Opn. No. ( 1979 )

George W. Cregg, Esq. Attorney for the Auburn Industrial Development Authority

We acknowledge receipt of your letter inquiring whether the Auburn Industrial Development Authority (hereafter Authority) is required to comply with the City of Auburn (hereafter City) Building Code (hereafter Code) in the construction of a building on land in the City owned by the Authority and whether the Authority is required to obtain a building permit from the City.

The Authority was created pursuant to Home Rule Request by Chapter 915 of the Laws of 1969 which amended the Public Authorities Law by adding a Title 15 to Article 8 thereof (§§ 2300-2338). It is provided in §§ 2304, 2306, 2322, 2326 and 2328 that the Authority is a body corporate and politic constituting a public benefit corporation with its power vested in and to be exercised by a majority of the members of the Authority; its purpose is to promote, develop, encourage and assist the establishment or relocation of industrial, manufacturing and commercial enterprises and, to carry out its purpose; it has power to acquire and dispose of real property freely, to make by-laws for the management and regulation of its affairs and, subject to agreements with its bondholders, for the regulation of the use of the project and to do all things necessary or convenient to carry out its purposes and exercise the powers expressly given to it; the State and City are made not liable on the Authority bonds; the creation of the Authority and the carrying out of its corporate purposes are stated to be in all respects for the benefit of the people of the City and its environs and a public purpose; it is directed that the Authority shall be regarded as performing a governmental function in the exercise of the powers conferred upon it and its bonds or notes and the income therefrom, as well as the property of the Authority, are declared exempt from taxation except for transfer and estate taxes.

It was stated in Matter of Plumbing Association v Thruway Authority,5 N.Y.2d 420 (1959), at p 423:

"Although created by the State and subject to dissolution by the State, these public corporations are independent and autonomous, deliberately designed to be able to function with a freedom and flexibility not permitted to an ordinary State board, department or commission. (See State and Local Government in New York, New York State Constitutional Convention Committee Report [1938], Vol. 4, p. 189 et seq.; N.Y. Co-ordination Comm. Staff Report on Public Authorities under New York State, N.Y. Legis. Doc., 1956, No. 46, p. 54 et seq., p. 554 et seq.)"

The two staff reports referred to by the Court of Appeals establish that the purpose served by authorities is to remove their administration from direct control by politically responsible officers and to provide a more flexible administrative instrument to manage commercial-type public enterprises. In other words, the underlying philosophy and the concept of the function of a public authority is to enable government, through a corporate structure, to get a job done as expeditiously as possible, free from political interference, at a reasonable cost and without red tape. We can only conclude that it was the intent of the Legislature, at the request of the City, that the Authority be allowed to function free of the Code and that it not be required to obtain a building permit from the City.

A requirement subjecting an authority to local building codes and to make it obtain building permits before going forward with its function would be an inhibition upon its actions which would defeat the purpose for which the authority was created. Such a requirement is not presumed and would have to be contained in the statute creating it. There is no such provision in the act creating this Authority and, indeed, the broadest language is used in the grant of power to it.

In our opinion, the Auburn Industrial Development Authority is not required to comply with the City of Auburn Building Code in the construction of a building on land in the City of Auburn owned by that Authority and is not required to obtain a building permit from the City of Auburn in order to proceed with its building program.