In the Matter of the Application of

LANCE S. SPICER, Individually and as

Chairman of the Chautauqua County





For a Judgment under Article 78 of the Index No.H-12,517

CPLR, Specifically Section 7803(1)


Andrew W. Goodell, County Executive,




Attorney for Petitioner


(Paul V. Webb, Jr., Esq.

of Counsel) for Respondent


(Thomas C. Brady, Esq.

of Counsel) for Intervenors


The Court grants the relief requested in the Petition

for an order in the nature of MANDAMUS pursuant to Section

7803(1) of the CPLR compelling and directing Andrew W.

Goodell, County Executive of the County of Chautauqua, to

execute the deeds and necessary recording documents to

complete the sale of property as authorized by the Chautauqua

County Legislature in Resolutions 73-95 and 151-95.

Petitioner and intervenors have established a clear

right to relief by mandamus.



In 1987, the County administration, without any

determination by the county legislature that the property was no

longer needed for public use, offered portions of a county owned

railroad bed to adjoining property owners and invited them to

make an offer, presumably for a private sale. They were not


Three years later, in October 1990, again without a request

to the legislature for a determination that the property was no

longer needed for public purposes, the County approached property

owners once more by offering them the land adjoining their

respective properties and inviting bids.

Two responded with offers of $.625 and $.650 per linear foot.

A Department of Public Works employee, doing what she was

assigned to do (and had done on previous occasions regarding

other property with the approval of her Department Head, the

Executive and Legislature) sent a letter of acceptance to the


A month or so later, the County Executive determined that

the property would be desirable for development of public trails,

but, not as part of the park system by use of tax dollars, but by

a yet to be created not-for-profit organization.

The County Executive, again without authority from the

legislature, and without any consideration from the organization,

decreed the organization should have first refusal, or the right

to meet or beat the bids of the adjoining landowners.

The Executive felt "The rails-to-trails concept was a 'win-

win' situation for the County taxpayers- in addition to getting

the best price for the property, the new trail would complement

the county park system and the taxpayers would still be free to

use the property whenever they desired." (September 8, 1995

Goodell letter to Comptroller,p 2, footnote.)

The landowners were advised acceptance of their offer was

premature; that the county intended to give "all other interested

parties ample opportunity to meet or exceed the bids received to

date" and that there would be a two-month period to submit

additional offers. (Riedesel to Gustafson, 3/19/91 letter).

Thus, the County Executive placed a hold on the bids of the

adjoining property owners until an organization could be

incorporated. Thus, Rails to Trails was born and made an

undisclosed offer to purchase the entire 3 mile section of

railroad property for $.70 a linear foot.

The landowners were advised the organization made an offer

in an unspecified amount on the entire section; were advised

Rails to Trails would be given the opportunity to "match your

offer" and were invited to make their "final best offer for the

parcel adjoining your premises". (See Abdella 6/19/91 letter.)

No further offers were made by the adjoining owners.

The landowners were not given the right to present an offer

on the entire section; nor were they given the right to meet or

beat the Rails to Trails offer in accordance with prior private

sales conducted by the County involving two or more interested

parties. (See prior "letter auction" sale where each party was

alternately informed of the bid of the other and given a fair

opportunity to beat the opposing offer).

Three years later, the landowners approached the Legislature

on their long standing offers. On March 10, 1995, the corporation

increased its offer to $1.00 per linear foot for the entire

parcel. (J.Goodell to Spicer 3/10/95 letter).

On March 22, 1995, the Legislature, by a 2/3 vote,

determined by resolution that the former railroad section

crossing the Gustafson's property was no longer needed for public

purposes and in the face of a higher linear per foot proposal by

Rails to Trails for the entire 3 mile section, voted to convey

the two parcels to the adjacent owners for their original 1991

offer, and, to sell the remaining portions of the property at

public auction. (Resolution 73-95).

The resolution recited that the "County Executive be and

hereby is authorized and empowered to execute all documents

necessary to transfer [the parcels] by quitclaim deed to the

adjoining landowners". The County Executive responded with a

veto; the County Legislature overrode the veto.

The County Executive caused a quit claim deed to be prepared

containing language that would put the landowners on notice of

questions of the constitutionality and legality of the

transaction in view of the higher per foot Rails to Trails bid.

The Legislature reacted by enacting resolution 151-95 on

June 12 rejecting the language and to "authorize and empower" the

County Executive to execute the deeds without the objectionable

language. The County Executive did not sign or veto this


The County Executive and Chairman of the Legislature

submitted their respective arguments on questions of legality and

constitutionality to the Comptroller for an opinion.

Reciting that the Comptroller generally does not

render opinions to local governments interpreting local

enactments or charters, or commenting on the propriety of actions

already taken, and because of the pending suit, the Comptroller

declined to render a formal opinion and instead submitted a

letter discussing principles of law relating to the issues.

(See Comptroller's letter, 11/22/95).

The County Executive has not executed the deeds authorized

by the Legislature. Petitioner individually and as Chairman of

the County Legislature instituted an action for mandamus pursuant

to Article 78 of the CPLR. The County Executive moved to dismiss

on the grounds it was premature and that:

(1) The petition fails to meet the minimum requirements for

mandamus because there has been no demand on the Executive to

perform, nor a refusal by him, and that:

a. Petitioner failed to establish a clear legal right; the

Legislature had no authority to compel the Executive to

sign deeds for the sale of real property.

b. The resolutions were plainly permissive and not mandatory

in that they authorize and empower, but do not compel,

the County Executive to execute the proposed deeds.

c. The sale of real estate inherently involves discretionary

decisions on the part of the Executive.

d. The issuance of a mandamus would be disruptive of

public affairs.



County Law Section 215(5) empowers the governing board

of a County, by a 2/3 vote, to sell any county real property

that the board determines is no longer necessary for public

use. The County Law applies to charter counties where the

county law is not in conflict with or in limitation of a

provision of any county's charter. See County Law Section 2.

Section 1.03 of the Chautauqua County Charter ("the Charter")

recites, in part, as follows:

". . . whenever any State law, general, special or local

in effect, is inconsistent with the Charter . . ., such

law shall be deemed to the extent of such inconsistency

to be superseded by the Charter . . . .".

Section 2.05 of the County Charter provides:

"Except as otherwise provided in this Charter, the

County Legislature shall have and exercise all such

powers and duties conferred on County Legislatures in

the State of New York by applicable law, and all powers

necessarily incidental thereto."

This provision is reinforced by Section 2.05 of the

Administrative Code which recites:

". . . the County Legislature shall have and exercise

all such powers and duties conferred on a Board of

Supervisors or a County Legislature in the State of New

York by applicable law, and all powers necessarily

incidental thereto."

There is nothing in the Chautauqua County Charter or

Administrative Code that expressly or by implication takes

away, annuls, limits, or even specifically refers to the

power granted to this County Legislature by County Law

Section 215(5) to sell real property unneeded for public

purposes. Therefore, the Legislature retains that power.

Abolition or curtailment of powers or rights conferred

upon a county, county board, body or officer must be

expressly spelled out by state law or charter.

In passing the County Charter Laws (Alternative County

Government Law and Municipal Home Rule Law) it was not the

intent of the legislature to abolish or curtail any powers or

rights previously granted to a county, board, commission,

body or officer thereof, unless a contrary intention is

clearly manifested from the express provisions of the law or

charter. See Municipal Home Rule Law, Section 35(2) and

Alternative County Government Law, Section 700(2).

Section 35(4) of the Municipal Home Rule Law provides

that all existing state laws shall remain in force until

amended modified, superseded or repealed. See also,

Alternative County Government Law, Section 700 (4).

There is not even a hint of intention in the Charter to

affect or diminish the power of the County Legislature to

sell real property granted by the State Legislature by County

Law Section 215(5).

The Executive argues that Section 3.02(h) of the Charter

grants the Executive, not the Legislature, sole authority for

the making, signing and implementing of all contracts on

behalf of the County; that the legislature is limited to

approving, but not initiating, any contract for sale of real


There is nothing in that section nor in the rest of the

charter that requires that the process of selling property no

longer necessary for public use must originate with the

Executive; there is nothing that limits the power of the

legislature to sell by virtue of Section 2.15.(5) of the

County Law.

By Resolution 73-95, the Legislature determined that the

property was no longer needed for public use and authorized

the sale to Gustafsons. When it adopted this resolution, the

Legislature met all statutory and Charter requirements.

The Executive is not without remedy in cases where he

disagrees with the legislature; he has (and in this case he

exercised) the power of veto.

Only the Legislature is authorized to sell County owned

and unneeded real property. Its adoption of resolution 73-95

pursuant to the power granted by County Law Section 215.(5),

created a binding, enforceable contract between the County

and the prospective purchasers.

". . . when an offer has been made to a municipal

corporation, a vote of the municipal council accepting the

offer will create a contract." 27 NY Jur 2d 1210 and cases

cited under note 77.

The sole acts necessary to carry out that contract

involve the signing of the deeds by the County Executive,

and, payment of the approved purchase price. See Municipal

Consultants & Publishers, Inc. v Town of Ramapo, 47 NY2d 144.

Even if the parties contemplated an additional signed

agreement (that is not the case here), the adoption of

resolution 73-95 was all that was necessary to create a

contract and impose responsibility on the County Executive to

sign the deeds. Municipal Consultants & Publishers, Inc. v

Town of Ramapo, supra, where the Court of Appeals held that

the Town Board's resolution authorizing the Supervisor to

sign an agreement was an acceptance of the offer made by the

prospective purchaser; that nothing further was necessary to

create an enforceable contract.

The authority given to the Executive by Section 3.01 of

the Charter to execute and implement all contracts on behalf

of the County did not create or recognize any discretion on

his part insofar as resolution 73-95 was concerned. His act

of signing a deed conveying the property was ministerial.

Municipal Consultants, supra; See also Orelli v Ambro, et

al., 51 AD2d 85 and Village of Lake George v Town of

Caldwell, 3 AD2d 550.

Chautauqua County Local Law 7-75 authorized the County

to sell real property no longer needed for public use at

private sale without public advertisement. This superseded

the requirements of Section 215(6) for public bidding. See

also 1991 Opns.St.Comp.No 91-27, page 79.



Respondent argues that mandamus is inappropriate because

Petitioners have failed to establish that (1) a demand was

made on Respondent to sign the deed and (2) and that

Respondent refused.

This argument ignores the fact that the Legislature

overrode the Executive's veto. The override of a veto is the

ultimate, the final demand a legislature can make.

Section 3.02(e) of the Charter requires the

Executive to:

"Execute and enforce all local laws and resolutions of

the County Legislature and see that all laws required to

be enforced through the County Legislature or other

county officers subject to its control are faithfully


As for the element of refusal, the Executive has yet to

execute and enforce Resolutions 73-95 and 151-95; he has yet

to sign the deeds.

Respondent also contends mandamus must relate to the

"performance of an act commanded to be performed by law and

involving no exercise of discretion, i.e., mandatory

nondiscretionary action", and that the act demanded must be

purely ministerial.

The Executive cites TRIUMPH, Inc. v O'Shea, 77 AD2d 363,

to support his argument that the act of executing the deed

was discretionary rather than ministerial.

That case is easily distinguished. The enabling

legislation whereby the Commissioner "was authorized to sell

and convey" a certain parcel of surplus property was on such

terms and conditions as he deemed necessary.

After negotiations, the Commissioner advised TRIUMPH

that its offer was "totally unacceptable", prompting TRIUMPH

to seek mandamus. The Commissioner's authority was clearly


Here, the Executive was to sign the deed which had been

authorized and approved by the Legislature. His signing of

the deed is clearly ministerial in view of the fact that the

County Legislature's adoption of Resolution 73-95 constituted

an acceptance of the Gustafson offer, thereby creating a

binding contract. There was no acceptance and no contract in


Municipal Consultants & Publishers, Inc. v Town of

Ramapo, supra, is controlling on the issue of the County

Executive's authority or discretion to withhold execution of

the deed. In the Municipal case, the resolution authorized

but did not specifically direct, in so many words, the

supervisor to sign the agreement on behalf of the town.

This is exactly the situation here.

There is nothing in the County Charter which indicates

that once the Legislature accepted the Gustafson offer, any

further act by the Legislature or County Executive was

necessary to create an enforceable contract.

Moreover, as in Municipal Consultants, supra, and as

stated earlier, there is nothing in the Charter which

recognizes, creates or authorizes any discretion on the

County Executive's part once the Legislature adopts

legislation authorizing the sale of real property and once

the Executive's veto is overridden. His act of signing the

deed is clearly ministerial.

The petitioner and intervenors have established the

clear right to the relief sought beyond reasonable doubt or


The Executive also argues that "the Petition is very

disruptive to the smooth and proper administration of County

Government" and should therefore be dismissed.

There is nothing more disruptive than the refusal of the

County Executive to carry out the resolution of the

Legislature after it overrode his veto. To grant the

Executive "discretion" to ignore the resolution and

legislative override would in effect give him a double iron

clad veto power that would make the Legislature a sterile and

toothless, quaint but unnecessary body. That is not the

intent of the County Law, and clearly not the intent of the

Charter and Administrative Code insofar as the sale of real

property is concerned.

After his veto was overridden, the County Executive had

no authority to refuse to sign the deeds authorized by the




The issue here is whether the County Executive can

continue hold back his signature to the deeds authorized by

the Legislature. He cannot.

The Charter granted him the power and authority to

accept or veto the resolution. He chose to veto; the

Legislature chose to override. The override constituted a

demand that he carry out the resolution and sign the deeds.

After his veto was overridden, the County Executive had

four months in which to bring an action or proceeding

challenging the authority of the legislature to sell the

property to the Gustafsons. He did not do so; neither did

any other interested party. Therefore, he cannot now

challenge the legislative acts authorizing the sale.





Although resolution No. 73-95 is not an issue, the Court

considers it important to address questions raised by the

Petitioner and Respondent to the Comptroller and in this


1. Did the Legislature's acceptance of the offers of the

owners violate the gift and loan prohibition of

Article VII, Section 1 of the State Constitution

which prohibits gifts or loans of public money or

property to or in aid of any individual or private


2. Did the acceptance violate the requirement that the

price at a private sale be fair and adequate?

3. Did the acceptance violate County Law Section

215(6) which requires property to be sold to the

highest bidder?

The answer to these questions is "no". As the

Comptroller indicated in his November 22, 1995 letter:

"In applying article VIII, Section 1 to the sale of real

property, the courts have indicated that a transaction

will be construed as a gift in violation of article VII,

Section 1 if the consideration is so grossly inadequate

as to indicate that the transaction was not a bonafide

sale (see Grand Realty v City of White Plains, 125 AD2d

639, 510 NYS2d 172; Matter of Ross v Wilson, 284 AD 522,

132 NYS2d 760, revd on other grnds 308 NY 605;. . .".

The consideration here for the 800 feet was not grossly

inadequate; in fact, it initially satisfied the project

coordinator who was familiar with similar transactions.

As the Comptroller indicated, one court has held that

the Constitution article:

"is designed to prevent the gift of public property, not

to regulate the price or the adequacy of the

consideration of sales of public property made in good

faith" (Van Curler v City of Schenectady, 59 Misc 2d

621, 626, 300 NYS2d 765, 772.

"In describing a municipality's responsibility when

selling unneeded real property when competitive bidding

is not required, the courts have stated that municipal

officials have a fiduciary duty to secure the best price

obtainable in their judgment or the most beneficial

terms in the public interest for any lawful use (see,

e.g., Matter of New City v Flagg, 111 AD2d 814, 490

NYS2d 560 affd 66 NY2d 980, 499 NYS2d 395; Orelli v

Ambro, 41 NY2d 952, 394 NYS2d 636; Ross v Wilson, 284 AD

522, 132 NYS2d 760, revd on other grnds 308 NY 605;

Davis v Board of Education, 125 AD2d 534, 509 NYS2d 612,

leave denied 69 NY2d 613, 517 NYS2d 1028; 1990 Opns St

Comp No 90-37,p 84).

"The method of sale chosen is within the sound

discretion of the municipal officials charged with the

power to dispose of unneeded real property, but should

be the one which those officials belive will yield the

best price or maximum financial benefit (Feldman v

Miller, 151 AD2d 755, 542 NYS2d 777; Opn No. 90-37,

supra)." Comptroller 11/22/95 letter, supra.

And, the municipality can engage in a good faith

consideration of factors such as the prospective property

tax consequences of the proposed sale "in a credible effort

to exact the highest rate of return on the property. " New

City, supra.

The minutes of the committees of the Legislature which

authorized the submission of Resolution No. 73-95 indicate

the Legislature considered the fact that the property would

be returned to the tax rolls by sale to the Gustafsons,

whereas Rails to Trails would be eligible for tax exemption.

Although the Legislature accepted what appears to have

been the lower per linear foot bid, the duty of the

Legislature was to obtain the most beneficial terms in the

public interest, and, in making that determination, could

consider the tax consequences.

The bids were not for identical property. Rails to

Trails was permitted to bid on the entire 3 mile stretch; the

owners were not. Rails to Trails was advised of the owners

bid; the owners were not advised of the Rails to Trails

quotation. The bidders were not treated equally.

The County Executive gave Rails to Trails the right of

first refusal, the right to meet or beat the Gustafson bids;

the Gustafsons were not given that right. To quote the

November 22, 1995 Comptroller's letter:

"To provide such a right without corresponding

consideration to the municipality may be violative of

the gift and loan provision of article VII Section 1

(see, e.g., Teachers Association v Board of Education,

34 AD2d 351, 312 NYS2d 252). In addition, if the right

is provided to one of several participants without any

solicitation of competition, it could raise the question

of whether the private sale process used by the

municipality is designed to treat all participants

equally, without favoritism (cf. Feldman, supra; see

also 26 Opns St Comp, 1970, p 218)."

The Executive contends the Legislature could not accept

bids he rejected.

There was never a rejection of the Gustafson bids. The

invitation by the County Attorney to submit their highest

proposal did not constitute a rejection of their initial bid.

Even if there had been a rejection, the Legislature

had the authority to accept those bids. As quoted earlier:

". . . when an offer has been made to a municipal

corporation, a vote of the municipal council accepting

the offer will create a contract." 27 NY Jur 2d 1210

and cases under note 77.

Moreover, this Court holds that the Legislature has the

authority to sell unneeded property at private sale.

Under the Charter, the County Executive can negotiate

and enter into a conditional contract for a private real

property sale conditioned upon Legislative approval, but,

even this should not be undertaken without a determination by

the County Legislature that the property is no longer needed

for public purposes. Moreover, his authority to negotiate and

execute contracts does not negate the power of the County

Legislature to sell real property.



The DPW was authorized by the Executive to invite

proposals from adjoining landowners for property County

officials considered to be no longer needed for public use.

The past practice involved inviting proposals, and, if

deemed acceptable by the Department, the proposals were

approved by the Department and subsequently submitted to the

County Attorney to prepare documents and to obtain the

approval of the County Legislature.

On October 11, 1990, the Department of Public Works

wrote to Gustafsons to "offer you that entire section,

approximately 800 feet long near lot 31, which bisects your

property". Gustafsons offered $500 and on January 8, 1991,

the Project Coordinator advised them that "this Department

has decided to accept your offer . . .".

The Executive argues that the employee did not have

authority to accept the offers. Petitioners disagree,

arguing that the Executive delegated authority to the DPW

which could accept proposals, subject to Legislative


Even if the project coordinator did not have authority

to accept the Gustafson proposal, the County Legislature had

the power to ratify the contract.

"The general rule is that municipal corporations may

ratify contracts made on their behalf which they have

authority to make.(45) Thus, it is competent for a municipal

corporation to ratify a contract and thereby make it a

binding obligation, acting through its authorized agencies

and in the manner prescribed by law for making contracts of

such a character, if the contract was within its general

corporate powers but was invalid because defectively or

irregularly executed, or because the officer or agent who

purported to execute it on behalf of the municipality had not

the requisite authority. (46) . . . ." 27 NY Jur 2d 1219.

The Executive also ratified the agreement. After his

veto was overturned, he authorized a deed to be prepared to

the Gustafsons. The deed contained language which was not

acceptable to the Gustafsons or to the Legislature, whereupon

the Legislature passed Resolution 151-95 authorizing the

Executive to execute a deed without the objectionable

language. The Executive did not sign or veto that

resolution, nor institute proceedings to challenge it, and

has yet to execute the authorized deeds.

The Court cannot weigh the merits of the County

Executive's laudable objective to have the property conveyed

to Rails to Trails for the purpose of a public hiking trail

against the equally laudable objective of the County

Legislature to transfer the parcels to adjoining landowners

for agricultural purposes.

Nor can the Court weigh or question the wisdom of

selling a portion of the former railroad property when that

sale may adversely affect the price or saleably of the

remaining section or its use as a trail.

"... if a contract is within the power of a municipal

corporation, and has been duly entered into, the courts can

consider only whether the constitution permits the contract

in question; questions of whether the contract is wise or

whether its terms are advantageous for the corporation and

the public are solely for the municipal officers." 27 NY Jur

2d 1208 and cases cited under note 73.

Several other applicable principles of law support the

granting of an Order of Mandamus in this case.

"Courts should not be astute to enable a municipal

corporation to disavow its just commitments or obligations,

or to conduct itself respecting them in a manner violative of

fair dealing, which they would not sanction were natural

persons the parties involved." 27 NY Jur 2d 1208, see cases

note 75.

"In the performance of its undertakings, a municipality

should be held to the same accountability as would one of its

citizens, and it should be governed by the same rules of

common honesty and fair dealing which are binding on all

individuals." 95 27 NY Jur 2d 1210.

"A municipal corporation may be estopped the same as an

individual, where it is acting in a corporate or proprietary

capacity,..." 25 NY Jur 2d 178, and cases cited in notes


"A municipality may be estopped from raising the

unconstitutionality of a statute, or that a contract is

against public policy, and if the subject matter of its act

is not ultra vires, illegal or prohibited, the defense of

estoppel is available against it in a proper case."

25 NY Jur 2d 178, cases in notes 50,51,55.

The motion of Respondent to dismiss the petition is

denied. The Petition for an order in the nature of MANDAMUS

pursuant to Section 7803(1) of the CPLR is granted, and it is


ORDERED, that Andrew W. Goodell, County Executive of

the County of Chautauqua, or in his absence, the Acting

County Executive, execute the deeds and necessary recording

documents to complete the sale of property as authorized by

the Chautauqua County Legislature in Resolutions 73-95 and

151-95. No costs to any party.



Dated: December 11, 1995

Mayville, New York




The following papers and documents were considered by

the Court:

Motion#1: By Petitioner for Mandamus

Petitioner's Notice of Petition

Dated: October 12, 1995

Petitioner's Memorandum of Law

Respondent's Reply Memorandum of Law

Dated: November 2, 1995

Petitioner's Attorney Affirmation

Petitioner's September 8, 1995 letter to Comptroller

Thomas C. Brady, Esq. December 7, 1995 letter to the Court

Motion#2: By Respondent to dismiss petition

Order to Show Cause

Dated: October 20, 1995

Respondent's Affidavit of Andrew W. Goodell

Dated: October 20, 1995

Respondent's Memorandum of Law

Dated: October 16, 1995

Intervenor's Gustafson's Memorandum of Law in Opposition

to Respondent's Motion to Dismiss

Petitioner's Reply Affidavit

Dated: October 27, 1995

Affidavit by Paul V. Webb, Jr., Esq. for Respondent

Dated: October 20, 1995

December 8, 1995 letter of Paul V. Webb, Jr., Esq. to the


Motion#3: by Intervenors

Intervenor's Order to Show Cause

Dated: November 9, 1995

Intervenor's Affidavit in Support of Motion to Intervene

Dated: November 8, 1995

Respondent's Affidavit in Opposition To Motion To Intervene

Dated: November 22, 1995

November 25, 1995 letter of Thomas C. Brady, Esq. to the


Comptroller's November 22, 1995 letter to the parties

The Chautauqua County Charter and Administrative Code