Can a New York town let appointed officials live anywhere in the state instead of inside the town?

Subject

Town may establish State of New York as residency

Plain-English summary

The Town of Orangetown was looking to replace its director of Building, Zoning, Planning, Administration and Enforcement and wanted to consider candidates from outside the town. Public Officers Law § 3(1) and § 30(1)(d) generally require a local public officer to live in the municipality both at appointment and throughout their tenure. The town attorney asked whether the town could enact a local law allowing the position to be filled by any New York State resident.

The AG concluded yes. The reasoning ran through New York's home-rule machinery. Article IX § 2(c)(1) of the State Constitution and Municipal Home Rule Law § 10(1)(ii)(a)(1) let a town pass local laws on the qualifications of its officers and employees, as long as those laws are consistent with the State Constitution and general state laws. Residency requirements count as "qualifications."

The hinge of the analysis is what "general state law" means. Municipal Home Rule Law § 2(5) defines a general state law as one that, in terms and effect, applies alike to all counties, all cities, all towns, or all villages. The Legislature had previously amended Public Officers Law § 3 to create a Greenburgh-only exception, letting any appointed officer in Greenburgh live anywhere in the State. That carve-out broke the uniformity of § 3 as applied to towns, converting it (in the AG's view) from a general law into a special law on the residency question for appointive town officers. Once it stopped being a general law, a town's local law could supersede it without running into the "consistent with general state law" limit.

The town would still need to follow the procedural requirement in Municipal Home Rule Law § 22(1) and specify which state statute it intended to supersede.

Currency note

This opinion was issued in 1995. 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

Why did the Greenburgh exception matter so much to the analysis?

The Public Officers Law would have controlled the question if it were a "general law" under the Municipal Home Rule Law because a local law cannot be inconsistent with a general state law on the same subject. But once Greenburgh got its own special residency rule via Public Officers Law § 3(24), § 3 stopped applying alike to all towns and dropped to special-law status on the residency point. The AG concluded that took it out of the "consistent with general law" trap and let home-rule authority kick in.

Does the local law have to mention the Public Officers Law specifically?

Yes. Municipal Home Rule Law § 22(1), as construed in Kamhi v Town of Yorktown, requires that a local law changing or superseding a state statute identify the provision it intends to change. So the town must name Public Officers Law § 3(1) and § 30(1)(d) in the local law.

Can the town go further and let appointees live anywhere in the United States?

The AG opinion does not address that. The local law approach was tied to the existence of a state-level Greenburgh exception that already extended to the whole State of New York. The reasoning would not obviously support a residency rule that allowed living outside New York entirely, because nothing in the existing statutory landscape created a precedent.

Could a town use this same approach for elected officers?

No. Elected officers' residency is generally governed by constitutional and statutory rules that home rule cannot override. This opinion is narrowly about appointive town officers.

What does the town board actually have to do procedurally?

Pass a local law (not just a resolution) that specifies the position(s) covered, sets the new residency requirement (here, residency anywhere in New York State), identifies the Public Officers Law provisions it supersedes, and follows local enactment procedures including any required public hearing.

Background

The opinion sits in a thread of consistent prior AG informal opinions (Nos. 91-37, 89-14, 88-27, and 87-32) that applied the same logic. The Greenburgh-exception argument is the engine of the analysis, and it is fragile: if the Legislature ever consolidated residency law or removed the Greenburgh carve-out, the "special law" reasoning might collapse, and Public Officers Law § 3 could revert to controlling all towns.

Kamhi v Town of Yorktown, 74 NY2d 423 (1989), the case the AG cites at the end, holds that the supersession requirement in Municipal Home Rule Law § 22(1) is strict: a local law that fails to identify the state statute it is overriding does not operate as a supersession.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-5_pw.pdf

Original opinion text

NY CONST, ART IX, § 2(c)(1); MUNICIPAL HOME RULE LAW §§ 2(5),
10(1)(ii)(a)(1), 22(1); PUBLIC OFFICERS LAW §§ 3(1), 3(24),
30(1)(d).
A town by local law may establish the State of New York as
the residency required for an appointive town officer.
February 2, 1995

Wayne A. Gavioli, Esq.
Town Attorney
Town of Orangetown
Town Hall
Orangeburg, NY 10962

Informal Opinion
No. 95-5

Dear Mr. Gavioli:
You have indicated that the director of the town's Office of
Building, Zoning, Planning, Administration and Enforcement has
resigned and you would like the flexibility to appoint a
replacement who lives outside of the town, anywhere in the State
of New York.
Under section 3(1) of the Public Officers Law, to be
eligible to hold a local public office a person must reside in
the political subdivision or municipal corporation of the State
for which he or she is to be chosen, or within which the electors
electing him or her reside, or within which his or her official
functions are required to be exercised. An appointed officer of
a town must reside within the town at the time of his or her
appointment and during his or her tenure in office. Public
Officers Law §§ 3(1), 30(1)(d).
We believe, however, that a town may enact a local law
establishing the State of New York as the residency required for
any appointive town office. Local governments are authorized to
adopt and amend local laws, consistent with the Constitution and
general State laws, in relation to the qualifications of their
officers and employees. NY Const, Art IX, § 2(c)(1); Municipal
Home Rule Law § 10(1)(ii)(a)(1). Residency requirements are
"qualifications" within the meaning of these provisions. 1983
Op Atty Gen (Inf) 116. A "general law", for home rule purposes,
is a State statute which 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. Municipal
Home Rule Law § 2(5).
The Legislature has amended section 3 of the Public Officers
Law to establish a special residency requirement for any

2
appointed public officer in the Town of Greenburgh, Westchester
County. Public Officers Law § 3(24)(first subset). Under that
provision, an appointed public officer in the Town of Greenburgh,
may reside anywhere in the State of New York. This exception for
the Town of Greenburgh has rendered section 3 of the Public
Officers Law, in its coverage of appointive town officers, a
special, rather than a general law. It has become a special law
to this extent because in establishing residency requirements for
appointive town officers it does not in terms and in effect apply
alike to all towns of the State.
It follows from the above that your town may enact a local
law establishing the State as the residency required for the
office of director of the Office of Building, Zoning, Planning,
Administration and Enforcement. Such a local law would not be
inconsistent with any general State law.
In prior opinions of the Attorney General, we have applied
the same reasoning. Informal Opinions Nos. 91-37; 89-14; 88-27;
and 87-32.
We note that in adopting a local law, changing or
superseding any State statute, the legislative body is required
to specify the provision it intends to change or supersede.
Municipal Home Rule Law § 22(1); Kamhi v Town of Yorktown,
74 NY2d 423 (1989).
We conclude that a town by local law may establish the State
of New York as the residency required for an appointive town
officer.
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 Attorney General
in Charge of Opinions