Can a New York town shorten the term of office for its planning board members by passing a local law?
Plain-English summary
The Town of DeWitt's planning board has seven members serving seven-year staggered terms (one expires each year). The town wanted to switch to two-year terms. The town attorney asked whether a local law could do that, and what would happen to current members already partway through their seven-year terms.
The Attorney General's office answered: yes, the town can pass a local law shortening planning-board terms, by using its home-rule power to supersede Town Law § 271(4)-(5). The Legislature has not preempted this area, and Municipal Home Rule Law § 10(1)(ii)(d)(3) explicitly authorizes towns to amend or supersede Town Law provisions that relate to subjects within home-rule competence.
For sitting members, the new law applies prospectively unless it expressly says otherwise. So a simple "two-year terms" local law would let current seven-year terms run their course and then start the new schedule. If the town instead wanted to shorten incumbents' terms, it could do that separately, but the action has to be aimed at the office (a structural change), not at any particular incumbent (which would look like a removal-without-cause).
Currency note
This opinion was issued in 2016. 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.
Historical context
What the opinion meant for towns at the time
A town board could redesign its planning-board structure (term length, staggering) without seeking a special state law. The path was a local law, drafted to comply with Municipal Home Rule Law § 22(1)'s requirement that the law specify which Town Law chapter, year, section, subsection, or subdivision it intends to supersede.
What the opinion meant for sitting board members
In 2016, a member of a seven-year-term board generally could not be cut short by a generic "we're switching to two-year terms" local law. Default rule: prospective application. If the town wanted to shorten incumbents' terms, it had to pass a separate measure aimed at the office structurally, with a public-interest justification, and avoid even the appearance of targeting individuals (which would risk being treated as an end-run around Town Law § 271(9)'s for-cause removal procedure).
What the opinion meant for older AG guidance
The opinion confirmed that earlier AG guidance (Op. Att'y Gen. (Inf.) No. 92-27) survived the 1992 recodification of Town Law § 271. The substantive structure of the statute, staggered terms equal in length to board membership, was unchanged by the recodification, so the prior conclusion that towns can supersede it via home rule remained valid.
Common questions
Q: How does Municipal Home Rule Law allow a town to override a state Town Law provision?
A: Section 10(1) gives towns power to adopt local laws on enumerated subjects including the terms of their officers. Section 10(1)(ii)(d)(3) goes further: it allows a local law to amend or supersede a Town Law provision that addresses any matter within home-rule competence, even if that provision is a "general law," unless the Legislature has expressly prohibited supersession.
Q: What format must the local law take?
A: Per Municipal Home Rule Law § 22(1), the local law must specify the chapter number and year of the statute being superseded, plus the section, subsection, or subdivision. That formality is how a town signals it is exercising its supersession authority rather than legislating in a vacuum.
Q: Why does prospective application matter?
A: Under Aguaiza v. Vantage Props. LLC, 69 A.D.3d 422 (1st Dep't 2010), a statute or local law silent on retroactivity is construed as prospective only. So a "two-year terms" local law would govern future appointments but leave existing seven-year terms intact.
Q: Can a town legislatively shorten an incumbent's term at all?
A: Yes, per Lanza v. Wagner, 11 N.Y.2d 317 (1962), and Michaelis v. City of Long Beach, 46 A.D.2d 772 (2d Dep't 1974), but only if the legislative action targets the office (a structural change) and serves a public interest. Targeting a particular incumbent would be treated as an attempted removal and would have to satisfy Town Law § 271(9)'s for-cause-and-public-hearing requirements.
Q: Are some areas of municipal law preempted from local supersession?
A: Yes. The opinion cites In re Cohen v. Board of Appeals of Village of Saddle Rock, 100 N.Y.2d 395 (2003), where the Court of Appeals held the field of area-variance review was preempted; a village could not supersede those Village Law provisions. The AG concluded the Legislature has not similarly occupied the field of planning-board terms.
Background and statutory framework
Town Law § 271 governs town planning boards. Section 271(1) sets membership; § 271(4)-(5) establish term length (equal to the number of board members) and staggering (one expiring each year). Section 271(9) provides for removal for cause after a public hearing, the structural protection that the opinion's "office vs. incumbent" rule preserves.
Municipal Home Rule Law § 10 is the primary source of New York towns' local lawmaking power. Together with Statute of Local Governments § 10, it allows towns to legislate on a broad list of subjects, including officer terms. Subsection 10(1)(ii)(d)(3) permits supersession of Town Law except where the Legislature has expressly forbidden it. Section 22(1) prescribes the form a supersession must take.
Section 271 was repealed and recodified in 1992. The 2016 opinion explains that the structure (terms staggered, equal to board membership) survived intact, so the AG's 1992 conclusion that towns can supersede this section remained good law.
Citations and references
Statutes:
- N.Y. Town Law § 271, § 271(1), (4), (5), (9)
- N.Y. Municipal Home Rule Law § 10, § 10(1), (1)(ii)(a), (1)(ii)(d)(3)
- N.Y. Municipal Home Rule Law § 22(1)
Cases and prior opinions:
- Op. Att'y Gen. (Inf.) No. 92-27 (predecessor opinion on town supersession of planning-board terms)
- Aguaiza v. Vantage Props. LLC, 69 A.D.3d 422 (1st Dep't 2010), laws silent on retroactivity are prospective
- Lanza v. Wagner, 11 N.Y.2d 317 (1962), legislative body can shorten an existing office's term if directed at the office and in the public interest
- Michaelis v. City of Long Beach, 46 A.D.2d 772 (2d Dep't 1974), same
- In re Cohen v. Board of Appeals of Village of Saddle Rock, 100 N.Y.2d 395 (2003), preemption defeats supersession only where the Legislature has occupied the field
Source
- Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
- Original PDF: https://ag.ny.gov/sites/default/files/opinions/2016-5_pw.pdf
Original opinion text
TOWN LAW §§ 271, 271(1), 271(4), 271(5), 271(9); MUNICIPAL HOME RULE LAW §§ 10, 10(1), 10(1)(ii)(a), 10(1)(ii)(d)(3), 22(1)
A town can decrease the length of the terms of the members of its planning board by local law.
December 13, 2016
Thomas J. Cerio
Town Attorney
Town of DeWitt
Cerio Law Offices
407 South Warren Street, 5th Floor
Syracuse, NY 13202
Informal Opinion
No. 2016-5
Dear Mr. Cerio:
You have requested an opinion regarding the town board's authority to adopt a local law that would provide a shorter term for the Town's planning board members than is established by Town Law § 271. You also have asked, in the event the Town can adopt such a local law, what effect the local law would have on the terms of the current members of the planning board. As explained below, we are of the opinion that the Town can adopt a local law providing a shorter term than that established by Town Law § 271, that such a law would not automatically operate to shorten the terms of sitting members, but that the Town can if it chooses alter the terms of sitting members.
With respect to your first question, you have explained that the Town has a seven-member planning board. In accordance with Town Law § 271(4),(5), the members of the Town's current board have seven-year terms with one member's term expiring each year. You have indicated that the Town would like to make these two-year terms. You are aware that we previously have opined that a town can shorten the term of office for its planning board members by superseding the provisions of the Town Law that establish such terms. Op. Att'y Gen. (Inf.) No. 92-27. You have asked that we again consider the question because Town Law § 271 was amended after we rendered that opinion.
As relevant here, section 271, along with several related provisions, was repealed and recodified after we rendered our opinion in 1992, but, now as then, the terms of members of a planning board established by state law are staggered and equal in length to the number of its members. Compare Town Law § 271(1) (McKinney's 1987) with Act of Jul. 31, 1992, ch. 663, 1992 N.Y. Laws 3636.
Section 10 of the Municipal Home Rule Law grants broad authority to the Town to adopt local laws, including those that relate to the terms of office of its officers. Municipal Home Rule Law § 10(1)(ii)(a). In addition, the Town can adopt a local law that amends or supersedes any provision of the Town Law that relates to any matter with respect to which it can adopt a local law. Id. § 10(1)(ii)(d)(3). While a town generally is limited in its exercise of its home rule to adopting local laws that are consistent with the general laws of the state, see id., § 10(1), a town can adopt a local law that amends or supersedes the application of a provision of the Town Law to the town, even if the provision is a general law, unless the Legislature expressly has prohibited the adoption of such a local law. Id. § 10(1)(ii)(d)(3). The Legislature has not expressly prohibited the adoption of a local law inconsistent with the provisions of Town Law § 271(4),(5). Nor do we believe that the Legislature has evinced an intent to preempt local legislation in this area. Cf. In re Cohen v. Board of Appeals of Village of Saddle Rock, 100 N.Y.2d 395 (2003) (field of area variance review preempted; village cannot supersede those provisions of Village Law). We therefore are of the opinion that the Town can adopt a local law that supersedes or amends Town Law § 271(4),(5) to decrease the length of the terms of the members of its planning board. The town board must include in the local law certain information relating to the statute being superseded. Municipal Home Rule Law § 22(1) (legislative body must specify chapter number and year of enactment, section, subsection, or subdivision it intends to supersede).
With respect to your second question, if the proposed local law does not provide that it applies retroactively, it will be construed as prospective only, that is, it will not operate to automatically shorten the terms of the sitting board members. Aguaiza v. Vantage Props. LLC, 69 A.D.3d 422, 423 (1st Dep't 2010). The Town can phase in two-year terms by making its annual member appointment for a two-year term, or it can alter by law the terms of all the current board members serving seven-year terms. With respect to the current planning board members, a legislative body can shorten the term of an existing office created by that body, as long as the legislative action is directed at the office, not at the incumbent, and the change in terms will serve the public interest. Lanza v. Wagner, 11 N.Y.2d 317, 324 (1962); Michaelis v. City of Long Beach, 46 A.D.2d 772, 773 (2d Dep't 1974). The town board should be careful that its action is not perceived as a subterfuge for removing particular planning board members from office, which can be done only for cause and after a public hearing. Town Law § 271(9).
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