[NYGCG] Referendum not available in NYS on land use planning matters

[NYGCG] Referendum not available in NYS on land use planning matters –

 

Helen Holden Slottje
9:17 AM (2 hours ago)

to nygcg—new-yo.
  • We have gotten a number of questions about the possibility of a referendum in towns where the town board refuses to consider a moratorium or other protective law. Unfortunately, unlike California or some other states, there is no ability in New York State for the electorate in a town to mandate that their town board take any particular legislative action. Citizens may not use a referendum to force a town (or other municipal board) to pass a local zoning or land use law. Town boards may not put a referendum matter on the ballot and agree to follow the referendum – if a matter is not specifically authorized for consideration by referendum, the town board may not decide on its own to allow a referendum and the citizenry cannot demand a referendum.

  • From NY Jurisprudence Elections § 743:
  • “The legislative power which the state has delegated to the towns lies in the town board, and the inhabitants themselves, except in rare instances where they are given the power of initiative, cannot legislate, but can only, under the set forth in the statutes, exercise a veto power over a legislative act of the town board in the form of a referendum. A referendum, in effect, is no more than a veto power vested in the electorate to review an act of the town board, and it can in no way constitute a direction to the local legislative body to do more than that body has already determined by its own limited conditions resolution to accomplish.”
  • Items for which electorate automatically gets a referendum . The referendum cannot require the town board to do any of these things – only allows veto, so if town board and citizens do not want the same thing, then nothing happens. In these cases the citizens don’t have to collect petition signatures to get on the ballot, the matter is automatically put on the ballot.
  • (disregard section numbers)
  • § 713. Local Law Providing New City Charter
  • § 714. Local Law Changing Method of Nominating, Electing or Removing Elective Officer
  • § 715. Local Law Changing Term of Elective Office
  • § 716. Local Law Reducing Salary of Elective Officer
  • § 717. Local Law Abolishing, Transferring or Curtailing Power of Elective Officer
  • § 718. Local Law Creating New Elective Office
  • § 719. Local Law Changing Ward or District Boundaries
  • Items for if the town board passes a resolution or law providing for any of the below changes in law, the electorate can petition for referendum (must gather certain # of signatures to get on election ballot)- and if enough signatures are collected the citizens may overturn/veto a town board decision to do any of the following. Again if town board and citizens disagree, then nothing happens. If there are not enough signatures on the petition requesting the referendum, then there is no referendum and the town board’s action stands.
  • (1) dispenses with a provision of law requiring a public notice or hearing as a condition precedent to official action;
  • (2) changes a provision of law relating to public bidding, purchases, or contracts;
  • (3) changes a provision of law relating to assessments of real property or benefit assessments for local improvements;
  • (4) changes a provision of law relating to the exercise of the power of condemnation;
  • (5) changes a provision of law relating to the authorization or issuance of bonds or other obligations, except as provided in the Local Finance Law in the case of a city;
  • (6) changes a provision of law relating to the auditing of the accounts of the local government;
  • (7) changes a provision of law relating to the alienation or leasing of real property of the local government;
  • (8) in the case of a city, town or village increases the salary of an elective officer during his term of office or, in the case of a county, increases the salary of an elective officer or of an officer appointed for a fixed term, during his term of office, except where any such increase by a county is made in accordance with a schedule providing higher rates of compensation through additional increments of salary based on time service, which schedule or applicable amendment thereof was in existence prior to the commencement of such term of office;
  • (9) in the case of a county, establishes a county general hospital pursuant to the provisions of the General Municipal Law;
  • (10) relates to apportionment adopted pursuant to the provision of the Municipal Home Rule Law which sets forth the standards for and the procedure by which a reapportionment plan is adopted;
  • (11) in the case of a village, creates or abolishes the office of manager.