Do General City Law § 81 or the Peekskill city charter govern terms of office and start dates for zoning board of appeals members?
Plain-English summary
Peekskill ran into a question that comes up often when a city's charter and the General City Law say different things about how a city body is structured. General City Law § 81 prescribes a three- or five-member ZBA with staggered three- or five-year terms (one term expiring at the end of each official year). The Peekskill charter prescribes seven members, all with three-year terms running from the day after appointment unless a different date appears in the certificate of appointment. As a result, Peekskill's ZBA terms ended at scattered points throughout the year, sometimes with multiple terms ending in the same week.
The Assistant Corporation Counsel asked which one controlled. The AG said the charter controlled.
Two pieces of the answer. First, the seven-member size. When Peekskill set its ZBA at seven, that size was expressly authorized by an earlier version of § 81. The current statute (§ 81(6)) lets a city continue its existing larger board until the common council chooses to reduce it. So the seven-member structure was clearly fine.
Second, the term length and start date. The AG read the home-rule architecture and concluded § 81 was a "special law" rather than a "general law" because it did not apply alike to all cities (New York City is excluded under § 81-e). For home rule purposes, that classification matters: a local government can adopt local laws that are inconsistent with a special law, unless the special law relates to a substantial state concern or the Legislature has preempted the field. The AG checked both exit ramps and found neither. Section 81 was not part of a regulatory scheme aimed at a state-wide concern, and the Legislature had not signaled an intent to preempt local enactments on ZBA terms. Cohen v. Saddle Rock (preempting area-variance review) was a contrast, not a model: that statute imposed a state-wide review standard, while § 81 just sets default term lengths.
The AG also addressed the question of whether replacing a ZBA member partway through a term started a new full three-year clock or only ran out the unexpired remainder. The charter said nothing specific about commencement, so the AG read the structure as setting a fresh three-year term running from the day after the new appointment (or the date in the certificate). The opinion cited a line of authority for the same default rule (People ex rel. Smith v. Kenyon and several earlier informal opinions on county officers).
Currency note
This opinion was issued in 2012. 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 does it matter whether § 81 is a "general law" or a "special law"?
A: For home rule. Article IX of the State Constitution lets local governments adopt local laws inconsistent with state law if the state law is a special law and not within an exception. A general law applies alike to all counties, all cities (other than NYC for some purposes), all towns, or all villages. A special law applies to fewer than all of them. Excluding New York City from § 81 was the move that made it a special law.
Q: What's the substantial-state-concern exception?
A: Even a special law can preempt local enactments if its subject is one of substantial state concern (the same doctrine the AG applied in 2011-F1 to Mental Hygiene Law § 41.09(a)). The 2012 opinion concluded that ZBA term lengths and start dates were not in that category. Cohen v. Saddle Rock is what state-wide preemption looks like, and § 81's bare term-length defaults are not that.
Q: Does this mean a city can ignore § 81 entirely?
A: No. The opinion is narrow: it covers terms and commencement dates. The size of the board ran on a different statutory authority (§ 81(6)'s carve-out). And the AG didn't decide that every § 81 provision is similarly home-rule defeasible. Each provision needs the same general/special, preemption, and substantial-state-concern checks.
Q: When can a new ZBA appointee start a fresh three-year term?
A: Under the Peekskill charter, when the appointment fills a vacancy and the charter does not fix a separate end date. The AG read the charter as setting a fresh three-year term from the day following appointment (or from a certificate-specified date). DiPaola v. Reilly was distinguished because the city council in that case clearly intended successive terms tied to a fixed May 1 commencement date, which Peekskill's charter did not.
Q: How do staggered terms work under the General City Law model?
A: Under § 81(3) and (4), terms are staggered so that one term expires at the end of each official year. In a five-member ZBA, that means a five-year cycle of expirations. Peekskill's seven-member, drift-by-appointment-date structure broke that pattern.
Background and statutory framework
General City Law § 81 was the state's default ZBA framework: it set the membership size, prescribed staggered terms, and provided rules for filling vacancies. The 1976 amendment let cities create seven-member ZBAs (Act of July 24, 1976, ch. 744, § 1, 1976 N.Y. Laws 1522). Later changes in 1993 reduced the default board sizes to three or five but grandfathered larger boards via § 81(6). New York City was excluded from § 81 by § 81-e, the move that gave the statute its "special law" status under home-rule terminology.
Home-rule doctrine had been refined over decades. Article IX § 3(d)(1) defines a "general law" as one that applies alike to all counties, all counties outside NYC, all cities, all towns, or all villages. Special laws are everything else. Municipal Home Rule Law § 10 lets a local government adopt local laws addressing certain enumerated subjects (including the terms of office of its officers) consistently with the State Constitution and general state laws. The unwritten gloss is that home rule yields when a state law (even a special one) addresses a substantial state concern or the Legislature has preempted the field.
Public Officers Law § 5 deals with the duration of terms and how vacancies are filled. The AG's analysis of fresh-vs-unexpired terms relied on a line of cases reading silence in the underlying authority as supporting a fresh term running from the date of appointment.
Citations and references
Statutes:
- General City Law § 81 (zoning board of appeals)
- Municipal Home Rule Law § 10
- Public Officers Law § 5
- N.Y. Const. art. IX (home rule)
Cases:
- Matter of Cohen v. Board of Appeals of Village of Saddle Rock, 100 N.Y.2d 395 (2003) (preemption of area-variance review)
- Uniformed Firefighters Ass'n v. City of New York, 50 N.Y.2d 85 (1980) (substantial state concern doctrine)
- People ex rel. Smith v. Kenyon, 241 A.D. 177 (3d Dep't), aff'd, 265 N.Y. 537 (1934) (term runs from date of appointment when no fixed date set)
- DiPaola v. Reilly, 22 A.D.2d 910 (2d Dep't 1964) (city council's intent to set fixed term commencement)
Source
- Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
- Original PDF: https://ag.ny.gov/sites/default/files/opinions/2012-2_pw.pdf
Original opinion text
GENERAL CITY LAW §§ 81, 81(1), 81(3), 81(4), 81(6), 81(7), 81-e; NEW YORK
CONSTITUTION §§ IX, IX § 3(d)(1), IX § 3(d)(4); MUNICIPAL HOME RULE LAW
§§ 10, 2(5), 2(12); PUBLIC OFFICERS LAW §§ 3(9), 5
The city's charter, rather than General City Law § 81, governs with respect to
the terms of office of zoning board of appeal members and the date on which their
terms commence.
January 13, 2012
Janet M. Insardi
Assistant Corporation Counsel
City of Peekskill
City Hall
840 Main Street
Peekskill, New York 10566
Informal Opinion
No. 2012-2
Dear Ms. Insardi:
You have requested an opinion relating to whether the provisions of General
City Law § 81 or the City's charter govern with respect to the terms of office of
appointed members of the City's zoning board of appeals, and also the date on
which their terms commence.
The relevant state statute provides that the zoning board of appeals
(hereinafter, "ZBA") has either three or five members, as established by local law or
ordinance. General City Law § 81(1) (as amended in 1993). The terms of the
members of the ZBA are staggered and fixed so that one member's term expires at
the end of each official year. Id. § 81(3),(4). Thus, the members of a three-member
ZBA have staggered three-year terms, and the members of a five-member ZBA have
staggered five-year terms. Appointments to fill vacancies are for the unexpired
portion of the term. Id. § 81(7).
Your predecessor explained that the City's charter, by contrast, provides that
the ZBA has seven members, and every member serves a three-year term. Under
provisions that apply to all appointive officers, their terms begin on the day after
their appointment, unless a different date is specified in each appointee's certificate
of appointment. As a historical matter, appointments made to the City's ZBA have
conformed to the provisions of the charter rather than the provisions of the General
City Law. Further, appointments to fill vacancies have been for full three-years
terms. As a result, the terms of the members of the ZBA are not evenly staggered,
as contemplated by General City Law § 81, but expire throughout the year,
frequently with the terms of several members ending within the same year, and
sometimes on the same day.
The general question posed is which, as between the relevant portions of the
City's charter or General City Law § 81, governs with respect to the number of ZBA
members and the length and expiration date of their terms. We conclude that the
provisions of the City's charter govern.
As an initial matter, the continuation of a seven-member ZBA is not in doubt.
When the City created a seven-member board, such a board was expressly
authorized by state law, see Act of July 24, 1976, ch. 744, § 1, 1976 McKinney's N.Y.
Laws 1522, codified at General City Law § 81(1) (McKinney's 1989). And the
continuation of such a board is explicitly permitted by General City Law § 81(6),
until such time as the City's common council chooses to reduce the number of
members the ZBA has.
With respect to the effective date of an appointment to the ZBA and the
length of an appointee's term, we are of the opinion that the provisions of the City's
charter also govern. An explanation of this answer requires an overview of home
rule authority.
Article IX of the New York Constitution and Municipal Home Rule Law § 10
grant to local governments the power to adopt and amend local laws relating to a
local government's "property, affairs or government," or addressing certain
enumerated subjects, including the terms of office of its officers, so long as the local
laws are consistent with the Constitution and the general laws of the State. For
home rule purposes, a general law is one that in terms and in effect applies alike to
"all counties, all counties other than those wholly included within a city, all cities,
all towns or all villages." N.Y. Const. Art. IX, § 3(d)(1); Municipal Home Rule Law §
2(5). In contrast, a special law is one that in terms and in effect applies to one or
more, but not all, of the local governments in one of the same groups. N.Y. Const.
Art. IX, § 3(d)(4); Municipal Home Rule Law § 2(12). In broad terms, therefore, a
local government can adopt a local law that is inconsistent with a state law if that
state law is not a general law, but instead is a special law.
A special law will supersede local laws, however, when the special law relates
to a state concern, in which case a local law must be consistent with it, see, e.g.,
Matter of Kelley v. McGee, 57 N.Y.2d 522, 539 n.14 (1982), or when the Legislature,
in enacting the special law, has evinced an intent to preempt the field of regulation,
in which case local legislation is superseded even if it does not expressly conflict
with the special law, Jancyn Mfg. Corp. v. County of Suffolk, 71 N.Y.2d 91, 97
(1987).
We previously have opined that section 81 of the General City Law is a
special law for home rule purposes because General City Law § 81-e exempts New
York City from its provisions. Op. Att'y Gen. (Inf.) No. 96-18; Op. Att'y Gen. (Inf.)
No. 95-20. Further, there is no indication that the Legislature intended section 81
either to relate to a matter of state concern or to preclude further regulation in the
field by local governments. Cf. Op. Att'y Gen. (Inf.) No. 99-6 (no evidence that
Legislature intended comparable provision of Village Law to be preemptive or relate
to matters of state concern); compare Matter of Cohen v. Board of Appeals of Village
of Saddle Rock, 100 N.Y.2d 395 (2003) (provision of Village Law imposing statewide
standard for area variance review preempted local zoning law). Because we believe
the Legislature has not indicated an intent to supersede existing inconsistent local
laws, by enacting either a general law, or a special law that preempts the field or
that relates to a substantial state concern, we are of the opinion that the City's
charter continues to govern with respect to the effective date and length of
appointments to the ZBA.
Your predecessor specifically asked whether the City had the power to
appoint a new appointee to a full three-year term, even though the incumbent being
replaced did not have three years remaining of his or her term. He explained that
the City's charter provides that "the term of each appointive officer shall commence
on the day next succeeding the appointment unless a different date is specified in
the Certificate of Appointment." Thus, when the City first established its ZBA and
the original members were appointed, their appointments took effect either the
following day or upon the date specified in their certificates of appointment. Their
terms expired three years after their appointment.
Because the charter does not provide a specific date on which ZBA members'
appointments commence or terminate, we believe that appointments properly have
been made for full three-year terms running from the day following appointment or
the date provided in the certificate of appointment. See People ex rel. Smith v.
Kenyon, 241 A.D. 177 (3d Dep't) (where no time fixed for beginning of term of county
highway superintendent, incumbent takes office for term fixed by law, running from
date of appointment); aff'd, 265 N.Y. 537 (1934); 1974 Op. Att'y Gen. (Inf.) 284
(same, county commissioner of jurors); 1971 Op. Att'y Gen. (Inf.) 179 (same,
county/city commissioner of social services); 1965 Op. Att'y Gen. (Inf.) 42 (same,
county commissioner of public welfare); compare DiPaola v. Reilly, 22 A.D.2d 910
(2d Dep't 1964) (city council intended to establish successive three-year terms for
ZBA that commenced May 1 and appointees were appointed only for the remainder
of the holdover terms of their predecessors pursuant to Public Officers Law § 5),
rev'g 35 Misc. 2d 269 (Sup. Ct. Nassau Co. 1962).
The Attorney General issues formal opinions only to officers and departments
of state government. Thus, this is an informal opinion rendered to assist you in
advising the municipality you represent.
Very truly yours,
KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions