The Home Rule Authority of New York Municipalities
in the Land Use Context
http://www.pace.edu/LawSchool/landuse/stinso.html
Joe Stinson, 1997
I. INTRODUCTION
"Effective local self-government" is a goal of the people explicitly recognized in the Constitution of the State of New York.[1] In furtherance of this goal, the Constitution established a "Bill of rights for local governments."[2] This bill of rights enumerates specific powers, privileges and protections for local governments, which are to be provided for by the legislature[3] and liberally construed by the courts.[4] The legislature responded by enacting the Municipal Home Rule Law[5] and the Statute of Local Governments.[6] Taken together, these statutory and constitutional provisions, and the case law interpreting them, constitute what is commonly known as the home rule authority of local governments. Although home rule authority has other aspects, such as providing for the organization of local governments, this article will focus on the role of home rule in the land use context, that is, home rule authority to pass local laws related to zoning, planning, land development and natural resource conservation. Part II of this article presents the author's findings regarding the scope of, and the requirements for exercising home rule authority in New York. Part III briefly discusses the evolution of home rule. Part IV gives a generalized description of the authority delegated to local governments in New York by the Municipal Home Rule Law. Part V contains an intense examination of the case law relevant to home rule authority in the land use context. Part VI concludes that home rule authority allows local government officials significant flexibility in dealing with the social, economic and environmental issues regarding the regulation of land use and development.
II. FINDINGS
A. Local governments have authority to pass local laws pursuant to the Municipal Home Rule Law.
Home rule authority is a quasi-constitutional grant of authority for local governments to pass local laws relating to their property, affairs or government, provided such local laws are consistent with the constitution and general statutes of New York State. Additionally, local governments may pass such local laws, consistent with the constitution and general statutes, whether or not they relate to the property, affairs or government of the local government if the local law relates to one of numerous subjects specifically listed by the State Legislature in the Municipal Home Rule Law. That list includes, but is not limited to the authority for a county, city, town or village to legislate for the protection and enhancement of its physical environment and for the government, protection, order, conduct, safety, health and well-being of persons or property therein. Because this grant of authority is quasi-constitutional, local laws adopted pursuant to the home rule authority are granted greater deference by the courts than other local legislative acts. The Municipal Home Rule Law also authorizes local governments to regulate by local law on any matter in which they previously were authorized to regulate by ordinance, resolution or regulation. Procedural requirements for adopting a local law, including local laws subject to a permissive or mandatory referendum, are spelled out in the Municipal Home Rule Law.
B. Local governments have independent authority to regulate land use under the Municipal Home Rule Law and the Statute of Local Governments.
Home rule authority has been upheld as a source of zoning and planning power for local governments. Therefore, home rule authority gives municipalities great flexibility in dealing with local regulation of land use. For example, local governments may adopt creative new regulatory techniques before such techniques have been specifically authorized by the State Legislature. This permits local officials to be innovative when dealing with regulatory dilemmas not satisfactorily addressed by the general statutes.
C. Local governments have the authority to supersede certain general statutes pursuant to their home rule authority.
Towns and villages have the authority to supersede provisions of the Town Law and Village Law, respectively. Cities have the authority to supersede the provisions of any general statute unless the State Legislature has indicated that a particular statute is not to be superseded by local law. With respect to cities, it is important to point out that a state statute is not a general statute if its provisions do not apply alike to all cities in the state. This can happen in two ways. First, where the statute itself specifies that it is applicable only to certain cities, or only to cities of a certain size, population, location, etc., the statute is not a general statute. Second, if the provisions of any valid city charter contradict a state statute, that statute is not a general statute because it does not apply alike to all cities in the state. If a statute is not a general statute, a city need not use its supersession authority to adopt an inconsistent local law, because the consistency requirement applies only to general statutes.
D. The home rule authority of local governments may be preempted where the State Legislature has evinced an express or implied intention to do so.
The requirement for consistency with the constitution and general statutes is a significant limitation on the home rule power of local governments. A local law will be inconsistent where it directly conflicts with or contradicts a provision of the constitution or a general statute. Furthermore, a local law will be inconsistent if the State Legislature has evinced its intent to preempt local regulation of a particular subject. Such an intention may be expressly stated by the Legislature, or it may be implied by such factors as the comprehensiveness of the state regulatory scheme, the nature of the subject being regulated, the need for statewide uniformity in regulation, etc. The purpose and legislative history of general statutes are often determinative in deciding whether there is an implied intent to preempt local regulation.
E. The home rule authority of local governments is an alternative, more flexible source of authority for regulating land use than those sections of the Town, Village, and General City Law that expressly delegate zoning, planning and land use regulatory authority.
The authority under the Municipal Home Rule Law to pass local laws relating to the property, affairs or government of a municipality, consistent with the state constitution and general laws, allows local governments to adapt the standards and procedures contained in the more specific delegations of zoning, planning and land use regulatory authority. These standards and procedures can be adapted to address the issues and concerns unique to each community. The general delegating statutes may be viewed as a starting place, a source for ideas on how to regulate land use, as opposed to the common perception that they are the state-mandated final determination on who does what, and why. The flexibility inherent in the home rule authority allows local governments to expand the mold cast by provisions of the Town, Village, and General City Laws. The home rule authority allows local legislatures to supersede acts of the State Legislature, provided there is not an overriding requirement for state uniformity on a particular issue.
III. EVOLUTION OF HOME RULE
The idea of local autonomy in Western civilization has been traced from the city-states of ancient Greece and Renaissance Italy through the towns of medieval England.[7] It was apparent in pre-colonial towns in America such as Providence and Portsmouth and was applauded by the likes of Jefferson and Tocqueville.[8] However, in drafting the federal constitution, the founding fathers found it appropriate to acknowledge only the states as reservoirs of local authority. Since that time, the predominate legal opinion has been that local home rule authority is held by the grace of the state rather than as an inherent right.[9] This view was reflected in what came to be known as Dillon's Rule, named after the author of the first American treatise on municipal corporations, which narrowly construed the power held by a municipal corporation.[10] Although often contested by those who favor recognition of the inherent power of local governments, the essence of Dillon's Rule, that municipalities derive their authority from the state and that their authority is subordinate to state interests, continues to pervade the legal analysis of New York courts.
The nature of home rule is twofold: it is both a deliberate and limited grant of authority by the state to local governments and an acknowledgment that there are certain areas of purely local concern wherein local governments may operate free from state interference.[11] It is the latter proposition that that fuels the common misperception that home rule in New York embodies the inherent right of self-determination for local governments.[12] It is the state that grants home rule authority, and the state has reserved the right to define interests as being within its, as opposed to local, authority.[13] Where the state has chosen to refrain from interfering in purely local concerns today, tomorrow it may perceive a substantial state interest entwined in those same areas of concern.[14]
IV. THE MUNICIPAL HOME RULE LAW
Home rule authority in New York State has a few basic functions. The first is to authorize local governments to pass local laws relating to their property affairs or government that are consistent with the state constitution and state statutes. [15] This grant of authority is a means by which the state legislature may divest itself of the burdensome responsibility of reviewing and voting on matters of purely local concern. It also to insures that such decisions are made by officials more likely to be informed on local issues. The legislature is thereby freed to focus its attention on matters of statewide concern, as is appropriate for a state legislature. Furthermore, the Municipal Home Rule Law extends the authority to act by local law to any local government having the power to act by ordinance, resolution or regulation.[16] The significant distinction between legislating by local law and other legislative acts is that the power to pass local laws under the Municipal Home Rule law is quasi-constitutional.[17] Such local laws are therefore entitled to greater judicial deference than are acts of local government pursuant to a delegation of authority from the State Legislature.[18]
The second function of home rule is to grant local governments authority to pass local laws whether or not they relate to their property, affairs or government, if such local law is related to a subject specifically listed by the legislature.[19] The list includes authority for a county, city, town or village to regulate for the "protection and enhancement of its physical and visual environment"[20] and for the "government, protection, order, conduct, safety, health and well-being of persons or property therein."[21] The list has been cited as authority for a city, town or village to adopt, amend and repeal zoning regulations.[22] It also allows a county to enact local laws for the "protection or preservation of game, game birds, fish or shell fish on county-owned lands,"[23] for the "control of floods or the conservation of soil,"[24] for "reforestation of lands owned by the county,"[25] and for the "regulation or prohibition of the dumping of garbage, rubbish, ashes or other waste material in or adjacent to creeks or streams in watershed areas improved under any flood control or soil erosion program."[26] Perhaps the most controversial function of home rule authority is found within this list: the power for towns and villages to supersede provisions of the Town Law and Village Law. The supersession authorities for town and villages are found in the Municipal Home Rule Law sections 10.1(ii)(d)(3) and (e)(3), respectively.[27] Cities also have a supersession authority when they adopt a new city charter or amend an existing city charter by petition pursuant to Municipal Home Rule Law section 37. Section 37(4) states that a city, by local law, "may supersede . . . any inconsistent provision of a state statute which may be amended by local law. . . ."[28]
A third function of home rule authority is to limit the state's authority to interfere in matters of purely local concern. The state constitution prohibits the state legislature from enacting a special law[29] that relates to the property, affairs, or government of a local government unless such special law is requested by the municipality, or, except in the case of New York City, upon a certificate of emergency from the governor with concurrence by the legislature.[30] When the municipality requests a special law, it is commonly referred to as "sending a home rule message" to the state legislature.[31] Although these provisions do limit the state's authority to enact special laws that impinge on the power of local governments, the state's authority to act by general law is expansive.[32] When enacting a general law, the principal limitation is that the law serves a significant state interest.[33]
V. JUDICIAL INTERPRETATION OF HOME RULE
When confronted with a challenge to local home rule authority, the courts tend to ask four questions:
1. Does the local law relate to the property, affairs or government of the local government, or one of the listed areas of local authority contained in Municipal Home Rule Law section 10(1)(ii)?
2. Is there an express or implied conflict between a state statute and the local law?
3. Does the state statute violate the constitution limitations regarding special laws that relate to the property, affairs or government of a local government?
4. If the local law conflicts with a general state statute, has the local government validly exercised its supersession authority?
These questions, and sub-topics related to them, are addressed in the caselaw below.
A. Does the local law relate to the property, affairs or government of the local government, or one of the listed areas contained in Municipal Home Rule Law section 10(1)(ii)?
To answer this question, it is useful to understand how the phrase "property, affairs or government" has been interpreted, because "[s]ince 1894 the words. . . have become words of art. . . . [with a] special limited meaning."[34] In Adler v. Deegan,[35] the Court of Appeals reviewed the validity of certain provisions of the Multiple Dwelling Law, adopted by the State Legislature, which was alleged to violate the "bill of rights" of local government. The Act was designed to "eradicate the slum."[36] However, the provisions of the act that regulated the height and area of multiple residence buildings were challenged as violative of city home rule powers on the theory that such regulation was a matter of local concern. The Court of Appeals upheld the state statute. Justice Pound, in his concurrence, acknowledged an ambiguous division between state and local interests:
[Home rule authority] divides things that in their nature are indivisible by any scientific method of exclusive and inclusive classification . . . . The line of demarcation must be drawn by the court as cases arise. The Constitution makes no attempt to define laws relating to the property affairs or government of cities, nor has the Legislature, nor shall we at this time. One thing is clear. . . . a law may relate to or affect cities as civil divisions of the state or centers of population, without necessarily relating to the property affairs, or government of such cities.[37]
Chief Justice Cardozo, in his concurrence, shed some light on the distinctions to be drawn where exercise of the police power is of local, rather than state concern:
If a city lays out a park, or builds a recreation pier, or provides for public concerts, it is exercising the police power, and is acting for the welfare of its inhabitants, yet acting in a matter that is distinctively its own affair, a matter that is bound up with its own business, its own finances, its own corporate activities. The state may not say, by local law adopted by a majority vote, you must lay out a park in such a place, or of such a size, or at such a time. . . Even in situations where the affair to be regulated does not involve a corporate activity of the city, is not a city affair in that sense, but is merely a matter of local interest or concern, the state, acting by local laws and without an emergency message, must keep its hands off, unless a state concern is involved or affected, and this in some substantial measure.
. . .
There are some affairs intimately connected with the exercise by the city of its corporate functions, which are city affairs only. . . . There are other affairs exclusively those of the state. . . .
. . .
A zone, however, exists where state and city concerns overlap and intermingle. The Constitution and the [home rule] statute will not be read as enjoining an impossible dichotomy. The question to be faced is this: Has the state surrendered the power to enact local laws by the usual forms of legislation where subjects of state concern are directly and substantially involved, though intermingled with these, and perhaps identical with them, are concerns proper to the city?[38]
Chief Justice Cardozo then explains that where state and local concerns are intermingled, the propriety of state action is not dependent upon the predominance of the state's interest. "The test is rather this: That, if the subject be in a substantial degree a matter of state concern, the Legislature may act, though intermingled with it are concerns of the locality."[39] In applying this test, the court determined that the Multiple Dwelling Law was premised upon the State's interest in protecting public health and that the State's interest is substantial and therefore controlling. This test will be applicable whenever the State attempts to legislate in a manner that usurps the zoning authority of local governments.
To further illustrate this principle, it is useful to contrast two Court of Appeals decisions. For years, residents of the borough of Staten Island have expressed a desire to separate the borough from New York City, and to establish the borough as a new independent city. In 1989, the State Legislature passed a special law prescribing the procedure for determining the degree of interest Staten Islanders held in seceding.[40] The City of New York challenged the constitutionality of the legislation,[41] alleging that it was a special law relating to the property, affairs or government of New York City, enacted without a home rule message from New York City. The court, in City of New York v. State of New York,[42] held that the special law was "not an 'act in relation to the property, affairs or government' of New York City" and therefore no home rule message was required. The court reasoned that because the special law sought only to determine the level of interest in, and the preferred method by which Staten Islanders might secede from New York City, the law did not interfere with the home rule authority of New York City.
By their very nature, special laws ordinarily will have an effect on the subject locality. However, not every special law in and of itself requires a home rule message, as the effect may be at most incidental, not a direct impact on the property, affairs or government of that entity. "The intent of these provisions of the Constitution was to provide some measure of protection to a city from possible danger of ill-considered interference by the Legislature in its local affairs." (citations omitted)
Here we discern no State interference in New York City property, affairs or government, and we therefore need not reach the next step of determining whether there is any substantial State interest in the matter (citation omitted). Chapter 773 does not authorize secession; it does not authorize the voters of Staten Island to decide the secession issue; it does not initiate secession, or commit the State to support it; it does not represent any relinquishment by the Legislature of any power it may have with respect to secession; and it in no way circumscribes whatever protections exist in the State Constitution home rule provision with respect to an act formally triggering secession.
Indeed, rather than any direct effect of chapter 773 on the property, affairs or government of New York City, the impact of the law as the City portrays it is either wholly speculative, or simply the anticipated response to Staten Island's already publicized interest in secession.[43]
In effect, the court is saying that if the special law does not directly impact the property, affairs or government of a local government, no home rule analysis is necessary. For comparison, in its most recent home rule decision, the Court of Appeals had no difficulty in determining that regulation of the bargaining processes between New York City and its police department members involved home rule authority. In City of New York v. Patrolmen's Benevolent Association,[44] the City challenged an act of the Legislature that essentially transferred the authority of the City's Board of Collective Bargaining to the State Public Employment Relations Board.[45] The legislation was passed without a home rule message from New York City; the City alleged a violation of article IX, section 2 of the New York Constitution. The court found that the legislation in question was indisputably a special law relating to the property, affairs or government of New York City, triggering a home rule analysis. The court further determined that the State's interest was not so substantial as to invoke that exception to home rule authority. In doing so, the court specifically rejected the defendant's argument, that the State interest exception and the general presumption of constitutionality that attaches to legislative acts requires the court to consider "any conceivable legitimate objective" the legislature may have had in passing the bill. The court found that such an analysis (based on the equal protection rational basis standard) "is not an appropriate analogy to the sensitive balancing of State and local interests required in resolving home rule issues under our State Constitution."[46] The court then further defined the analysis presented by Chief Justice Cardozo in Adler v. Deegan, requiring that the State's interest not only be substantial, but also that such State interest be found in the "stated purpose and legislative history of the act."[47] The court refused to speculate as to possible justifications for finding a substantial State interest. Instead, after determining that the legislative history of the act indicated that the Legislature's concern was for "statewide uniformity with respect to impasse procedures available to police department members under Civil Service Law § 209," the court found that the statute in question "bears no reasonable relationship to those goals" because "rather than creating an impasse arbitration procedure uniformly available to all police statewide, chapter 13 singles out the New York City police for different treatment."[48] Accordingly, to avail itself of the substantial state interest exception to the home rule requirements of article IX, section 2, the Legislature must evince its interest and that interest must bear a reasonable relationship to the challenged act.
Bringing the home rule issue into focus with regard to land use regulation, the Appellate Division, First Department, held in Sherman v. Frazier[49] that the Municipal Home Rule Law and the Statute of Local Governments served as a second source of zoning authority for local governments, in addition to the zoning enabling authority found in the Town Law and Village Law.[50]
[T]he MHRL authorizes a town to adopt local laws to exercise the powers granted to it in the statute of local governments. The Statute of Local Governments, in turn, gives towns the power to "adopt, amend and repeal zoning regulations". . . . It follows, then, that a town board is enable to adopt zoning regulations by virtue of its MHRL powers as well as those granted by the Town Law.[51]
The courts have held that the zoning authority provided by the Municipal Home Rule Law is not entirely independent of the zoning authority provided under the Town Law and Village Law. Courts have looked to the Town Law and Village Law to divine the extent of the police power delegated to local governments via their zoning authority. When the Village of Lansing adopted a local law which required the satisfaction of extraneous debts as a condition precedent to the issuance of building permits, the court found the local law inconsistent with the spirit of the Village Law, because it directed the zoning power at property owners and developers rather than land uses.[52] The court determined that the local law was adopted in response to a contractual dispute between the Village and the plaintiff.[53] "The zoning power . . . must operate in relation to the use of land and not for the accomplishment of purposes extraneous to that relation."[54] Local legislation passed pursuant to home rule authority must be consistent with the N.Y. Constitution or the general laws of the state which, of course, include the Village Law. . . .
We conclude that [the local law], to the extent that it requires the denial of permits based on an extraneous quarrel with an applicant, is inconsistent with a general state law because it invokes powers not delegated by . . . the Village Law.
The mere omission of a power to deny a permit in the state enabling statute would not always support the conclusion that an inconsistency exists between the silence of the state law and the assertion of such a power in a local law. Here, however, the omission in the Village Law is meaningful. . . .
[T]he Village Law contains no express or implied grant of power to impose zoning conditions which are based upon extraneous disputes with owners of property, and that the imposition of such conditions by [local law] is inconsistent with the scheme of general state law.[55]
So it is apparent that although home rule is a substantive source of zoning authority, it will not authorize zoning powers that are deemed "inconsistent" with those granted under the general state statutes. A finding of inconsistency may be based on a conflict between the purpose of the local law and the permissible purposes for exercising the zoning authority.
Another example of an attempt to effectuate an improper purpose under the home rule authority can be found in New York Telephone Co. v. City of Amsterdam.[56] That case centered on an ordinance that imposed a thirteen dollar per square foot "fee" on applications for excavations occurring within paved portions of the city's right-of-way, sidewalk, or greenbelt portion of the right-of-way. The plaintiffs, two utility companies, sought and won a declaratory judgment that the ordinance was invalid because it imposed an unauthorized tax. On appeal, the Third Department analyzed the validity of the ordinance pursuant to Municipal Home Rule Law section 10(1)(ii)(a)(6) which permits a county, city, town or village to "adopt local laws relating to '[t]he acquisition, care, management and use of its highways, roads, streets, avenues and property.'"[57] First it is significant to note that an analysis under the cited section of the Municipal Home Rule Law may have been inappropriate because the regulation in question was an ordinance, not a local law.[58] Nevertheless, under a home rule analysis, the court found that the amount charged was exacted for general revenue purposes, that its purpose was for the defraying the costs of government services generally rather than a "'visitation of the costs of special services upon the one who derives a benefit from them,'" and that thirteen dollars per foot was clearly "disproportionate to the costs associated with issuing the excavation permit and subsequent inspections and enforcement."[59] Accordingly the charge was deemed a tax, not a fee, and therefore not permissible under Municipal Home Rule Law section 10(1)(ii)(a)(6). Presumably, the court would have reached the same conclusion if the charge had been enacted by local law rather than by ordinance.
In P.O.K. RSA, Inc. v. Village of New Paltz,[60] the Appellate Division, Third Department addressed another "proper purpose" challenge to a local law. The Village passed Local Law No. 21 of 1988, requiring that owners of multiple dwelling buildings desiring to convert to condominiums or cooperatives apply for a new certificate of ownership that represented a determination by the building inspector that the buildings complied with the current building code and regulations. The court found that the local law was neither inconsistent with nor preempted by the Multiple Residence Law, the Multiple Dwelling Law, the General Business Law or the Executive law. However, the court determined that regulation of the form of ownership was an improper purpose under the zoning authority.
Municipalities have no inherent capacity to mandate the manner in which property may be owned or held (citations omitted). They must acquire such power from the State. Absent such a delegation of power, a municipality cannot employ a zoning ordinance to exclude or discriminate against the condominium form of ownership (citation omitted). As Local Law No. 21 encumbers sponsor's efforts to convert apartments, which the Village zoning ordinance classifies as multifamily dwellings, into condominiums, also considered multifamily dwellings, it goes beyond the Village's enabling authorization and therefore the local law is ultra vires and void (citations omitted).[61]
The dissent by Justice Kane argued that "the clear legislative target of the ordinance at issue here is the condition of the property at the time of the conversion, not its form of ownership" and that it was "aimed at protecting the safety of future inhabitants . . . further[ing] legitimate code enforcement goals of the village."[62]
In Albany Area Builders Assoc. v. Town of Clifton Park,[63] the Third Department upheld a "Phased Growth Law" as a proper exercise of home rule authority.[64] The Town, after experiencing severe traffic congestion due in large part to new home construction, passed Local Law No. 12 of 1989. That law limited the number of building permits to be issued per year, in a designated area, to twenty per cent of the total number of units approved for any given project. The law's stated purpose was to alleviate traffic congestion and it had a sunset provision for expiring upon the completion of the proposed Exit 8A on the Northway, but in any event, not later than five years. The court found that "the alleviation of traffic congestion is related to public health, safety and welfare" and therefore the law was "rationally related to a legitimate government interest."[65]
B. Is there an express or implied conflict between a state statute and the local law?
This question is based on the requirement that local laws be "not inconsistent" with the Constitution or general state laws. The conflict may express or implied. Express conflicts are those where the language of the local law conflicts with the language of the state law on its face. Such conflicts are rarely adjudicated unless the local government is alleging an exercise of the supersession authority.[66] Otherwise it is simply an open and shut case in favor of the party attacking the local law. The party attacking the local law need only demonstrate that the wording of the general statute and the local law are in conflict. Since local governments do not have the power to adopt local laws that are not consistent with general statutes, the attempt to do so would be ultra vires and the local law would be void.
Implied conflicts are necessarily more difficult to perceive, and accordingly they generate substantial case law. The general trend in defining an implied conflict is to ascertain whether the State Legislature evinced an intention to "preempt" the area of law upon which the local law touches. The Legislature may explicitly express its desire to preempt local law, or that intention may be inferred from the comprehensive nature of the state regulatory scheme, or the nature of the subject matter itself including the need for state-wide uniformity in that area of law.
In 1989, the Court of Appeals decided Albany Area Builders Assoc. v. Town of Guilderland.[67] That case dealt with state preemption of a local law which authorized the collection of a traffic impact fee on new development within the town. The opinion includes a useful recitation of the basic principles of home rule authority (internal citations are omitted).
The preemption doctrine represents a fundamental limitation on home rule powers. While localities have been vested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies "the untrammeled primacy of the Legislature to act * * * with respect to matters of State concern." Preemption applies both in cases of express conflict between local and State law and in cases where the State has evidenced its intent to occupy the field.
Where the State has preempted the field, a local law regulating the same subject matter is deemed inconsistent with the State's transcendent interest, whether or not the terms of the local law actually conflict with a State-wide statute. Such local laws, "were they permitted to operate in a field preempted by State law, would tend to inhibit the operation of the State's overriding policy concerns." Moreover, the Legislature need not express its intent to preempt. That intent may be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area. A comprehensive, detailed statutory scheme, for example, may evidence an intent to preempt.[68]
The court then proceeded to examine the Town Law and the Highway Law for evidence of preemption. Citing numerous provisions related to town budgeting, taxation for highway purposes, and regulation of highway fund expenditures, the court determined that the "State perceived no real distinction between the particular needs of any one locality and other parts of the State with respect to the funding of roadway improvements, and thus created a uniform scheme to regulate this subject matter."[69] Furthermore, the court found that the local law intruded on the State regulatory scheme by circumventing "statutory requirements for budgeting, accounting for revenues and documenting expenditures."[70] The court then concluded "that the State has evidenced a purpose and design to preempt the subject of roadway funding and occupy the entire field, so as to prohibit additional local regulation."[71]
In People v. New York Trap Rock Corp.,[72] the Court of Appeals pointed out that the fact that an ordinance has some connection with a subject upon which a State statute exists does not automatically vitiate it on that account. . . . It is . . . well settled that, if a town or other local government is otherwise authorized to legislate, it is not forbidden to do so unless the State, expressly or impliedly, has evinced an unmistakable desire to avoid the possibility that the local legislation will not be on all fours with that of the State.[73]
At issue in that case was the Unnecessary Noise Control Ordinance of the Town of Poughkeepsie which imposed criminal penalties upon the defendant for noise levels produced by its operations during certain nighttime hours. The defendant argued that the ordinance was inconsistent with and therefore preempted by (former) Penal Law section 240.45, which set out the elements of criminal nuisance, and also that the ordinance exceeded the authority prescribed in Town Law section 130(11). The court rejected both arguments, finding that the regulation of noise was consistent with the authority delegated to towns under the Municipal Home Rule Law and the Town Law.[74] Nonetheless, the court ruled that the ordinance, as drafted, was void for vagueness.
In 1983, the Court of Appeals invalidated a local law in the Town of Red Hook which required anyone desiring to conduct a site study for the development of a power plant within the town to obtain a license from the Town Board.[75] The court held that the local law was both preempted by and inconsistent with general state law. The court referred to the purpose section of article VIII of the Public Service Law, specific provisions within that law, issues that prompted its reenactment, and the nature of the regulatory scheme set out by that law to ascertain the Legislature's intention to preempt local legislation imposing additional requirements related to the siting of power plants. The court referred to the power of Town Board under the local law to usurp the power of the Siting Board, established by the Public Service Law, as evidence that the local law was inconsistent with a general state law.
Once the Legislature has set down the factors to be considered in determining the siting of proposed major steam electric generating facilities and the forum in which such determinations are to be made, defendants cannot by local law abort that plan.[76]
In Ardizzone v. Elliott, [77] the Court of Appeals interpreted the authority of local governments with relation to the Freshwater Wetlands Act. The Act permits local governments to assume responsibility for regulating state-mapped wetlands after completing a certification process. The court concluded that absent such a certification, the authority to regulate development in state-mapped wetlands resided exclusively with the DEC. The controversy arose when the DEC granted petitioner a State wetlands permit, but the Town of Yorktown refused to grant a local wetlands permit pursuant to Yorktown's Wetlands and Drainage Law.[78] The court looked to the findings of the Legislature which clearly stated "[t]he natural systems affecting freshwater wetlands overlap many localities * * * effective freshwater wetlands management requires uniformity in law to eliminate inconsistent or conflicting local laws . . . ."[79] The court found that such language established the Legislature's desire to preempt local regulation of state-mapped wetlands except in the manner set forth in the Act.
The Freshwater Wetlands Act is not preemptive in the sense that it was intended to prevent local governments from exercising any authority of State-mapped freshwater wetlands. Instead, the Act, with its emphasis on uniformity of wetlands regulation, establishes a scheme that contemplates that either the State or the local government, but not both, will exercise jurisdiction over the State-mapped freshwater wetlands located within the boundaries of a given locality. . . . Where the State exercises regulatory authority over the freshwater wetlands in a particular area, it has in essence preempted parallel local authority until the local government has undergone the certification process and assumed jurisdiction.[80]
This decision engendered much controversy because the court practically emasculated section 24-0509 of the Environmental Conservation Law.
Section 24-0509, the provision of the Act which explicitly preserves local jurisdiction under the police powers of local governments, was shrugged off by the Court as meaning simply that local governments have authority over non-State-mapped wetlands. That section, however, contains no such limitation.
The legislature responded rapidly to this decision. It swiftly amended § 24-0509 to clarify that localities may control wetlands "whether such wetlands are under the jurisdiction of the department [DEC] or a county" as long as the local law is "at least as protective of freshwater wetlands as the regulations in effect pursuant to the provisions of this chapter. . . ." Local laws such as Yorktown's are valid once again.[81]. Although the Legislature may have invalidated the holding in Ardizzone, the case still serves as an example of preemption analysis.
In another finding of preemption, the Appellate Division, Second Department invalidated a local law that attempted to regulate family day care homes.[82] The Town of Clarkstown's zoning code contained specific "performance standards" that applied only to family day care homes, defined as "day care of not more than six (6) children in a single-family detached residence." The court determined that the Social Services Law, while not containing an express prohibition against local regulation of family day care, evinced the Legislature's intent to preempt local regulation of family day care homes. "[E]nforcement of the Town's family day care regulations 'would tend to inhibit the operation of the State's general law and thereby thwart the State's overriding policy concerns. . . ."[83] Regulations enacted pursuant to the Social Services Law require an applicant for a certificate to provide in-home day care to demonstrate compliance with local health and safety regulations. But that requirement "does not authorize a locality to treat State-regulated family day care homes as a separate class of residences upon which it may impose distinct and onerous conditions."[84]
In 1991, the Court of Appeals applied a clarified test for preemption in Village of Nyack v. Daytop Village, Inc.[85] There, the court rejected the argument that State oversight of the location and operation of substance abuse facilities pursuant to the Mental Hygiene Law preempted the operation of local zoning laws. Daytop Village received a certificate of approval from the New York State Division of Substance Abuse Services to operate a residential substance abuse treatment center at a particular location within the Village of Nyack. That location however, was in a zoning district which explicitly prohibited residential uses. The court agreed that the Mental Hygiene Law and the regulations enacted pursuant thereto revealed a comprehensive regulatory scheme. However,
[n]one of this. . . leads inexorably to the conclusion that the State's commitment to fighting substance abuse preempts all local laws that may have an impact, however tangential, upon the siting of substance abuse facilities. . . . Both the State and the Village have important interests at stake in this controversy--the State in promoting its substance abuse policy, the Village in controlling its present shape and future growth. But these interests are not necessarily contradictory. . . . State and local regulation of the placement of substance abuse facilities will not by their very nature produce conflict and inconsistency. Two separate levels of regulatory oversight can coexist.[86]
Nyack's zoning regulations did not prohibit the placement of substance abuse facilities within the Village; in fact two drug treatment programs already existed in the Village. But in controlling the location of such uses, the court found that the Village did have "a legitimate, legally grounded interest in regulating development within its borders."[87] Accordingly, Daytop Village was not able to proceed with the facility for which it had already received State approval.
In reaching its decision, the court described the appropriate test for preemption.
As we noted in People v. Cook, . . . the test is not whether the local law prohibits conduct which is permitted by State law, because that test is much too broad . . . . Rather . . . we look to whether the State has acted upon a subject, and whether "in so acting has evidenced a desire that its regulations should preempt the possibility of varying local regulations."[88]
It may be reasonable to presume that this formulation of the preemption test was intended to rectify misapplication of the preemption doctrine under the test previously used by many courts, namely, that a local law cannot prohibit that which state law allows, nor impose additional restrictions on rights granted by State law.[89] This assumption is reasonable, notwithstanding the fact that the Court of Appeals in Jancyn Manufacturing Corp. v. County of Suffolk,[90] incorporated the rejected formulation of the preemption test in its decision.[91] The court in Daytop cited to Jancyn in a different part of its opinion, so the court must have been aware that it was specifically rejecting the test applied in Jancyn. Furthermore, the actual basis for the decision in Jancyn centered on whether the State statutory scheme was "so broad in scope or so detailed as to require a determination that [the State law in question] has superseded all existing and future local regulation."[92]
In Walker v. Town of Hempstead,[93] the Court of Appeals disregarded clear, unambiguous language in the Municipal Home Rule Law to curtail supersession authority. The Town of Hempstead had enacted Local Law No. 90 of 1988, regarding notice of defects requirements in connection with suits against the Town. The local law was inconsistent with section 50-e(4) of the General Municipal Law[94] which was made applicable to the towns via Town Law section 67. The Court of Appeals chose to impose a new restriction on the supersession authority by implying an express prohibition against supersession contained in the language of a general law other than the law being superseded.
Municipal Home Rule Law section 10(1)(ii)(d)(3) "confers express authority on towns to amend or supersede provisions of the Town Law in relation to matters as to which they are otherwise authorized to adopt local legislation under the Municipal Home Rule Law, 'unless the legislature expressly shall have prohibited the adoption of such a local law'. . ."[95] There can be no doubt that the court had an accurate copy of the home rule statute before them. It is also beyond debate that section 10(1)(ii)(d)(3) gives clear examples of how the Legislature expressly prohibits a town's exercise of the supersession authority:
Unless authorized by other state statute this subparagraph shall not be deemed to authorize supersession of a state statute relating to (1) a special or improvement district or an improvement area, (2) creation or alteration of areas of taxation, (3) authorization or abolition of mandatory and permissive referendum or (4) town finances as provided in article eight of the town law; provided, however that nothing set forth herein shall preclude the transfer or assignment of functions, powers and duties from one town officer or employee to another town officer or employee, and provided, however, further that the powers of local legislation and appropriation shall be exercised by the local legislative body.[96]
Further examples of the Legislature's express prohibition against supersession of a general statute abound, for example:
The provisions of this article shall supersede any inconsistent provisions of any general, special or local law[97]
The provisions of this chapter shall supersede any local law, ordinance, resolution or regulation of municipalities to which this chapter is applicable, . . .[98]
And last, but not least there is section 11(1) of the Municipal Home Rule Law: "Notwithstanding any provision of this chapter, the legislative body shall not be deemed authorized by this chapter to adopt a local law which supersedes a state statute, if such local law. . ."
It is clear that when the Legislature wishes to expressly prohibit the supersession of state law by local law, it is able to do so in clear, unambiguous language. It is therefore inappropriate to imply such a prohibition where there is merely an inconsistency between the state statute and a local law. Nonetheless, the Court of Appeals in Walker chose to equate an inconsistency between a state statute and a local law with an express prohibition against supersession. In doing so, the court has perpetuated the trend of interpreting home rule authority in a narrow, restrictive manner, in contravention to the Constitutional mandate that such authority receive a broad construction.
C. Does the state statute violate the constitutional limitations regarding special laws that relate to the property, affairs or government of a local government?
Article IX, sections 2(b)(1) and (2) of the New York Constitution limits the power of the Legislature because they restrict the manner in which the State's legislative power may be employed when the subject matter of an act impinges on home rule authority. The relevant text of article IX, section 2 states:
(b) Subject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature:
(1)Shall enact, and may from time to time amend, a statute of local governments granting to local governments powers including but not limited to those of local legislation and administration in addition to the powers vested in them by this article. A power granted in such statute may be repealed, diminished, impaired or suspended only by enactment of a statute by the legislature with the approval of the governor at its regular session in one calendar year and the re-enactment and approval of such statute in the following calendar year.
(2)Shall have the power to act in relation to the property, affairs or government of any local government only be general law, or by special law only (a) on request of two-thirds of the total membership of its legislative body or on request of its chief executive officer concurred in by a majority of such membership, or (b), except in the case of the city of New York, on certificate of necessity from the governor reciting facts which in his judgment constitute an emergency requiring enactment of such law and, in such latter case, with concurrence of two-thirds of the members elected to each house of the legislature.(emphasis added)
In Floyd v. New York State Urban Development Corp.,[99] the Court of Appeals highlighted the narrowness of the limitation placed on the State Legislature by article IX. Article IX is expressly made subject to other provisions of the State Constitution, and section 3 of article IX provides that "(e)xcept as expressly provided, nothing in this article shall restrict or impair any power of the legislature in relation to * * * Matters other than the property, affairs or government of a local government." A general law . . . cannot be construed as a law designed to be disruptive of the property or affairs "of a local government."[100]
Floyd involved the authority of the Urban Development Corporation [UDC] to plan and execute projects in disregard of local zoning laws. The plaintiff, an owner of conforming property near a proposed UDC housing project complained that the New York State Urban Development Corporation Act did not grant UDC authority to limit a home rule power of local government (zoning) because the Act was not passed in accordance with article IX section 2(b).[101] The Court of Appeals disagreed, finding that "[h]ousing is a matter of State-wide concern . . . and since the statute under attack, being general in nature, affects housing, it follows that local laws otherwise in conflict may not inhibit the operation of general laws."[102]
In 1971, the Legislature established the Adirondack Park Agency[103] and through subsequent amendments, invested the agency with significant authority to regulate the development of public and private lands within the park. The usurpation of local zoning authority was contested in Wambat Realty Corp. v. State of New York.[104] The Court of Appeals upheld Judge Gibson's determination that the Act related to "other than the property, affairs or government of a local government" and therefore was within the power specifically reserved to the State Legislature by article IX, section 3, subdivision a, paragraph 3 of the New York State Constitution.[105] The court reasoned that although the Act clearly "prevents localities within the Adirondack Park from freely exercising their zoning and planning powers," its purpose was not to subvert home rule, but to promote a "supervening State concern, transcending local interests."[106] The court reasoned that:
In the face of increasing threats to and concern with the environment, it is no longer, if it ever was, true that the preservation and development of the vast Adirondack spaces, with their unique abundance of natural resources--land, timber, wildlife, and water--should not be of the greatest moment to all the people of the State.[107]
The court then effectively equated the phrases "substantial state concern" and "relating to other than the property, affairs or government of local government" to bring such issues out of a home rule analysis.[108] So, even though development within the Town of Black Brook (located within the Adirondack Park) is naturally understood to be a matter of local concern, the designation of the Park as a substantial state concern results in the legal paradox that the regulation of development within the Town of Black Brook is not related to the property, affairs or government of the Town of Black Brook. Perhaps the court could have been more faithful to the test announced by Chief Justice Cardozo if it had simply said that once a matter is deemed to be of substantial interest to the state, it simply does not matter whether it is also "related to the property, affairs or government of a local government."[109]
In Town of Islip v. Cuomo,[110] the Court of Appeals applied the substantial state interest test in the case of a special law. The court held that:
The limitation upon the power of the Legislature to act by special law in relation to the property, affairs or government of a local government contained in article IX (§ 2, par. [b], cl. [2]) of the New York Constitution must be read together with section 3 (par. [a], cl.[3]) of the same article, which declares that, "Except as expressly provided, nothing in this article shall restrict or impair any power of the legislature in relation to: * * * [m]atters other than the property, affairs or government of a local government." So read the limitation applies only to a special law which is directly concerned with the property, affairs or government of a local government and unrelated to a matter of proper concern to State government.[111]
In this manner, the court sustained the legislature's failure to comply with the home rule message and emergency requirements of article IX, section 2, paragraph b, clause 2 of the State Constitution. The legislative act in question was an amendment to the Environmental Conservation Law (now ECL sec. 27-0704), phasing out the use of landfills in Nassau and Suffolk Counties due to concern over contamination of the underlying sole source aquifer. The court cited a line of cases from which the following rule evolved:
[T]hat if 'the subject matter of the statute is of sufficient importance to the State generally to render it a proper subject of State legislation * * * the State may freely legislate, notwithstanding the fact that the concern of the State may also touch upon local matters'. . . (citations omitted) . . .Indeed, legislation on matters of State concern, 'even though of localized application and having a direct effect on the most basic of local interests does not violate the constitutional home rule provisions.'[112]
The court identified the substantial state concern as regard for "the protection of the drinking water for a substantial portion of the State's population and in an area which encompasses a substantial portion of the State's commerce and industry." As in Wambat, the identification of a substantial state concern overcomes a home rule challenge to the state legislation.
In Salvadore v. State of New York,[113] the petitioner challenged the authority of the Lake George Park Commission to regulate vessels, moorings and fee schedules as being violative of home rule principles. The Supreme Court dismissed petitioner's home rule claims for failure to state a cause of action, and the Appellate Division affirmed, finding that Lake George is a State resource and protection of its water quality and environment were matters of state concern. Therefore, there could be no violation of local home rule authority.
Similarly, in Town of Riverhead v. New York State Dep't of Environmental Conservation,[114] the Second Department held that the purpose of a moratorium on building enacted under the Wild, Scenic and Recreational Rivers System Act[115] was to "protect selected rivers 'for the benefit and enjoyment of present and future generations', a matter of State concern. Therefore, its enactment did not violate the Town's home rule rights."[116]
D. If the local law conflicts with a general state statute, has the local government validly exercised its supersession authority?
If the Town Law or the Village Law already contain provisions regulating the same subject matter as a proposed local law, the Municipal Home Rule Law provides a mechanism whereby Towns and Villages may be able to supersede the Town Law or Village Law. However, compliance with the procedural guidelines for supersession found in the Municipal Home Rule Law has been mandated by the courts.
In Kamhi v. Town of Yorktown,[117] the court reviewed the validity of Yorktown Local Law No. 6 of 1982 which conditioned site plan approval for multifamily residential development on the provision of a parkland dedication or money in lieu thereof.[118] Justice Kaye (now Chief Justice), authored the opinion of the court which included a review of the history of home rule in New York and an examination of the current status of that authority with a particular focus on the supersession authority, however, this case did not address any home rule based limitation on State lawmaking powers or the State's power to preempt local law. Justice Kaye acknowledged that "the path of home rule over the century has been unsettled and tortuous, which reflects the 'difficult problem of furthering strong local governments but leaving the State just as strong to meet the problems that transcend local boundaries, interests and motivations.'"[119]
The court's opinion reveals that the first step in a home rule analysis is to determine whether the local law is consistent with the State Constitution and the general laws of the State.[120] Affirming the determination of Appellate Division, the court found that Local Law No. 6 was inconsistent with the Town Law since the Town Law specifically provided for parkland dedications in the authorization for subdivision review,[121] but made no mention of them in the authorization for site plan review.[122] Relying on Riegert Apartments Corp. v. Planning Board of Town of Clarkstown,[123] the court concluded that it could not infer the authority exercised in Local Law No. 6 since the Legislature evinced its intent by including a parkland provision in section 277 of the Town Law but omitted any such provision in section 274.
The next step in the analysis revealed by the court is to evaluate whether the local law is a proper exercise of the supersession authority. "Although local laws that are inconsistent with State laws are generally invalid, a limited exception exists for local laws that fall within Municipal Home Rule Law § 10(1)(ii)(d)(3)--the supersession authority."[124] The court stated that "Indeed, inconsistency is a premise of the supersession authority, for there is otherwise little need of the power to amend or supersede State law."[125] However the court reaffirmed the superiority of state interests and the basis for state preemption of the supersession authority:
Local lawmaking power under the supersession authority is of course in all instances subject to the State's transcendent interest where the Legislature has manifested such interest by expressly prohibiting a local law (Municipal Home Rule Law § 10[1][ii][d][3]), or where a local law is otherwise preempted by State law (Albany Area Bldrs. Assn. V. Town of Guilderland, 74 N.Y.2d 372 [decided today]).[126]
The paradox of the Kamhi decision is that although supersession is justified as being applicable only in a "narrow, well-demarcated area of purely local concern where towns can. . . amend and even override provisions of the Town Law in their local applicability,"[127] the facts of the Kamhi case indicate that the foregoing quote is only partially accurate. It is true that Local Law No. 6 is limited in effect to the jurisdiction of the Town of Yorktown, but the basis of the local law was not an effort to tailor "laws of State-wide application" to "peculiarly local needs," in fact, the court itself recognized that Local Law No. 6 was intended to correct the "anomaly" in the Town Law that permitted developers of condominiums to escape the legislative design of imposing the cost of major community concerns such as parks on the developer rather than the individual lot owner.[128] The anomaly was part and parcel of the general statute, and not a problem that would be unique to Yorktown. Other communities throughout the State would also require only site plan approval for condominiums, suggesting that this concern was not merely "local." Nonetheless, the court held that "permitting the Town to supersede Town Law § 274-a in its local application --so that the purpose of the statute will be promoted rather than defeated within this community--fits comfortably within section 10."[129]
Having interpreted the applicability of the supersession authority in a manner that seems practical, if not semantically logical, the court went on to ignore constitutional and statutory prescriptions for deferring to the exercise of home rule authority by ruling that Local Law No. 6 was invalid due to the Town Board's failure to comply with the procedural requirements of section 22 of the Municipal Home Rule Law. "Local Law No. 6 does not expressly amend or supersede Town Law § 274-a, nor does it contain any declaration of intent to do so. 'Nowhere does it define by reference to chapter and section number, or by reference to title, or by replication of actual text, the particular provision(s) of the Town Law to which it purports to apply'"[130] The court's failure here was not the establishment a poor precedent, but its missed opportunity to correct one.
The Kamhi court cites to Turnpike Woods v. Town of Stony Point[131] for the proposition that:
[a] town's authority to amend or supersede can be exercised only upon substantial adherence to the procedures set forth in Municipal Home Rule Law § 22(1) . . . . That provision requires a municipality invoking its supersession authority to state its intention with definiteness and explicitness--hardly an insignificant matter, in that there is otherwise no way of knowing what the locality intends, or what the law governs.[132]
This is the prevailing statement of the law today.[133] However, an argument can be made that the line of precedent from which this statement springs, is itself flawed, which therefore undermines the legitimacy of both the statement and the outcome rendered by the Kamhi court.
First, let us look at the language of the statute itself:
1. In adopting a local law changing or superseding any provision of a state statute or of a prior local law or ordinance, the legislative body shall specify the chapter or local law or ordinance, number and year of enactment, section, subsection or subdivision, which it is intended to change or supersede, but the failure so to specify shall not affect the validity of such local law. Such a superseding local law may contain the text of such statute, local law or ordinance, section, subsection or subdivision and may indicate the changes to be effected in its text or application to such local government by enclosing in brackets, or running a line through, the matter to be eliminated therefrom and italicizing or underscoring new matter to be included therein.[134]
In construing statutory provisions, it is the practice of the courts to give effect to all of the language contained in the statute. In Kamhi, the court interpreted the language in italics above as follows: "While section 22 provides that failure to comply punctiliously with every specification requirement will not invalidate a local law, here the local law in question reveals nothing of the Town's intention to amend or supersede and consequently must be declared invalid."[135] Clearly the provision that "the failure so to specify shall not affect the validity of such local law" is more generous to local governments drafting a local law than the interpretation given in Kamhi, that the statute merely pardons a lack of punctiliousness and thoroughness when citing to the law to be superseded. Furthermore, section 51 of the Municipal Home Rule Law commands the judiciary to employ a liberal construction when interpreting provisions of that chapter. Section 51 is derived from article IX, section 3(c) of the New York State Constitution which states that "[r]ights, powers, privileges and immunities granted to local governments by this article shall be liberally construed."[136]
Before proceeding further, it is useful to point out that the command that the legislative body shall specify the general or local law it intends to supersede can be reconciled with the provision that failure to specify does not invalidate a local law by implying an intent on the part of the legislature to impose a duty on local governments to amend the local law to include the recommended recitation if and when that question becomes an issue, without otherwise impinging on the validity of the local law. The reason for allowing such leeway is simple: local government officials are often in doubt as to whether a local law would supersede any general law. This is because general laws themselves usually require some interpretation as to their scope. The analyses for consistency and preemption are evidence of the ambiguity in the language of many general statutes, and evidence of legislative intent is often scant and unsatisfactory. It is inappropriate therefore, to mandate that the drafters of local laws specify what general laws, if any, are being superseded before there is any clear legislative or judicial pronouncement as to the scope of any such laws that may be relevant.
The Kamhi court is not the originator of this ill-conceived interpretation of section 22. Indeed a line of precedent extending back in time over sixty years lays a flawed foundation for the requirement of specifying the precise general law or part thereof on which a local government effects a supersession. In the Turnpike Woods case,[137] decided in 1987, the Court of Appeals stated that
While section 22(1) does not, by its terms, mandate technical adherence to any one of the specifically described procedures for amending or superseding a State law, we have required substantial adherence to the statutory methods to evidence a legislative intent to amend or supersede those provisions of a State law sought to be amended or superseded (citations omitted). The purpose of section 22 is to compel definiteness and explicitness, to avoid the confusion that would result if one could not discern whether the local legislature intended to supersede an entire State statute, or only part of one--and, if only a part, which part (citation omitted).[138]
The court in Turnpike Woods, in its examination of the purpose of section 22, relied on Bareham v. City of Rochester, which interpreted section 12(1) of the City Home Rule Law, precursor to section 22 of the Municipal Home Rule Law. In Bareham, the Court of Appeals held that the purpose of section 12(1) "is to compel definiteness and explicitness in order that clarity shall result." However, an examination of section 12(1) of the City Home Rule Law reveals a significant distinction between that law and section 22(1) of the Municipal Home Rule Law. Nowhere to be found in the earlier version, is the provision that " the failure so to specify shall not affect the validity of such local law . . . ." That provision was included in the Municipal Home Rule Law which replaced the City Home Rule Law and evinces the Legislature's intent to preserve the validity of a local law that did not cite the general law being superseded.
Moreover, the Bareham court relied on Matter of McCabe v. Voorhis,[139] for the proposition that section 12(1) requires that:
[i]f it is intended to supersede by a local law a provision of an act of the Legislature . . . such local law shall specify any provision of such act of the Legislature by chapter number, year of enactment, title of statue, section, subsection or subdivision which it is intended to supersede by local law.[140]
But a close reading of McCabe reveals that the court's attention was not focused on adherence to procedural requirements in determining the validity of the local law at issue there. Rather, it was drawing on an argument put forth by Justice Cardozo in Browne v. City of New York,[141] that home rule authority does not validate transfers of power that the State Legislature has prohibited. The McCabe court states that "the legislation in question, while not in the form prescribed by the City Home Rule Law, is intended to supersede and if operative does supersede the Public Service Commissions Law . . . ."[142] But the court then goes on to explain that such an exercise of the supersession authority fails because "[t]he local law takes from the board of estimate and apportionment the power given to it by the law of 1925 . . . . In other words, it transfers . . . power . . . from the board where the state has placed it to the electors of the city."[143] Accordingly the court's conclusion that the local law in question is invalid should be attributed to the unauthorized transfer of power attempted by the law, rather than to any omission of specific state statutes superseded by the local law.
It is also useful to examine the justification given in the precedents which require local legislators to identify the general statutes they intend to supersede. In Kahmi, the court stated that this requirement was "hardly an insignificant matter, in that there is otherwise no way of knowing what the locality intends, or what law governs."[144] This logic is debatable. In practice, local laws are drafted to address a single topic. If a local law is inconsistent with a state statute, the local law should be entitled to the full presumption of constitutionality afforded legislative acts that are based on constitutional grants of authority. This simply requires that the local law be presumed to supersede the Town or Village Law provisions with which it is inconsistent. The Bareham court warned that "[c]onfusion would be intolerable if, in the case of every local law adopted throughout . . . the state, no one could feel confident that local Legislatures had intended to supersede an entire statute or only part of it."[145] What confusion? The intent of the local legislative body is not difficult to discern; it is either identified in the preamble to the local law, or can be inferred from the nature of the local law and the topic it addresses.[146] Such a process is consistent with an acknowledgment of the substantive grant of power to local governments in article IX and in the general statutes that spring from that article. For instance, if a local government establishes an incentive zoning program by local law pursuant to its home rule authority, there is no doubt that the intent of the local government was to establish incentive zoning and to create a local law that would have full force and effect in that jurisdiction. Furthermore, requiring local governments to specify their intention to supersede state law flies in the face of the line of judicial reasoning that does not require the State Legislature to specify its intention to preempt local law.[147] Whether a local law in fact supersedes state law is an issue properly addressed by the courts, after an aggrieved party has alleged improper use of the supersession authority. It should be assumed that the local law governs and has superseded any contrary provisions of the Town or Village Law unless and until such an exercise of supersession authority is determined to be improper based on substantive grounds rather than procedural grounds. This approach avoids imposing on local government officials a responsibility for understanding the scope and effect of the general state statutes which may or may not be relevant to the proposed local law. The validity of a supersession law should not turn on whether local officials had in mind a particular state statute provision when they passed the local law; rather, the question should be simply whether the local government had the power to supersede the general statute in question. To hold otherwise, as precedent currently does, is to ignore the plain language of the statute, that "the failure to so specify shall not affect the validity of such local law."[148]
And so, a few words taken out of context in 1926 have taken on a life of their own, notwithstanding constitutional and statutory mandates for liberal construction of home rule powers and notwithstanding the intent of the Legislature in providing that "the failure so to specify [the general or local law being superseded] shall not affect the validity of such local law . . . ." The decision in the Kahmi case relied on this questionable line of precedent and now commands local governments to specify which general laws they intend to supersede despite the fact that even courts have difficulty evaluating whether a particular local law in fact supersedes a state statute. The result is that local government officials hesitate to use their supersession authority due to ambiguities that are beyond their power to resolve.
VI. CONCLUSION.
The Municipal Home Rule Law and the Statute of Local Governments are sources of substantive authority for local governments to pass local laws regulating land use and development within their jurisdictions. Although this authority derives from the New York State Constitution, with a mandate that such authority be construed liberally, the courts have often expressed an unduly restrictive view of home rule authority. In contests between State interests and local governments' supersession authority, the State has been Goliath and local governments an ineffective David. Even the Constitutional limitations on the State's ability to repeal or amend the powers provided in the Statute of Local Governments seem to fall away in the face of an artful expression of the State's interest. Furthermore, the requirement that locally elected officials exhibit some omniscience with regard to which provisions of state law they are superseding has a chilling effect on the exercise of home rule authority. The Constitutional amendment providing home rule authority to local governments and the statutory provisions implementing that authority were adopted for good reason: to insure that decision making authority resided with the most appropriate level of government.
When local governments act in a manner clearly beyond that which the people of this state feel appropriate, as evidenced by the language of the Constitution, the Municipal Home Rule Law and the Statute of Local Governments, the judiciary should step in to invalidate local laws. But where the people of this state have placed faith in the reasonableness and efficiency of regulating land use by local law, the judiciary should honor that confidence to its full measure. Just as the states are recognized as "laboratories for experimentation" in our federal system, so should local governments be encouraged to experiment and discover new and creative methods for dealing with the problems associated with the development and use of land in New York State. Certainly, there may be abuses made of local powers, but the courts may properly address such abuse. But a failure to tap into the imagination and creativity of the countless individuals who comprise local government in New York is to risk silencing those ideas which may most successfully respond to the social, economic and environmental challenges inherent in the regulation of land use and development. The exercise of home rule authority should not be a cause for alarm, even when a local law goes against the grain of prevailing conventional wisdom. In the words of Justice Brandeis, "[W]e must let our minds be bold."
FOOTNOTES
[1] N.Y. CONST. art. IX 1.
[2] See Id.
[3] N.Y. CONST. art. IX 2.
[4] N.Y. CONST. art. IX 3.
[5] MUN. HOME RULE LAW 1-59 (McKinney 1994).
[6] N.Y. STAT. OF LOCAL GOV'T 1-21 (McKinney 1994).
[7] See Joseph P. Viteritti, Municipal Home Rule and the Conditions of Justifiable Secession, 23 FORDHAM L.J. 1, 7 (Fall 1995). In addition to Mr. Viteritti's work, the following authors have presented useful discussions of the evolution of the concept of home rule either generally or specifically in New York State: GERALD E. FRUG, LOCAL GOVERNMENT LAW (West 1988); Terry Rice, Zoning and Land Use, 40 SYRACUSE L. REV. 641 (1989); John R. Nolon, The Erosion of Home Rule Through the Emergence of State-Interests in Land Use Control, 10 PACE ENVTL. L. REV. 497 (Spring 1993).
[8] See Viteritti, supra note , at 7-10.
[9] See id.
[10] See FRUG, supra note at 56-63.
[11] "Effective home rule has two basic principles: a limitation on the state legislature from intruding upon matters of local concern; and an affirmative grant of power to the local governments to manage their own affairs." In re Mitchell v. Borakove, 639 N.Y.S.2d 791, 795 (1st Dep't 1996).
[12] In Browne v. City of New York, 241 N.Y. 96 (1925), Justice Cardozo recognized that "[t]he home rule article of the Constitution and the statute passed under its authority have a field of operation, narrower than some friends of the principle of home rule would favor, but still significant and important." Id. at 125. In Immediato v. Rye Neck School District, 873 F.Supp 846 (S.D.N.Y. 1995), Judge Brieant declared that "The goal of local Home Rule is to allow communities to develop rules and regulations for the management--or mismanagement--of their own affairs, through forms of majority rule existing by the very nature of a republican form of government." Id. at 849.
[13] Nolon, supra note , at 505-06: "Although home rule was the result of local desire to move away from complete legislative control by the state, it was never intended to create municipal independence from the state. Rather, the concept was intended merely to allow local governments to operate more effectively." Id. See also, Kamhi v. Town of Yorktown, 74 N.Y.2d 423 (1989) ("In general, towns have only the lawmaking powers the Legislature confers on them . . . .Without legislative grant, an attempt to exercise . . . authority is ultra vires and void.").
[14] For example, although zoning is commonly considered a matter of local interest, New York State has usurped the zoning authority of local governments in the Adirondack Park, having deemed preservation of that area an issue of substantial state interest. See Wambat Realty Corp. v. State of New York, 41 N.Y.2d 490 (1977); see also, Nolon, supra note , at 524-30; discussion infra, notes 103-09 and accompanying text.
[15] N.Y. MUN. HOME RULE LAW § 10.1(i) (McKinney 1994): "Every 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 . . ."
[16] N.Y. MUN. HOME RULE LAW § 10.2.
[17] See ADOPTING LOCAL LAWS IN NEW YORK STATE 1-2 (New York Dep't of State James A. Coon Technical Series (no date)).
[18] Id. at 6-7.
[19] See N.Y. MUN. HOME RULE LAW § 10.1(ii).
[20] N.Y. MUN. HOME RULE LAW § 10.1(ii)(a)(11).
[21] N.Y. MUN. HOME RULE LAW § 10.1(ii)(a)(12).
[22] N.Y. MUN. HOME RULE LAW § 10.1(ii)(a)(14) allows local governments to enact local laws related to "the powers granted to it in the statute of local governments." N.Y. STAT. OF LOC. GOVT § 10.6 gives cities, towns and villages the authority to adopt, amend and repeal zoning regulations, subject to such purposes, standards and procedures as prescribed by the state legislature. See Sherman v. Frazier, 84 A.D.2d 401, 446 N.Y.S.2d 372 (2d Dept. 1982).
[23] N.Y. MUN. HOME RULE LAW § 10.1(ii)(b)(7).
[24] N.Y. MUN. HOME RULE LAW § 10.1(ii)(b)(8).
[25] N.Y. MUN. HOME RULE LAW § 10.1(ii)(b)(9).
[26] N.Y. MUN. HOME RULE LAW § 10.1(ii)(b)(11).
[27] N.Y. MUN. HOME RULE LAW §§ 10.1(ii):
every local government, as provided in this chapter, 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 the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government:
. . .
d. A town:
(3) The amendment or supersession in its application to it, of any provision of the town law relating to the property, affairs or government of the town or to other matters in relation to which and to the extent to which it is authorized to adopt local laws by this section, notwithstanding that such provision is a general law, unless the legislature expressly shall have prohibited the adoption of such a local law. Unless authorized by other state statute this subparagraph shall not be deemed to authorize supersession of a state statute relating to (1) a special or improvement district or an improvement area, (2) creation or alteration of areas of taxation, (3) authorization or abolition of mandatory and permissive referendum or (4) town finances as provided in article eight of the town law; provided, however that nothing set forth herein shall preclude the transfer or assignment of functions, powers and duties from one town officer or employee to another town officer or employee, and provided, however, further that the powers of local legislation and appropriation shall be exercised by the local legislative body.
e. A village:
(3) The amendment or supersession in its application to it, of any provision of the village law relating to the property, affairs or government of the village or to other matters in relation to which and to the extent to which it is authorized to adopt local laws by this section, notwithstanding that such provision is a general law, unless the legislature expressly shall have prohibited the adoption of such a local law.
[28] A state statute which may be amended by local law would be any state statute wherein the Legislature has not evinced its desire to preempt varying local legislation.
[29] A special law is one that applies only to certain municipalities that have been singled out by the legislature as opposed to a general law, which has statewide application. It is important to note that in the case of cities, state statutes may, by their words, apply to fewer than all cities, or, may contain provisions that are inconsistent with existing city charters and thereby apply to fewer than all cities. In either case, such a statute is not a general statute with regard to cities. Accordingly, a city would not need to resort to its supersession authority to adopt a local law inconsistent with such a statute because the consistency requirement applies only to general statutes.
[30] N.Y. CONST. art. IX, § 2(b):
Subject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature:
. . .
(2) Shall have the power to act in relation to the property, affairs or government of any local government only by general law, or by special law only (a) on request of two-thirds of the total membership of its legislative body or on request of its chief executive officer concurred in by a majority of such membership, or (b), except in the case of the city of New York, on certificate of necessity from the governor reciting facts which in his judgment constitute an emergency requiring enactment of such law and, in the latter case, with the concurrence of two-thirds of the members elected to each house of the legislature.
[31] An example involving the home rule message requirement is the recent decision by the state legislature not to review Staten Island's application for secession from New York City without a home rule message from New York City requesting a special law authorizing the secession. See, Viteritti, supra note 7, at 4-5.
[32] Note that the issue of whether a local government, as a political subdivision of the State, has standing to challenge an act of the State legislature was addressed in Town of Black Brook v. State of New York, 393 N.Y.2d 946 (1977). Although a local government is generally without standing to attack the constitutionality of state legislation affecting its power, a limited exception should be allowed where a violation of constitutional home rule guarantees is alleged. See id.
[33] See Part V.3. infra.
[34] Adler v. Deegan, 251 N.Y.467, 473 (1929).
[35] 251 N.Y. 467 (1929).
[36] Id. at 484 (C.J. Cardozo, concurring).
[37] Id. at 480 (J. Pound, concurring).
[38] Id. at 484-90 (C.J. Cardozo, concurring).
[39] Id. at 491 (emphasis added). The substantial interest test announced by Chief Justice Cardozo was applied as recently as 1995 in City of New York v. State of New York, 640 N.Y.S.2d 951, 956 (Sup. Ct. New York Co. 1995).
[40] 1989 NEW YORK LAWS 3291, ch. 773.
[41] 1989 NEW YORK LAWS 3291, ch. 773 as amended, 1990 NEW YORK LAWS 22, ch. 17.
[42] 76 N.Y.2d 479 (1990).
[43] Id. at 485-86.
[44] 1996 WL 731672 (N.Y.)
[45] The challenged act was chapter 13 of the Laws of 1996.
[46] 1996 WL 731672 at *4.
[47] Id. at *5.
[48] Id. at *6.
[49] 84 A.D.2d 372 (1st Dep't 1982).
[50] See also, Pete Drown Inc. v. Town Board of the Town of Ellenburg, 646 N.Y.S.2d 205 (3d Dep't 1996) (holding that zoning law adopted in accordance with procedure outlined in Municipal Home Rule Law §§ 20 and 27 was valid even though procedure did not comply with requirements of the Town Law).
[51] 84 A.D.2d at 377.
[52] Triphammer Development Co. v. Bd. of Trustees, Village of Lansing, 154 Misc.2d 369, 374 (Sup. Ct. Tompkins Co. 1992).
[53] Id.
[54] Id. at 374-75.
[55] Id. at 375-76.
[56] 200 A.D.2d 315 (3d Dep't 1994).
[57] Id. at 317.
[58] See, Gregory v. Town of Cambria, 69 N.Y.2d 655, 656 (1986) (holding that similar section of the Municipal Home Rule Law applies to local laws and not to ordinances). The distinction between local laws, ordinances and resolutions does have legal significance. When exercising home rule authority, local governments must act by local law. Local resolutions, ordinances and regulations are not granted the same quasi-constitutional deference as are local laws adopted pursuant to home rule. See Naftal Associates v. Town of Brookhaven, 221 A.D.2d 423 (2d Dep't 1995) (Town's resolution rezoning certain property was invalid where original zoning code was adopted as a local law). See also, ADOPTING LOCAL LAWS, supra, note at 7.
[59] 200 A.D.2d at 317-18.
[60] 157 A.D.2d 15 (3d Dep't 1990).
[61] Id. at 20.
[62] Id. at 21.
[63] 172 A.D.2d 54 (3d Dep't 1991).
[64] Id. at 57.
[65] Id. at 56.
[66] See discussion infra, Part V.4.
[67] 74 N.Y.2d 372 (1989).
[68] Id. at 377.
[69] Id. at 379.
[70] Id.
[71] Id. For other examples where the state regulatory scheme was deemed to preempt local legislation, see People v. Speakerkits, Inc., 83 N.Y.2d 814 (1994) (holding that VEH, & TRAFF. LAW § 1604 preempted local attempt to restrict the ability of nonresidents to park in residential areas); Ba Mar Inc. v. County of Rockland, 164 A.D.2d 605 (2d Dep't 1991) (holding that state mobile home park law preempted the field of mobile home park regulation); Board of Education of Farmingdale Union Free School District v.Gulotta, 157 A.D.2d 642 (2d Dep't 1990) (holding that broad and detailed legislative scheme for the regulation of school buses preempted local attempt to require county liscences); Envirotech of America, Inc. v. Dadey, 168 Misc.2d 890 (Sup. Ct. Onondaga Co. 1996) (holding that state regulation of regulated medical wastes evidenced a comprehensive scheme, therefore local ordinance requiring a special permit for a regulated medical waste facility was invalid). But see, Kontokosta v. Village of Greenport, 1991 WL 206296 (S.D.N.Y.) (holding that Articles 11 and 14 of the Village Law do not create a detailed and comprehensive regulatory scheme sufficient to preempt village authority to regulate the construction and financing of water and sewer systems).
[72] 57 N.Y.2d 371 (1982).
[73] Id. at 378. See also, Barone v. Town of Huntington, 211 A.D.2d 691 (2d Dep't 1995) (upholding local law that made certain property owners responsible for defective sidewalks because it expanded, rather than restricted the number of persons or entities that could be held liable for defects).
[74] But see, Penny Lane/East Hampton Inc. v. County of Suffolk, 191 A.D.2d 19 (2d Dep't 1993) (holding that State regulation of obscenity in the Penal Law, General Business Law, and Public Health Law preempts Suffolk county law prohibiting the display of obscene material).
[75] Consolidated Edison Co. of New York v. Town of Red Hook, 60 N.Y.2d 99 (1983).
[76] Id. at 108.
[77] 75 N.Y.2d 150 (1989).
[78] Local law No. 5 of 1976.
[79] 75 N.Y.2d at 153.
[80] Id. at 155-56.
[81] Philip Weinberg, 1990 Survey of New York Law: Environmental Law, 42 SYRACUSE L. REV. 535, 551-52 (1991).
[82] People v. Town of Clarkstown, 160 A.D.2d 17 (2d Dep't 1990).
[83] Id. at 21.
[84] Id. at 24.
[85] 78 N.Y.2d 500 (1991).
[86] Id. at 506-07.
[87] Id. at 508.
[88] Id. (quoting People v. Cook, 34 N.Y.2d 100, 109).
[89] See e.g., Jancyn Mfg. Corp. v. County of Suffolk, 71 N.Y.2d 91, 97 (1987). Note that the Nyack decision did not compel the Appellate Division, First Department, to abandon the old test. See, Bracker v. Cohen, 204 A.D.2d 115 (1st Dep't 1994) ("As long as a local law neither prohibits what would be permissible under State law not imposes prerequisites or additional restrictions on rights granted under State law so as to inhibit the operation of the State's general law, it cannot be said to be inconsistent").
[90] 71 N.Y.2d 91, (1987).
[91] Id. at 97.
[92] Id. at 99.
[93] 84 N.Y.2d 360 (1994).
[94] Section 50-e(4) of the General Municipal Law declares that the notice requirements in section 50-e are exclusive. The court found the local law to be inconsistent with the language "No other or further notice. . . shall be required. . . ." found in section 50-e(4).
[95] 84 N.Y.2d at 365.
[96] MUN. HOME RULE LAW § 10(1)(ii)(d)(3) (McKinney 1994).
[97] PUB. HEALTH LAW § 3404 (McKinney 1995).
[98] MULT. RES. LAW § 327 (McKinney 1992).
[99] 33 N.Y.2d 1 (1973).
[100] Id. at 6.
[101] N.Y. CONST. art. IX § 2.
. . .
(b) Subject to the bill of rights of local governments and other applicable provision of this constitution, the legislature:
(1) Shall enact, and may from time to time amend, a statute of local governments granting to local governments powers including but not limited to those of local legislation and administration in addition to the powers vested in them by this article. A power granted in such statute may be repealed, diminished, impaired or suspended only be enactment of a statute by the legislature with the approval of the governor at its regular session in one calendar year and the re-enactment and approval of such statute in the following calendar year (emphasis added).
[102] 33 N.Y.2d at 7.
[103] L. 1971, ch. 706.
[104] 85 Misc.2d 489 (Sup. Ct. Spec. Term, Essex Co. 1975).
[105] Wambat Realty Corp. v. State of New York, 41 N.Y.2d 490 (1977).
[106] Id. at 494-95.
[107] Id. at 495.
[108] Id.
[109] See supra note and accompanying text.
[110] 64 N.Y.2d 50 (1984).
[111] Id. at 52.
[112] Id. at 56.
[113] 205 A.D.2d 194 (3d Dep't 1994).
[114] 193 A.D.2d 667 (2d Dep't 1993).
[115] See ENVIR. CONSERV. LAW §15-2701, et seq.
[116] 193 A.D.2d at 670.
[117] 74 N.Y.2d 423 (1989).
[118] Prior to 1993, the Town Law did not specifically provide for a requirement of parkland or money in lieu thereof as a condition of site plan approval. The 1993 revision of Town Law § 274-a made such a provision for site plan review of projects containing residential units. See Terry Rice, Practice Commentaries Town Law § 274 (McKinney 1987).
[119] Kamhi, 74 N.Y.2d at 428 (citing to Wambat Realty Corp. v. State of New York, 41 N.Y.2d 490, 498 (1977); Matter of Town of Islip v. Cuomo, 64 N.Y.2d 50, 54-56 (1984)).
[120] See id. at 429.
[121] See N.Y. TOWN LAW § 277(4) (McKinney 1987).
[122] See supra note .
[123] 57 N.Y.2d 206 (1982).
[124] Kamhi, 74 N.Y.2d at 429. Recall that the supersession authority is limited to the power of towns to supersede the Town Law and the power of villages to supersede the Village Law. See MUN. HOME RULE LAW § 10(1)(ii)(d)(3), (e)(3) (McKinney 1994).
[125] Id. at 430 (citing Rozler v. Franger, 61 A.D.2d 46, 52-53 (4th Dep't 1978)).
[126] Id. See discussion of Guilderland, supra, notes - and accompanying text.
[127] 74 N.Y.2d at 430.
[128] The court explained that by including the parkland provision in the subdivision law, the Legislature intended to impose the cost of providing parkland on residential developers rather than on the individual lot owners. Likewise, since site plan approval is normally sought by individual lot owners, no parkland provision was made in that law. Furthermore, to include a parkland provision in both statutes might encourage municipalities to "exact a toll twice from the same development: once when the developer seeks approval of the plat; the second time when individual lot owners seek approval of the building plans for their homes." Riegert, 57 N.Y.2d at 212. What this legislative scheme overlooked however, is the fact that developers of condominiums, while creating a need for addition parkland by increasing the residential density of a community, do not normally require subdivision approval, only site plan approval. The Kamhi court held that the supersession authority could be employed to correct this flaw in the legislative scheme. See Kamhi, 74 N.Y.2d at 430-32.
[129] Kahmi, 74 N.Y.2d at 432.
[130] Id. at 435 (quoting Turnpike Woods v. Town of Stony Point, 70 N.Y.2d 735, 738 (1987)).