Untitled New York Attorney General Opinion

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repealed and recodified after we rendered our opinion in 1992, but, now as then, the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

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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