Filed Date: 5/26/1988
Status: Precedential
Modified Date: 7/5/2016
Leslie J. Harmer, Esq. Village Attorney, Sodus Point
You have asked several questions relating to the membership of your village's zoning board of appeals. Your letter indicates that four of the current members of the five-member board were appointed for three-year terms and that the fifth member is filling a vacancy for the balance of a three-year term.
You have indicated that the terms of your five-member zoning board of appeals are inconsistent with the provisions of section
Several of your questions are dependent on the answer to the basic question whether the zoning board of appeals has five vacancies in that the members were not appointed in accordance with State and local statutory requirements. The current members were appointed for three-year terms when State and local laws provided that their terms were to be five years. It has been decided that the designation of a term of office by the appointing authority that is inconsistent with the term provided by law has no effect upon the legal period during which that person will hold his office (Matter of Ross v Cohen,
You informed us that one of the members of the board, Ms. Potter, was appointed to fill a vacancy in that position. You indicated that this member informed the mayor that her term was to expire on March 31, 1988 and that she requested that she be reappointed. At the annual meeting of the board of trustees on April 4, 1988, the mayor appointed a different person to fill this seat. Thereafter, it became apparent that Ms. Potter's term did not expire in that she was appointed in July, 1987 to fill the unexpired portion of the term of a vacant position (see Village Law, §
You have asked whether Ms. Potter continues to serve on the board. In our view, Ms. Potter continues to hold her seat on the board. Her term did not expire in that under the Village Law she was appointed to fill the vacancy for the balance of the unexpired term (ibid.). Nor did Ms. Potter resign in accordance with the procedure established by State law (Public Officers Law, §
Your remaining questions deal with whether the village can modify the expiration dates of the terms of offices comprising the zoning board of appeals. You inquire whether the change in the staggering of terms can be accomplished through action solely by the mayor or whether action by the board of trustees is necessary.
In our view, these changes can only be made through the enactment of a local law by the board of trustees, the legislative body for the village. We believe that villages have authority to enact a local law reconstituting the zoning board of appeals (1986 Op Atty Gen [Inf] 128). Such a local law may set forth initial terms so as to stagger the expiration dates of the offices on the zoning board of appeals (ibid.). In our previous opinion, we explained that villages are authorized to amend or supersede provisions of the Village Law so long as they are acting within the scope of their local law powers (ibid.). Villages possess the authority to enact local laws in relation to the health, safety and welfare of persons or property in the village and in relation to the powers, duties, qualifications, number, mode of selection and removal and terms of office of their officers and employees (ibid.). Thus, we found that a village can enact a local law modifying section
We conclude that the designation of a term of office by the appointing authority that is inconsistent with the statutory term has no effect and the appointee will serve for the legal term of office.