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 when regular members cannot participate because of conflicts of interest. The Town of Shelby wanted to include illness and other absences.

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 authorizes towns to amend or supersede Town Law provisions through local law when acting within their home rule authority, subject to exceptions and absent an express legislative prohibition. The AG cited two prior opinions concerning planning boards, zoning boards of appeals, and local officials' employment terms.

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.

Municipal Home Rule Law § 22 requires the local law to specify which State law provision is being amended or superseded. The AG cautioned that failure to adhere substantially to that requirement may affect the local law's validity, citing Kamhi v Town of Yorktown.

The AG found the proposed expansion within the town's home rule authority and found no express prohibition in Town Law § 267 or article 16.

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?

As applied here, § 10(1)(ii)(d)(3) lets a town amend or supersede Town Law provisions by local law when acting within its home rule authority, unless the Legislature expressly prohibits the local law. The AG said this authority covered Shelby's proposed expansion.

What goes wrong if I forget the § 22 specification?

The opinion says failure to adhere substantially to § 22's requirement may affect the validity of the local law. The town should specify the State law provision its local law amends or supersedes.

Are there any limits on supersession?

The authority described in this opinion depends on the town acting within its home rule authority and the absence of an express legislative prohibition. The AG found no such prohibition in Town Law § 267 or article 16 for the proposed change.

Did the AG address reducing the circumstances when alternates may serve?

No. The opinion addresses the Town of Shelby's proposal to expand alternate service to illness and other absences. It reaches no conclusion about narrowing the statutory conditions.

Why would Shelby need a local law to add illness and absence?

Town Law § 267(11) authorizes alternate service when a regular member cannot participate because of a conflict of interest. Shelby wanted to cover illness and other absences too. The AG concluded that a local law could make that change.

Background and statutory framework

The AG relied on Municipal Home Rule Law § 10(1)(ii)(d)(3) for the town's authority to amend Town Law provisions by local law and cited § 10(1)(ii)(a)(1) in discussing earlier opinions.

Municipal Home Rule Law § 22 requires a local law to specify the State law provision it amends or supersedes. The AG cited Kamhi for the consequence of failing to adhere substantially to that requirement.

Town Law § 267 governs town zoning boards of appeals. Subdivision 11 authorizes alternate members to replace members unable to participate because of conflicts of interest.

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