Opn. No. ( 1979 )

Hon. Frank J. Ryan Town Attorney, Croton-on-Hudson

This is in reply to your letter of September 5, 1979 in which you seek this office's opinion in your capacity as Town Attorney for the Town of Cortlandt, as to whether the seven member planning board of the Town of Cortlandt is bound by section 271 of the Town Law as to the terms of office of the members and the determination of the expirations of the terms of each of the members. You state the question as follows:

"I believe the main question is whether the present Town Board is bound by previous five year appointments to the Town of Cortlandt Planning Board and may then make a seven year appointment upon the expiration of that five year term or whether the Town Board is bound under Section 271 to resort back to October 30, 1951 for each term based on a staggered seven year term, thus having one term expire on October 30, 1980 and the next on October 30, 1981, and so on up until October 30, 1985."

You state in your letter that on October 30, 1951 the Town Board of the Town of Cortlandt established a planning board and appointed seven members thereto with staggered terms from one year to seven years pursuant to section 271 of the Town Law. Since that time there have been various vacancies and reappointments through said Board. You further state "A review of the Town Clerk's records indicates that many appointments after a term has expired or an appointment after a vacancy has existed as a result of a resignation, consisted of a flat appointment for five years." Section 271 of the Town Law in relation to a seven member board states:

"Of the members first appointed to a newly created planning board consisting of seven members, one shall hold office for the term of one year, one for the term of two years, one for the term of three years, one for the term of four years, one for the term of five years, one for the term of six years and one for the term of seven years after his appointment. Where the membership of an existing planning board is increased as authorized by the provisions of this section as amended, one of the new members shall be appointed for a term of six years and the other for a term of seven years, such terms to commence on the same calendar day of the year as the original appointments and thereafter upon the expiration of the term of each member, his reappointment or the appointment of his successor shall be for a term of seven years. If a vacancy shall occur otherwise than by expiration of term, it shall be filled by the town board by appointment for the unexpired term."

Consistent with section 271 of the Town Law, it is concluded that in order to determine the tenure of each member of your seven member board it is necessary to trace each member of the original board, his term of office, his successor by way of death or resignation and his term of office. The statute declares that if a vacancy occurs during the term of office of a member of the board otherwise than by expiration of term, the vacancy shall be filled by appointment for the unexpired term. Thereafter the reappointment or the appointment of a successor shall be for a term of seven years. Only by tracing each member of the original board, each successor, each vacancy which occurred and each reappointment consistent with the statute can you determine tenure of each of your present members according to the statute.