TERM LIMITS LAW of 2006: Amends the Village Code and is Prospective | September 9, 2007

During the August monthly Board of Trustees meeting, Mayor Stebbins asked for a vote on the reappointment of Sam Bornstein to the Planning Board for a five year term. The Mayor had requested recommendations for appointments from the PB, BAR and ZBA members. JoAnn Hanson, Chair of the Planning Board, reported that the PB members unanimously recommended that Sam Bornstein be reappointed, citing his valuable legal expertise with the complicated subdivisions before the PB (The PB also recommended Robert McQuilken to be a new member of the PB.) Mayor Stebbins and Trustees Darby and Worthy voted in favor of Mr. Bornstein’s appointment, Trustee Hansen abstained and Trustee Shaw was absent. During the Public Comment period, David McFadden opined loudly and at some length that Mr. Bornstein should not be reappointed to the Planning Board in light of the legislation passed on June 7, 2006 regarding term limits. Trustee Hansen read a prepared statement that agreed with Mr. McFadden’s position. Since Mr. McFadden, as former mayor, proposed this initial legislation and oversaw the writing of the actual Term limits law that was passed, let’s look at the language in the law itself, the minutes from this meeting, and the legal opinion about the law from the Village Attorney.

The law itself may be found in its entirety under Chapter 15-13 of the Village Code as Article IV. The amendment reads in part as “The appointed members of the Planning Board, Board of Zoning Appeals and Board of Architectural Review shall each serve for a term of five (5) years, provided that no member may be appointed to serve more than two (2) consecutive five (5) year terms”. Local laws in New York are presumed to be prospective. Accordingly, the law states “The provisions of Section 15-13 of the Code of Tuxedo Park as added hereby shall apply, to the current members of the Planning Board, the Board of Zoning Appeals and the Board of Architectural Review upon the expiration of their respective terms of office.”

A reading of the minutes of the June 2006 meeting provides the following information. First, during the public discussion, the issue of retroactive application of the proposed law verses prospective application does not appear to have come up. However, reviewing the Board discussion, which followed public discussion, Trustee Parker states that he “spoke to two attorneys (other than the current Village attorney) regarding the term limit law and both were of the opinion that the term limits could not be imposed retrospectively…The term limit law can only be imposed prospectively…The current Village attorney (Roemer, Wallens, & Mineaux) also opined in his letter (dated May 16, 2006) that it is prospective and not retrospective.”

At the August meeting, Mayor Stebbins noted that he had requested Michael Donnelly, Attorney for the ZBA, to review the law and its application to sitting members who have served for more than 10 years before the law was enacted. Mr. Donnelly opined that the law does not apply to current members until the expiration of their term. Richard Golden, Attorney for the Planning Board and the BAR, also opined that the law is prospective and does not include prior service from consideration of the term limits. The Mayor also noted that the Village Attorney, John Mineaux from Roemer Wallens & Mineaux, in the May 16, 2006 letter addressed to then Mayor David McFadden before the June vote, also opined that the law was prospective, stating “The proposed Local Law establishes a two (2) consecutive five (5) year term limitation on the tenure of the appointed members of said Boards, but does so prospectively and, with respect to sitting Board members, subsequent to their respective current terms of office”.

Given the supporting letters from the Village Attorney as well as the PB, BAR and ZBA attorneys, it is clear that Mayor Stebbins correctly applied the term limit law with respect to the reappointment of Sam Bornstein. We should thank the Planning Board members for their recommendations and thank Mr. Bornstein for agreeing to serve as the PB considers the application for three major subdivisions in Tuxedo Park.



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