Can a New York town adopt a local law that expands when alternate ZBA members can fill in for regulars, beyond what Town Law § 267(11) allows?

Plain-English summary

The 1998 Legislature added subdivision 11 to Town Law § 267, authorizing town boards to establish alternate-member positions on Zoning Boards of Appeals. The trigger for an alternate to step in was narrow: a regular member's conflict of interest in a specific case. The Town of Shelby wanted broader trigger conditions, including illness and other absences, so the ZBA could function with a full quorum even when a regular member could not attend.

The town attorney asked whether the town could pass a local law expanding the alternate-service triggers beyond the statutory text. The AG said yes.

The vehicle is Municipal Home Rule Law § 10(1)(ii)(d)(3), which gives towns broad authority to amend or supersede Town Law provisions through local law, subject to certain exceptions and absent an express legislative prohibition. The AG cited two prior opinions (1987 Op Atty Gen (Inf) 117 and 1986 Op Atty Gen (Inf) 128) confirming that this supersession power reaches the composition of planning boards and zoning boards of appeals, as well as terms and conditions of local officials' employment.

The AG checked for express prohibitions in Town Law § 267 and Article 16 (zoning and planning) and found none. So the supersession path is open.

Two procedural cautions came with the opinion. First, Municipal Home Rule Law § 22 requires the local law to specify which State law provision is being amended or superseded. Vague or omitted references can invalidate the local law. The Court of Appeals' decision in Kamhi v Town of Yorktown is the key case on the consequences of failing to substantially comply with § 22's specification requirement.

Second, the supersession only goes as far as the town's home rule authority reaches. The carved-out exceptions in Municipal Home Rule Law § 10 still apply (matters of substantial State concern, for example, may resist local supersession). Alternate-member service conditions for a town ZBA fall comfortably within the home rule sphere.

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 Municipal Home Rule Law § 10's supersession authority?

Section 10(1)(ii)(d)(3) gives local governments power to adopt local laws relating to government property, affairs, or government of the municipality, including the power to amend or supersede in their application to the municipality any provision of certain enumerated State statutes (including the Town Law), unless the Legislature has expressly prohibited supersession or the matter is outside the municipality's home rule authority.

What goes wrong if I forget the § 22 specification?

Kamhi v Town of Yorktown teaches that failure to substantially adhere to the § 22 specification requirement may invalidate the local law. The fix is to draft local laws carefully: name the Town Law section being amended or superseded, quote the relevant subdivision text being changed, and use clear amendment language.

Are there any limits on supersession?

Yes, several. The Legislature can expressly prohibit local supersession (some statutes contain such language). Matters of substantial State concern resist supersession even without express prohibition. And the supersession only takes effect within the town that adopted the local law, not statewide.

Could the town supersede in the other direction (narrow the triggers)?

Yes. The home rule authority is bidirectional. A town could just as well restrict alternate service to even tighter circumstances than the statute provides, as long as that narrowing does not violate other State requirements.

Why didn't the Legislature just allow broader triggers in § 267(11)?

The Legislature drew a deliberate line: conflict-of-interest triggers only. The home rule provision is what allows local governments to expand from that baseline. The supersession authority is the design feature; the narrow statutory default is the policy compromise.

Background and statutory framework

Municipal Home Rule Law was enacted in 1963 to implement Article 9 of the New York Constitution. § 10 lists the categories of local laws municipalities can adopt. § 10(1)(ii)(a)(1) covers government property and affairs; § 10(1)(ii)(d)(3) is the broad supersession authority for Town Law and certain other State statutes.

Section 22 sets the form requirements for local laws that amend or supersede State statutes. It is procedural but consequential: the Kamhi case is the most-cited decision on what happens when a local law fails to comply.

Town Law § 267 governs town Zoning Boards of Appeals. Subdivision 11, added by Chapter 13 of the Laws of 1998, authorizes alternate members but with the conflict-of-interest-only trigger that motivated this opinion request.

Citations

• Municipal Home Rule Law § 10(1)(ii)(a)(1) (government property and affairs).
• Municipal Home Rule Law § 10(1)(ii)(d)(3) (supersession of Town Law and other State statutes).
• Municipal Home Rule Law § 22 (specification requirement for amending/superseding local laws).
• Town Law § 267 (Zoning Board of Appeals).
• Town Law § 267(11) (alternate members for conflict-of-interest replacement).
• Kamhi v Town of Yorktown, 74 NY2d 423 (1989) (substantial compliance with § 22 specification).
• 1987 Op Atty Gen (Inf) 117 (supersession of ZBA composition).
• 1986 Op Atty Gen (Inf) 128 (supersession of planning board composition and local official terms/conditions).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-36_pw.pdf

Original opinion text

Opn. No. 99-36
MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(1) and (d)(3), § 22; TOWN LAW § 267.
A town may enact a local law amending subdivision 11 of section 267 of the Town Law to expand the
conditions under which alternate members of the zoning board of appeals may serve.
December 24, 1999
David C. Schubel, Esq.
Town Attorney
Town of Shelby
P. O. Box 348
Medina, NY 14103

Informal Opinion
No. 99-36

Dear Mr. Schubel:
You have asked whether the Town of Shelby may enact a local law amending subdivision 11 of
section 267 of the Town Law, which relates to the appointment of alternate members of a zoning board
of appeals. Subdivision 11 was enacted (L 1998, ch 13) to authorize a town board to establish the
positions of alternate members of the zoning board of appeals to replace members of the board who are
unable to participate because of conflicts of interests. Your Town would like to expand the conditions
under which alternates can serve to include the illness and other absences of regular members.
We conclude that a town may enact a local law amending subdivision 11 of section 267 to expand
the conditions under which alternates may serve. Towns are authorized (subject to exceptions not
applicable here) to enact local laws amending or superseding any provision of the Town Law, provided
they are acting within the scope of their home rule authority, unless the Legislature expressly prohibits
the adoption of such a local law. Municipal Home Rule Law § 10(1)(ii)(d)(3). In prior opinions, we have
concluded that village and town boards may utilize this authority to amend or supersede provisions of
the Village or Town Law to modify the composition of planning boards and zoning boards of appeals, as
well as the terms and conditions of employment of local officials. 1987 Op Atty Gen (Inf) 117; 1986 Op
Atty Gen (Inf) 128; Municipal Home Rule Law § 10(1)(ii)(a)(1). The actions you have proposed fall
within this home rule authority, permitting amendment of section 267(11), absent an express prohibition
by the State Legislature.
Neither section 267 nor article 16 of the Town Law governing zoning and planning contains such
an express prohibition. Therefore, we believe your Town may enact a local law amending subdivision
11 of section 267 of the Town Law to expand the conditions under which alternate members of the
zoning board of appeals may serve. We note that such a local law is required to specify the provision of
State law that is being amended or superseded. Municipal Home Rule Law § 22. The failure to adhere
substantially to this requirement may affect the validity of the local law. Kamhi v Town of Yorktown,
74 NY2d 423 (1989).
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 Solicitor General
In Charge of Opinions