Because in the states and, particularly in New York, local governments are integral elements of the federal system, neither state constitutional and statutory provisions nor local government legislative actions may contravene the United States Constitution. It is rare for many of the specific restrictions on state powers and authority, such as those found in Article I, section 10, of the federal Constitution, to affect the day-to-day activities of local government, since these restrictions are designed primarily to ensure the supremacy of the national government in foreign relations. Whenever any local government exercises any power accorded it by either the state constitution or by statute it must take care to consider whether its actions would compromise federal constitutional provisions that define the relationship of the state (and, by implication, any of its political subdivisions) within the federal system, or guarantee personal liberties to individuals. For example, Article 1, section 8 of the United States Constitution provides Congress with the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This grant of power over commerce among the States has been interpreted to limit States’ power to adversely impact interstate commerce. Local regulatory measures that restrict interstate commerce have been struck down by the United States Supreme Court as unconstitutional.^[8]

The federal Constitution also guarantees that certain personal liberties will not be taken away by the federal government or by any state or local government. Of great importance among these are the limitations on state power that derives from the language of the Fourteenth Amendment, which reads in part:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It is not practicable here to review the many ways in which the Fourteenth Amendment limits and restricts the exercise of state and local power. Suffice it to say that in exercising the general power to make regulations for the “…​health, peace, morals, education, and good order of the people…​” — the power known as “police power” — the state, as well as its local governments, must be careful to do so only in ways that do not contravene the “due process of law,” “equal protection of the laws,” and “privileges and immunities” provisions of the Fourteenth Amendment.

Local governments look to the State Constitution for the basic law which provides for their structure, powers and operational procedures. Two articles of the State Constitution concern key local government needs: home rule (Article IX) and finance (Article VIII). Article IX, entitled “Local Government,” is commonly referred to as the “Home Rule” article of the Constitution, for it provides both an affirmative grant of power to local governments over their own property, affairs and government, and restricts the power of the State Legislature from acting in relation a local government’s property, affairs, and government pursuant only special laws upon home rule request or to general laws.^[9] This article includes:

Article VIII, entitled “Local Finances,” contains the constitutional powers pertaining to local taxation and the incurring of debt. Among its provisions are the following:

Constitutional Provisions Relating to Local Government indicates other articles of the State Constitution which contain references relating to local government powers and operations or which place restrictions on the State Legislature. Article IX of the State Constitution grants power in two ways: directly, where the grants are, in effect, self-executing and require no further state legislative implementation; and indirectly, where the grants require further legislation before they can be exercised.

Examples of direct grants of power are contained in section 1 of Article IX of the State Constitution, entitled “Bill of Rights for Local Governments.” These rights include: (1) the right of a local government to have a legislative body elected by the people; (2) the power to elect or appoint local government officers whose election or appointment is not otherwise provided for by the Constitution; (3) the power to take private property for public use by eminent domain; and (4) the right to make a fair return on local government utility operations.

In some cases, although the Constitution sets forth direct grants of power, these grants may still be subject to state legislative implementation through enactment of procedural steps for their use. For example, Article IX of the State Constitution grants local law powers to local governments, but the exercise of the local law power must be in accordance with the procedures set forth in the Municipal Home Rule Law, which was enacted by the State Legislature to implement the constitutional grants of power.

Some grants of power require additional legislative authorization or direction in order for a local government to utilize them. These grants include: (1) the power to engage in cooperative undertakings as authorized by the Legislature; (2) the power to apportion the costs of governmental services as authorized by the Legislature; and (3) the power for counties to adopt alternative forms of county government under a special law or a general law enacted by the State Legislature.

These constitutional references indicated in the following table are intended only to acquaint the reader with the existence of a constitutional base for local governments. Determining whether a local government may exercise a particular power or function requires a greater familiarity with the complete text of the constitutional provision, the state legislative implementation, and judicial interpretations, if any.

In many instances, the Constitutional provisions described above direct the State Legislature to adopt laws which give local governments the authority to take certain legislative actions, such as entering into inter-municipal agreements or adopting city or county charters. The State Legislature also may delegate to local governments additional authorizations as it deems appropriate or necessary to enable local governments to fulfill their obligations in the partnership of government.

The Legislature has enacted a body of law, known as the Consolidated Laws, containing the statutory provisions from which local governments derive most of their substantive and procedural power. The title of each volume of the law generally suggests the subject matter or level of government to which it has primary application. Consolidated Laws Relating to Local Government indicates the Consolidated Laws most relevant to local government.

This listing is not a complete compilation of the laws having local government application. Many other laws that have significance either to a particular level of government or to an individual local government are scattered through the statutes. For example: the State Finance Law sets forth the provisions relating to the state’s revenue-sharing programs; the Labor Law contains provisions relating to prevailing wage requirements in public works contracts; the Agriculture and Markets Law contains provisions relating to the establishment of agricultural districts, dog regulation and impoundment and sealers of weights and measures; the Correction Law contains provisions relating to supervision and administration of county jails and penitentiaries and state supervisory powers over city jails; the Parks, Recreation and Historic Preservation Law contains authorizations for historic preservation and local snowmobile operation regulation; and the Transportation Corporations Law contains local government approval requirements for the formation of private sewer and waterworks corporations. The Social Services Law, Mental Hygiene Law, Real Property Tax Law and Public Health Law are discussed elsewhere in this book.

Article IX of the State Constitution required the State Legislature to enact a “Statute of Local Governments” in order to grant certain powers to local governments. The granted powers include the power to: adopt ordinances, resolutions, rules and regulations; acquire real and personal property; acquire, establish and maintain recreational facilities; fix, levy and collect charges and fees; and in the case of a city, town or village, to adopt zoning regulations, and conduct comprehensive planning.

The powers granted in the Statute of Local Governments are accorded quasi-constitutional protection by Article IX; a power so granted cannot be repealed, impaired or suspended, except by the action of two successive Legislatures, and with the concurrence of the Governor. Thus, for example, the repeal of village ordinance power by the State Legislature was accomplished by Chapter 975 of the Laws of 1973 and Chapter 1028 of the Laws of 1974.

The Statute of Local Governments reserves certain powers to the State Legislature, even where the exercise of these powers could or would diminish or impair a local power. These include the power to take actions relating to the defense of the state, to adopt laws upon local home rule request, to adopt laws relating to creating alternative forms of county government and to adopt laws relating to matters of overriding state or regional concern.

The powers of the State Legislature are derived from Article III of the State Constitution, as well as from other Constitutional provisions. Additional powers, as well as restrictions thereon, were conferred upon the Legislature by Article IX of the State Constitution, which directs the State Legislature to adopt certain laws necessary to affect the local powers granted by that article. Article IX also restricts the State Legislature from adopting special laws which affect a local government’s property affairs or government. Article IX, therefore, serves both as a source of authority for local governments and as a shield against intrusion by the State upon their home rule prerogatives.

The restriction upon the State Legislature’s legislative powers is predicated upon the phrases “property, affairs or government” and “general law.” The Legislature is specifically prohibited from acting with respect to the property, affairs or governance of any local government except by general law, or by special law enacted on a home rule request by the legislative body of the affected local government or, except in the case of the City of New York, by a two-thirds vote of each house upon receiving a certificate of necessity from the Governor. The definitions of the terms “general law” and “special law” as set forth above also apply in the context of this provision.

Local legislative enactments must be considered in order to fully define the power and authority of a local government. City and county charters originally were adopted by a special act of the State Legislature when a city or county was created. These charters created the municipal corporation and, importantly, directed its organization, its responsibilities and accorded its powers. The Municipal Home Rule Law, pursuant to constitutional direction, authorizes cities to amend their charters and counties to adopt or amend charters by local law.^[10] Charters of charter local governments must be consulted in order to ascertain the nature and extent of any power held by that government.^[11]

Once a local government adopts an ordinance or local law, the government is bound by such legislative enactment until it is amended or repealed. Since local laws may direct that a local government’s power be exercised in a certain manner, and, in some instances, may supersede state law (to be discussed later), the local government’s local laws and ordinances must be consulted in order to fully define its powers.

Local government powers also may be expanded, restricted or qualified by the rules and regulations of state agencies. These rules and regulations are usually adopted as part of the implementation of a state program having local impact or application. Thus, it is advisable to review state regulations on the particular subject in order to ascertain the extent of local authorization in undertaking a particular activity or program.

An example is the promulgation of a local sanitary or health code. While a local government may promulgate such a code, it must first ascertain what areas of regulation have been covered by the State Sanitary Code. The State Sanitary Code and other rules and regulations appear in the Official Compilation of Codes, Rules and Regulations of the State of New York, which is published and continually updated at the direction of the Secretary of State.

What “home rule” means depends upon the context in which it is used. Home rule in a broad sense describes those governmental functions and activities traditionally reserved to or performed by local governments without undue infringement by the state. In its more technical sense, home rule refers to the constitutional and statutory powers given local governments to enact local legislation in order to carry out and discharge their duties and responsibilities. This affirmative grant of power is accompanied by a restriction upon the authority of the State Legislature to enact special laws affecting a local government’s property, affairs or government.

Originally, the powers of local legislation were derived from specific delegations from the State Legislature. These delegations concerned specific subjects and were narrowly circumscribed. The courts applied strict rules of construction when called upon to interpret state statutes which delegated legislative power to local governments. However, with the evolution of the broad home rule powers, which culminated in constitutional grants to all local governments in 1964, there emerged a gradual recognition that the rules of strict construction were no longer applicable to the interpretation of such delegated powers. Rather, the same rules of liberal construction applicable to enactments of the State Legislature should be applied to the local law power.

Judicial interpretations of the Home Rule article illustrate the tension between the affirmative grant of authority to local governments and the reservation of matters outside the term “property, affairs or government” of local governments to the State Legislature. In a society where many issues transcend local boundaries, a growing number of matters are considered to be matters of state concern.^[12]

The home rule powers enjoyed by local governments in this state are among the most advanced in the nation. By recognizing the extent of their powers and by continuing to exercise them, local governments can best avoid the erosion of such powers. In this fashion, local governments will not only serve the needs of the people, but will strengthen state-local relationships as well.

Local legislation may take the form of local laws, ordinances and resolutions.

A local law is the highest form of local legislation, since the power to enact a local law is granted to local governments by the State Constitution. In this respect, a local law has the same quality as an act of the State Legislature, since they both are exercises of legislative power accorded by the State Constitution to representative bodies elected by the people. Indicative of this is the fact that acts of the State Legislature and local laws are both filed with the Secretary of State, the traditional record keeper for State government.

An ordinance is an act of local legislation on a subject specifically delegated to local governments by the State Legislature. Counties do not ordinarily possess ordinance powers and the power of villages to adopt ordinances was eliminated in 1974.

A resolution is a means by which a governing body or other board expresses itself or takes a particular action. Unlike local laws and ordinances, which can be used to adopt regulatory measures, resolutions generally cannot be used to adopt regulatory measures. Exceptions exist to this rule, however, as authorized by the State Legislature. For example, section 153 of the County Law provides that a power vested in a county may be exercised by local law or resolution.

Article IX of the State Constitution was implemented in 1964 by the State Legislature through the enactment of the Municipal Home Rule Law, which reiterates and explicates the constitutional local law powers and provides procedures for adopting local laws.

Both the Constitution and the Municipal Home Rule Law provide the following categories of local law powers:

The phrase “property, affairs or government” is a term of art which has been defined largely by court decisions which have determined what it is not.^[13] Even where the subject matter of a local law falls instead within the meaning of “property, affairs or government,” the local law must be consistent with all general state laws and with the Constitution.

The second category of local laws set forth above includes the specifically enumerated topics found in section 10 of the Municipal Home Rule Law. For example, a county, city, town or village may, by local law, modify the powers, qualifications, number, mode of selection and removal, terms of office, compensation and hours of work of its officers and employees. It may: create and discontinue departments of its government; decide the membership and composition of its legislative body; and regulate the acquisition and management of property, the levy collection and administration of local taxes and assessments, and the fixing, levying and collecting of local rental charges and fees. It may also provide for the protection of its environment, the welfare and safety of persons and property within its boundaries, and the licensing of business and occupations.

Additional powers are conferred upon counties, cities, towns and villages in section 10 of the Municipal Home Rule Law, for example:

The courts also have recognized the extent of local law power. In a landmark case, the Court of Appeals, the state’s highest court, upheld a locally enacted county charter provision that superseded a general state law.^[14] Similarly, a town’s authority to supersede provisions of the Town Law has been upheld.^[15]

It can be readily seen that the grant of local law power to local governments in New York is quite broad.

The local law power is not without its limitations. The restrictions upon the exercise of the local law power are as follows:

New York’s governmental heritage is that of a representative form of government where most matters are addressed by elected officials. Certain matters of particular importance, however, are set aside to be confirmed by the voters through referenda. These matters generally include approval of Constitutional amendments and bonding authorizations. The preference for a representative form of government also carries through to the local level. Matters may be set for local referendum only when authorized by state statute. Certain local laws, which are subject to mandatory referendum, do not become effective until approved by the voters through a referendum. The referendum requirements that apply to local laws are set forth primarily in sections 23 and 24 of the Municipal Home Rule Law, and are discussed at greater length in [citizen_participation_and_involvement#citizen_participation_and_involvement].