Can a New York joint village and town planning board, formed to review border-area land use applications, weight its members' votes so the host municipality has the majority?

Plain-English summary

The Village of Tarrytown and the Town of Greenburgh wanted to form a joint planning board to handle land use applications for parcels lying along the border between them. They wanted weighted voting: when the property is in the village, village members would have a slim majority; when the property is in the town, town members would have a slim majority. The Village Attorney asked whether that was lawful.

The AG said yes.

General Municipal Law Article 5-G authorizes municipalities to perform existing functions or duties jointly or one for another (§§ 119-n(c), 119-o(1)). Village Law § 7-741 and Town Law § 284 apply those cooperation provisions to land use planning. The AG concluded that the flexibility those statutes give the municipalities permits the proposed weighted voting arrangement.

Under the proposal described to the AG, the municipality where a particular parcel lies would have a slim majority when the joint board decides an application for that parcel. The opinion approves weighted voting under those circumstances.

Article 12-B referrals. The AG said some or all joint board actions may require referral to a county or regional planning agency, depending on the board's jurisdiction. The opinion identifies certain land use actions involving property within 500 feet of a city, village, or town boundary as subject to referral before final action (§§ 239-m(2), (3)(a), (3)(b)).

After referral, the county or regional planning agency may recommend approval, modification, or disapproval, or report that the action has no significant county-wide or inter-community impact (§ 239-m(4)(a)). To act contrary to a recommendation of disapproval or modification, the joint board would need a vote equivalent to a majority plus one of its members under the weighted system (§ 239-m(5)).

The referral and override rules do not prevent the proposed weighted voting system, but they apply to qualifying actions.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What did the two municipalities propose?

Tarrytown and Greenburgh proposed a joint board to decide land use issues involving property in one municipality that borders the other. They proposed giving the municipality where the property lies a slim majority of the votes for that determination.

How does weighted voting work in practice?

The opinion describes a proposal that would give a slim majority of the votes to the municipality where the parcel lies. It does not set a numerical formula for assigning vote weights.

What does the majority-plus-one rule mean under weighted voting?

General Municipal Law § 239-m(5) requires a vote of a majority plus one of all members to act contrary to a county or regional agency recommendation to disapprove or modify. The AG said the joint board would need a vote equivalent to that threshold under its weighted system. The opinion gives no numerical example.

Does the opinion approve every possible voting arrangement?

The AG approved the proposed arrangement, which would give a slim majority to the municipality where the property lies. The opinion does not evaluate other voting arrangements.

Will every joint board action require county or regional referral?

The AG said that, depending on the joint board's jurisdiction, some or all actions may be subject to Article 12-B review. It identified referral for specified land use actions involving property within 500 feet of a municipal boundary.

Background and statutory framework

Article 5-G of the General Municipal Law. § 119-n(c) authorizes municipalities to perform any of their functions jointly or one for another. § 119-o(1) governs the cooperation agreement. § 119-o(2)(b) permits flexible terms.

Village Law § 7-741 and Town Law § 284. Both expressly authorize joint planning boards and import Article 5-G's flexibility into land use planning.

Article 12-B of the General Municipal Law. Establishes county planning boards and regional planning councils (§§ 239-c, 239-h). § 239-m requires referral of certain land use actions affecting property within 500 feet of a municipal boundary, with a majority-plus-one override rule when the county or regional agency recommends disapproval or modification.

Municipal Home Rule Law. §§ 2(5) and 10 appear in the opinion's citation header; the body does not separately analyze them.

Citations

• General Municipal Law § 119-n(c), § 119-o(1), § 119-o(2)(b) (Article 5-G municipal cooperation framework).
• General Municipal Law § 239-c, § 239-h (county and regional planning agencies).
• General Municipal Law § 239-m(2), (3)(a), (3)(b) (referral requirement for border properties).
• General Municipal Law § 239-m(4)(a), (5) (recommendations and override vote).
• Village Law § 7-741(1), (5) (joint planning board authority).
• Town Law § 284(1), (5) (joint planning board authority).
• Municipal Home Rule Law § 2(5), § 10 (home rule authority).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-54_pw.pdf

Original opinion text

GENERAL MUNICIPAL LAW, ART 5-G; ART 12-B, §§ 119-n(c), 119-o(l) and (2)(b), 239-c, 239-h, 239-m; MUNICIPAL HOME RULE LAW §§ 2(5), 10; VILLAGE LAW § 7-741. A joint Village and Town Planning Board, formed to consider land use applications relating to property on the border between municipalities, may employ weighted voting designed to give a majority of votes to the municipality in which the property lies. November 30, 1998

Jeffrey S. Shumejda, Esq.
Village Attorney
Village of Tarrytown
P. O. Box 876
Sleepy Hollow, NY 10591

Informal Opinion
No. 98-54

Dear Mr. Shumejda:
You have asked whether a joint Planning Board to be formed by the Village of Tarrytown and the Town of Greenburgh may employ weighted voting. You have explained that the joint Planning Board will decide land use issues regarding property lying in one municipality that borders the other municipality. Weighted voting would be used to give the municipality in which a piece of property lies a slim majority of the votes to be cast when the joint Planning Board makes a determination regarding that property. General Municipal Law Article 5-G authorizes municipalities to agree to perform any of their existing functions or duties jointly or one for another. General Municipal Law §§ 119-n(c), 119-o(l). The Village Law and the Town Law expressly apply the municipal cooperation provisions of Article 5-G to land use planning and authorize municipalities to undertake comprehensive planning and land use regulation jointly or one for the other. Village Law § 7-741(1); Town Law § 284(1). All three statutes authorize parties to municipal cooperation agreements to include such provisions as they deem appropriate in their agreements. General Municipal Law § 119-o(2)(b); Village Law § 7-741(5); Town Law § 284(5). Thus, the statutes that authorize the creation of joint Planning Boards permit flexible agreements that could include the use of weighted voting, under the circumstances you describe. Depending upon the jurisdiction of the joint Planning Board, we note that some or all of its actions will be subject to review under General Municipal Law Article 12-B, which authorizes the creation of county planning boards and regional planning councils to, among other things, bring county-wide and inter-community considerations to the attention of municipalities making land use determinations. General Municipal Law §§ 239-c, 239-h. The question arises whether this review affects the weighted voting proposal. Article 12-B requires that municipal land use agencies refer certain proposed land use actions to their county or regional planning agency before taking final action on the matter. Id., § 239-m(2). The proposed adoption or amendment of zoning ordinances or local laws, issuance of special use permits, approval of site plans, grant of use or area variances and other authorizations under a local zoning law or ordinance must be referred to the county or regional agency if the proposed action applies to real property located within five hundred feet of the boundary of any city, village or town. Id., § 239-m(3)(a),(b). Because your proposed joint Planning Board will make determinations regarding property that borders either the town or the village, its determinations will be subject to referral if they fall within the five hundred foot threshold. Upon referral, the county or regional planning agency is to review the proposed action and recommend approval, modification or disapproval. The agency also may report that the proposed action has no significant county-wide or inter-community impact. Id., § 239-m(4)(a). The statute provides that the referring municipality shall not act contrary to a recommendation to disapprove or modify a proposed action except by a vote of a majority plus one of all of the members thereof. Id.,
§ 239-m(5). This requirement is not inconsistent with weighted voting. Applying the proposed weighted voting system, however, your joint Planning Board would be required under section 239-m(5) to act by a vote equivalent to a majority plus one of its members if it wished to act contrary to the recommendation of the county or regional agency. We conclude that a joint Village and Town Planning Board, formed to consider applications relating to property on the border between the municipalities, may employ weighted voting designed to give a majority of votes to the municipality in which the property lies. The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office. Very truly yours,

SIOBHAN S. CRARY
Assistant Attorney General