Attorney General of New York — Opinion
Issued on: October 28, 1993
TOWN LAW § 267(5) and (7).
The reduction of the membership of a town zoning board of appeals fromseven to five members does not abbreviate terms extended until the end ofthe calendar year.
James D. Cole, Assistant Attorney General
Requestor: Ivan Kline, Esq., Town Attorney Town of North Hempstead Town Hall Manhasset, N Y 11030
Written by: James D. Cole, Assistant Attorney General in Charge of Opinions
You have requested that we construe section 267 of the Town Law dealing with the membership of the town zoning board of appeals. These provisions were amended, effective July 1, 1992.
You state that the town board has provided for the reduction of your seven-member board to a five-member board. One office scheduled to be abolished has a term which expired on May 1, 1993. Your concern is a possible conflict between two subdivisions of section 267. Subdivision 5 provides that current members whose offices do not expire at the end of a year hold office until the end of the year, a provision designed to place the terms on a calendar year basis. It provides as to “[m]embers now holding office”, the terms are to be Subdivision 7 provides that when the board membership is reduced, no incumbent may be removed from office except upon the expiration of his or her term.
Subdivision 5 clearly extends the terms of members currently in office where the terms do not expire at the end of a year. The occupant of the office scheduled to be abolished is a “[m]ember now holding office” whose term is extended until the end of the calendar year. In our view, the provisions of subdivision 7, which state that no incumbent may be removed from office except upon the expiration of his or her term, apply to the new term as extended under subdivision 5. The fact that the office is slated for abolition does not defeat the plain language of the statute. Additionally, as a matter of fairness, all current members’ terms should be extended as provided by subdivision 5 and we believe that was the Legislature’s intent. Thus, the member serves until the end of the calendar year.
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.