Opn. No.

Requestor: Jeffrey L. Blinkoff, Esq., Village Attorney Village of East Williston 200 Old Country Road Mineola, N Y 11501

Written by: Siobhan S. Crary, Assistant Attorney General

You have asked whether the village board of trustees may, by local law, empower itself to grant a variance. You note that Article 7 of the Village Law vests the power to grant or deny a variance in the board of zoning appeals.

By now it is well established that a village is authorized to amend or supersede any provision of the Village Law relating to its property, affairs or government or to other matters in relation to which it is authorized to adopt local laws, notwithstanding that the Village Law provision is a general law, unless the Legislature expressly has prohibited the adoption of the proposed local law. Municipal Home Rule Law § 10(1)(ii)(e)(3). We have concluded that this provision authorizes supersession of the provisions of the Village Law dealing with zoning and planning because villages have the authority to adopt zoning regulations and to establish and structure local positions and departments by local law. Id., § 10(1)(ii)(a)(1), (a)(12), (a)(14); Op Atty Gen No. 92-20 (village by local law may establish the positions of alternate member of the zoning board of appeals and of the planning board); 1986 Op Atty Gen (Inf) 70 (village by local law may provide for appointment of ad hoc members to zoning board of appeal where absences or conflicts of interests make it impossible to meet quorum requirements.

We find no statement in Village Law § 7-712 that the Legislature intended to bar villages from using their home rule power to amend or supersede the provisions of the Village Law that vest power to grant or deny a variance in the board of zoning appeals. Nor do we believe that the Village Law provisions that authorize a village board of trustees to appoint a board of appeals and that govern the proceedings of the board of appeals are so detailed and comprehensive in scope as to evidence an intent to preempt local regulation. Any local law should ensure that applicants are granted due process in making their application. See, Village Law § 7-712-a.

We conclude that the village board of trustees may enact a local law that vests the power to grant or deny a variance in the village board.

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.