Legal Memorandum LU06: Alternate Members of County and Local Planning Boards and Zoning Boards of Appeals

ALTERNATE MEMBERS OF COUNTY AND LOCAL
PLANNING BOARDS AND ZONING BOARDS OF APPEALS

       Under current enabling legislation, city, town and village planning boards may contain either five or seven members, and their zoning boards of appeals may contain either three or five members. County planning boards, on the other hand, may contain any number of members, at the discretion of the county legislative body. On given occasions, members of these boards may be faced with a conflict of interest. Perhaps an applicant before the board is a relative of the member, or perhaps a member holds a substantial financial interest in an application which is before the board. These and other situations may require the member to recuse (disqualify) himself or herself from taking any part in the discussion or decision on the application. That may make it difficult to obtain a majority of the board to move the action forward, or to take final action on it. This problem can be resolved through the appointment of alternate members to serve in such circumstances.

      Under a 1998 amendment to sections 27 and 81 of the General City Law, sections 267 and 271 of the Town Law, sections 7- 712 and 7-718 of the Village Law, and section 239-c of the General Municipal Law,¹ counties, cities, towns and villages were authorized to provide for the appointment of alternate members of planning and zoning boards, to serve in cases where a conflict of interest will prevent a regular member from participating. To effect this authorization, the legislative body (county legislative body, city council, town board or village board of trustees) must adopt a local law or ordinance, or must insert language into the local law or ordinance which has created the planning or zoning board, providing for alternate members. The local law or ordinance should establish one or more alternate positions on the board, and should state that such alternates are to serve in cases of conflict-of-interest. The local law or ordinance should also set terms for the alternates. Both the number of alternate positions created and the length of their terms of office are up to the legislative body.

       The state statutory amendments of 1998 provide that the chairperson of the particular board may designate an alternate to serve whenever a regular member is faced with a conflict of interest. When so designated, the alternate possesses all the powers and responsibilities of the regular member. The alternate member’s designation must also be entered into the minutes of the initial board meeting at which the substitution is made. Finally, these statutes provide that all existing provisions of law relating to training, continuing education, attendance, conflict of interest, compensation, eligibility, vacancy in office, removal, compatibility of office and service on other boards, are to apply to alternate members in the same manner as they apply to regular members.

       The alternate member provisions described above do not state how it should be determined that a conflict of interest exists, or who should make that determination. Moreover, the statutes do not go into detail about how or when an alternate is to be summoned to participate in a matter before the board. Such detail is left to local practice. While a local code of ethics adopted pursuant to General Municipal Law §806(1)(a) could establish standards requiring a member to disqualify himself or herself in given factual situations, it seems safest to assume that a member should have the right to disqualify himself or herself any time he or she honestly feels that a conflict, or even the appearance of one, may exist. It is therefore advisable that the legislative body consider adopting procedures which will encourage the identification of conflicts as early as possible in the process to allow the timely summoning of an alternate.

      Additionally, an alternate member who has been asked to serve on a board should familiarize himself or herself with the record of any application that is in progress. Along these lines, the courts have held that a regular board member must familiarize himself or herself with the record of any particular matter before being lawfully qualified to vote on it.² Thus, it follows that an alternate member should be bound by the same rule.

        If the legislative body intends the alternate members to be subject to training or attendance requirements, or both, it should address these matters in one of the following ways: (1) it may state those requirements in the local law or ordinance which creates the alternate positions, or (2) it may amend its existing legislation relating to training and attendance for regular members to make those requirements apply to alternate members as well.

       Anecdotally, many towns and villages have local laws in place that provide for service by alternate members even in non-conflict-of-interest situations. The Attorney General has opined that towns and villages may in fact use their authority under the Municipal Home Rule Law to amend or supersede the Town Law or the Village Law, respectively, to expand the circumstances under which an alternate member may be appointed to serve on a board, provided they properly follow the applicable procedures of the Municipal Home Rule Law for amending or superseding the Town Law or the Village Law.³ Under Municipal Home Rule Law §22, the local law must specify the provision of state law that is being amended or superseded. The failure to adhere substantially to this requirement may affect the validity of the local law.⁴ 

Footnotes:

¹ Laws of 1998, Chapter 137. This amendment relates to both planning boards and zoning boards of appeals (except in cities with a population of over one million), while the General Municipal Law amendment relates to county planning boards.

² Taub v. Pirnie, 3 N.Y.2d 188 (1957).

³ See 1999 Ops Atty Gen No. I 99-36.

⁴ Kamhi v. Town of Yorktown, 74 N.Y.2d 423 (1989)

1998