Opinion 89-46

This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PUBLIC OFFICERS AND EMPLOYEES -- Eligibility (U.S. citizenship)
ZONING AND PLANNING -- Planning Board (members must be U.S. citizens)

TOWN LAW, §§23, 271; PUBLIC OFFICERS LAW, §3; ELECTION LAW, §5-102: An individual who is not a U.S. citizen may not be a member of a town planning board.

You ask whether a person who otherwise qualifies for office, but is not a citizen of the United States, may serve as a member of the town planning board.

The position of town planning board member is a town office (Town Law, §271; 16 Opns St Comp, 1960, p 399). The qualifications for holding a town office are contained in Public Officers Law, §3 and Town Law, §23.

Public Officers Law, §3 provides that no person shall hold a civil office who shall not, among other things, "be a citizen of the United States". Further, Town Law, §23 requires all town officers, at the time of election and throughout the term of office, to be "an elector of the town". This Office has expressed the opinion that an "elector of the town" for purposes of section 23 is a resident of the town who, if he or she wished, could register as a voter (1987 Opns St Comp No. 87-32, p 51; see also 1985 Atty Gen [Inf Opns] 85-59). One qualification to register for and to vote at a town election is U.S. citizenship (NY Const. Art II, §1; Election Law, §§1-102, 5-102[1]). Therefore, based on the requirements of Public Officers Law, §3 and Town Law, §23, a person must be a U.S. citizen in order to qualify to serve as a member of a town planning board (see 12 Opns St Comp, 1956, p 66).

November 8, 1989
John LaPointe, Town Supervisor
Town of Putnam