Can a New York village impose term limits on members of its planning board and zoning board of appeals?

Plain-English summary

The Village of Hastings-on-Hudson asked whether it could limit how many terms a planning-board member or a member of the zoning board of appeals could serve. New York courts and prior AG opinions had already established that municipalities could impose term limits on elected officials. The question here was whether the same was true for appointed officials, specifically these two land-use boards.

The AG said yes. The starting point is home rule. Article IX, § 2(c) of the New York Constitution and Municipal Home Rule Law § 10 give local governments two related grants of authority. Section 10(1)(i) lets them legislate about their "property, affairs, or government." Section 10(1)(ii)(a)(1) lets them legislate about the "powers, duties, qualifications, number, mode of selection and removal, [and] terms of office" of their officers. Members of zoning boards of appeals and most planning boards exercise sovereign government power, which makes them public officers, so that language reaches them. The text of those grants is not limited to elected officials.

The AG had no trouble identifying a constitutional baseline: qualifications for holding public office must be rationally related to a legitimate governmental interest, Golden v. Clark, 76 N.Y.2d 618 (1990). Term limits for elected officials had already been upheld under that standard in Roth v. Cuevas, 158 Misc. 2d 238 (Sup. Ct.), aff'd, 197 A.D.2d 369 (1st Dep't), aff'd for reasons stated below, 82 N.Y.2d 791 (1993). Roth identified three rationales: broadening political and public participation, reducing opportunities for corruption, and increasing citizen confidence in government. Some of those rationales might fit appointed boards less well than elected offices, but a village could either identify which of them applied or articulate another legitimate purpose. The opinion did not foreclose any specific rationale.

The next question was preemption. Village Law § 7-712 and § 7-718 govern the appointment of village planning-board and ZBA members. Neither statute imposes term limits. A local law setting them therefore does not conflict with the text. The AG also noted that village home-rule authority includes the power to supersede general state statutes in their application to the village (Municipal Home Rule Law § 10(1)(ii)(e)(3)) unless the Legislature has expressly prohibited it. Prior AG opinions had concluded that § 7-712 and § 7-718 do not contain such an express prohibition. So if the village's local law was framed as superseding those statutes in the village's application, it could do so, provided it followed Municipal Home Rule Law § 22's procedural rule that a local law amending a state statute must designate the statute being amended.

The bottom line: a village could enact term limits for planning-board and ZBA members so long as the limits were rationally related to a legitimate purpose, and any local law that superseded Village Law § 7-712 or § 7-718 had to follow § 22's citation rule.

Currency note

This opinion was issued in 2007. 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 rationale could a village articulate for term-limiting an appointed board?
The opinion does not prescribe one. Roth offered broadening participation, reducing corruption, and increasing citizen confidence. For a planning board or ZBA, a village might emphasize the value of rotating expertise, avoiding the accumulation of decision-making power in long-serving members, or refreshing community perspectives on land-use issues.

Do term limits have to be set by local law or could they be in board rules?
The opinion analyzes term limits as a "qualification" for office, which is the language of the constitutional and statutory home-rule grants. That suggests a local law is the right vehicle. Internal rules of a board generally cannot disqualify members from continuing to serve.

Can a village retroactively apply term limits to current members?
The opinion does not address retroactivity. As a general matter, courts scrutinize retroactive elimination of incumbents more closely than prospective term limits. A village should approach that question with caution and consider grandfathering.

Does this analysis carry over to towns and cities?
The constitutional and statutory home-rule grants apply to towns and cities as well, and they have analogous land-use boards. The reasoning should carry over, with attention to the specific state statutes that govern town and city planning boards and ZBAs and any express prohibitions in those statutes.

Does this opinion address compensation, removal, or other terms of service?
No. The question is specifically about term limits. Compensation, removal for cause, residency, and similar features are also covered by the home-rule "qualifications" power and would be analyzed under similar rules but on their own facts.

Background and statutory framework

Two threads of New York law converge in this opinion. The first is the home-rule structure: Article IX of the Constitution and Municipal Home Rule Law § 10 give local governments substantial authority over their own officers' qualifications and terms. The second is the line of cases starting with Roth v. Cuevas (1993), which upheld term limits for New York City elected officials. The 2007 opinion extends Roth's logic from elected officials to appointed officers, by reading the home-rule grants according to their text and applying the same rational-basis test.

Village Law § 7-712 (planning boards) and § 7-718 (zoning boards of appeals) supply default rules about appointment and terms but do not impose term limits. Under Municipal Home Rule Law § 10(1)(ii)(e)(3), villages have explicit supersession authority over general state law as it applies to the village, subject to legislative limitations. Prior AG opinions (94-52, 86-20) concluded that § 7-712 and § 7-718 do not contain express prohibitions on village supersession in the term-limit area.

Municipal Home Rule Law § 22 requires that a local law amending a state statute designate the statute being amended. A village adopting term limits framed as a supersession must follow that requirement.

Citations

• N.Y. Const. Art. IX § 2(c)(i) (home-rule authority over affairs and government); § 2(c)(ii)(1) (powers, duties, qualifications, terms of office of officers).
• Municipal Home Rule Law § 10(1)(i); § 10(1)(ii)(a)(1) (statutory parallel); § 10(1)(ii)(e)(3) (village supersession authority); § 22 (citation rule for amending local laws).
• Village Law § 7-712 (planning boards); § 7-718 (zoning boards of appeals).
• Roth v. Cuevas, 158 Misc. 2d 238 (Sup. Ct.), aff'd, 197 A.D.2d 369 (1st Dep't), aff'd for reasons stated below, 82 N.Y.2d 791 (1993) (term limits for elected officials upheld).
• Golden v. Clark, 76 N.Y.2d 618, 626-27 (1990) (rational-basis standard for qualifications for public office).
• Op. Att'y Gen. (Inf.) Nos. 95-29, 83-10 (term-limit authority for elected officials).
• Op. Att'y Gen. (Inf.) Nos. 94-52, 86-20 (village supersession of § 7-712 and § 7-718).
• Op. Att'y Gen. (Inf.) No. 97-51 (ZBA and most planning-board members are public officers).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2007-1_pw.pdf

Original opinion text

N.Y. CONSTITUTION IX §§ 2(c)(i) and 2(c)(ii)(1); MUNICIPAL HOME RULE LAW §§ 10, 10(a)(i), 10(1)(ii)(a)(1), 10(1)(ii)(e)(3) and 22; VILLAGE LAW §§ 7-712 AND 7-718

A village may limit the number of terms the members of the planning board and the zoning board of appeals may serve.

February 21, 2007

Marianne Stecich
Village Attorney
Village of Hastings-on-Hudson
828 South Broadway
Suite 201
Tarrytown, New York 10591-6650

Informal Opinion No. 2007-1

Dear Ms. Stecich:

You have requested an opinion regarding whether a village can impose a limit on the number of terms members of its planning board and zoning board of appeals may serve. It is well-settled that a municipality may establish term limits for its elected officials. See Roth v. Cuevas, 158 Misc. 2d 238 (Sup. Ct.), aff'd, 197 A.D.2d 369 (1st Dep't), aff'd for reasons stated at Supreme Court, 82 N.Y.2d 791 (1993); see also Op. Att'y Gen. (Inf.) No. 95-29; Op. Att'y Gen. (Inf.) No. 83-10. You ask, however, whether a village may establish term limits for certain village officials who are appointed. As explained below, we conclude that a village may limit the number of terms the members of the planning board and the zoning board of appeals may serve.

The home rule authority granted local governments to legislate, in a manner not inconsistent with the Constitution or any general law, with respect to their "affairs" and "government," N.Y. Const. Art. IX, § 2(c)(i); Municipal Home Rule Law § 10(1)(i), and with respect to the "powers, duties, qualifications, number, mode of selection and removal, [and] terms of office" of their officers, N.Y. Const. Art. IX, § 2(c)(ii)(1); Municipal Home Rule Law § 10(1)(ii)(a)(1), allows them to establish term limits for their elected officials. Roth, 158 Misc. 2d at 245-46; Op. Att'y Gen. (Inf.) No. 95-29; Op. Att'y Gen. (Inf.) No. 83-10. This grant of authority is not limited on its face to elected officers, and thus we believe that it also permits the Village to limit the number of terms the members of its planning board and zoning board of appeals may serve. The members of zoning boards of appeals and most planning boards exercise sovereign powers of government and thus are public officers. Op. Att'y Gen. (Inf.) No. 97-51.

Qualifications for holding public office must be rationally related to a legitimate governmental interest. Golden v. Clark, 76 N.Y.2d 618, 626-27 (1990). Term limits for elective officers have been held to be rationally related to the goals of broadening opportunities for political and public participation, reducing the opportunities for corruption, and increasing citizens' confidence in the integrity and effectiveness of their government. Roth v. Cuevas, 158 Misc. 2d at 250. While some of these goals might not be furthered by legislating a limit on the number of terms appointed officers can serve, a village may be able to conclude that some of these purposes will be advanced by such term limit legislation, or a village may identify another proper governmental interest that is rationally related to the proposed term limit legislation.

The proposed term limit law does not appear to be inconsistent with a general state law. Village Law §§ 7-712 and 7-718, which govern the appointment of members of village planning boards and zoning boards of appeals, do not limit the number of terms that members of these boards may serve, and we are not aware of a general state law that so provides. We note that if the proposed local law establishing a term limit amends Village Law §§ 7-712 or 7-718 with respect to the application of those statutes to the Village, the local law must comply with Municipal Home Rule Law § 22, which requires designation of the state statute it is amending.

A village may, by local law, supersede or amend any provision of the Village Law in its application to the village relating to the property, affairs, or government of the village or to other matters in relation to which and to the extent to which it is authorized to adopt local laws by Municipal Home Rule Law § 10, notwithstanding that such provision is a general law, unless the Legislature expressly shall have prohibited the adoption of such local law. Municipal Home Rule Law § 10(1)(ii)(e)(3). We have previously been of the opinion that Village Law §§ 7-712 and 7-718 do not include a prohibition against the adoption of such a local law. See Op. Att'y Gen. (Inf.) No. 94-52; Op. Att'y Gen. (Inf.) No. 86-20.

In summary, we conclude that the Village may establish term limits for the members of the planning board and zoning board of appeals, if such term limits are rationally related to a legitimate governmental purpose.

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