a county may not construct a building for lease or sale to a private humane society.