Can a New York city keep a seven-member zoning board of appeals even after a state amendment said boards must have three or five members?

Subject

Local law may provide for seven-member zoning board of appeals

Plain-English summary

The City of Fulton had a seven-member zoning board of appeals, established by local law. In 1993, the Legislature amended the General City Law to provide that cities' boards of appeals could have three or five members. The city attorney asked whether the city could keep its seven-member board despite the amendment.

The AG said yes, applying the same reasoning the office had used in Informal Opinion No. 90-31. Municipal Home Rule Law § 10(1)(i) lets cities enact local laws consistent with the Constitution and general state laws. A "general law" under Municipal Home Rule Law § 2(5) is a state statute that applies alike to all counties, all cities, all towns, or all villages.

General City Law § 81-e expressly excludes cities with populations over 1 million from the ZBA-membership rules of Article 5 unless the large city opts in by local law. Because cities over 1 million are excluded, § 81 does not apply alike to all cities, and so § 81 is not a "general law" within the home rule definition. A local law setting ZBA membership therefore need not be consistent with § 81.

The substantive home-rule grounding is also there: cities have authority to enact zoning regulations by local law, to enact local laws on government, protection, order, conduct, safety, health, and well-being, and to enact local laws on the powers, duties, qualifications, number, mode of selection and removal, and terms of office of city officers and employees. Establishing the composition of a zoning board of appeals falls comfortably within those categories.

So the 1993 amendments to the General City Law did not change the analysis. Fulton could keep its seven-member board.

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

What's the "general law" trap that home rule has to clear?

Under Municipal Home Rule Law § 10, a local law has to be consistent with general state laws. The question always becomes whether a particular state statute is a "general law" or a "special law." A general law applies alike to all counties (or all cities, all towns, all villages). A special law does not. If the state statute is a special law on the subject, home rule trumps it. If it is a general law, home rule cannot vary it.

Why does the New York City exception turn § 81 into a special law?

Because Municipal Home Rule Law § 2(5) defines a general law as one that applies alike to all cities. When the Legislature carved out cities over 1 million, the statute no longer applied to all cities; New York City was outside its reach (unless it opted in). That meant the statute fell into the special-law category for home-rule purposes, and other cities could supersede it by local law.

Is this just a New York City carve-out trick?

The pattern is common in New York statutes. Many state laws governing local government include a New York City carve-out or special treatment. The systemic effect is that home rule for the other 61 cities is broader than the surface of the statutes suggests, because the carve-outs convert many would-be general laws into special laws.

Do villages and towns have similar flexibility on their ZBA membership?

The opinion is about cities specifically, citing General City Law § 81 and the New York City exception in § 81-e. Village ZBAs are governed by Village Law and town ZBAs by Town Law; each has its own membership rules and home-rule landscape. The analysis there might come out differently.

What did Informal Opinion No. 90-31 add?

That earlier opinion did the same analysis on an earlier version of the General City Law. The Legislature amended the rules in 1993, and the city attorney was asking whether the amendment changed the answer. The AG concluded the amendment did not, because the New York City carve-out still kept § 81 from being a general law.

Statutory framework

General City Law § 81 sets default rules for the membership of city zoning boards of appeals. The 1993 amendments allow boards of three or five members.

General City Law § 81-e contains the New York City carve-out: the provisions of Article 5 do not apply to a city with a population over 1 million, except that such a city may opt in by local law.

Municipal Home Rule Law § 10(1)(i) authorizes local laws consistent with the Constitution and general state laws.

Municipal Home Rule Law § 2(5) defines a general state law as one that applies alike to all counties, all cities, all towns, or all villages.

The combined effect: when a state law contains a categorical exception for one or more localities (here, NYC), it is no longer a general law for home rule purposes, and other localities have more home-rule room than the statutory text suggests.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-20_pw.pdf

Original opinion text

GENERAL CITY LAW §§ 81, 81-e.
A city may provide by local law for a seven-member zoning
board of appeals.

April 5, 1995
Jerome A. Mirabito, Esq.
City Attorney
City of Fulton
P. O. Box 477
Fulton, NY 13069-0477

Informal Opinion
No. 95-20

Dear Mr. Mirabito:
You have asked whether your city may maintain its sevenmember zoning board of appeals, established by local law, under
1993 amendments to the General City Law, which authorize zoning
boards of appeals to have either three or five members. We
conclude that a local law establishing a board of appeals and
defining its membership need not be consistent with General City
Law § 81.
In Informal Opinion No. 90-31, we concluded that a city
could by local law establish a seven-member board with staggered
terms even though at that time the General City Law provided
that, except in cities having a population of more than 1,000,000
people, a city could choose a five-member board with three-year
terms or a board of five or six members with staggered terms.
In so concluding, we stated:
Local governments are authorized to enact local laws,
consistent with the Constitution and general State laws, in relation to
their property, affairs or government and other delineated subjects
(Municipal Home Rule Law, § 10[1][i]). A 'general law' for
purposes of this provision 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' (id.,
§ 2[5]). In that cities with a population of over 1,000,000 are
excluded from coverage, under the home rule definition sections 81
and 81-a of the General City Law are not general laws. Thus, a local
law establishing a board of appeals and defining its membership
need not be consistent with sections 81 and 81-a of the General City
Law.

2
Further, we believe that the establishment and determination
of the composition of the board of appeals is within the scope of
home rule powers delegated to a city (1986 Op Atty Gen [Inf] 128).
Cities are authorized to enact zoning regulations by local law; may
enact local laws in relation to the government, protection, order,
conduct, safety, health and well-being of persons or property therein;
and may enact local laws relating to the powers, duties,
qualifications, number, mode of selection and removal, and terms of
office of its officers and employees (ibid.).

You have asked whether this analysis applies given the 1993
amendments to the General City Law. The amendments authorize
cities to establish boards of appeals of three or five members.
The amendments also expressly state that the provisions "shall
not apply to any city having a population in excess of one
million except that any such city may by local law provide that
this article or any section thereof may apply to such city".
General City Law § 81-e. Thus, section 81 is not a general law
and local laws need not be consistent with its provisions.
We conclude that the city may provide by local law for a
seven-member zoning board of appeals.
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,

SIOBHAN S. CRARY
Assistant Attorney General