Can a New York town pass a local law removing zoning board of appeals or planning board members who miss three meetings a year, and does the law need a hearing before removal?

Plain-English summary

The Town of Nassau wanted to enforce attendance rules on its zoning board of appeals and planning board members. The proposed local law removed any member who missed three meetings a year except for medical or other emergencies. The town attorney asked whether the law complied with procedural due process.

The AG split the answer in two.

The attendance requirement itself is authorized. Town Law §§ 267(9) (zoning board of appeals) and 271(9) (planning board) expressly authorize the town board to remove a member for cause, including for non-compliance with minimum requirements relating to meeting attendance and training set by local law. So setting an attendance standard is permitted.

The removal procedure is not, as drafted. The Town Nassau local law omitted the public hearing the statutes themselves require ("the town board may remove, after public hearing, any member"). It also ran into procedural due process. Members of ZBAs and most planning boards exercise sovereign powers and are public officers (Op Atty Gen (Inf) No. 89-8 reached the same conclusion for planning board members). Removal of a public officer for cause is subject to procedural due process: notice and an opportunity to be heard. Because the town's own law had a medical-and-other-emergency exception, the application of the attendance standard depended on fact-finding about why a member missed each meeting. Due process required a hearing where the member could present those facts.

The cure is straightforward: amend the local law to provide for a public hearing before removal, with notice and an opportunity for the member to be heard. With that procedural piece in place, the attendance rule itself stands.

Currency note

This opinion was issued in 1997. 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 are ZBA and planning board members entitled to due process?

Because they are public officers who exercise sovereign powers (deciding variances, approving site plans, applying zoning codes to specific parcels). Public officers have a property-like interest in their position that triggers procedural due process protection for any deprivation, including removal for cause. The exact procedural floor varies by context, but notice and a hearing are foundational.

What kind of hearing is required?

Town Law §§ 267(9) and 271(9) use the term "public hearing." That implies a meeting open to the public, with notice to the affected member, presentation of evidence by the town, and an opportunity for the member to respond. The town board then makes findings and votes on removal. The hearing need not have the trappings of a courtroom but must give the member a meaningful chance to present his case.

What constitutes "cause" for removal?

Town Law authorizes removal for cause and identifies attendance and training non-compliance as included in the cause grounds. Beyond those, traditional removal-for-cause grounds include misconduct, neglect of duty, incompetence, and conflicts of interest that the member refuses to address. Each requires findings supported by evidence at the hearing.

What if a member missed meetings for a legitimate emergency?

The town's local law expressly excused medical and "other emergency" absences. The hearing is the forum to establish that an emergency existed. If the member produces evidence supporting an emergency, removal is not warranted under the local law's own terms.

Can the town board remove a member by simple majority?

Town Law §§ 267(9) and 271(9) do not specify a heightened vote, so the standard town board voting rules apply (typically majority of the entire board). The vote must follow the public hearing and be supported by findings on the record.

What about replacing the member after removal?

The town board appoints replacements to ZBAs and planning boards under the standard appointment provisions. A removal does not automatically affect the term of the seat; the appointee fills the unexpired term.

Background and statutory framework

Town Law § 267(9) governs the zoning board of appeals: it authorizes the town board to remove any member of the board for cause after a public hearing, including for non-compliance with minimum attendance or training requirements set by local law. Town Law § 271(9) is the parallel provision for the planning board.

The "public officer" classification of ZBA and planning board members rests on their exercise of sovereign powers. ZBA members decide variances and zoning appeals that bind individual property owners and the town; planning board members approve subdivisions and site plans. These are exercises of governmental authority, with judgment as to outcome. Op Atty Gen (Inf) No. 89-8 confirmed the planning board member status as public officer.

Procedural due process for public officers facing removal for cause requires notice of the basis for removal and an opportunity to respond at a hearing. The public hearing required by Town Law §§ 267(9) and 271(9) provides that procedural floor.

Citations

• Town Law § 267(9) (zoning board of appeals: removal for cause after public hearing; attendance and training local law).
• Town Law § 271(9) (planning board: parallel provision).
• Op Atty Gen (Inf) No. 89-8 (planning board members are public officers).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-51_pw.pdf

Original opinion text

TOWN LAW §§ 267(9), 271(9).
A town local law establishing attendance requirements for
members of the zoning board of appeals and planning board is
authorized by the provisions of the Town Law. Removal is subject
to procedural due process requirements.
November 19, 1997
Philip J. Danaher, Esq.
Town Attorney
Town of Nassau
77 Troy Road
East Greenbush, NY 12061

Informal Opinion
No. 97-51

Dear Mr. Danaher:
You have asked whether a local law of the Town of Nassau
providing for removal of a town planning board or zoning board of
appeals member if the member misses three meetings of the board
during a calendar year, other than for a medical or other
emergency, complies with procedural due process requirements of
State law.
Town Law §§ 267(9) and 271(9) now authorize the removal of
members of a zoning board of appeals or a planning board for
cause. These provisions are substantively the same, authorizing
the town board to remove, after public hearing, any member of the
zoning board of appeals or planning board for cause. Further,
these provisions authorize the removal of a member of either
board for "non-compliance with minimum requirements relating to
meeting attendance and training as established by the town board
by local law".
Your town's local law, in part, is consistent with these
statutory authorizations by defining minimum attendance
requirements for members of the zoning board of appeals and the
planning board. The local law does not, however, provide for a
public hearing prior to removal. The failure to require a public
hearing is not only inconsistent with the provisions of the Town
Law, which requires a public hearing prior to removal for cause,
but also with due process standards. The members of zoning
boards of appeals and most planning boards exercise sovereign
powers of government and, therefore, are public officers.
Op Atty Gen (Inf) No. 89-8 (planning board member). In our view
procedural due process requires that these public officers have
the opportunity to explain the reasons for their absences. In
that under your local law, absences necessitated by medical and

2
other emergencies are excused, a public hearing is necessary to
determine whether the facts establish a reasonable basis for a
conclusion that an emergency existed.
We conclude that a town local law establishing attendance
requirements for members of the zoning board of appeals and
planning board is authorized by the provisions of the Town Law.
Removal is subject to procedural due process requirements.
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