Untitled New York Attorney General Opinion ( 2016 )

TOWN LAW §§ 271, 271(1), 271(4), 271(5), 271(9); MUNICIPAL HOME RULE LAW
§§ 10, 10(1), 10(1)(ii)(a), 10(1)(ii)(d)(3), 22(1)
A town can decrease the length of the terms of the members of its planning board by
local law.
December 13, 2016
Thomas J. Cerio Informal Opinion
Town Attorney No. 2016-5
Town of DeWitt
Cerio Law Offices
407 South Warren Street, 5th Floor
Syracuse, NY 13202
Dear Mr. Cerio:
You have requested an opinion regarding the town board’s authority to adopt
a local law that would provide a shorter term for the Town’s planning board members
than is established by Town Law § 271. You also have asked, in the event the Town
can adopt such a local law, what effect the local law would have on the terms of the
current members of the planning board. As explained below, we are of the opinion
that the Town can adopt a local law providing a shorter term than that established
by Town Law § 271, that such a law would not automatically operate to shorten the
terms of sitting members, but that the Town can if it chooses alter the terms of sitting
members.
With respect to your first question, you have explained that the Town has a
seven-member planning board. In accordance with Town Law § 271(4),(5), the
members of the Town’s current board have seven-year terms with one member’s term
expiring each year. You have indicated that the Town would like to make these two-
year terms. You are aware that we previously have opined that a town can shorten
the term of office for its planning board members by superseding the provisions of the
Town Law that establish such terms. Op. Att’y Gen. (Inf.) No. 92-27. You have asked
that we again consider the question because Town Law § 271 was amended after we
rendered that opinion.
As relevant here, section 271, along with several related provisions, was
repealed and recodified after we rendered our opinion in 1992, but, now as then, the
terms of members of a planning board established by state law are staggered and
equal in length to the number of its members. Compare Town Law § 271(1)
(McKinney’s 1987) with Act of Jul. 31, 1992, ch. 663, 1992 N.Y. Laws 3636.
Section 10 of the Municipal Home Rule Law grants broad authority to the
Town to adopt local laws, including those that relate to the terms of office of its
officers. Municipal Home Rule Law § 10(1)(ii)(a). In addition, the Town can adopt a
local law that amends or supersedes any provision of the Town Law that relates to
Page 2
any matter with respect to which it can adopt a local law. Id. § 10(1)(ii)(d)(3). While
a town generally is limited in its exercise of its home rule to adopting local laws that
are consistent with the general laws of the state, see id., § 10(1), a town can adopt a
local law that amends or supersedes the application of a provision of the Town Law
to the town, even if the provision is a general law, unless the Legislature expressly
has prohibited the adoption of such a local law. Id. § 10(1)(ii)(d)(3). The Legislature
has not expressly prohibited the adoption of a local law inconsistent with the
provisions of Town Law § 271(4),(5). Nor do we believe that the Legislature has
evinced an intent to preempt local legislation in this area. Cf. In re Cohen v. Board
of Appeals of Village of Saddle Rock, 100 N.Y.2d 395 (2003) (field of area variance
review preempted; village cannot supersede those provisions of Village Law). We
therefore are of the opinion that the Town can adopt a local law that supersedes or
amends Town Law § 271(4),(5) to decrease the length of the terms of the members of
its planning board. The town board must include in the local law certain information
relating to the statute being superseded. Municipal Home Rule Law § 22(1)
(legislative body must specify chapter number and year of enactment, section,
subsection, or subdivision it intends to supersede).
With respect to your second question, if the proposed local law does not provide
that it applies retroactively, it will be construed as prospective only—that is, it will
not operate to automatically shorten the terms of the sitting board members. Aguaiza
v. Vantage Props. LLC, 69 A.D.3d 422, 423 (1st Dep’t 2010). The Town can phase in
two-year terms by making its annual member appointment for a two-year term, or it
can alter by law the terms of all the current board members serving seven-year terms.
With respect to the current planning board members, a legislative body can shorten
the term of an existing office created by that body, as long as the legislative action is
directed at the office, not at the incumbent, and the change in terms will serve the
public interest. Lanza v. Wagner, 11 N.Y.2d 317, 324 (1962); Michaelis v. City of Long
Beach, 46 A.D.2d 772, 773 (2d Dep’t 1974). The town board should be careful that its
action is not perceived as a subterfuge for removing particular planning board
members from office, which can be done only for cause and after a public hearing.
Town Law § 271(9).
The Attorney General issues formal opinions only to officers and departments
of state government. Thus, this is an informal opinion rendered to assist you in
advising the municipality you represent.
Very truly yours,
KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions