If a New York county has already passed a nuisance abatement law, can a town inside the county still pass its own nuisance abatement law, or is the town preempted?

Plain-English summary

The Town of Islip wanted to enact its own nuisance abatement law. Suffolk County had one already. The town attorney asked whether the county's law preempted the town from passing its own. The AG said no.

Home rule in New York gives towns, villages, cities, and counties parallel grants of police power. Article IX, § 2(c)(10) of the State Constitution and Municipal Home Rule Law § 10(1)(ii)(a)(12) both let local governments enact local laws regulating the protection, order, conduct, safety, health, and well-being of persons or property. Police-power preemption usually comes from state law, not from another local government at a different level of the same hierarchy.

The constitutional non-impairment clause in Article IX, § 2(d) seals the point. It says a local government cannot adopt local laws which impair the powers of any other local government, except where there has been a transfer of functions under an alternative form of county government. Without a county-charter transfer of the nuisance-abatement function from the town to the county, the county cannot block the town's exercise of its own home-rule authority.

The opinion notes the only path to county preemption of a town function: a transfer of functions adopted through the county charter under Article IX, § 1(h)(1). A transfer is an extraordinary step requiring a specific referendum, and once completed it strips the town of authority until the charter is amended back. The Town of Islip had not transferred nuisance abatement to Suffolk County, so its police power on that subject remained intact.

The AG also declined, as a matter of policy, to review the specific proposed Islip law. Local laws are for local officials to interpret, working from local conditions and local legislative intent.

Currency note

This opinion was issued in 1997. 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 is "preemption" in this context?

Preemption is when a higher-level government's regulation of a subject is so comprehensive, or its policy declarations so emphatic, that local governments lose the authority to regulate the same subject. Under New York's home-rule jurisprudence, state-level preemption can occur either by inference from a declaration of state policy or by enactment of a comprehensive regulatory scheme. The AG concluded state law had not preempted town nuisance regulation here.

Does state law preempt town nuisance regulation in general?

No. The AG noted that the state has not preempted town nuisance laws. Town Law § 130 provides an authority and procedure for removal and repair of unsafe buildings, but Municipal Home Rule Law § 10(1)(ii)(d)(3) lets a town supersede that section when acting within home rule. The state has effectively left the field open.

What is a "transfer of functions" under the county charter?

Under Article IX, § 1(h)(1), a county charter (or alternative county government) may transfer functions of the county or of cities, towns, villages, districts, or other units of government within the county "to each other." Transfers are subject to referendum requirements. After a transfer, the transferring local government loses the authority to perform the function until the charter is amended back. It is a high-friction process, not something a county can do unilaterally.

Why does the AG decline to review the specific proposed Islip law?

The AG explained that interpretation of proposed local laws is the job of local officials, who know the local conditions and the local legislative intent. The AG's role is to provide general guidance on state law and the home-rule framework, not to draft or review individual local enactments.

Could the county and the town both regulate the same nuisance and end up with overlapping rules?

Yes, that is the design. Parallel and equal grants of home rule authority mean a town can adopt rules within its borders, a county can adopt rules across the county, and they sit alongside each other unless there is an actual conflict with state law or each other (the kind of conflict the courts work out case by case). The non-impairment clause prevents the higher-level local government from cutting off the lower-level one's police power.

Background and statutory framework

Article IX, § 2(c)(10) of the State Constitution and Municipal Home Rule Law § 10(1)(ii)(a)(12) grant local governments the police-power authority to regulate the protection, order, conduct, safety, health, and well-being of persons or property. Two limits apply: local laws may not be inconsistent with the State Constitution or general state law, and they may not regulate in a field the state has preempted (New York State Club Assn., Inc. v City of New York, 69 NY2d 211; People v Cook, 34 NY2d 100; Incorporated Village of Nyack v Daytop Village, 78 NY2d 500; Vatore v Consumer Affairs, 83 NY2d 645).

Article IX, § 2(d) of the State Constitution and Municipal Home Rule Law § 10(5) contain the non-impairment clause: a local government cannot adopt local laws that impair the powers of any other local government, except in the case of a transfer of functions under an alternative form of county government.

Article IX, § 1(h)(1) authorizes transfers of functions in a county charter. Once transferred, the transferor cannot exercise the function unless the charter is amended by referendum (1988 Op Atty Gen (Inf) 59).

Town Law § 130 establishes the procedure for removal and repair of unsafe buildings, but Municipal Home Rule Law § 10(1)(ii)(d)(3) lets a town supersede that section when exercising home rule powers within its scope.

Citations

• NY Const Art IX, §§ 1(h)(1), 2(c)(10), 2(d): transfer of functions, police power, and non-impairment clause.
• Municipal Home Rule Law § 10(1)(ii)(a)(5), § 10(1)(ii)(a)(12), § 10(1)(ii)(d)(3): town police power and supersession authority.
• Town Law § 130: unsafe buildings procedure.
• New York State Club Assn., Inc. v City of New York, 69 NY2d 211 (1987); People v Cook, 34 NY2d 100 (1974): scope of home rule police power.
• Incorporated Village of Nyack v Daytop Village, Inc., 78 NY2d 500 (1981): preemption analysis.
• Vatore v Consumer Affairs, 83 NY2d 645 (1994): inconsistency between local and state regulation.
• 1988 Op Atty Gen (Inf) 59: effect of transfer of functions on transferor's authority.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-3_pw.pdf

Original opinion text

NY CONST, ART IX, §§ 1(h)(1), 2(c)(10) and (d); MUNICIPAL HOME
RULE LAW § 10(1)(ii)(a)(5) and (12), (1)(ii)(d)(3); TOWN LAW
§ 130.
A county local law regulating nuisances does not preempt the
enactment of a nuisance abatement law by a town within the
county, provided that the function has not been transferred by
the town to the county level under the provisions of a county
charter.
February 11, 1997
Vincent J. Messina, Jr., Esq.
Town Attorney
Town of Islip
Town Hall
Islip, NY 11751

Informal Opinion
No. 97-3

Dear Mr. Messina:
You have asked whether the Town of Islip may enact a local
law dealing with the abatement of nuisances or whether the
proposed law is preempted by the county's nuisance abatement law.
Clearly, local governments, including towns, are authorized
through their broad grant of local police power to enact local
laws dealing with the abatement of nuisances. NY Const, Art IX,
§ 2(c)(10); Municipal Home Rule Law § 10(1)(ii)(a)(12). This
constitutional and statutory grant of power authorizes local
governments, consistent with the Constitution and general State
laws, to enact local laws in relation to the government,
protection, order, conduct, safety, health and well-being of
persons or property therein. See, New York State Club Assn.,
Inc. v City of New York, 69 NY2d 211 (1987); People v Cook,
34 NY2d 100, 105 (1974).
There are two basic restrictions on the exercise of home
rule power by a local government. A local law may not be
inconsistent with the Constitution or a general State law.
Second, a municipality may not exercise its police power in an
area that has been preempted by State law. New York State Club
Assn., supra, at 217. An intent to preempt may be found either
by inference from a declaration of State policy by the
Legislature or from the enactment of a comprehensive and detailed
regulatory scheme in a particular area. Incorporated Village of
Nyack v Daytop Village, Inc., 78 NY2d 500 (1981). Where the
State Legislature has preempted an entire field, a local law
regulating the same subject matter is inconsistent with the

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State's interests if it either (1) prohibits conduct which the
State law accepts or at least does not specifically proscribe; or
(2) imposes restrictions beyond those imposed by State law.
Vatore v Consumer Affairs, 83 NY2d 645, 649 (1994).
State law has not preempted town local laws regulating
nuisances nor is there a general State law on nuisances requiring
that town local laws regulating nuisances be consistent with its
provisions. Compare, e.g., Town Law § 130 establishing authority
and a procedure for removal and repair of unsafe buildings with
Municipal Home Rule Law § 10(1)(ii)(d)(3), which permits a town
to supersede that provision and other provisions of the Town Law
falling within the scope of a town's home rule powers. Thus,
State law does not prohibit or restrict enactment of a local law
by a town to abate nuisances.
Your inquiry is whether a town nuisance abatement law would
be preempted by the county's nuisance abatement law. While you
have forwarded to us the proposed nuisance abatement law, our
policy is to refrain from reviewing proposed local enactments.
Interpretation of local laws is appropriately the responsibility
of local officials who are familiar with local conditions and
local legislative intent.
Significantly, in a supplemental letter, you indicated
that the town has not transferred the function of nuisance
abatement to the county. County charters may include provisions
transferring the functions of the county or of cities, towns,
villages, districts or other units of government within the
county "to each other". NY Const, Art IX, § 1(h)(1). A transfer
of functions is subject to specific referendum requirements. Id.
A transfer of a function, for example, from towns and villages to
the county will withdraw the authority of towns and villages to
carry out that function. Once the transfer is legally completed,
the exercise of the function by a town or village will terminate,
reflecting the loss of local authority. 1988 Op Atty Gen (Inf)
59.
The transfer of functions provision is an extraordinary
constitutional grant of authority whereby local governments can,
for example, avoid duplication of effort or take advantage of
economies of scale. Practically, the effect of a transfer is to
bar the transferor from exercising that function unless the
county charter is amended by referendum to return authority to
the affected local government.
Accompanying the transfer of functions provision is a
non-impairment provision which states that:

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Except in the case of a transfer of functions
under an alternative form of county
government, a local government shall not have
power to adopt local laws which impair the
powers of any other local government.
NY Const Art IX § 2(d); Municipal Home Rule Law § 10(5). It
seems clear that since counties, cities, towns and villages have
numerous parallel and equal grants of authority (Municipal Home
Rule Law § 10), the non-impairment clause was intended to
preserve the right of the legislative body at any level of local
government to enact local legislation to meet uniquely local
needs and conditions. The non-impairment clause prevents a
county or other local government, except through a transfer of
functions, from preempting another local government in the county
from exercising its grant of home rule powers.
The power to enact nuisance abatement local laws, based on
the grant of police power to local governments (Municipal Home
Rule Law, § 10[1][ii][a][12]), is one such parallel and equal
grant of authority. Thus, the county's nuisance abatement law,
in the absence of a transfer of that function from the town to
the county level, does not preempt the passage by the town of a
local law providing for nuisance abatement.
In granting to towns, villages, cities and counties parallel
and equal authority to regulate in certain areas, the
Constitution has set up a system of home rule whereby members of
each class of local governments can establish regulations within
their borders. This is the essence of home rule under Article IX
of the State Constitution.
We conclude that a county local law regulating nuisances
does not preempt the enactment of a nuisance abatement law by a
town within the county, provided that the function has not been
transferred by the town to the county level under the provisions
of a county charter. In the absence of a transfer of the
nuisance abatement function under the provisions of the county
charter from the Town of Islip to the county, the town's
authority to enact a local law abating nuisances has been
preserved.

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