On January 10, 2018, the Caroga Town Board filled a vacancy on the Planning Board. Kim Hart was appointed with a term running until December 31, 2020 (see 2018-01-10 Minutes). At the time, Ms. Hart was a Caroga elector and property owner. Resolution #2018-019 was adopted by a vote of 4 (Selmser, Manning, Long, Kirch) to 1 (Glenn).
On May 13, 2020, the Caroga Town Board questioned Ms. Hart’s residency qualifications to serve on the Planning Board (see 2020-05-13 Minutes). Attorney Ferlazzo reported, “based on the documentation received it appears that she is currently a resident in a domicile of the Town of Caroga. The property at 250 S. Shore Road was purchased in September 2018 … However, she was not a resident in domicile on the date of her appointment.” Council Member Glenn emphasized her 2018 Gloversville mailing address. Supervisor Horton stated this was not a hearing. Council Member Long noted Ms. Hart’s prior voting records in Caroga, and he described the Board’s actions as discriminatory and the attorney’s actions as arbitrary and capricious. After discussion, the Board declared Ms. Hart’s Planning Board seat vacant, with Resolution #2020-070 adopted by a vote of 4 (Horton, Glenn, Sturgess, Travis) to 1 (Long). The Board then appointed Karen Dutcher to the vacant seat, with Resolution #2020-071 adopted by a vote of 4 (Horton, Glenn, Sturgess, Travis) to 1 (Long).
No person shall be capable of holding a civil office who shall not … be a citizen of the United States, a resident of the state, and if it be a local office, a resident of the political subdivision or municipal corporation of the state for which he or she shall be chosen, or within which the electors electing him or her reside, or within which his or her official functions are required to be exercised.
Every elective officer of the town at the time of his election and throughout his term in office, shall be an elector of the town. Every other officer of the town at the time of his appointment and throughout his term of office shall be an elector of the town.
Decreasing membership… No incumbent shall be removed from office except upon the expiration of his or her term, except as hereinafter provided … The town board shall have the power to remove, after public hearing, any member of the planning board for cause. Any planning board member may be removed for non-compliance with minimum requirements relating to meeting attendance and training as established by the town board by local law or ordinance.
The Association of Towns (AOT) of New York addressed questions about town officer residency.
Who needs to be a resident of the town? Classic answer, it depends.
Both Public Officers Law § 3 and Town Law § 23 require elected town public officers to be residents of the town… However, there is more leeway with appointed officers.
In Matter of Ricket v. Mahan, 97 AD3d 1065 [3d Dept 2012], the Third Department found that:
The Legislature grafted numerous exceptions onto the residency requirement set forth in these statutes and, as such, exempted various local offices from the requirement that the office holder be a resident (see Public Officers Law § 3-; Town Law § 23-). As a result, each statute, in terms of the residency requirement, is a special law which can, in a given circumstance, be superseded by a local legislative enactment (see Public Officers Law § 3 [43 (as added by L. 1998, ch. 273)]; Town Law § 23; Municipal Home Rule Law § 10[i], [ii][a]).
The Attorney General’s Office offers:The existing domicile, whether of origin or selection, continues until a new one is acquired and the burden of proof rests upon the party who alleges a change. The question is one of fact rather than law, and it frequently depends upon a variety of circumstances, which differ as widely as the peculiarities of individuals.
So, to sum up, elected officers, yes you have to be a resident. Appointed officers, maybe … best practice is to see if there’s a local law expanding the residency requirement.
There is only one such Caroga Law or Caroga Ordinance on the books and that law is #2 of 1994, entitled “Alter Residency Requirements for Budget Officer”.
Domicile is really a question of fact that depends on the circumstances of each case.
Ultimately, only a court can determine domicile (see Hosley v. Curry, 85 NY2d 447 ; 1997 N.Y. Op. Atty. Gen. [Inf.] 271).
According to the Attorney General of New York:
In all of the cases in which the question of domicile and residence are determined, it is stated that a factual determination can be made only by a court and that each case depends upon its own facts.
If the town board believes an officer who should be a resident is no longer one, they can commence a declaratory judgment action, in which case, the court will decide if the facts are there.
“Former Berne Planning Board member sues over her removal” (Times Union, 2/6/20)
On February 5, 2020 Emily Vincent filed suit, alleging that the Berne town board did not hold a public hearing before removing her from the local planning board.
“Judge overturns Berne board move to bump planning board member” (Times Union, 3/16/20)
On March 13, 2020 New York State Supreme Court Judge Denise Hartman ruled that the Berne town board violated the law when they removed Ms. Vincent from the planning board.
Because the Caroga Town Board removed a Planning Board member without a declaratory judgement or even a public hearing, the Town of Caroga risks needless costly litigation that could distrupt town residents’ and business owners’ ability to accomplish any improvements, investments, or maintenance that require Planning Board action.
Copyright © James McMartin Long 2017–2023