In 2010, respondent Town Board of the Town of Colonie passed a resolution appointing respondent John H. Cunningham, who was not a resident of the Town, to a two-year term as Commissioner of Public Works. Petitioner, a resident of the Town, initiated a proceeding to invalidate the appointment
Thereafter, the Town Board adopted Local Law No. 15 (2011) of the Town of Colonie, which provided that the Commissioner of Public Works need not be a resident of the Town, but “shall be a resident of the County of Albany” and “no specific license or education is required” for one to hold that position.1 After the Town Board again appointed Cunningham to the position of Commissioner of Public Works, petitioner commenced this combined CPLR article 78 proceeding and action for a declaratory judgment seeking, among other things, to annul Local Law No. 15, as well as Cunningham’s appointment to that position. Respondents answered, asserting affirmative defenses, including a contention that petitioner lacked standing to bring such a proceeding. Although Supreme Court found that petitioner had standing, it dismissed the petition/complaint, finding, among other things, that the Town Board acted within its authority in enacting Local Law No. 15 and in appointing Cunningham to the position of Commissioner of Public Works. Petitioner now appeals, and Cunningham cross-appeals.
We affirm. Initially, we reject Cunningham’s contention that petitioner lacked standing to challenge Local Law No. 15. Generally, standing “requires a showing of ‘an injury in fact, distinct from that of the general public,’ that falls within the zone of interests promoted or protected by the pertinent regulation or statute” (Matter of Diederich v St. Lawrence, 78 AD3d 1290, 1291 [2010], lv dismissed and denied 17 NY3d 782 [2011], quoting Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579, 587 [1998]). Common-law taxpayers may, however, “challenge important governmental actions, despite such parties being otherwise insufficiently interested for standing purposes, when ‘the failure to accord such standing would
Turning to the merits, a local government “shall have power to adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law relating to its property, affairs or government” (Municipal Home Rule Law § 10 [1] [i]; see Kamhi v Town of Yorktown, 74 NY2d 423, 429 [1989]; Matter of Zorn v Howe, 276 AD2d 51, 54-55 [2000]). A “general law” is defined as “[a] state statute which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages” (Municipal Home Rule Law § 2 [5]). A “special law” is one that “in terms and in effect applies to one or more, but not all, counties, counties other than those wholly included within a city, cities, towns or villages” (Municipal Home Rule Law § 2 [12]). Unlike general laws, there is no requirement that a local law be consistent with a special law and may, in a given circumstance, supersede a special law (see Matter of Gizzo v Town of Mamaroneck, 36 AD3d 162, 165 [2006], lv denied 8 NY3d 806 [2007]; see also Landmark Colony at Oyster Bay v Board of Supervisors of County of Nassau, 113 AD2d 741, 743 [1985]).
Public Officers Law § 3 (1), as relevant here, provides that an individual may not hold a local civil office who is not “a resident of the political subdivision or municipal corporation of the state for which he [or she] shall be chosen, or within which the
Finally, contrary to petitioner’s contention, Cunningham has not engaged in nor was he required to practice engineering while holding this position (see Education Law § 7202).4 This conclusion is borne out not only by the job description for this position set forth in the Town code (see Town of Colonie Code § 34-3), but also by an investigation conducted by the Education Department, which determined that Cunningham had not engaged in the practice of engineering while serving in this position. In addition, we note that the individual appointed to the position of Commissioner of Public Works is selected based on “administrative experience and qualifications for the duties of the office” (Town Law § 64 [21-a] [2]) and, as such, the Town did not abuse its authority in not requiring that the appointee possess a specific license or engineering degree.
Peters, PJ., Spain, Malone Jr. and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.
1.
Local Law No. 15 by its terms, expressly provided that it superseded those provisions contained in Public Officers Law § 3 and Town Law § 23, which require that such an appointee be a Town resident.
2.
The Commissioner of Public Works replaced the Superintendent of Highways, which was abolished by the Town and was an elected position that could only be held by a Town resident (see Matter of Ricket v Mahan, 82 AD3d at 1566).
3.
“An elector of a town is an individual who may register as a voter therein regardless of whether that person has actually registered” (Matter of Ricket v Mahan, 82 AD3d at 1567 [citation omitted]).
4.
Although Cunningham’s initial appointment expired on December 31, 2011, he was reappointed to a two-year term commencing in January 2012. Accordingly, contrary to respondents’ contention, the issue of Cunningham’s qualifications is not moot (see generally Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).