If a New York village uses its supersession authority to enact a local law replacing part of the Village Law, do later state amendments to that Village Law section automatically supersede the village's local law?

Plain-English summary

The Village of Rye Brook had used its home-rule supersession authority in 1988 to enact two local laws. One, citing Village Law § 7-718 (planning board), provided that Planning Board members would be appointed by the Board of Trustees with specified terms of office. The other, citing Village Law § 7-712 (zoning board of appeals), provided that ZBA members would be appointed by the Board of Trustees with specified terms. Both local laws expressly invoked the supersession authority under Municipal Home Rule Law § 10(1)(ii)(e)(3).

In 1996, the State Legislature amended § 7-718 and § 7-712. The new § 7-718(2) provided that the mayor (not the board of trustees) appoints ZBA members and the chair, subject to board approval. The amendment to § 7-718(1) provided the mayor appoints planning board members and the chair, subject to board approval. Both amendments gave the mayor authority to fill vacancies.

The Village Attorney asked whether Rye Brook's 1988 local laws were invalidated by the 1996 amendments.

The AG concluded the 1988 local laws remain valid until Rye Brook itself repeals them.

Supersession authority. Municipal Home Rule Law § 10(1)(ii)(e)(3) 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 that village and town boards can use supersession to modify the structure of planning boards and ZBAs and to set terms of office for local officials (1987 Op Atty Gen (Inf) 117; 1986 Op Atty Gen (Inf) 128). Municipal Home Rule Law § 10(1)(ii)(a)(1) is the more general home-rule authority that backs this up.

How supersession works. When a village exercises supersession on a particular subject, it opts out of the State Village Law provisions for that subject. The local law takes the place of the State provisions. Supersession is not a one-time event that depends on the State provisions remaining unchanged; it is an affirmative substitution of local rule for State rule. The State Legislature's later amendments to the now-superseded State provisions do not undo the supersession.

Why later State amendments do not control. Kelley v McGee, 57 NY2d 522 (1982), is the principal case on State-versus-local jurisdiction. The opinion noted no indication that the 1996 amendments to § 7-712 and § 7-718 were intended to be preemptive or to address a matter of State concern. Where the State has not expressly preempted (or addressed a matter of State concern), local supersession remains a valid mode of self-governance. The amendments are essentially default rules for villages that have not exercised supersession; they do not reach back to villages that have.

The "until repeal" rule. Rye Brook's 1988 local laws remain in effect until the Village's Board of Trustees affirmatively repeals them. The Village could decide to bring its planning board and ZBA back under the State default by repealing the local laws, or it could keep the local laws in place. The choice is the Village's, not the State Legislature's.

Scope of the rule. The AG specifically extended the same analysis to other things established by supersession (terms of office, procedures for filling vacancies, other terms and conditions of office). The rule is structural: anything a village has superseded on the appropriate subjects stays superseded until the village repeals.

Limitations. The AG flagged in a footnote that its long-standing policy is to refrain from construing local enactments. So determining whether Rye Brook's 1988 local laws actually constituted a supersession (and what they superseded, in whole or in part) is a local question for the Village Attorney. The AG addressed the State-law question of what happens to a supersession when the State law later changes; the local-law question of how to read Rye Brook's specific local laws was left to local officials.

Currency note

This opinion was issued in 1999. 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 supersession authority?

Under Municipal Home Rule Law § 10, a village board can enact a local law that supersedes a 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. Town boards have a parallel authority for the Town Law.

Why doesn't a State amendment automatically refresh the State rule?

Because supersession is the village's affirmative substitution of its own rule for the State's, not a passive incorporation of the State rule as it changes. The State amendment changes the default rule that applies to non-superseding villages; the superseding village has already opted out.

When would a State amendment override local supersession?

If the State Legislature affirmatively addresses a matter of State concern in a way intended to override local supersession (the Kelley v McGee analysis). The 1996 amendments here did not. The Court of Appeals' framework asks whether the matter is one of State concern and whether the State has expressed preemptive intent; both are required.

How does a village know whether its supersession is still in effect?

Look at the local law on its face. If it was duly enacted under § 10(1)(ii)(e)(3) (or related Municipal Home Rule Law provisions) and has not been repealed, it remains in effect. The village's local-law records would show enactment and any subsequent repeal or amendment.

Could a State court invalidate a supersession local law?

In principle, yes, if a court found the local law exceeded the village's home-rule authority or addressed a matter of State concern in a way that conflicts with State law. The supersession is "within the scope of home rule authority," and matters outside that scope are not properly superseded. But the AG's opinion notes that the 1996 amendments were neither preemptive nor a State-concern issue.

Background and statutory framework

Municipal Home Rule Law § 10(1)(ii)(a)(1) gives villages broad home-rule authority on enumerated subjects. Section 10(1)(ii)(e)(3) specifically authorizes village boards to enact local laws amending or superseding the Village Law, subject to certain exceptions and within the scope of home rule authority. Town boards have parallel authority for the Town Law.

The AG's home-rule opinions consistently treat supersession as a substantive opt-out. The Village or Town enacts its own rule on the subject; the State provision no longer applies to that village or town. When the State amends the provision, the amendment affects the default rule that applies generally but does not retroactively re-cover the ground that was superseded. The AG had previously stated this principle in 1987 Op Atty Gen (Inf) 117 and 1986 Op Atty Gen (Inf) 128, both addressing planning board and ZBA structure changes via supersession.

Kelley v McGee, 57 NY2d 522 (1982), is the Court of Appeals' framework for State preemption of local laws. State preemption requires either an express preemptive statement by the Legislature or a sufficient State-level interest to displace local action. Routine State amendments to provisions that are subject to local supersession do not, by themselves, qualify as preemption.

Citations

• Municipal Home Rule Law § 10(1)(ii)(a) (general village home-rule authority).
• Municipal Home Rule Law § 10(1)(ii)(e)(3) (specific authority for village local laws amending or superseding Village Law).
• Village Law § 7-712 (zoning board of appeals; 1996 amendment).
• Village Law § 7-718 (planning board; 1996 amendment).
• Village Law § 7-718(1) (mayor appointment of planning board members).
• Village Law § 7-718(2) (mayor appointment of ZBA members).
• Kelley v McGee, 57 NY2d 522 (1982) (State preemption framework).
• 1987 Op Atty Gen (Inf) 117 (supersession authority for board structure and terms).
• 1986 Op Atty Gen (Inf) 128 (similar holding).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-6_pw.pdf

Original opinion text

MUNICIPAL HOME RULE LAW § 10(1)(ii)(a) and (1)(ii)(e)(3); VILLAGE
LAW §§ 7-712, 7-718.
Local laws enacted by a village pursuant to the supersession
authority remain valid, despite subsequent State amendments to
the State laws that were locally superseded, until the local laws
are repealed.
February 5, 1999

Kenneth E. Powell, Esq.
Village Attorney
Village of Rye Brook
14 North Broadway
Tarrytown, NY 10591

Informal Opinion
No. 99-6

Dear Mr. Powell:
You have requested our opinion concerning a village's
authority to supersede provisions of the Village Law. The
provisions in issue govern the membership of planning boards and
zoning boards of appeals.
The so-called supersession authority is provided by
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 and
Town Laws 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).
You informed us that in 1988 the Village's Board of Trustees
adopted a local law, to some extent relying on the supersession
authority, providing that Planning Board members were to be
appointed by the Board of Trustees and establishing their terms
of office. The local law, relating to section 7-718 of the
Village Law, by its terms, refers to the supersession authority
as a source of authority. Section 7-718 relates to the
appointment of village planning board members. In 1988, the
Village's Board of Trustees also adopted a local law, to some
extent relying on the supersession authority, providing for

2
appointment of members of the Zoning Board of Appeals by the
Board of Trustees and establishing their terms of office. That
local law, relating to section 7-712 of the Village Law, also by
its terms refers to the supersession authority. Section 7-712
relates to the appointment of members of the zoning board of
appeals.
In 1996, the State Legislature amended sections 7-718 and
7-712. Section 7-718(2) now provides that the mayor is to
appoint members of the zoning board of appeals and the
chairperson of the board subject to the approval of the board of
trustees. The Legislature also amended section 7-718(1) to
provide that the members and chairperson of the planning board
are to be appointed by the mayor subject to the approval of the
board of trustees. Both amendments provided for the mayor to
fill vacancies.
You inquire whether the 1988 local laws relating to
appointment of members of the planning board and zoning board of
appeals have been rendered invalid by the 1996 amendments to
sections 7-712 and 7-718 by the State Legislature. Stated
differently, what is the effect of subsequent State statutory
amendments on local laws enacted under the supersession
authority?
There is no indication that the 1996 amendments were
intended to be preemptive or matters of State concern. See,
Kelley v McGee, 57 NY2d 522 (1982). In our view, the 1988 local
laws, to the extent they constituted a supersession,1 remain
valid. The supersession authority enables a village to enact
local laws opting out from provisions of the Village Law that are
superseded. State legislative amendments to these provisions
subsequent to the exercise of supersession authority in our view
does not affect the local laws because supersession represents
action by the village pursuant to State law to apply locally
enacted provisions in place of provisions of State law relating
to a particular subject. The supersession authority is designed
to permit villages to tailor governmental operations to meet
uniquely local needs and conditions. Supersession authority,
1

Our long-standing policy is to refrain from construing
local enactments. This is the responsibility of local officials
familiar with local conditions and local legislative intent. The
application of the supersession authority falls within this
policy. Therefore, determination whether sections 7-712 and
7-718 were superseded in whole or in part (and to what extent) is
a local matter.

3
although on a less comprehensive level, is similar to the
development of county charters and city charters to replace
provisions of State law in the County Law and General City Law.
A village desiring to reapply provisions of State law need only
repeal local laws enacted pursuant to the supersession
authority.2
We conclude that local laws enacted by a village pursuant to
the supersession authority remain valid, despite subsequent State
amendments to the State laws that were locally superseded, until
the local laws are repealed.
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

2

The same analysis would apply to terms of office, the
procedure for filling vacancies and any other terms and
conditions of office, established utilizing the supersession
authority.