Can the same person serve on a New York town board and chair the village zoning board of appeals for a village inside that town?

Plain-English summary

The Village of Goshen asked the AG whether one person could serve simultaneously as the chairperson of the village's zoning board of appeals and as a member of the town board of the town in which the village sits. The AG said yes, the two roles are compatible. The reason is geographic: village zoning applies only inside the village, and town zoning applies to the town area outside any villages, so the two boards govern different patches of land.

The AG worked from the standard People v Green test for dual-office compatibility, which asks (1) is one office subordinate to the other and (2) is there an inherent inconsistency between the duties. Neither prong was satisfied here. The village ZBA hears appeals from village zoning enforcement decisions and rules on variances (and sometimes special permits) inside the village; the town board legislates and administers for the town as a whole. Neither supervises the other, and their duties operate on separate territory.

But the AG flagged a recusal point. Specific village ZBA matters can affect town residents, particularly when the property at issue sits on or near the village/town border. If a town board member is also voting on village ZBA decisions that affect town residents, the dual officeholder's loyalties pull in opposite directions. In those situations the AG recommended recusal and pointed to the local ethics code (General Municipal Law § 806) and the local board of ethics (§ 808) as sources of guidance.

Currency note

This opinion was issued in 1996. 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 People v Green compatibility test in one sentence?
Two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the duties. Subordination is the "you cannot be your own boss" rule. Inherent inconsistency requires looking at the duties to see whether they pull in opposite directions (the classic example: holding both the auditor and director of finance positions).

Why are the town board and the village ZBA chair not subordinate to each other?
Because they govern different territory and answer to different appointing authorities. The village ZBA hears appeals from the village zoning enforcement official and rules on village variances and (where authorized locally) special permits, all under the village's own zoning code. The town board is the town's governing body, with broad legislative and administrative powers over the town, distinct from the village.

When would recusal be needed?
The AG identified property on or near the village/town border as a likely flashpoint. A village ZBA decision about a parcel that abuts the town can meaningfully affect town residents (traffic, drainage, character of the neighborhood). When the village ZBA chair also sits on the town board, the chair represents town interests on one body while ruling on the village's regulation of that property on the other. In that situation recusal from the ZBA decision is the AG's suggested course.

Are there other statutory cross-references between village and town zoning that matter here?
Yes, General Municipal Law § 239-m requires county planning agency review of certain zoning actions on properties within 500 feet of a municipal boundary, including a village/town border. That referral process gives town residents a formal channel to be heard on cross-border zoning, but it does not itself fix the dual-officeholder recusal question. The dual officeholder still needs to ask whether his or her ability to make impartial judgments is compromised on the specific decision.

What does the local ethics code add?
General Municipal Law § 806 required each local government to adopt a code of ethics for officers and employees. The dual officeholder should check whether the code addresses the situation. Section 808 authorized the establishment of a local board of ethics to render advisory opinions, which can be a useful resource when a specific recusal question comes up.

Does this analysis change if the village ZBA grants special permits?
The AG opinion notes that the village ZBA may have authority to issue special permits where local law assigns that power. Whether a special permit decision triggers recusal depends on whether the decision materially affects town interests (again, often a border-property question). The compatibility of the offices themselves does not change.

Background and statutory framework

The statutory pieces at play:

Town Law §§ 60 and 64 establish the town board as the town's governing body, with legislative and administrative powers.

Municipal Home Rule Law § 10 gives towns home-rule authority to adopt local laws on a broad range of subjects, including land use.

Village Law § 7-712-a(4) authorizes the village zoning board of appeals to hear and decide appeals from orders, decisions, and interpretations of the village zoning enforcement official, to grant variances, and (where authorized by local law) to issue special permits.

General Municipal Law § 239-m requires county planning agency referral and review of zoning actions on properties within 500 feet of a municipal boundary.

General Municipal Law §§ 806 and 808 address local ethics codes and local boards of ethics.

The People v Green compatibility test is the common-law backdrop. The AG applies it to dual offices, to dual employment, and to combinations of an office and an employment, and notes that even compatible positions can produce specific-matter conflicts that recusal is meant to address.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-16_pw.pdf

Original opinion text

GENERAL MUNICIPAL LAW §§ 239-m, 806, 808; MUNICIPAL HOME RULE LAW § 10; TOWN LAW §§ 60, 64; VILLAGE LAW § 7-712-a(4).

A person may serve simultaneously as the chairperson of the village zoning board of appeals and as a member of the town board. As a member of the zoning board of appeals, however, this individual may find it necessary occasionally to recuse him or herself from actions which affect the interests of town residents.

May 9, 1996

David L. Levinson, Esq.
Village Attorney
Village of Goshen
267 Main Street
Goshen, NY 10924

Informal Opinion No. 96-16

Dear Mr. Levinson:

You have asked whether a person may serve simultaneously as the chairperson of a village zoning board of appeals and as a member of the town board of the town in which the village is located.

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 readily identifiable. 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.

The town board is the governing body of a town and has extensive legislative and administrative powers. Town Law §§ 60, 64; Municipal Home Rule Law § 10.

The village zoning board of appeals hears and decides appeals from orders, decisions and interpretations made by the official of the village with responsibility for enforcement of the zoning regulations. Village Law § 7-712-a(4). The zoning board of appeals also has authority to grant variances and locally may be given the authority to issue special permits. Id.

In that village zoning regulations apply in the village only and the town is authorized to enact zoning regulations which apply to the area of the town outside of villages, there is no incompatibility between these positions. The village zoning board of appeals exercises its powers within the confines of the village leaving little potential for conflict with the interests of the town and, therefore, conflict with the duties of a member of the town board.

There may occur specific instances, however, where actions taken by a zoning board of appeals of a village may also affect the interests of a town. An example is a determination by a village zoning board of appeals regarding property on or near the border of the village and the town in which town residents have a strong interest. Since the town board represents the interests of town residents, participation of the dual officeholder in such village zoning board of appeals determinations might be viewed as a conflict of interests.

Therefore, a member of a village zoning board of appeals who also serves on the town board may find it necessary to recuse him or herself from some zoning board determinations. Service on the town board may compromise the officer's ability to make impartial judgments solely in the public interest. Even the appearance of impropriety must be avoided in order to maintain public confidence in government. Public officials should consult the local ethics code (General Municipal Law § 806) and in a questionable case should seek an advisory opinion from the local board of ethics, if established. Id., § 808.

We conclude that a person may serve simultaneously as the chairperson of the village zoning board of appeals and as a member of the town board. As a member of the zoning board of appeals, however, this individual may find it necessary occasionally to recuse him or herself from actions which affect the interests of town residents.

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