What approvals and notice does a landowner need when a proposed use affects a parcel in two New York towns?

Plain-English summary

A stable operator in the Town of Clinton wanted to graze more animals than Clinton's zoning law allowed. That law required two acres for the first large animal and one more acre for each additional animal. The parcel extended into the Town of Stanford. According to the request, the total acreage met Clinton's minimum if the Stanford portion was included. The operator sought a variance from Clinton's Zoning Board of Appeals, and the town attorney asked whether the board could consider the parcel as a whole.

The AG focused on the consequences of the proposed grazing use affecting land in both towns.

The opinion says a municipality may not impose its zoning rules on land outside its borders. It cites Matter of Siegel v Tange, 61 AD2d 57 (2d Dept 1978), involving lots divided by a village-town boundary. The AG noted that the animals here would roam throughout the parcel in both towns. If Stanford has a zoning law regulating the proposed use, the owner must apply for any required Stanford approvals or permits to comply with both towns' laws.

The owner must notify Stanford of the pending Clinton variance request and notify Clinton of any application made to Stanford. This gives each town an opportunity to appear at hearings on the other's application. The Clinton variance request also must be referred to a county or regional planning board under General Municipal Law § 239-m because it affects property within 500 feet of the adjoining town's boundary.

The AG concluded that the owner must comply with the land use regulations of both towns. It did not decide whether Clinton's board may count the Stanford acreage when evaluating the variance request.

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?

The town attorney asked that question, but the opinion's conclusion does not resolve how Clinton's board should count acreage. It says the owner must comply with both towns' land use regulations and follow the application and notice steps it describes.

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

The opinion does not describe Stanford's zoning rules. It says that if Stanford has a zoning law regulating the proposed use, the owner must apply to the proper Stanford agency for any required approval or permit.

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

The AG said the Clinton variance request must be referred to a regional or county planning board for consideration and recommendation because it affects property within 500 feet of the Stanford boundary. The opinion does not discuss any vote needed to act contrary to that board's recommendation.

What if Stanford has no zoning law regulating grazing?

The AG made the duty to apply for Stanford approvals conditional on Stanford having a zoning law regulating the proposed use. The opinion still requires notice to Stanford of the pending Clinton variance request and county or regional referral of that request.

Why must each town receive notice?

The AG said each application necessarily affects property in the other town. Notice would allow both towns to appear at hearings on the pending applications.

Background and statutory framework

The opinion says a municipality may not impose its land use regulations on land outside its borders. Because the animals would graze on both sides of this parcel, the owner must comply with the land use rules of both Clinton and Stanford.

In Matter of Siegel v Tange, 61 AD2d 57 (2d Dept 1978), two lots and their houses crossed a village-town boundary. The AG recounted the Appellate Division's conclusion that review of the village's variance decision was premature because the applicant had neither notified the adjoining town nor applied there for a variance and obtained a decision.

General Municipal Law § 239-m requires referral of this variance request to a regional or county planning board because the affected property is within 500 feet of the adjoining town's boundary.

Citations

• General Municipal Law § 239-m (county or regional planning board referral).
• 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