In Kamhi, the Court of Appeals decided that the Town of Yorktown's local law could be authorized under the provisions of Municipal Home Rule Law, § 10(1)(ii)(d)(3), the so-called supersession authority.Summary of this case from Opn. No. I90-74
Argued September 12, 1989
Decided October 26, 1989
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Louis C. Palella, J.
Michael J. Grace, Town Attorney, for appellant.
Charles A. Bradley for respondent. James T. Potter for the New York State Builders Association, Inc., amicus curiae.
At issue on this appeal is the validity of a local law of the Town of Yorktown conditioning site plan approval for a multifamily residential development on the provision of parkland or its money equivalent. We conclude that while in substance the Town may exercise its supersession authority to adopt such a law, in form the enactment before us was properly declared invalid.
The subject property is a 43-acre parcel in Yorktown's zone R-3, which permits multifamily residential use of up to 12 units per acre. Plaintiff, the property owner, planned a condominium development, "Villas on the Lake," and to this end sought site plan approval from the Town Board.
Following submission of revised plans, environmental impact statements, reports of various Town agencies and public hearings, the Town Board approved plaintiff's plan on condition that he pay a "recreation fee" of $47,550. That condition was imposed pursuant to Local Laws, 1982, No. 6 of Town of Yorktown, which pertains to site plan approval for R-3 developments. In relevant part Local Law No. 6 reads:
"The developer shall provide a suitably improved playground/play area. Each such playground/play area shall have a minimum area of 1,200 square feet and a maximum distance of 1,000 feet from the units to be served.
"In addition to the above, the developer shall also set aside ten percent (10%) of the site for the provision of park and/or recreational facilities. If the provision of such facilities is impractical because of the particular layout of the development or for other reasons, a recreation fee of $350.00 per unit shall be submitted prior to approval of the application."
Plaintiff paid the fee under protest and commenced this action for money had and received. He then sought summary judgment, contending that the Town was not authorized under Town Law § 274-a to impose a recreation fee as a condition of site plan approval, citing Riegert Apts. Corp. v Planning Bd. ( 57 N.Y.2d 206). In response, the Town cross-moved for summary judgment dismissing the complaint. The Town's position was that, notwithstanding section 274-a, the recreation fee was validly imposed pursuant to Local Law No. 6 which it was empowered to enact under section 10 of the Municipal Home Rule Law.
Supreme Court granted the Town's motion and dismissed the complaint, holding that an action for money had and received was an inappropriate vehicle for review of the Town's determination, and that the challenge to the Board's action should have been by way of an article 78 proceeding, which was time-barred. The Appellate Division reversed. Converting the action into one for a declaratory judgment, the Appellate Division concluded that Local Law No. 6 was invalid under Riegert. We granted the Town's motion for leave to appeal and now affirm the Appellate Division order, but on a different ground.
In general, towns have only the lawmaking powers the Legislature confers on them. In particular, they have no inherent power to impose conditions on site plan approval. Without legislative grant, an attempt to exercise such authority is ultra vires and void (see, Matter of Kamhi v Planning Bd., 59 N.Y.2d 385; Matter of Golden v Planning Bd., 30 N.Y.2d 359, 369-370, appeal dismissed 409 U.S. 1003). Thus, our task is to determine whether the Legislature empowered the Town to enact a local law conditioning site plan approval on the delivery of parkland or its money equivalent.
That authority is not found in the provisions of Town Law article 16, the enabling legislation in the Town Law for local lawmaking in the area of zoning and planning. As we held in Riegert Apts. Corp. v Planning Bd. ( 57 N.Y.2d 206, supra), Town Law § 274-a ("Planning board approval of site plans and certain uses") sets forth the elements a town planning board may require for site plan approval, and significantly does not authorize a demand of parkland or its money equivalent. The Town urges, nevertheless, that its grant of authority lies in Municipal Home Rule Law § 10. This contention, which was not before us in Riegert, puts in issue the scope of authority municipalities have under their home rule powers.
Municipal Home Rule Law Authority
Municipal home rule in this State has been a matter of constitutional principle for nearly a century. Article IX of the State Constitution declares that effective local self-government and intergovernmental cooperation are purposes of the people of this State, and it directs the Legislature to provide for the creation and organization of local governments so as to secure the rights, powers, privileges and immunities granted by the Constitution (see, N Y Const, art IX, § 1). As several commentators have noted, 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." (Wambat Realty Corp. v State of New York, 41 N.Y.2d 490, 498; Matter of Town of Islip v Cuomo, 64 N.Y.2d 50, 54-56.)
See, Cole, Constitutional Home Rule in New York: "The Ghost of Home Rule", 59 St John's L Rev 713 (1985); Note, Home Rule and the New York Constitution, 66 Colum L Rev 1145 (1966); Hyman, Home Rule in New York 1941-1965: Retrospect and Prospect, 15 Buffalo L Rev 335 (1965); Comment, Home Rule: A Fresh Start, 14 Buffalo L Rev 484 (1965); Asch, Municipal Home Rule in New York, 20 Brooklyn L Rev 201 (1954); Richland, Constitutional City Home Rule in New York, 54 Colum L Rev 311 (1954).
In 1964, a home rule package was adopted, comprising article IX of the State Constitution (with a "Bill of rights for local governments") and various implementing statutes, including the Municipal Home Rule Law and the Statute of Local Governments, both of which must be "liberally construed." (Municipal Home Rule Law § 51; Statute of Local Governments § 20.) In structure, these reforms continued the earlier two-part model for home rule: limitations on State intrusion into matters of local concern and affirmative grants of power to local governments (Rozler v Franger, 46 N.Y.2d 760, affg on opn at 61 A.D.2d 46, 55 [Hancock, Jr., J.]). This case involves the Legislature's affirmative grant of power to towns, and not any limitation on State lawmaking powers.
The Municipal Home Rule Law affirmatively grants authority to towns — "[i]n addition to powers granted in the constitution, the statute of local governments or in any other law" — to adopt local laws relating to their "property, affairs or government," provided that such legislation is not inconsistent with the Constitution or any general law (NY Const, art IX, § 2 [c] [i]; Municipal Home Rule Law § 10 [i]). The statute further authorizes towns to adopt local laws in 14 enumerated instances, so long as those enactments are not inconsistent with general law or prohibited by State law (NY Const, art IX, § 2 [c] [ii] ; Municipal Home Rule Law § 10 [ii]; Matter of Marcus v Baron, 57 N.Y.2d 862, revg on dissent of Hopkins, J., 84 A.D.2d 118, 134-139).
Neither of these grants of power encompass Local Law No. 6, however, because — as the Appellate Division correctly held — the local law is inconsistent with Town Law § 274-a, which defines planning board powers in connection with site plan approval. As we concluded in Riegert, there is no express authority in the Town Law for planning boards to impose parkland-or-money conditions for site plan approval, as there is for subdivision plat approval under Town Law § 277. Moreover, because of the Legislature's evident choice in omitting that authority for site plan approval while including it for subdivision plat approval, the power cannot be implied in Town Law § 274-a (Riegert Apts. Corp. v Planning Bd., supra).
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. The section provides that a town may amend or supersede, in its local application, "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." The statute goes on to specify matters as to which supersession is not authorized by the section — for example, with respect to a special or improvement district or an improvement area — but those restrictions are not in issue in this case.
Plaintiff urges that the Legislature has expressly prohibited the adoption of such a local law as Local Law No. 6. This contention merits little discussion. There is no express prohibition here.
When municipalities act within their supersession authority, even local laws that are inconsistent with the Town Law may be valid. Indeed, inconsistency is a premise of the supersession authority, for there is otherwise little need of the power to amend or supersede State law (Rozler v Franger, 61 A.D.2d 46, 52-53, supra). 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 [ii] [d] ), 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]).
By thus carving out a narrow, well-demarcated area of purely local concern where towns can within their Municipal Home Rule Law § 10 authority amend and even override provisions of the Town Law in their local applicability, the Legislature has recognized that situations may arise where laws of State-wide application are appropriately tailored by municipalities to fit their own peculiarly local needs (see, Rice, 1988 Survey of New York Law: Zoning and Land Use, 40 Syr L Rev 641, 642 ; Cole, Municipal Home Rule Law and Local Zoning Power, 3 Mun Law 2 [Nov./Dec. 1986]). Such a situation is before us today.
Application of Supersession in this Case
In the abstract, no one questions the legitimacy of a municipal reservation of parkland or its money equivalent as a condition of residential land development (see, e.g., Jenad, Inc. v Village of Scarsdale, 18 N.Y.2d 78, 84; 2 Anderson, New York Zoning Law and Practice §§ 21.18-21.19, at 94-99 [3d ed 1984]). It is long settled that such a condition may be imposed so long as there is a sufficient nexus between the property and problem being redressed (see, Matter of Golden v Planning Bd., 30 N.Y.2d 359, 371, n 5, supra; Note, Municipal Development Exactions, The Rational Nexus Test, and the Federal Constitution, 102 Harv L Rev 992 ; Delaney, Gordon and Hess, The Needs-Nexus Analysis: A Unified Test for Validating Subdivision Exactions, User Impact Fees and Linkage, 50 L Contemp Prob 139 [Winter 1987]). Indeed, no challenge has been made to the reasonableness of Local Law No. 6; although the local law does not so specify, plaintiff apparently assumes for present purposes that the "recreation fee" would benefit his development.
Nor can there be question about the uniquely local impact of the condition in issue. We have long recognized that a town's planning needs with respect to its neighborhood parks and playgrounds are "distinctively" matters of local concern (see, Adler v Deegan, 251 N.Y. 467, 484-485 [Cardozo, Ch. J., concurring]; see also, Aunt Hack Ridge Estates v Planning Commn., 160 Conn. 109, 273 A.2d 880; 4 Anderson, American Law of Zoning § 25.39, at 392 [3d ed 1986]). The Legislature, similarly, has long recognized the uniquely local nature of parkland-or-fee requirements by expressly authorizing town planning boards to condition approval of subdivision plats on "a payment to the town of a sum to be determined by the town board, which sum shall constitute a trust fund to be used by the town exclusively for neighborhood park, playground or recreation purposes including the acquisition of property." (Town Law § 277.) The Legislature made clear that it does not consider that there is a need for uniformity, or other paramount State interest, in the imposition of such a condition.
Our conclusion in Riegert that the express statutory authority found in Town Law § 277 could not, by implication, be extended to site plan approvals rested on a general over-all distinction between site plans and subdivision plats: a site plan usually involves the proposed development of a single lot intended to remain as such, while a subdivision plat involves the division of a parcel into smaller, ultimately individually owned lots (Riegert Apts. Corp. v Planning Bd., 57 N.Y.2d, at 210-212, supra). Permitting towns to impose a parkland-or-money condition on site plan approval, we explained in Riegert, would enable them "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. There would, of course, be no real justification for a planning board to demand from the individual lot owners land or money for parks when the developer's contribution has already been received. By expressly providing for public park dedication in section 277 plat approval and by omitting any reference to parks in section 274-a, the Legislature intended that the burden of major community concerns such as parks be placed on the developer, not the individual lot owner." (Id., at 212.)
But when Town Law § 274-a is specifically applied to plaintiff's R-3 condominium development in the Town of Yorktown, this legislative design is defeated. As the Town points out, its condominium housing developments generally do not require subdivision approval. Site plan approval is the significant — if not only — approval for such multifamily developments. In such instances, the concern about imposing a double toll on a property owner therefore becomes inapposite. Equally relevant, when Town Law § 274-a is specifically applied to these developments in Yorktown, the legislative objective we identified in Riegert of placing "the burden of major community concerns such as parks * * * on the developer" can be wholly circumvented. A developer of high-density, multifamily projects — while adding significantly to the demand for neighborhood recreation space — can avoid any contribution to supplying such space by structuring a project in the form of cooperatives or condominiums within Yorktown's R-3 district, rather than in a form requiring subdivision approval (see generally, 5 Ziegler, Rathkopf's Zoning and Planning § 64.03  [b], at 64-29 — 64-30). The supersession authority permits the Town to correct this anomaly.
A town can amend or supersede a provision of the Town Law only "in relation to which and to the extent to which" it is authorized to adopt local laws by section 10 of the Municipal Home Rule Law (Municipal Home Rule Law § 10 [ii] [d] ). In the circumstances presented, we hold 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 (see, Matter of Torsoe Bros. Constr. Corp. v Architecture Community Appearance Bd. of Review, 120 A.D.2d 738; 1982 Opns Atty Gen [Inf Opns] No. 84, at 227 [distinguishing Riegert]; 5 Rohan, Zoning and Land Use Controls § 33C.02  ; Rice, 1988 Survey of New York Law: Zoning and Land Use, 40 Syr L Rev 641, 641-644 ; Cole, Home Rule Law and Local Zoning Power, 3 Mun Law 2 [Nov./Dec. 1986]).
Municipal Home Rule Law § 10 (1) (ii) (a) (12) vests towns with the police power to enact laws relating to the "government, protection, order, conduct, safety, health and well-being of persons or property therein." Although this provision is not a delegation of the entire police power of the State and is limited to matters of an inherently local nature, it affords a basis for local "land use controls to meet the increasing encroachments of urbanization on the quality of life." (Town of Islip v Caviglia, 73 N.Y.2d 544, 550; see also, Jancyn Mfg. Corp. v County of Suffolk, 71 N.Y.2d 91, 96; People v Cook, 34 N.Y.2d 100, 105-110; Good Humor Corp. v City of New York, 290 N.Y. 312, 316-318.) Municipal Home Rule Law § 10 (1) (ii) (a) (14), moreover, permits a town to adopt local laws to exercise "[t]he powers granted to it in the statute of local governments." The Statute of Local Governments § 10 (6) in turn gives towns the power to "adopt, amend and repeal zoning regulations." This provision also affords a limited field for local lawmaking in the area of planning and zoning.
We note that other authorities have reached a similar conclusion (see, e.g., Matter of Sherman v Frazier, 84 A.D.2d 401, 409; Weinstein Enters. v Town of Kent, 135 A.D.2d 625, 626, lv denied 72 N.Y.2d 801; North Bay Assocs. v Hope, 116 A.D.2d 704, 706, lv denied 68 N.Y.2d 603; 1987 Opns Atty Gen [Inf Opns] No. 85, at 170; 1987 Opns Atty Gen [Inf Opns] No. 22, at 71; 1986 Opns Atty Gen [Inf Opns] No. 49, at 105; 1984 Opns Atty Gen [Inf Opns] No. 50, at 150; 1982 Opns Atty Gen [Inf Opns] No. 84, at 227; 1 Anderson, New York Zoning Law and Practice § 4.02, at 106-108 [3d ed]; Rice, 1988 Survey of New York Law: Zoning and Land Use, 40 Syr L Rev 641, 641-644; Rice, Municipal Home Rule Impact on Town and Village Zoning, NYLJ, Mar. 16, 1988, at 26, col 1; Cole, Home Rule Law and Local Zoning Power, 3 Mun Law 2 [Nov./Dec. 1986]; see also, Village of Savona v Soles, 84 A.D.2d 683 [Simons, J.P., and Hancock, Jr., J., participating]; and 1976 Opns Atty Gen 127 [finding power to zone in Municipal Home Rule Law § 10 (2)]).
To deny the Town's authority in this case — as the concurrence urges — would be to give little force to the independent grants of power specified in the Municipal Home Rule Law and the Statute of Local Governments; it would ignore the Legislature's direction that these statutes be liberally construed; and it would significantly diminish the long-heralded constitutional and statutory home rule reforms. As Chief Judge Cardozo observed, the home rule laws "adopted by the people with much ado and after many years of agitation, will be another Statute of Uses, a form of words and little else, if the courts * * * ignore the new spirit that dictated their adoption." (Matter of Mayor of City of N.Y. [Elm St.], 246 N.Y. 72, 76.)
We therefore must reject the concurrers' view that — while the intended purpose of the supersession authority is to permit localities to fashion delegated powers to suit local needs, and while some authority for lawmaking in the area of zoning and planning can be found in Municipal Home Rule Law § 10 — that authority can go no further than structuring the organization and administration of town government (concurring opn, at 438). No such limitation is apparent from the plain language of section 10 (1) (ii) (d) (3), which refers not only to "the property, affairs or government of the town" but also to "other matters in relation to which and to the extent to which [a town] is authorized to adopt local laws by this section." (See also, n 2, supra.) Moreover, we find nothing in the Bill Jacket that compels such a cramped construction of the section; indeed, the Bill Jacket reflects a recognition, voiced as a criticism, that the legislation could "enable drastic changes and lead to unusual innovations in local government which cannot be foreseen." (Mem of Division of Housing and Community Renewal, Governor's Bill Jacket, L 1976, ch 365.)
We conclude that the Town had the power to adopt a local law requiring parkland-or-money exactions in connection with site plan approval for R-3 developments. This is hardly license for an "arrogation of undelegated power" or a "profound change * * * giv[ing] municipalities virtually unconstrained authority to act" (concurring opn, at 436, 442). Rather, our conclusion represents a faithful application of the dictates of the Municipal Home Rule Law, which — within narrow confines — permits the Town of Yorktown to adjust a provision of the Town Law so that in its local application it will have exactly the effect intended by the Legislature.
Noncompliance with Formal Requisites
While a town might enact a local law requiring parkland or its money equivalent for site plan approval, the Appellate Division declaration of invalidity nonetheless must be sustained because the local law in issue does not comply with the formal requirements of the Municipal Home Rule Law.
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) (Turnpike Woods v Town of Stony Point, 70 N.Y.2d 735). 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 law governs. A clear statement avoids "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." (Turnpike Woods v Town of Stony Point, supra, at 738; Bareham v City of Rochester, 246 N.Y. 140, 150 [interpreting predecessor provision City Home Rule Law § 12]; see also, County of Rensselaer v City of Troy, 102 A.D.2d 976, 977; Stone v Village of Baldwinsville, 138 Misc.2d 164.)
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." (Turnpike Woods v Town of Stony Point, supra, at 738.) While section 22 provides that failure to comply punctiliously with every specification requirement will not invalidate a local law, here the local law reveals nothing of the Town's intention to amend or supersede and consequently must be declared invalid.
We thus need not consider whether this local law is additionally invalid for its failure to specify that use of the fees would be limited to parkland benefiting the development (cf., Jenad, Inc. v Village of Scarsdale, 18 N.Y.2d 78, 84, supra; Connors High, The Expanding Circle of Exactions: From Dedication to Linkage, 50 L Contemp Prob 69, 71 [Winter 1987] ["A properly drafted ordinance must specify that the use of the fees is limited to the eventual acquisition of a park * * * that will primarily, although not exclusively, benefit the residents of the new development."]), or for its failure explicitly to exempt property owners whose land is part of a subdivision previously approved on condition that land or money be set aside for park purposes (see, 1982 Opns Atty Gen [Inf Opns] No. 84, at 227).
Accordingly, the order of the Appellate Division should be affirmed, with costs.
I agree with the majority that the order should be affirmed and Local Laws, 1982, No. 6 of the Town of Yorktown declared invalid because the Town of Yorktown did not comply with the requirements of Municipal Home Rule Law § 22 (1). I do not agree that the Town may reenact the local law, or one similar to it, after complying with section 22 (1), and thereby condition site plan approval on a contribution of parkland or money equivalent by the owners. It is fundamental that municipalities are creatures of the State and that, as such, they have only those powers delegated to them. The decision in this case violates that rule. The majority have found a general law in which the Legislature has, by choice, withheld local power to act (Town Law § 274-a) and a local law exercising the power withheld (Local Law No. 6). They then characterize the local law as "inconsistent" with general law and hold it is valid because the Town is authorized to amend or supersede inconsistent State laws (see, Municipal Home Rule Law § 10 [ii] [d] ). The statutes cannot correctly be interpreted as permitting the Town's supersession power to supplement or augment the powers delegated to it in substantive areas of law and doing so works a profound change in the home rule principles by which this State is governed. Accordingly, I cannot join in the court's opinion.
The majority determines that the power to enact Local Law No. 6 is to be found in Municipal Home Rule Law § 10 (1) (ii) (d) (3). That provision authorizes a town to amend or supersede, in its local application, "any provision of the town law relating to the property, affairs or government of the town or to other matters". By its plain terms, however, the subdivision permits exercise of the power only "to the extent to which it is authorized to adopt local laws by this section" (emphasis added). Thus, the inquiry must be whether the Legislature has delegated to the Town the power to act on the subject. Absent such independent authority, the Town may not amend or supersede under section 10 (1) (ii) (d) (3) and Local Law No. 6 is ultra vires and void.
Analysis begins with an understanding of the statutory scheme. Section 10 (1) of the Municipal Home Rule Law authorizes municipalities to adopt local laws relating to their "property, affairs or government" (Municipal Home Rule Law § 10 [i]) and in 14 other enumerated areas "whether or not they relate to the property, affairs or government of such local government" (§ 10  [ii]). Both paragraphs specify, however, that the municipalities may not adopt local laws "inconsistent with the provisions of the constitution or * * * any general law" (§ 10  [i], [ii]).
The pertinent provisions of Municipal Home Rule Law § 10 (1) provide:
"1. In addition to powers granted in the constitution, the statute of local governments or in any other law,
"(i) 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 and,
"(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
* * *
"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." (Emphasis added.)
Section 10 (1) (ii) (d) (3) and section 10 (1) (ii), on which the majority rely, are patently inconsistent. Reading the sections literally, a town may amend or supersede the general laws but not in a way inconsistent with the general laws. That construction deprives the statute of any meaning. Thus, we have approved an interpretation that the limitation on the power to adopt laws contained in paragraphs (i) and (ii) — that they must be consistent with the Constitution and general laws — does not operate in those situations in which the Legislature has authorized municipalities to amend or supersede general laws (see, Rozler v Franger, 46 N.Y.2d 760, affg on opn of Justice Hancock at App. Div. 61 A.D.2d 46). In Rozler, Justice Hancock, as he then was, explained when analyzing parallel provisions of the Village Law, the words "`not inconsistent with any general law'" found in section 10 (1) (i) and (ii) must be read as "impliedly subject to an exception where * * * the inconsistency has been specifically authorized by the Legislature in the same section as the limitation." ( 61 A.D.2d, at 52.)
As so interpreted, the threshold question when applying the statute is not whether the local law is inconsistent with a general law or addresses a matter of local concern, as the majority reasons, but whether the Town has power to act on the subject. Unless power has been delegated to the Town by the Constitution or other general law, the local legislation is invalid. An examination of the statute reveals that the power to adopt Local Law No. 6 has not been delegated to respondent by the Municipal Home Rule Law or any other general law of the State.
It is helpful to remember that the Municipal Home Rule Law was passed in 1964 following approval of a new article IX, § 2 of the State Constitution. It was enacted with the Statute of Local Governments to implement the constitutional amendment by replacing the former City Home Rule Law, the Village Home Rule Law and various home rule provisions found in the County and Town Laws. The Legislature's purpose was to consolidate the powers previously granted by these provisions into one new chapter called the Municipal Home Rule Law, to make the grants of power to various subdivisions of government uniform to the extent possible and to facilitate uniform construction (see, Analysis of Municipal Home Rule Law, L 1963, ch 843, Mem of Office for Local Governments, McKinney's Cons Laws of NY, Book 35C, at XIII; Purpose and Scope of Municipal Home Rule Law, op. cit., at IX). Although the Municipal Home Rule Law originally authorized other municipalities to amend or supersede general laws, section 10 (1) (ii) (d) (3), conferring that power on towns, was not contained in section 10 as originally adopted (see, L 1964, ch 78). It was added by chapter 365 of the Laws of 1976. Documents in the Bill Jacket make clear that the amendment was intended to enable towns to structure the organization and administration of their government to meet local concerns (see, Bill Jacket, L 1976, ch 365; see, e.g., Sponsors' Mem, Assemblyman Robach and Senator Eckert; Letter of Senator Eckert to Governor Carey, July 21, 1975; Letter from Association of Towns, May 28, 1976). The purpose was not to expand the towns' substantive powers but to implement powers the towns already possessed by giving them the same authority to supersede or amend general laws enjoyed by other local governments. This power was explained in Rozler where the court stated that the legislative intent was to enable local governments to adopt and amend local laws "for the purpose of fully and completely exercising the powers granted to them" under the Constitution and general laws of the State (Rozler v Franger, 61 A.D.2d 46, 54, affd 46 N.Y.2d 760, supra).
The Statute of Local Governments was conceived as a vehicle to grant power to local governments other than those relating to "property, affairs or government" found in Municipal Home Rule Law § 10 (1) (i) (i.e., those enumerated in section 10  [ii]) and to stabilize the grant by requiring two years to amend or repeal enumerated powers (see, Statute of Local Governments § 12). It has been said the statute achieved "no significant change in preexisting" law (see, Note, Home Rule and the New York Constitution, 66 Colum L Rev 1145, 1152).
New York municipalities have been granted broad powers to regulate and limit property uses to discourage some uses through restrictive zoning and to encourage others through devices such as incentive zoning (see generally, Matter of Town of Islip v Caviglia, 73 N.Y.2d 544; Asian Ams. for Equality v Koch, 72 N.Y.2d 121, 128-129; Maldini v Ambro, 36 N.Y.2d 481). They enjoy latitude because the Legislature has granted them power to supersede certain general laws to adapt the powers to local concerns and achieve effective government for the community. Using the cases cited by the majority as illustrations, the courts have approved local legislation passed pursuant to section 10 (1) (ii) (d) (3) transferring certain review powers to a board other than the one authorized to perform review functions by the Town Law (see, Matter of Torsoe Bros. Constr. Corp. v Architecture Community Appearance Bd. of Review, 120 A.D.2d 738; Matter of Sherman v Frazier, 84 A.D.2d 401), changing certain voting requirements of a Town Board from a vote of three quarters of the membership to a simple majority (see, North Bay Assocs. v Hope, 116 A.D.2d 704, lv denied 68 N.Y.2d 603) or amending filing requirements established in general laws (Matter of Schilling v Dunne, 119 A.D.2d 179). As these cases illustrate, section 10 (1) (ii) (d) (3) properly construed, is an effective means for localities to tailor delegated powers in a way best suited to meet local conditions. There is nothing in the language of section 10 (1) (ii) (d) (3), however, or the history of its adoption which supports the majority's conclusion that the amendment was intended to supplement towns' specifically delegated powers. Therefore, I cannot accept the majority's conclusion that the supersession power it authorizes constituted a delegation of authority to enact Local Law No. 6.
In my view, the question presented in this appeal was decided in Riegert Apts. Corp. v Planning Bd. ( 57 N.Y.2d 206). On facts strikingly similar, we held that towns had no express or implied power to condition site approval on contributions of parkland or equivalent money payments, that Town Law § 277, which authorizes such exactions, dealt exclusively with approval of subdivision plats and that the Legislature had "carefully exclude[d]" similar authorization from Town Law § 274-a, which deals with site plan approval (see, Riegert Apts. Corp. v Planning Bd., supra, at 211). Moreover, we refused to imply the power even though section 274-a provided broadly that when reviewing site plans Town Planning Boards could consider the "impact of the proposed use on adjacent land uses and such other elements as may reasonably be related to the health, safety and general welfare of the community" (supra, at 212).
Notwithstanding this decision, the majority hold that the Municipal Home Rule Law allows the Town to exercise power the Legislature has denied it. The majority recognizes that under Riegert the Town has not been delegated the power to exact parkland or equivalent money payments as a condition of site plan approval, but they hold that the two provisions are merely inconsistent and therefore section 274-a may be superseded. The local law is valid, they hold, because the supersession authority in Municipal Home Rule Law § 10 (1) (ii) (d) (3) augments the substantive powers delegated to the Town and authorizes the local legislation if some source of authority may be found in section 10 (1) (ii). They find such delegation in section 10 (1) (ii) (a) (12), dealing with police powers and (14), referring to powers contained in the Statute of Local Governments. The reference to the Statute of Local Governments contained in subclause (14) refers to provisions which authorize towns to "adopt, amend and repeal zoning regulations" (Statute of Local Governments § 10) and perform "comprehensive or other planning work relating to its jurisdiction" (§ 10 ).
"(a) A county, city, town or village:
* * *
"(12) The government, protection, order, conduct, safety, health and well-being of persons or property therein. This provision shall include but not be limited to the power to adopt local laws providing for the regulation or licensing of occupations or businesses provided, however, that:
* * *
"(14) The powers granted to it in the statute of local governments."
The general grant of police powers contained in section 10 (1) (ii) (a) (12) cannot expand zoning power beyond that expressly addressed in the general laws or the Statute of Local Governments (see generally, Matter of Bon-Air Estates v Building Inspector of Town of Ramapo, 31 A.D.2d 502, 504; 5 Rohan, Zoning and Land Use Controls §§ 35.01, 35.02  ). Insofar as the reference in section 10 (1) (ii) (a) (14) to the Statute of Local Governments is concerned, the power identified there (§ 10 , ) authorizes adoption of zoning "regulations" and performance of "planning work". The authorization to adopt zoning "regulations", not local laws, suggests that the Legislature contemplated no more than enabling municipalities to individualize delegated powers to address local concerns. Moreover, section 10 of the Statute of Local Governments severely restricts the authority granted in its opening paragraph, providing that it is "at all times * * * subject to such purposes, standards and procedures as the legislature may have heretofore prescribed or may hereafter prescribe". Considering the language of subdivision (6) and the limitation on the powers delegated by the section, subdivision (6) does not materially add to the powers of local governments in the zoning area beyond those already delegated in the Town Law (see, 1 Anderson, New York Zoning Law and Practice § 2.05 [3d ed]; Note, Home Rule Law and the New York Constitution, 66 Colum L Rev 1145, 1154).
In sum the majority finds that there is some undefined power delegated by section 10 (1) (ii) (d) (3) and section 10 (1) (ii) which authorizes Local Law No. 6. But if the power to adopt Local Law No. 6 is not to be found in the language of section 274-a because the Legislature "carefully exclude[d]" it, it seems clear the power cannot be extracted from the general language of the Municipal Home Rule Law. The majority cite no authority to support their analysis but merely urge that the construction promotes the purposes of section 274-a of the Town Law (see, majority opn, at 432). Rather than "promoting" the purposes of section 274-a, this decision completely overrides them permitting the Town to do precisely that which the Legislature chose to prevent it from doing.
The majority also rely upon the local impact of the problem to sustain their result. Surely, parks and playgrounds, and the cost and availability of land for them, are matters of local concern. But zoning and planning powers, as we have noted many times, have ramifications that transcend local interests and geographical boundaries (Riegert Apts. Corp. v Planning Bd., supra, at 213; Berenson v Town of New Castle, 38 N.Y.2d 102, 111; see also, Matter of Town of Bedford v Village of Mt. Kisco, 33 N.Y.2d 178, 192 [Breitel, J., dissenting]; Matter of Golden v Planning Bd., 30 N.Y.2d 359, 383 [Breitel, J., dissenting]). As Chief Judge Cooke stated in Riegert when addressing this specific issue: "No reason is proffered why respondents here should have greater power to impose conditions on site plan approval than the other municipalities in the State. Such power would conflict with the legislative intent of providing a State-wide uniform scheme. Consequently, at least to the extent they conflict with the Town Law, respondents' site regulations should be deemed negated by the legislation enacting section 274-a" ( 57 N.Y.2d, at 213).
The Town can purchase land and set it aside or it can zone land for park purposes in accordance with the powers delegated to it. But it cannot satisfy its parkland needs by conditioning site plan approval on donations of land or money from developers until the Legislature authorizes such action. If the Town can now impose this fee upon condominium developers, there is no logical reason why the town could not impose it on the apartment developers in Riegert or for that matter why a town could not impose such fees as a condition for site plan approval of single residences in the future.
The exercise of power delegated to municipalities without restriction to satisfy local needs is a matter of little concern to the State as a whole but the arrogation of undelegated power is quite another matter. When a State-wide interest has been established by a general law, a local government may not interfere with its operative effect (see, Matter of Marcus v Baron, 84 A.D.2d 118, 134-139 [dissent], reversed on dissenting opn 57 N.Y.2d 862). The interpretation placed upon the Municipal Home Rule Law by the majority in this case not only interferes with State law on site plan approval, it gives municipalities virtually unconstrained authority to act on matters in which the State has granted them no authority. The local legislation need only be "inconsistent" with silent general laws on the subject and have local implications.
Accordingly, I concur in the court's opinion for the reasons stated.
Chief Judge WACHTLER and Judges ALEXANDER, TITONE and BELLACOSA concur with Judge KAYE; Judge SIMONS concurs in a separate opinion in which Judge HANCOCK, JR., concurs.
Order affirmed, with costs.