Can a small New York town let its highway superintendent live outside the town?

Plain-English summary

The Town of Plainfield was having trouble filling its highway superintendent and deputy positions with qualified town residents. The supervisor asked the AG whether a local law could broaden the residency requirement to make recruitment easier. The AG said yes, via Municipal Home Rule Law supersession.

The default rules under State law are strict. Public Officers Law § 3(1) requires that a person holding a local public office be a resident of the political subdivision. Town Law § 23(1) reinforces this by requiring every town officer to be an "elector" of the town, which means a registered voter and therefore a resident.

But the Legislature has carved out exceptions for specific towns. Public Officers Law § 3(16) lets the Town of New Castle (Westchester) have a highway superintendent residing in the same county or an adjoining county, with authority to allow residence anywhere in the State by resolution. Town Law § 23 was amended to align. The Town of Pound Ridge (also Westchester) got a parallel deputy carve-out in Town Law § 23(2).

The existence of these carve-outs is what unlocks home rule supersession for other towns. Municipal Home Rule Law § 10 lets local governments enact laws on their officers' qualifications subject to consistency with State "general law." § 2(5) defines general law as a statute that applies alike to all of a given class. Once the Legislature has special-treated New Castle and Pound Ridge differently from other towns on residency, Public Officers Law § 3 and Town Law § 23 are no longer "general" for the highway superintendent positions; they have become special laws.

The Court of Appeals' decision in City of New York v Patrolmen's Benevolent Association confirmed that terms and conditions of local officer employment fall within municipal home rule. Mandelkern v City of Buffalo (4th Dept 1978) established that the home rule grant includes authority to enact residency requirements.

So Plainfield can adopt a local law modeled on the New Castle and Pound Ridge carve-outs: highway superintendent may reside anywhere in the State, deputy superintendent may reside in the same county or an adjoining New York county. The AG cited Op Atty Gen (Inf) Nos. 87-52, 88-27, and 89-14 as similar opinions reaching this conclusion for various towns.

Procedural reminder: under Municipal Home Rule Law § 22, the local law must specify which State statutes it amends or supersedes (Public Officers Law § 3 and Town Law § 23). Kamhi v Town of Yorktown teaches that failure to substantially comply with this requirement can invalidate the local law.

Currency note

This opinion was issued in 2000. 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 are New Castle and Pound Ridge treated differently?

The Legislature passed those special acts for those specific towns to address local staffing problems. The legislative history typically reflects recruitment difficulties or other specific local concerns. Once special laws exist for some towns, the AG treats the original general-law constraint as having been undermined for the affected positions.

Could a town let its town supervisor live elsewhere too?

That would require a different analysis. The AG opinion is specific to highway superintendent and deputy because those were the special-act positions. Town supervisor residency is governed by the same general-law framework but without the same special-act carve-outs, so the general law remains "general" for that office and home rule supersession may be unavailable.

What's the difference between resident and elector?

Resident generally means domiciliary (the same domicile concept from Op Atty Gen (Inf) No. 99-37). Elector means a person who is eligible to register and vote in the jurisdiction. Most residents are electors; the two terms overlap heavily but not perfectly.

Could the town just allow residency anywhere in the country?

The Plainfield-style local law follows the special-act template, which limits non-town residence to the same county or an adjoining New York county for the deputy, and anywhere in New York State for the superintendent. Going broader than that template would push past the boundary the State legislature has carved.

Does this affect federal residency or citizenship requirements?

Public Officers Law § 3(1) also requires US citizenship. That requirement is not addressed by the residency-supersession analysis. A town's local law on residency does not change the citizenship qualification.

Background and statutory framework

Municipal Home Rule Law § 10 implements Article 9 of the State Constitution and grants local lawmaking authority. § 10(1)(i) and (ii)(a)(1) cover the categories relevant to officer residency.

Section 2(5) defines "general law" with precision. A statute is general only if it applies alike, in its terms and effect, to all entities in the class. Once a special law treats some towns differently, the underlying provision loses general-law status for the affected subject matter, and home rule supersession opens up.

The Court of Appeals' decisions in Patrolmen's Benevolent Association and Mandelkern (4th Dept) established the broad home rule authority over terms and conditions of local officer employment. The 2000 opinion is a routine application of that doctrine.

Section 22 of the Municipal Home Rule Law is the procedural requirement. Local laws amending or superseding State statutes must specify which provisions they affect. Kamhi v Town of Yorktown is the leading case on substantial compliance.

Citations

• Municipal Home Rule Law § 2(5) (definition of general law).
• Municipal Home Rule Law § 10(1)(i) (powers, duties, conditions of employment).
• Municipal Home Rule Law § 10(1)(ii)(a)(1) (property, affairs, government).
• Municipal Home Rule Law § 22 (specification requirement for supersession local laws).
• Public Officers Law § 3 (qualifications for public office).
• Public Officers Law § 3(1) (general residency requirement).
• Public Officers Law § 3(16) (Town of New Castle highway superintendent residency exception).
• Town Law § 23 (town officer elector requirement).
• Town Law § 23(1) (every town officer must be a town elector).
• Town Law § 23(2) (Town of Pound Ridge deputy highway superintendent exception).
• Mandelkern v City of Buffalo, 64 AD2d 29 (4th Dep't 1978) (home rule authority over residency requirements).
• City of New York v Patrolmen's Benevolent Association, 89 NY2d 380 (1996) (terms and conditions of local officer employment within home rule).
• Kamhi v Town of Yorktown, 74 NY2d 423 (1989) (substantial compliance with § 22).
• Op Atty Gen (Inf) No. 85-59 (elector means resident).
• Op Atty Gen (Inf) Nos. 87-52, 88-27, 89-14 (prior opinions reaching same conclusion for other towns).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2000-5_pw.pdf

Original opinion text

Opn. No. 2000-5
MUNICIPAL HOME RULE LAW §§2(5), 10(1)(i) and (ii)(1)(a), 22; PUBLIC OFFICERS LAW § 3;
TOWN LAW §23.
A town may enact a local law providing a broader residency requirement for the positions of
superintendent of highways and deputy superintendent of highways.
May 18, 2000
Mildred E. Wise, Supervisor
Town of Plainfield
Plainfield Town Hall
129 County Highway 18A
West Winfield, NY 13491

Informal Opinion
No. 2000-5

Dear Supervisor Wise:
You have asked whether the town may enact a local law providing that the town superintendent of
highways and deputy superintendent of highways need not be residents of the town. You have informed
us that you are having difficulty filling these positions with qualified residents. Because you do not have
a town attorney, the resolution of the town board requesting an opinion of the Attorney General is
sufficient to satisfy our requirements for issuing an informal opinion. We conclude that your town may
enact such a local law.
Section 3 of the Public Officers Law sets forth the qualifications for holding a public office. To
qualify, a person must, at the time chosen, be at least 18 years of age, a citizen of the United States, a
resident of the State and, in the case of a local office, a resident of the political subdivision for which he
or she is appointed or within which the electors choosing him reside. Public Officers Law §3(1).
Additionally, the Town Law provides that every officer of a town, at the time of his election or
appointment and throughout his term of office, must be an elector of the town. Town Law § 23(1). An
"elector" is a person who is eligible to register to vote in a town and must therefore be a resident of the
town. Op Atty Gen (Inf) No. 85-59.
Local governments, including towns, are authorized to adopt and amend local laws, consistent
with the Constitution and general state laws, in relation to their property, affairs or government and in
relation to the powers, duties, qualifications, number and other terms and conditions of employment of
their officers and employees. Municipal Home Rule Law § 10(1)(i) and (ii)(a)(1). Thus, in determining
whether the grant of local law power authorizes your town to establish broader residency requirements
for certain offices, two basic questions must be answered. Does the grant of power include authority to
enact residency requirements for public offices? If it does, would a local law authorizing residency
outside the municipality be inconsistent with a "general [state] law"?
As to the first question: the authority given to towns by the Municipal Home Rule Law
encompasses the authority to enact a local law establishing residency requirements for town officers.
Mandelkern v. City of Buffalo, 64 A.D.2d 29 (4th Dep't 1978). The terms and conditions of
employment of local officers relate to the "property, affairs or government" of a local government and
thus fall within home rule provisions. City of New York v. Patrolmen's Benevolent Association of the
City of New York, Inc., 89 N.Y.2d 380 (1996). Accordingly, there is authority for the proposed local
law.
Moreover, the proposed local law is not inconsistent with any general law. A general law is a state
statute which in terms and in effect applies alike to, in this case, all towns. Municipal Home Rule Law §
2(5). Section 3 of the Public Officers Law and section 23 of the Town Law include many exceptions to
the requirement that local public officers reside in the municipality. Most significantly, section 3(16) of
the Public Officers Law provides that the superintendent of highways of the Town of New Castle,
Westchester County, may reside in the county in which the town is located or in an adjoining county
within the State. The same provision authorizes the Town of New Castle to provide by resolution that the
superintendent of highways may reside anywhere in the state. Section 23 of the Town Law has also been
amended to provide that the superintendent of highways of the Town of New Castle need not be an
elector of the town. Similarly, in the Town of Pound Ridge, Westchester County, deputy superintendents
of highways need not be electors of the town provided that they live in the county in which the town is
located or in an adjoining county within New York State. Town Law § 23(2).
Thus, sections 23 and 3 have become special rather than general laws, insofar as they address the
residency requirement for the positions of superintendent of highways and deputy superintendent of
highways in towns. As to these offices, the state laws do not in terms and in effect apply alike to all
towns.
Thus, your town may, consistently with state law, enact a local law establishing a residency
requirement for the superintendent of highways and the deputy superintendent of highways which is as
broad as the statutory amendments applicable to the towns of New Castle and Pound Ridge. (See similar
conclusions in Op Atty Gen [Inf] Nos. 87-52, 88-27, 89-14.) In other words, you may enact a local law
providing that your superintendent of highways may reside anywhere in the State and that the deputy
superintendent of highways may reside in the county in which the town is located or in an adjoining
county within the State of New York. Id. We note that in enacting your local law you should comply
with section 22 of the Municipal Home Rule Law by indicating that you are amending section 23 of the
Town Law and section 3 of the Public Officers Law. Kamhi v. Town of Yorktown, 74 N.Y.2d 423
(1989).
We conclude that a town may enact a local law providing a broader residency requirement for the
positions of superintendent of highways and deputy superintendent of highways.
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 Solicitor General
In Charge of Opinions