History of the Eden Town Board
In the early days of this nation, many of the colonies established a form of government intimately conducted and controlled by the residents of the towns. All important decisions as to the government, taxes and other matters were actually decided at a meeting of the residents of the town, at which meeting a vote would be taken to determine the proposal at issue. In some states this procedure is still followed.
In New York State, our towns have been organized with an elective legislative body, to wit: the town board. In this legislative body is placed the responsibility for making the present day decisions. Only in special instances is a vote of the inhabitants of the town required.
It is a well-settled rule that advisory referenda are not permitted. The New York Court of Appeals ruled that no referendum can be held by a local government in the absence of the constitutional or statutory authorization. "Government by representation is still the rule. Direct action by the people is the exception."(McCabe at 413)
Thus in the absence of express statutory provision, the holding of an advisory referendum by a municipality is not authorized.
When a town board member votes on the proposal before the town board, he or she is representing, through that vote, the views of all of the residents of the town. Thus, a high personal responsibility rests on individual town board members. It requires that they exercise careful consideration in making important decisions which will affect the lives of town residents and businesses.
Town government, therefore, is run by the town board as the executive, administrative and legislative body of the town. A town board, as a group, is the executive head of the town, there being no true executive in town government comparable with the status of a major of a city or village, or with the governor of the state. Thus, while the supervisor presides at town board meetings and may be assigned certain powers of administration and supervision, the additional duties and responsibilities of supervisor are only those which result from that position's statutory role as town treasurer.
Many state statutes, despite the distinctions just mentioned, still refer to supervisor of a town as the "chief executive officer" for the limited purposes of the statute where the reference appears.
Prior to January 1, 1964, authority for town board action had to be found in specific state legislation or in the constitution. The grant of power contained in those enabling statutes had been strictly and narrowly construed and a town board could not assume powers and duties which it had not been specifically given by statute.
However, since January 1, 1964, all towns have enjoyed constitutional home rule powers. Towns are now able to enact local laws respecting subjects within the realm of "property, affairs and government" of the town provided the laws are not inconsistent with the Constitution or a law of general statewide applicability enacted by the State Legislature (eg., laws on competitive bidding, open meetings, ethics and the like).
In addition, towns may adopt local laws concerning a number of subjects specified in the Constitution and the Municipal Home Rule Law whether they are, or are not, "property, affairs and government" again so long as such local laws are not inconsistent with general law applicable to all towns, and provided there has been no statutory restriction against such legislation.
Under this constitutional authority, it is even possible for a town board to adopt local laws which may change provisions of a state law which is not generally applicable to all towns in the state, provided the subject matter comes within this term of "property, affairs and government".
Since 1974, with certain limited exceptions, towns may even supersede provision of Town Law regardless of their general applicability. For instance, a town may use this local law power to adjust terms of office or the size and membership of various town bodies such as the zoning board of appeals.
Besides the above described legislative powers of a town board, the Town Law and other state statutes contain authority for town board to act in a variety of specific areas. These laws have been extensively amended over the years to the point where town boards now have authority to supply almost every public function or service that any other municipality may provide, subject to compliance with any specific rules found therein prescribing methods of procedure, notices, referenda if any, etc.*
*Town Law Manual 1998, pages 5,6,& 7.