Requestor: Thomas P. Halley, Esq., Town Attorney Town of Rochester P.O. Box 915 Highland, New York 12528
Written by: James D. Cole, Assistant Attorney General in Charge of Opinions
You have asked whether a town board may appoint one person to serve as secretary to both the planning board and the zoning board of appeals.
Section 267 of the Town Law requires that the town board appoint a zoning board of appeals and the town board "may also provide for compensation to be paid to said members, experts, clerks and a secretary" (Town Law, § 267[1]). Under this provision, the town board may appoint or provide for the appointment of a secretary to the zoning board of appeals. Under section 272 of the Town Law, the planning board "shall have power and authority to employ experts, clerks and a secretary" as may be necessary within appropriations made by the town board.
In our view, a town board may enact a local law amending section 272 of the Town Law to authorize the town board to appoint the secretary to the planning board and providing for that person to serve as well as the secretary to the zoning board of appeals. Such a local law transferring the power to appoint a secretary from the planning board to the town board is within the authority of a town board to amend or supersede any provision of the Town Law when acting within the scope of its home rule powers (Municipal Home Rule Law, § 10[1][d][3]). The appointment of local officers and employees is within the scope of a town board's home rule powers (id., § 10[1][ii][a][1])
In our view, the appointment of one person to serve as secretary to both the planning board and the zoning board of appeals would not create any incompatibility or conflict of interests. The duties of the two positions are in harmony and one position is not subordinate to the other.
We conclude that a town board may enact a local law providing for the appointment by the town board of one person to serve as secretary to both the planning board and the zoning board of appeals.
The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of views of this office.