Can a New York county assign its General Municipal Law §§ 239-l, 239-m, and 239-n review function to its county planning department instead of its planning board?
Plain-English summary
Warren County asked whether the General Municipal Law's referral-review function (the bit where cities, towns, and villages have to send certain zoning and planning actions up to the county for an inter-municipal review when the action sits within 500 feet of a jurisdictional boundary) had to be done by the county's planning board, or whether the county could route it instead to its planning department.
The AG read the statutes and said the county could choose. Section 239-l(1)(a) defined a "county planning agency" as "a county planning board, commission or other agency authorized by the county legislative body to review proposed actions referenced for inter-community or county-wide considerations." The phrase "or other agency" left the county legislature with latitude. Nothing in the statute reserved the role exclusively to a planning board.
Two further reasons reinforced that result. First, County Law § 220 and General Municipal Law § 239-c authorize, but do not require, the county legislature to delegate any particular function to a planning board it had created. The legislature could pick and choose which of the enumerated planning-board functions it actually conferred, so a planning board could exist without holding the referral-review function. Second, the county's home-rule authority under N.Y. Const. art. IX § 2(c) and Municipal Home Rule Law § 10 included the power to organize its own offices and assign duties to them, as long as the local law was consistent with state general law. Routing reviews to the planning department fit comfortably within that authority.
The opinion also addressed an earlier 1974 informal opinion that had said the powers of a county planning board could not be assigned to the county planning director. The AG distinguished it on the ground that Warren County wasn't moving every planning-board function over, just the referral-review function.
Currency note
This opinion was issued in 2011. 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
Q: What's the General Municipal Law referral-review function?
A: Sections 239-l, 239-m, and 239-n require cities, towns, and villages in counties with a county planning agency to refer certain proposed actions (rezonings, special permits, site plans, subdivisions) to that agency before final action when the action would apply within 500 feet of a municipal boundary, county or state park, or other named features. The county agency reviews for inter-community or countywide considerations and recommends approval, modification, or disapproval. If it recommends modification or disapproval, the local body cannot act contrary to that recommendation except by a majority-plus-one vote.
Q: Why was this question even unsettled?
A: The statute used the phrase "county planning agency" and listed "a county planning board, commission or other agency" as examples. Some counties read "or other agency" narrowly. The AG read it broadly and pointed to the absence of any statutory text limiting the role to a planning board.
Q: Did the county have to take the planning board's other powers away to do this?
A: No. The opinion was clear that the planning board could keep its other functions, helping prepare a county comprehensive plan, advising on the official map, conducting studies, assisting municipalities, reviewing state and county highway construction plans, and so on. The legislature could leave those with the board and shift only the referral-review function to the department.
Q: How did the AG handle the 1974 opinion that pointed the other way?
A: The 1974 opinion (Op. Att'y Gen. (Inf.) 188) said the powers of a county planning board could not be wholesale-transferred to a planning director. The 2011 opinion read that as addressing the transfer of all functions of a board, and treated a single-function reassignment as a different matter that did not run afoul of the earlier opinion.
Q: Was anything required of the county to make the change?
A: Yes, a local law. Home-rule authority is exercised through local-law enactments under Municipal Home Rule Law § 10. A bare resolution would not have been enough; the county needed to enact a local law assigning the referral-review responsibility to the planning department.
Background and statutory framework
General Municipal Law § 239-l, added in 1968 and revised in 1992, defined the structure for inter-municipal coordination of land use review. Sections 239-m and 239-n required cities, towns, and villages to send certain proposed actions to the county for review when the action would apply within 500 feet of a boundary or other listed feature. The county's role was advisory in form but had real weight: a "modify or disapprove" recommendation forced a supermajority vote at the local level to override.
County Law § 220, enacted in 1950, separately authorized the county legislature to establish a "county planning board" pursuant to General Municipal Law § 239-c. Section 239-c then catalogued the discretionary functions a county legislature could assign to the board, including the referral-review function but also a long list of other planning duties. The structure was permissive rather than mandatory throughout.
The home-rule constitutional architecture, N.Y. Const. art. IX § 2(c) and the Municipal Home Rule Law that implemented it in 1963, gave counties the power to enact local laws relating to their property, affairs, or government, and to the powers and duties of their officers and employees, as long as those local laws were consistent with state general law. The AG's analysis treated this as ample authority for a county to decide which county agency would carry out the referral-review function.
Citations and references
Statutes:
- General Municipal Law § 239-l (definitions)
- General Municipal Law § 239-m (referrals from planning, zoning bodies)
- General Municipal Law § 239-n (subdivision plat referrals)
- County Law § 220 (county planning board)
- Municipal Home Rule Law § 10
Source
- Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
- Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2011-6_pw.pdf
Original opinion text
General Municipal Law §§ 239-l, 239-l(1)(a), 239-c, 239-c(3), 239-m, 239-m(4), 239-m(5), 239-n, 239-n(4), 239-n(5); County Law § 220; New York State Constitution
Article IX §§ 2(c), 2(c)(1); Municipal Home Rule Law §§ 10(1)(i), 10(1)(ii)(a)(1)
A county may by local law assign review of proposed zoning and planning actions referred by a
municipal body to its planning department.
February 14, 2011
Paul B. Dusek
County Attorney
Warren County
Warren County Municipal Center
1340 State Route 9
Lake George, NY 12845
Informal Opinion
No. 2011-6
Dear Mr. Dusek:
You have asked whether the County may authorize the county planning department to
review proposed zoning and planning actions referred by a municipal body pursuant to sections
239-l, 239-m, and 239-n of the General Municipal Law, or whether such review must instead be
performed by the county planning board. As explained below, we believe that the County may
by local law assign this statutory review responsibility to its planning department rather than to
the planning board.
Sections 239-l, 239-m, and 239-n provide for the coordination of certain municipal
zoning and planning actions. In counties that have a county planning agency, specified proposed
actions must be referred by the city, town, or village body that is responsible for final action to
the county planning agency before taking final action if the proposed action will apply to real
property within 500 feet of a boundary of another jurisdiction. General Municipal Law §§ 239-m, 239-n. The county planning agency reviews the proposed action for inter-community or
countywide considerations and makes a recommendation with respect to the proposal. Id. §§
239-m(4), 239-n(4). The county planning agency may recommend approval, modification, or
disapproval of the proposed action or report that the proposed action has no significant
countywide or inter-community impact. Id. If the county planning agency recommends
modification or disapproval of a proposed action, the referring municipal body cannot act
contrary to that recommendation except by a vote of a majority plus one of all of its members.
Id. §§ 239-m(5), 239-n(5). The question, then, is whether the county planning department can
qualify as a county planning agency within the meaning of the relevant statutes.
A county planning agency is defined as "a county planning board, commission or other
agency authorized by the county legislative body to review proposed actions referenced for inter-community or county-wide considerations" subject to the provisions of General Municipal Law
§§ 239-l, 239-m, and 239-n. General Municipal Law § 239-l(1)(a). Thus, while a county
planning board is one of the entities that may be authorized to perform such reviews, the statute
makes clear that it is not the only such entity. Nothing in the language of section 239-l(1)(a)
excludes the planning department from the list of entities that might be authorized by the County
to perform these reviews.
Nor does the fact that the County has established a planning board preclude it from
assigning the review function to its planning department rather than to the board. County Law §
220, enacted in 1950, authorizes the county legislature to establish a "county planning board"
pursuant to section 239-c of the General Municipal Law. Section 239-c authorizes the county
legislature to grant a number of responsibilities to the county planning board, including but not
limited to the review functions at issue here. But the county legislature is free to pick and choose
those functions it wishes to assign to the board; section 239-c authorizes, but does not require,
the assignment of each of the enumerated functions. The functions that may by statute be
assigned to board include assisting in the preparation and amendment of a county comprehensive
plan; preparing and amending a county official map; undertaking studies relevant to the future
growth, development, and protection of the county and the municipalities therein; assisting
municipalities within the county with local studies; collecting and distributing information
relevant to planning and zoning within the county; furnishing local technical assistance to
municipalities within the county; and reviewing state and county highway construction plans.
General Municipal Law § 239-c(3). Thus, assigning the review functions elsewhere would by no
means leave the planning board without responsibilities.
Finally, we are of the opinion that the home rule powers of the County provide it with the
authority to determine which agency should have responsibility for review of zoning and
planning matters referred to the County by municipal bodies within the county. In 1963, the
state Constitution was amended and the Municipal Home Rule Law was enacted to grant local
governments, including counties, the authority to adopt local laws that govern certain areas.
Pursuant to this authority, a county is authorized to adopt local laws relating to its property,
affairs, or government that are not inconsistent with the provisions of the Constitution or with
any general law. N.Y. Const. Art. IX, § 2(c); Municipal Home Rule Law § 10(1)(i). A county is
also authorized to adopt local laws relating to the powers and duties of its officers and employees
that are not inconsistent with the provisions of the Constitution or with any general law, except
to the extent that the Legislature restricts the adoption of such a local law relating to other than
the property, affairs, or government of the county. N.Y. Const. Art. IX, § 2(c)(1); Municipal
Home Rule Law § 10(1)(ii)(a)(1).
We are of the opinion that these home rule powers authorize the County to adopt a local
law granting to the county planning department responsibility for review of zoning and planning
matters referred by municipal referring bodies within the county. Such a local law would relate
to the County's government as well as to the powers and duties of its officers and employees.
And, as demonstrated above, it would be consistent with County Law § 220 and the relevant
provisions of the General Municipal Law.
Finally, we do not believe a contrary conclusion is required by 1974 Op. Att'y Gen. (Inf.)
188, in which we opined that the powers of a county planning board could not be assigned to the
county planning director. Your question is not whether all the powers of the planning board can
be transferred from the board to another entity, the question we considered in 1974. While a
transfer of all functions of the planning board might not have been permissible, we believe that a
transfer of this one function is. Accordingly, we conclude that the authority to review proposed
municipal actions specified under sections 239-l, 239-m, and 239-n may be assigned to the
county planning department.
The Attorney General issues formal opinions only to officers and departments of state
government. Thus, this is an informal opinion rendered to assist you in advising the municipality
you represent.
Very truly yours,
KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions