When a parcel of land straddles two New York towns, can one town's zoning board count the acreage in the neighboring town to satisfy its minimum-acreage zoning rule?

Plain-English summary

A horse-stable operator in the Town of Clinton wanted more animals on his property than Clinton's zoning law allowed. Section 5.6B(1) of the Clinton Zoning Law required two acres for the first large animal (horse, pony, cow, or similar) plus one acre per additional animal. The stable owner's parcel straddled the boundary between Clinton and the neighboring Town of Stanford. If you counted both portions of the parcel together, total acreage met Clinton's minimum. If you counted only the Clinton portion, it did not. The stable owner applied to the Clinton Zoning Board of Appeals for an area variance and asked the ZBA to consider the parcel as a whole, including the Stanford portion.

The Clinton Town Attorney asked the AG. The opinion has two intertwined holdings.

First, Clinton's zoning law applies only to land in Clinton. A municipality cannot impose its zoning on land in a different municipality. The AG cited Matter of Siegel v Tange, 61 AD2d 57 (2d Dept 1978), a Second Department case in which a property owner had two lots straddling the Village of Otisville and the Town of Mount Hope. The Appellate Division held that the property owner had to apply to both jurisdictions and that an Article 78 challenge limited to just one jurisdiction was premature. The same principle controlled here: if the stable owner increased the number of animals grazing, those animals would roam across both portions of the parcel, affecting Stanford as well as Clinton. Clinton's ZBA could not authorize that effect on Stanford land.

Second, the property owner has to deal with both towns simultaneously. The opinion lays out the procedural requirements. The owner must (a) apply to whichever Stanford agency has zoning authority over the proposed use of the parcel, if Stanford has a zoning law regulating it; (b) notify Stanford of the variance application pending in Clinton, and notify Clinton of any application made to Stanford; and (c) trigger a county or regional planning board referral under General Municipal Law § 239-m, because the variance affects property within 500 feet of a town boundary. The dual notice gives each town the chance to appear at hearings in the other. The § 239-m referral gives the county or regional planning board an opportunity to review.

The bottom line: a property owner whose land sits in two towns cannot satisfy zoning in one by pointing to total acreage that includes the other. Each town's zoning applies to its own portion, and the owner has to comply with both regimes.

The opinion is careful to note (in a footnote) that an area variance under Town Law § 267(1)(b) is "the authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations." The opinion does not address whether an area variance was otherwise justified on the merits; it stops at the threshold question of who has to be involved in the process.

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

Can Clinton consider the Stanford acreage when deciding the variance?

Not as a basis for relaxing its own zoning. Clinton's ZBA decides under Clinton's zoning law, which applies to Clinton land. The Stanford acreage might be relevant to a factual finding about how the use affects each town, or to context, but it cannot substitute for compliance with Clinton's rule on Clinton land.

Could Stanford have a different zoning treatment of the same use?

Yes, and that is the point. Stanford has its own zoning law (or might not have any zoning regulating large-animal grazing). If Stanford permits the use freely, the owner needs no Stanford action and only needs to satisfy Clinton. If Stanford imposes its own acreage rule, the owner has to satisfy both rules separately or get a variance in each town.

What is a § 239-m referral and why does it apply here?

General Municipal Law § 239-m requires a municipal planning or zoning board to refer certain actions (including variances) to the county or regional planning board when the proposed action affects property within 500 feet of, among other things, a municipal boundary. Here, the parcel itself crosses the boundary, so the 500-foot trigger is clearly met. The county board's role is advisory, but the municipal board can override its recommendation only by majority-plus-one of the full membership (§ 239-m(5)).

What if Stanford has no zoning law regulating grazing?

Then the owner has no Stanford-side approval to seek for the grazing increase. The dual-notice and county-referral procedures still apply for the Clinton variance application, since the action affects Stanford property. Stanford gets the chance to weigh in even if its own zoning does not separately regulate the use.

Does this analysis apply to other dual-jurisdiction situations?

Yes, conceptually. The Siegel v Tange principle (no municipality imposes its zoning on land outside its borders) applies wherever a parcel straddles a municipal boundary, whether between two towns, town and village, town and city, or village and city. The procedural mechanics (notice to the other municipality, § 239-m referral) follow.

Background and statutory framework

New York's land-use law gives each general-purpose municipality (city, town, village) zoning authority over its own land. Counties have planning and advisory roles through § 239-m and parallel provisions but no direct zoning power. When a parcel sits in two municipalities, each one's zoning applies to its portion, and the property owner must navigate both regimes.

Matter of Siegel v Tange, 61 AD2d 57 (2d Dept 1978), is the leading Second Department case for the rule that no municipality can impose its zoning on land outside its borders. The case arose when a property owner whose two lots straddled the Village of Otisville and Town of Mount Hope sought a variance from only the Village; the Appellate Division reversed because the petitioner had not also applied to the Town and given it notice. The 1998 opinion applies Siegel directly to the Clinton/Stanford fact pattern.

General Municipal Law § 239-m's 500-foot trigger is the systemic mechanism for inter-municipal coordination on land-use decisions. It does not give the county veto power, but it does give the county planning board an opportunity to weigh in, and it elevates the voting threshold the municipal board has to meet to override the county's recommendation.

Citations

• General Municipal Law § 239-m (county/regional planning board referral; supermajority override).
• Town Law § 267(1)(b) (definition of "area variance").
• Matter of Siegel v Tange, 61 AD2d 57 (2d Dept 1978) (no municipality can impose its zoning on land outside its borders; cross-application and notice required).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-56_pw.pdf

Original opinion text

GENERAL MUNICIPAL LAW § 239-m; TOWN LAW § 267(1)(b).
Because the grazing of animals on the parcel of property
necessarily affects property located in both the Town of Clinton
and the Town of Stanford, the property owner must comply with the
land use regulations of both Towns.
December 21, 1998

Thomas P. Halley, Esq.
Town Attorney
Town of Clinton
21 Alden Road
Poughkeepsie, NY 12603

Informal Opinion
No. 98-56

Dear Mr. Halley:
You have requested an opinion regarding whether the Town of
Clinton Zoning Board of Appeals [the "ZBA"] may take into
consideration property located in the adjoining Town of Stanford
in determining whether to grant an applicant's request for an
area variance. The applicant's parcel is partially located in
the adjoining Town.
Under section 5.6B(1) of the Town of Clinton Zoning Law,
property owners must meet the minimum acreage requirements
prescribed by law in order to keep, graze, feed or care for
animals on their property. Section 5.6B(1) provides that:
A minimum of two (2) acres shall be provided
for the first one such horse, pony, cow, or
similar large animal which is kept, grazed,
fed or cared for on the property; an
additional one (1) acre shall be provided for
each additional large animal.
You informed us that the ZBA has received a request for a
variance from a property owner who maintains a stable facility.
The property owner would like to increase the number of animals
grazing on his property beyond the number authorized under the
local regulation. You also informed us that the total acreage in
the parcel, when the portion located in the adjoining Town is
considered, meets the minimum acreage requirements prescribed by
section 5.6B(1). Accordingly, you have inquired whether the ZBA
may consider the parcel as a whole, including the portion located
in the adjoining Town of Stanford, in determining whether to
grant the requested area variance. You have not asked and we

2
make no determination whether an area variance is otherwise
justified.1
Initially, we note that because the property owner is
seeking an area variance to increase the number of animals
grazing, the increase would affect the adjoining Town of Stanford
where a portion of the owner's property lies. Any decision by
the Town of Clinton ZBA regarding the requested area variance
would necessarily affect the Town of Stanford. It is clear that
a municipality may not impose its land use regulations on land
outside its borders. Matter of Siegel v Tange, 61 AD2d 57, 59-60
(2d Dept 1978).
In Matter of Siegel v Tange, supra, the petitioner owned a
parcel of property divided into six lots. Lots 3 and 4, the
subjects of the proceeding, were each improved with a family
residence. The boundary line between the Village of Otisville
and the Town of Mount Hope passed through each of the houses.
(These facts are analogous to the facts under review, in that the
animals will roam throughout the parcel in both municipalities.)
Petitioner applied to the Village Zoning Board of Appeals for
area variances so that each of the two lots, and the houses
thereon, could be sold as distinct pieces of property. The
Village Zoning Board of Appeals conducted hearings on
petitioner's application for an area variance and denied the
application. Petitioner instituted an article 78 proceeding to
review the determination. The Appellate Division decided that
the court below should not have acted on petitioner's article 78
proceeding because the petitioner, in his application to the
Village Zoning Board of Appeals, failed to notify the adjoining
Town of the pending application for an area variance. Also, he
did not make application to the adjoining Town for an area
variance and obtain a decision on the application. Thus, the
Appellate Division reversed, finding that it was premature to
bring an article 78 proceeding to review the determination of the
Village Zoning Board of Appeals.
Based on Siegel, if the Town of Stanford has a zoning law
regulating the proposed use of the parcel, the property owner
must make an application with the proper agency of the Town of
Stanford for any required approvals or permits to insure
compliance with the zoning laws of both jurisdictions.
1

An "area variance" is defined as "the authorization by the
zoning board of appeals for the use of land in a manner which is
not allowed by the dimensional or physical requirements of the
applicable zoning regulations." Town Law § 267(1)(b).

3
Additionally, the property owner must notify the Town of Stanford
of the pending area variance request in the Town of Clinton and
also must notify the Town of Clinton of any application made to
the Town of Stanford since each application necessarily affects
property located in the other. Such notification would permit
both the Town of Stanford and the Town of Clinton to appear at
any hearings regarding the pending applications. Because a
municipality may not impose its zoning laws on another
municipality, the property owner may need the approval of both
Towns to increase the number of animals grazing on the parcel.
We also note that because the requested area variance
affects property located within 500 feet of the boundary of an
adjoining town, the request must be referred to the regional or
county planning board for its consideration and recommendation.
General Municipal Law § 239-m.
We conclude that because the grazing of animals on the
parcel of property necessarily affects property located in both
the Town of Clinton and the Town of Stanford, the property owner
must comply with the land use regulations of both Towns. Also,
the property owner must notify the Town of Stanford of the area
variance request pending in the Town of Clinton, and must notify
the Town of Clinton of any application made in the Town of
Stanford.
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,

YVONNE M. HOVE
Assistant Attorney General