Can the same person sit on both a town's zoning board of appeals and its board of assessment review?

Subject

Board of assessment review member and zoning board of appeals member

Plain-English summary

The Town of Savannah wanted to know whether the same person could sit on both the zoning board of appeals (ZBA) and the board of assessment review (BAR). The AG ran through the standard two-step New York analysis for dual office holding.

Step one: any statutory prohibition. The AG found none. Town Law § 267 (creating the ZBA) and Real Property Tax Law § 523(1) (creating the BAR) do not bar a person from holding both offices.

Step two: common-law compatibility, governed by People ex rel. Ryan v Green, 58 NY 295 (1874). Two offices are incompatible if one is subordinate to the other ("you cannot be your own boss") or if there is an inherent inconsistency between the duties. Subordination is usually easy to spot. The inconsistency leg requires actually comparing the duties. The classic example of inconsistency is auditor and finance director (one is supposed to check the other's books).

Applied here: the BAR hears complaints about real property tax assessments (Real Property Tax Law § 525). The ZBA reviews determinations made by town officials enforcing land-use regulations (Town Law § 267). The AG saw no interaction between these duty sets. Neither office reports to or supervises the other. So the offices were compatible.

The AG closed with the standard reminder about conflicts of interest. Even when offices are generally compatible, particular matters may still produce conflicts. The cure is recusal from those specific matters, not refusal to hold both offices.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the Ryan v Green test?

It is the New York common-law framework for dual office holding. From People ex rel. Ryan v Green, 58 NY 295 (1874): two offices are incompatible if (a) one is subordinate to the other or (b) there is an inherent inconsistency between the duties. Subordination usually involves one office supervising, auditing, or appointing the other. Inconsistency involves duties that would functionally interfere when held by the same person.

When does common-law compatibility analysis even matter?

Only when no statute already prohibits or authorizes the combination. If a statute expressly bars dual office holding (or expressly allows it), the statute controls. The common-law test fills the gap.

Could a single person hold both offices simultaneously and be paid by both?

The compatibility analysis is about the offices themselves, not compensation. If both offices come with stipends or per-meeting pay, the holder is generally entitled to both. Local ethics codes can complicate this; check General Municipal Law § 806 codes for specifics.

What about a conflict of interest on a specific matter?

The AG opinion flags this as a subsidiary point: even when offices are compatible, the simultaneous holder can run into a conflict on particular matters. The cure is recusal from those matters, not stepping down from one office. See 1995-02 (the planning-board-recusal opinion) for what recusal must look like in practice.

Is the ZBA-BAR overlap unusual?

The AG opinion does not say it is. Small New York towns frequently have overlapping pools of volunteer board members. The compatibility analysis matters most in these small-town contexts where one person may sit on three or four advisory or quasi-judicial boards at once.

Statutory and common-law framework

Town Law § 267 creates the town zoning board of appeals and gives it authority to hear appeals from determinations made by zoning enforcement officials and to grant area and use variances.

Real Property Tax Law § 523(1) authorizes the establishment of the town board of assessment review. Real Property Tax Law § 525 sets out the BAR's duty to hear and determine complaints in relation to real property tax assessments.

People ex rel. Ryan v Green, 58 NY 295 (1874), remains the touchstone for incompatibility analysis. It articulated the subordination and inherent-inconsistency tests still used today, including by AG informal opinions and lower courts.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-9_pw.pdf

Original opinion text

REAL PROPERTY TAX LAW §§

523(1), 525; TOWN LAW § 267.

A person may serve simultaneously as a member of the zoning board of appeals and member of the board of assessment review of a town. February 3, 1995

Cody B. Bartlett, Esq.
Town Attorney
Town of Savannah
50 East Main Street
Wolcott, NY 14590

Informal Opinion
No. 95-9

Dear Mr. Bartlett:
You have asked whether a person may hold simultaneously the positions of member of the zoning board of appeals and board of assessment review of a town. We have found no statutory prohibition on the holding of these two offices. See, Town Law § 267(1); Real Property Tax Law
§ 523(1). In the absence of a statutory prohibition, the question remains whether the offices are compatible under the common law rule of compatibility of office. In the absence of a constitutional or statutory prohibition against dual-officeholding, one person may hold two offices simultaneously unless they are incompatible. The leading case on compatibility of office is People ex rel. Ryan v Green, 58 NY 295 (1874). In that case the Court held that two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the two offices. The former can be characterized as "you cannot be your own boss", a status normally easy to see. The latter is not easily characterized, for one must analyze the duties of the two offices to ascertain whether there is an inconsistency. An obvious example is the inconsistency of holding both the office of auditor and the office of director of finance. There are two subsidiary aspects of compatibility. One is that, although the common law rule of the Ryan case is limited to public offices, the principle equally covers an office and a position of employment or two positions of employment. The other is that, although the positions are compatible, a situation may arise where one has a conflict of interests created by the simultaneous holding of the two positions. In such a situation, the conflict is avoided by declining to participate in the disposition of the matter.

2.
The town board of assessment review has responsibility for hearing and determining complaints in relation to the assessment of real property within the town. Real Property Tax Law § 525. The zoning board of appeals reviews determinations made by town officials charged with enforcement of the town's land use regulations. Town Law § 267. We see no interaction between the duties of these two offices. Nor is one office subordinate to the other. In our view, the two offices are compatible. We conclude that a person may serve simultaneously as a member of the zoning board of appeals and the board of assessment review of a town. 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. Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions