Can Nassau County, by local law, take zoning power away from the Town of Hempstead and give it to the Village of Atlantic Beach?

Plain-English summary

When Nassau County adopted its Charter in 1938, it inherited Chapter 879 of the 1936 Laws as its blueprint. Section 1607 of the Charter froze zoning authority in place: existing villages with their own zoning at the time kept that power, but any village formed later, and any village that didn't have zoning when the Charter took effect, was subject to the town's zoning instead. The Village of Atlantic Beach, incorporated in 1963, ended up subject to Town of Hempstead zoning. By 2000, Atlantic Beach wanted its own zoning power, and the county asked whether it could grant that authority by local law or whether the State Legislature had to amend Chapter 879 first.

The AG's office concluded local law would work. The 1963 adoption of Article IX of the State Constitution and the subsequent enactment of Article 4 of the Municipal Home Rule Law (the County Charter Law) gave counties the authority to adopt, amend, or repeal their own county charters. Article IX, § 1(h)(1) specifically allows charter amendments that transfer functions between the county and its political subdivisions. Municipal Home Rule Law § 33(7)(b) repeats that authority. The transfer is subject to the State Constitution's referendum requirements: a transfer to or from a village requires approval by the voters in the area outside cities, the voters in the cities, and the voters of the affected village.

The Town of Hempstead's two objections did not change the result. First, the 1966 Atlantic Beach v. Hempstead decision upheld § 1607 of the Charter but did not address whether the County could amend it later. Second, Charter § 154(8), which bars the County from adopting local laws that supersede state statutes affecting villages, governs the County's exercise of legislative authority under the Charter itself, not the County's separate constitutional power to amend the Charter under Article IX.

Currency note

This opinion was issued in 2000. 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

Q: Why is this called a "transfer of functions" rather than a simple grant of zoning authority? A: Because the Town of Hempstead currently has the zoning power over the Village of Atlantic Beach. Giving the Village its own zoning authority necessarily takes it away from the Town. That movement of authority from one local government to another is a "transfer of functions" under Article IX, § 1(h)(1) of the State Constitution.

Q: Why are referendum approvals from outside the village required? A: Article IX, § 1(h)(1) treats a transfer of functions as a substantial structural change affecting the county as a whole, not just the receiving village. So the Constitution requires approval by a majority in the area of the county outside cities as a unit, a majority in the cities as a unit, and a majority in the affected village or villages. This three-way approval protects against backdoor reorganizations that would shift power without the broader electorate's consent.

Q: Does Chapter 879 of the 1936 Laws still control?
A: For the unamended portions of the Charter, yes. But Article IX, § 3(b) of the State Constitution explicitly preserves the County's power to amend, modify, or supersede state laws "in accordance with the provisions of this constitution." That allows the County to amend its Charter under modern home-rule law without going back to the Legislature to amend Chapter 879 first.

Q: What did Atlantic Beach v Town of Hempstead actually decide? A: The 1966 Appellate Division case upheld § 1607 of the Charter as constitutional and binding on the Village of Atlantic Beach when the Village had no zoning of its own. It did not address whether the County could later amend § 1607. The AG's office treated that case as not controlling the amendment question.

Q: Does Charter § 154(8) block the proposed amendment?
A: No. Section 154(8) restricts the County Legislature's exercise of legislative authority under the Charter, principally limiting its ability to enact local laws that supersede state statutes "relating to the property, affairs or government of any village." The proposed amendment of § 1607 amends the County Charter itself, not a state statute, and does so under a separate constitutional grant of authority (Article IX, § 1(h)(1)). Section 154(8) does not reach amendments to the Charter made under that separate authority.

Background and statutory framework

Nassau County is the only New York county that was eligible to adopt the alternative form of government set out in Chapter 879 of the 1936 Laws, and it did so in 1938. Section 1607 of the resulting Charter handles zoning. It preserves existing village zoning that was in effect on the Charter's adoption date, but for villages formed later or villages that had no zoning at adoption, town zoning applies.

The Village of Atlantic Beach was incorporated in 1963, so it fell into the "subject to town zoning" category, and the Town of Hempstead has exercised the zoning power within Atlantic Beach since then.

The legal landscape for amending county charters changed in 1963 with the adoption of current Article IX of the State Constitution. Article IX, § 1(h)(1) directed the Legislature to empower counties to adopt, amend, or repeal alternative forms of county government, including charters of their own. The Legislature implemented that mandate through Article 4 of the Municipal Home Rule Law, the "County Charter Law" (§§ 32 and 33). Section 33(7)(b) specifically authorizes county charter provisions that transfer a function or duty between the county and a local government wholly within it. Article IX, § 2(d) provides the constitutional permission for one local government to impair another's powers in this specific context of alternative-form county government.

Citations and references

Constitution and statutes:

• N.Y. Const. Art. IX, § 1 (local government powers, charter amendment authority)
• N.Y. Const. Art. IX, § 2 (impairment of powers exception for alternative-form county government)
• N.Y. Const. Art. IX, § 3 (preservation of authority to amend pre-existing laws)
• N.Y. Municipal Home Rule Law § 32 (charter law definition)
• N.Y. Municipal Home Rule Law § 33 (County Charter Law)

Cases:

• Incorporated Village of Atlantic Beach v Town of Hempstead, 27 A.D.2d 566 (2d Dep't 1966), aff'd, 19 N.Y.2d 929 (1967) (Charter § 1607 upheld)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2000-15_pw.pdf

Original opinion text

Opn. No. 2000-15
N.Y. CONST., ART. III, §26(2), ART. IX. §§ 1(h)(1), 2(d), 3(b); MUNICIPAL HOME RULE LAW, ART. 4, §§ 32, 33; L. 1936, CH.879, §§2601, 2602; NASSAU COUNTY CHARTER §§ 101-103, 154 (8), 1607. Nassau County may enact a local law amending its County Charter to grant zoning powers to the Village of Atlantic Beach. The local law would be a transfer of functions and therefore subject to the referendum requirements of the Constitution. August 14, 2000 Richard S. Leffer, Esq. Chief Deputy County Attorney County of Nassau Ralph G. Caso Executive and Legislative Building One West Street Mineola, NY 11501-4820

Informal Opinion
No. 2000-15

Dear Mr. Leffer:
You have inquired whether Nassau County may enact a local law to amend its County Charter in order to grant zoning powers to the Village of Atlantic Beach. We conclude that it is authorized to so amend the Charter by local law, subject to the referendum requirements of the State Constitution. Background In Chapter 879 of the Laws of 1936, the Legislature established an "Alternative Form of Government for Certain Counties." The statute provided a complete charter for an eligible county that elected to adopt its form as its county charter. See L. 1936 ch. 879, §§ 2601, 2602. Chapter 879 was one of the laws setting forth forms of county government that were enacted pursuant to the New York Constitution, Art. III, §26(2), which directed the Legislature to provide by law "alternative forms of government," i.e., charters, for counties. You have informed us that Nassau County was the only county eligible to adopt the form set forth in Chapter 879, and that Nassau County adopted the form as its County Charter in 1938. Included within this County Charter, derived from the form in Chapter 879, was a provision that preserved zoning laws which were enacted by any village and in effect on the date that the Charter became effective in the County. Specifically, under section 1607 of the Charter, zoning powers of towns in the county are to be exercised within all portions of such town unincorporated as a village at the date on which this act becomes effective in the county, irrespective of the inclusion thereof in a village erected or incorporated after such date, and also within all territory situated in such town and in a village previously incorporated which at such date does not have a valid zoning ordinance.

Thus pursuant to the Charter, any village in existence but without its own zoning laws on the effective date of the Charter, and any village established after that date, became subject to the zoning regulations of the town of which it was a part. You have informed us that, except for the Village of Atlantic Beach, which was not created until 1963, all villages in Nassau County were in existence and exercised zoning powers on the effective date of the Charter. Atlantic Beach, as a portion of the Town of Hempstead that was "unincorporated as a village" at the time the charter provisions became effective in Nassau County, became the only village in Nassau County subject to the Town's zoning powers. The Village of Atlantic Beach now desires authority to establish its own zoning laws. You inquire whether Nassau County is authorized to enact a local law amending section 1607 of its Charter to grant the Village the authority to enact its own zoning laws, or whether an act of the Legislature is required to amend the form of county charter contained in Chapter 879 and adopted by Nassau County. Analysis Constitutional and statutory developments since adoption of the Nassau County Charter make amendment of the Charter by local law possible, without a required legislative act to amend the form of charter contained in Chapter 879. In 1963, current Article IX of the Constitution was adopted. Article IX was a successor to Article III, § 26 (pursuant to which Chapter 879 was enacted) as the home rule provision of the State Constitution. Article IX required the Legislature to empower counties "to adopt, amend or repeal alternative forms of county government provided by the legislature or to prepare, adopt, amend or repeal alternative forms of their own." N.Y. Const., Art. IX, §1(h)(1) (emphasis added). Specifically, this provision permitted establishment or amendment of a county charter by act of the Legislature or by local law in order to transfer functions of a county or of political subdivisions in the county "to each other," and defined the referendum required to effectuate such a transfer.1 The Legislature implemented Article IX, § 1(h)(1) by adopting Article 4 of the Municipal Home Rule Law, referred to as the "County Charter Law." The Legislature elected not to provide complete forms of charters for adoption by counties, and instead authorized counties to develop, amend and repeal their own charters. Specifically, Article 4 of the Municipal Home Rule Law authorizes a county to adopt, amend or repeal its own county charter setting forth the structure of county government and the manner in which it is to function. See Municipal Home Rule Law §33(1), (2). A county's authority under Article 4 is exercised through enactment of "charter laws"--that is, "local law[s] providing, amending or repealing a county charter." Municipal Home Rule Law § 32(2). A county charter may include a charter law "which would have the effect of transferring a function or duty of the county, or of a city, town, village, district or other unit of local government wholly contained in the county." Id. §33 (7)(b). Although a local government generally may not impair the powers of another local government, the State Constitution establishes an express exception to this principle for a transfer of functions under an alternative form of county government. See N.Y. Const., art.IX, §2(d). Accordingly Article IX, §1(h)(1) of the State Constitution, as implemented by Article 4 of the Municipal Home Rule Law, authorizes Nassau County to amend section 1607 of its Charter by local law without requiring legislative action to amend the form of charter contained in Chapter 879.2 The power to amend a county charter is exercised through enactment of local laws establishing charter provisions. See Municipal Home Rule Law § 32(2). Nassau County is authorized to amend section 1607 of its Charter under Article IX, §1(h)(1) and Municipal Home Rule Law §33 to transfer zoning powers exercised in the Village of Atlantic Beach from the Town of Hempstead to the Village of Atlantic Beach. The transfer of functions is subject to referendum requirements defined above.

The Town Attorney of the Town of Hempstead, asserting that Nassau County is without authority to enact the proposed local law, has cited Incorporated Village of Atlantic Beach v. Town of Hempstead, 27 A.D.2d 566 (2d Dep't 1966), aff'd, 19 N.Y.2d 929 (1967). That decision upholds the validity of section 1607 of the Charter. The question whether the County has authority to amend section 1607, however, was neither presented nor addressed in that case.

The Town Attorney has also cited section 154(8) of the Nassau County Charter as barring amendment of the Charter by local law, rather than by legislative amendment of Chapter 879. Section 154(8) of the Charter provides: Restriction on county legislation. Notwithstanding any provision of this chapter, the county legislature of the county shall not be deemed authorized by this article [County Charter, Article I] to adopt a local law, which supersedes a state statute now in force or hereafter enacted by the legislature, if such local law:
.

.

.

8. Applies to or affects any provisions of law relating to the property, affairs or
   government of any village within the territory of such county.
   The Town Attorney believes that the proposed Charter amendment giving the Village of Atlantic Beach zoning powers would violate this provision. Therefore, he concludes that the proposed amendment is unauthorized. We disagree. In our view, this provision does not apply to the proposed amendment of the Charter. The State Legislature, through Chapter 879 of the Laws of 1936, established a form of charter government which could be made applicable through local option of eligible counties. Nassau County, the eligible county, adopted the form as its County Charter. Therefore, the proposed amendment of section 1607 would not amend or supersede a State law (Chapter 879) within the meaning of section 154(8), but would constitute only an amendment of the Nassau County Charter. In addition, section 154(8) of the County Charter restricts the County's exercise of legislative authority under the charter. See County Charter §§101-103. It does not speak to the exercise of legislative authority granted to the County under other provisions of law. Amendment of the County Charter under current Article IX, as implemented by Municipal Home Rule Law Article 4, to transfer the zoning function to the Village of Atlantic Beach, would not be County legislation adopted under the authority of the Charter and thus would not be prohibited by section 154(8). Rather, the transfer of functions by local law would be achieved pursuant to a separate grant of legislative authority and would be subject to village voter approval. We conclude that Nassau County may enact a local law amending its County Charter to grant zoning powers to the Village of Atlantic Beach. The local law would be a transfer of functions and therefore subject to the referendum requirements of the Constitution. 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

1 Recognizing the significance of a transfer of functions, the Constitution requires approval of the transfer by a majority of the voters in the area of the county outside of cities as a unit, in the cities of the county as a unit and, where a function is transferred to or from a village or villages, approval by the voters of the villages that are affected. N.Y. Const, art. IX, § 1(h) (1). 2 Moreover, Article IX, § 3(b) of the State Constitution, by its express terms, authorizes Nassau County to amend its Charter by providing that "acts of the legislature or of local legislation shall continue in force until repealed, amended, modified or superseded in accordance with the provisions of this constitution." (Emphasis supplied.)

Return to the Index Page
Return to the Home Page