How do New York villages handle chair designations and member terms on zoning and planning boards under the revised Village Law, and what happens when those rules are misapplied?

Plain-English summary

The Village of Westhampton Beach was tangled up in four distinct transition questions involving Village Law amendments to zoning board of appeals (ZBA) and planning board procedures. The Village Attorney walked through each with the AG.

Question 1: ZBA chair designation for a three-year term. Before 1991, the Village Code's 1989 version provided for the ZBA chair to be designated for a three-year term. In 1991, the Legislature amended Village Law § 7-712(2) (L 1991, ch 692, § 5) to eliminate any term on a chair designation, leaving the chair to serve at the pleasure of the appointing authority. In 1996, the Legislature changed who the appointing authority is (L 1996, ch 235, § 16) but still set no term. Despite this, Westhampton Beach in 1996 designated a ZBA member as chair for three years.

The AG concluded that the underlying designation was valid (assuming other formalities were met), but the three-year term was not consistent with State law. Under the controlling principle that, where statute provides no term, the appointee serves at the pleasure of the appointing authority (citing Op Atty Gen (Inf) Nos. 96-19 and 88-33), the chair could be replaced at any time. Removal of a member for cause under Village Law § 7-712(9) operates separately on the underlying board membership and not on the chair designation, though a member removed under that provision would obviously no longer be chair.

Question 2: Planning board chair tenure. The Village had adopted in 1990 a Code provision that specifically superseded Village Law § 7-720, then in effect, to set a three-year term for the planning board chair. The supersession ran under Municipal Home Rule Law § 10(1)(ii)(e)(3), which authorizes village boards to enact local laws amending or superseding provisions of the Village Law within the scope of home rule authority. The AG had previously confirmed in 1987 Op Atty Gen (Inf) 117 and 1986 Op Atty Gen (Inf) 128 that village and town boards may use that authority to modify planning-board and ZBA structure and officer terms (citing Municipal Home Rule Law § 10(1)(ii)(a)(1)).

Once a village has exercised supersession, later State amendments do not automatically re-cover the ground. The AG concluded the planning board chair lawfully serves a three-year term under the Village Code, even though Village Law § 7-720's later iterations point a different direction.

Question 3: ZBA appointment timing (members A and B). Person A was appointed to the ZBA on August 9, 1991, with a term purportedly expiring September 14, 1996. Believing A's term ended on that date, the appointing authority appointed Person B on September 20, 1996 for a term to expire on May 31, 2001. Section 7-712(4) provides that ZBA members serve for terms expiring at the end of the village's official year, and § 7-712(5) (added by L 1992, ch 248) extends terms that don't otherwise expire at year-end through the end of the official year. So A's term automatically extended through May 31, 1997, the end of the village's official year. B's September 1996 appointment, which assumed A was already out, was void at inception. B was not a holdover (which would require expiration of his own valid term); he was a de facto officer, whose actions remain valid but who may be replaced. The next appointment fills the balance of the current term, expiring at the end of the village's official year per § 7-712(4).

Question 4: Planning board appointment timing (members D and E). Person D's term on the planning board was scheduled to expire February 1, 1997, but D resigned on September 13, 1996. Person E was appointed on September 20, 1996 for a term to expire on May 31, 2001. Under § 7-718(5), D's term was extended by operation of law to May 31, 1997, the end of the village's official year. Under § 7-718(8), upon D's resignation E should have been appointed to fill the vacancy for the balance of D's unexpired term, i.e., to May 31, 1997, not 2001. The AG concluded E's appointment was valid as a vacancy fill, but only ran to May 31, 1997; after that date, E was a holdover and could be replaced.

The throughline is that the village's official year sets the end-point of board terms after the 1992 amendments, and the village can use Municipal Home Rule supersession to vary terms for its own boards but only when it does so by local law, not by mistaken assumption.

Currency note

This opinion was issued in 1998. 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 difference between a de facto officer and a holdover?

A de facto officer is someone whose appointment was defective at the outset but who is in possession of the office and acting under color of right. A holdover is someone whose appointment was valid but whose term has expired, and who continues to serve pending replacement. In both cases, the officer's official acts are valid; in both cases, the appointing authority can replace the officer. The legal difference matters for things like quo warranto, removal procedures, and chains of subsequent appointment.

Why does the village's "official year" end on May 31?

Westhampton Beach's official year ran June 1 to May 31. Different villages set different official years. The Village Law term-extension provisions (§§ 7-712(5), 7-718(5)) work by reference to whatever the village's official year is. The 1992 changes were aimed at synchronizing board terms with that year-end so that vacancies happen at a predictable date rather than scattered through the calendar.

What does "supersession" mean in this context?

Under Municipal Home Rule Law § 10, a village board of trustees can enact a local law that supersedes a specific provision of the Village Law as it applies to that village, within the scope of home rule authority. The local law replaces the State statute for that village; later amendments to the State statute do not retroactively re-cover the superseded ground unless the village re-adopts. The AG previously addressed this in 1987 Op Atty Gen (Inf) 117 and 1986 Op Atty Gen (Inf) 128.

Could the chair of the ZBA be removed without cause?

Under the analysis here, yes, as to the chair designation itself. Because Village Law provides no term, the chair serves at the pleasure of the appointing authority and can be replaced at any time. Removal of the underlying member from the ZBA is separate, and § 7-712(9) requires a public hearing and cause for that.

What happens if the village made an appointment in good faith based on an honest misreading of the term-extension provisions?

The acts of the appointee are valid as a de facto officer. The appointment itself, however, cannot be retroactively cured by good faith. The cleanest fix is for the appointing authority to make a fresh appointment, this time correctly timed against the term-end provisions of the Village Law.

Background and statutory framework

Village Law Article 7 governs villages' planning and zoning structure. Section 7-712 covers the zoning board of appeals; § 7-718 covers the planning board; § 7-720 historically governed planning-board chair designation. The Legislature substantially restructured these provisions across three sessions in this period:

• L 1991, ch 692, § 5 rewrote § 7-712(2) to eliminate a stated term for the ZBA chair designation.
• L 1992, ch 248 added the term-extension provisions that synchronize board membership terms with the village's official year.
• L 1996, ch 235, § 16 changed the appointing authority for the ZBA chair without restoring a term.

Municipal Home Rule Law § 10(1)(ii)(a)(1) and (1)(ii)(e)(3) give village boards the authority to enact local laws amending or superseding provisions of the Village Law, including for the terms and structure of planning and zoning bodies. The AG had recognized this supersession authority for ZBA and planning-board structure in 1987 Op Atty Gen (Inf) 117 and 1986 Op Atty Gen (Inf) 128.

The de facto officer doctrine, applied here for member B's defective ZBA appointment, is a common-law doctrine the AG had applied in similar situations in Op Atty Gen (Inf) Nos. 96-18 and 88-5: the acts of someone in office under a defective appointment remain valid, but the office can be cleanly refilled.

Citations

• Municipal Home Rule Law § 10(1)(ii)(a)(1) (supersession of state law on local-government structure and terms).
• Municipal Home Rule Law § 10(1)(ii)(e)(3) (village local law amending or superseding Village Law).
• Village Law § 7-712 (zoning board of appeals).
• Village Law § 7-712(2) (chair designation; no term after 1991 amendment).
• Village Law § 7-712(4) (members serve terms expiring at end of village's official year).
• Village Law § 7-712(5) (term extension to year-end).
• Village Law § 7-712(9) (removal of ZBA member for cause).
• Village Law § 7-718 (planning board).
• Village Law § 7-718(5) (term extension to year-end).
• Village Law § 7-718(8) (vacancy fills for balance of unexpired term).
• Village Law § 7-720 (planning board chair; superseded by Westhampton Beach Code in 1990).
• L 1996, ch 235, § 16; L 1992, ch 248; L 1991, ch 692, § 5 (statutory amendments).
• Op Atty Gen (Inf) Nos. 96-19, 88-33 (no statutory term means service at pleasure of appointing authority).
• 1987 Op Atty Gen (Inf) 117; 1986 Op Atty Gen (Inf) 128 (supersession authority for board structure and terms).
• Op Atty Gen (Inf) Nos. 96-18, 88-5 (de facto officer doctrine).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-41_pw.pdf

Original opinion text

MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(1) and (1)(ii)(e)(3); VILLAGE LAW §§ 7-712, 7-718, 7-720; L 1996, CH 235, § 16; L 1992, CH 248; L 1991, CH 692, § 5. Discussion of procedure for transition under revised provisions of the Village Law regarding designation as chair and membership on the zoning board of appeals and the planning board. October 13, 1998 Richard T. Haefeli, Esq. Village Attorney Village of Westhampton Beach P. O. Box 1112 Westhampton Beach, NY 11978

Informal Opinion
No. 98-41

Dear Mr. Haefeli:
You have requested our opinion regarding provisions of the Village Law governing the terms of the chairs and members of the zoning board of appeals and the planning board. First, taking into consideration the provisions of your Village's Code and provisions of State law, you seek our advice as to certain appointments to serve as the chairs of the zoning board of appeals and the planning board and whether certain members of these boards were appointed properly. Our first conclusion is that the designation in 1996 of a member of your zoning board of appeals as chair for a term of three years was not consistent with State law. We emphasize that this question only relates to the chair designation, not to underlying membership on the board. Your Village acted under a provision of its Code, adopted in 1989, providing for the designation of the chair of the zoning board of appeals for a term of three years. The designation itself was lawful but due to a 1991 change in State law, the member serves as chair at the pleasure of the appointing authority. In 1991, section 7-712(2) of the Village Law was amended (L 1991, ch 692, § 5) to eliminate the three-year term of the designation of a member as chair. Under the 1991 amendment, the appointing authority was required to appoint a chair but no term was set. In 1996, the appointing authority was changed by law but there continued to be no term for the designation of a member as chair. L 1996, ch 235, § 16. Current law provides no term. Therefore, the designation by the appointing authority in 1996 of a member of your zoning board of appeals as chair for a term of three years was not entirely consistent with State law. State law provides no term. Where provisions of law do not specify a term, the appointee serves at

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the pleasure of the appointing authority. Op Atty Gen (Inf) Nos. 96-19, 88-33. Thus, while the designation was valid (assuming it complied with other provisions of State law), the designee serves as chair at the pleasure of the appointing authority, permitting replacement of the designee as chair at any time. We note that the mayor is authorized to remove, after a public hearing, a member of the zoning board of appeals for cause and for non-compliance with requirements for attendance and training established by the board of trustees by local law. Village Law § 7-712(9). This does not by its terms apply to the designation of a member as chair. Obviously, a board member removed under this provision would no longer serve as chair. Your next question relates to the tenure of the chair of your planning board. This question also only relates to the chair deisgnation, not to membership on the board. We conclude that the chair serves under the provisions of your Village Code, adopted in 1990, for a three-year term. You informed us that unlike the previously cited provisions of the 1989 Code, this Code provision specifically superseded section 7-720 of the prior Village Law, which related to the designation of a member of the planning board as chair, to the extent that the provisions were in conflict. The Village relied upon section 10(1)(ii)(e)(3) of the Municipal Home Rule Law which authorizes village boards to enact local laws, subject to exceptions not relevant here, amending or superseding provisions of the Village Law provided they are acting within the scope of their home rule authority. In prior opinions of this office, we have concluded that village and town boards may utilize their authority to amend or supersede provisions of the Village or Town Law to modify the structure of planning boards and zoning boards of appeals and regarding the terms and conditions of employment of local officials including their terms of office. 1987 Op Atty Gen (Inf) 117; 1986 Op Atty Gen (Inf) 128; Municipal Home Rule Law § 10(1)(ii)(a)(1). In our view, having exercised its supersession authority regarding the term of the chair of the planning board, the Village effectively has opted out from being governed by provisions of the Village Law. Later amendments to State law would not affect this action because supersession represents action by the Village pursuant to State law to apply locally enacted provisions in place of provisions of State law. Therefore, we conclude that the member of your planning board designated as chair lawfully serves for a three-year term as chair under the Village Code. Next, you have asked whether certain members of the zoning board of appeals and planning board were appointed properly. These questions relate to actual membership on the boards. Your

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letter states that a person (hereafter A) was appointed as a member of the zoning board of appeals on August 9, 1991 for a term expiring on September 14, 1996. Believing A's term ended on that date, the appointing authority appointed a different person (hereafter B) on September 20, 1996 for a term to expire on May 31, 2001. You inquire whether B was appointed properly or is a holdover. In our view, B was not appointed in accordance with State law. Nor was he a holdover. We conclude that the appointment was void at its inception and the person serves as a de facto officer, as at the time of B's appointment, there was no authority to make an appointment. Section 7-712(4) provides that members of the village zoning board of appeals serve for terms expiring at the end of the village's official year. Under section 7-712(5), the terms of members holding office for terms which do not expire at the end of the official year, upon expiration, are extended to the end of the official year. L 1992, ch 248. Therefore, A's term, which purportedly expired on September 14, 1996, should have been extended by operation of law through May 31, 1997, the end of your village's official year. Thus, the appointment of B on September 20, 1996, upon the village's assumption that A's term had ended, was void at its inception. B serves as a de facto officer and may be replaced. We note that actions of a de facto officer are valid. Op Atty Gen (Inf) Nos. 96-18, 88-5. The next appointee will serve for the balance of the current term, which will expire at the end of the village's official year in accordance with section 7-712(4) of the Village Law. (Section 7-712[4] provides for staggering of initial terms and subsequent appointment for terms equal in years to the number of members of the board.) Finally, you inquire whether a member of the planning board was appointed properly. You have stated that a person's (hereafter D) term on the planning board expired on February 1, 1997 but he resigned on September 13, 1996. A person (hereafter E) was appointed on September 20, 1996 for a term to expire on May 31, 2001. You inquire whether E was appointed properly and, if not, whether he serves as a holdover and may be replaced by the Mayor. Section 7-718(5) of the Village Law (applicable at time of expiration of D's term) provides that the terms of members holding office which do not expire at the end of the Village's official year are extended by operation of law until the end of the official year. Vacancies are filled for the balance of unexpired terms. Village Law § 7-718(8). Therefore, D's term was extended until May 31, 1997, the end of your Village's official year. Under section 7-718(8), upon D's resignation E should have been appointed to fill the vacancy created for the balance of D's term or until May 31, 1997. Therefore, we conclude that the appointment was valid (assuming

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it otherwise met the requirements of law) in that E was appointed following a resignation to fill a vacancy but E's term expired on May 31, 1997, at which time a new appointment could be made. E is now a holdover who may be replaced. 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