Opn. No. ( 1994 )

Requestor: Donal M. Walsh, Jr., Esq., Village Attorney Village of North Tarrytown Village Hall 28 Beekman Avenue North Tarrytown, N Y 10591

Written by: James D. Cole, Assistant Attorney General in Charge of Opinions

You have asked whether the mayor of the Village of North Tarrytown is authorized to appoint the members of the planning board. You have also asked whether the mayor is authorized to make appointments to the zoning board of appeals.

You have indicated that a planning board formed under prior provisions of the Village Law, whereby members were appointed by the board of trustees, exists in the village. Effective July 1, 1993, revised Village Law section 7-718 currently governs the creation and appointment of members of a village planning board. Under that provision, the members and the chairperson of a planning board are appointed by the mayor. Village Law § 7-718(1). By its terms, the revised section applies to existing planning boards. See, § 7-718(5). Thus, the members of your village's planning board are to be appointed by the mayor. We note that the village has not enacted a local law amending or superseding the provisions of section 7-718 of the Village Law.See, Municipal Home Rule Law § 10(1)(ii)(e)(3). Under this provision, the village by local law may amend or supersede provisions of the Village Law, including those in the zoning article. 1986 Op Atty Gen (Inf) 128.

You have also inquired whether the mayor is authorized to appoint the members of the zoning board of appeals of the village. You have forwarded to me a zoning ordinance of the Village of North Tarrytown, enacted in 1946, which provides for the mayor to make appointments to the zoning board of appeals. You do not know the derivation of authority for the enactment of this ordinance but inquire whether its provisions remain applicable. Under current section 7-712 of the Village Law, members of the zoning board of appeals are appointed by the village board of trustees. Historically, under the former Village Law (Village Law of 1909 § 179-b), the village board of trustees had authority to make appointments to the zoning board of appeals. Since the repeal of the Village Law of 1909 and the reenactment of the Village Law in 1972, various versions of section 7-712 have all provided for the appointment of members of the zoning board of appeals by the board of trustees. In any event, revised section 7-712 applies to zoning boards of appeals formed under prior State statutes. Village Law § 7-712(5).

The current Village Law, however, includes savings clauses. Section 23-2202 provides that the current Village Law does not repeal or otherwise affect any special or local law, or ordinance of any county, city or village charter, or special form of government. These provisions are to remain in full force and effect until they are amended or repealed. Once you have determined the source of authority for the village's regulations, you can determine whether they have been "saved" under section 23-2202 of the Village Law. I have enclosed 1978 Op Atty Gen (Inf) 148 which discusses the above savings clause.

We conclude that the members of your village planning board are appointed by the mayor in accordance with section 7-718 of the Village Law. The Village Law includes a savings clause that preserves the validity of actions taken under a charter or other special form of government.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.