Can the mayor of a New York village also serve as the chairperson of the town zoning board of appeals for the town the village sits in?

Plain-English summary

The Village of Bellport asked the AG whether the village mayor could also serve as chairperson of the town zoning board of appeals (ZBA) for the town that surrounds the village. The AG said yes, the positions are compatible, but the mayor would need to recuse from any town ZBA matter that affects the village or its residents.

The AG applies the People ex rel. Ryan v Green test for compatibility of office: two positions are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the duties. Here, neither prong is satisfied. The village mayor is in the village government; the town ZBA chair is in the town government. They are different governmental units, with no supervisory relationship between them. Their zoning jurisdictions are also geographically separate: town zoning applies only outside any incorporated village under Town Law § 261, and the village runs its own zoning under Village Law Article 7.

The recusal half of the analysis is where the AG draws a sharper line than in some related compatibility opinions. When a town ZBA decision actually does affect the village, the mayor's loyalty pulls in the wrong direction. The classic example is a variance request for property near the village boundary. Village residents may oppose; the mayor represents village residents; the mayor is now also voting on the town ZBA. The AG says recuse. Even the appearance of a conflict should be avoided.

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

Why aren't the village mayor and town ZBA chair subordinate to each other?
Because the village and the town are independent municipal governments. A village inside a town is its own legal entity with its own officers, its own zoning, its own budget. The mayor reports to the village electorate and works with the village board of trustees, not with the town. The town ZBA reports through its own appointing authority. The two positions exist in parallel rather than in any vertical relationship.

What does Town Law § 261 do here?
At the time of the opinion, Town Law § 261 authorized towns to enact zoning regulations but limited their application to the parts of the town outside any incorporated village or city. So the town's zoning code (and the town ZBA's jurisdiction over it) operates in the unincorporated town territory only, not inside the village.

What kinds of decisions does the town ZBA make?
At the time of the opinion, Town Law § 267-b authorized the town ZBA to hear appeals from determinations of zoning enforcement officials and to grant use variances and area variances. The ZBA may also have authority to issue special permits, where the local zoning law gives it that power.

When exactly should the mayor recuse?
Whenever the ZBA matter actually affects the village or village residents. The clearest case is a variance application for a property close to the village line whose use would meaningfully change village residents' neighborhood. Other examples might include large commercial or industrial uses near the boundary that would generate traffic or noise spilling into the village.

Is recusal "adequate" here, or does the AG suggest the mayor should not take the ZBA seat at all?
The AG explicitly says recusal is an adequate remedy in these circumstances. The expected number of cross-affecting matters in a typical town ZBA docket is small enough that recusal handles them. If the docket consistently involved village-affecting matters, the calculus might change, but the AG did not draw that line here.

Does General Municipal Law § 239-m factor into the analysis?
The AG cites § 239-m(3)(a)(iv) and (b), which (at the time) required county planning agency referral and review for certain zoning actions on properties near municipal boundaries. The referral process gives the village a formal channel to be heard on cross-border zoning. But the referral process does not itself substitute for the dual officeholder's recusal duty when sitting on the ZBA.

Background and statutory framework

The relevant pieces of New York law in play in 1996:

Town Law § 261 authorized town zoning, applicable only to town territory outside any incorporated village or city.

Town Law § 267-b authorized the town ZBA to hear appeals, grant use and area variances, and (where authorized locally) issue special permits.

Village Law Article 7 authorized villages to adopt their own zoning regulations.

General Municipal Law § 239-m(3)(a)(iv) and (b) required county planning agency referral and review for zoning actions on properties within 500 feet of a municipal boundary (and in some other specified categories), with the receiving municipality required to consider the county planning agency's recommendation.

The People v Green compatibility test (1874) supplies the common-law backdrop. The AG also notes the two subsidiary aspects: the test extends to dual employment or office-plus-employment, and even compatible positions can require recusal in specific matters.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-20_pw.pdf

Original opinion text

GENERAL MUNICIPAL LAW § 239-m(3)(a)(iv), (b); TOWN LAW §§ 261, 267-b; VILLAGE LAW, ART 7.

The mayor of a village may serve also as the chairperson of a town zoning board of appeals, but must recuse himself or herself from acting on the zoning board of appeals with respect to matters that affect the interests of the village or village residents.

June 26, 1996

Robert A. Green, Esq.
Village Attorney
Village of Bellport
P.O. Box 3
Bellport, New York 11713-2522

Informal Opinion No. 96-20

Dear Mr. Green:

You have asked whether the mayor of your village may serve simultaneously as the chairperson of the town zoning board of appeals 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.

In our view, these positions are not incompatible. In that the offices are in two separate governmental units, one is not subordinate to the other and the potential for a conflict of duties is limited. Towns are authorized to enact zoning regulations including the establishment of a zoning board of appeals, but these regulations apply only in the part of the town that is outside any incorporated village or city. Town Law § 261. Villages are authorized to enact their own zoning regulations. Village Law, Art 7.

Zoning boards of appeals are authorized to grant use variances and area variances and review determinations made by enforcement officials. Town Law § 267-b. It is conceivable that an action taken by the town zoning board of appeals will affect village interests. For example, a request for a variance near village boundaries may be opposed by village residents. Where this is the case, the mayor should recuse himself or herself from acting as a member of the town zoning board of appeals. As mayor, he or she will have divided loyalties which may affect the making of an impartial decision, considering only applicable legal standards. The mayor, as the elected executive and a member of the village board of trustees, has a strong interest in representing village residents. In any event, even the appearance of a conflict should be avoided in order to maintain public confidence in government. Recusal is an adequate remedy in these circumstances.

We conclude that the mayor of a village may serve also as the chairperson of a town zoning board of appeals, but must recuse himself or herself from acting on the zoning board of appeals with respect to matters that affect the interests of the village or village 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