Can a New York town set up a second, special planning board limited to reviewing site plans within a planned development district, alongside its regular planning board?
Plain-English summary
Islip was looking at a 452-acre mixed-use development proposal that the developer wanted to build out in pieces over 15-20 years, submitting site plans block by block. The town worried the existing planning board would be overwhelmed by that workload on top of its other duties, so it asked whether it could create a second, dedicated planning board whose only job would be to review site plans inside the planned development district.
The AG said yes. Town Law § 274-a(2) gave the town board direct authority: it could authorize "the planning board or such other administrative body that it shall so designate" to review and approve or disapprove site plans. The phrase "such other administrative body" supplied flexibility. The town didn't have to send all site plan review to its existing planning board.
The home-rule path led to the same place. Municipal Home Rule Law § 10 authorized a town to enact local laws relating to its property, affairs, and government, to the powers and duties of its officers and employees, and to subjects covered by the Statute of Local Governments. The Statute of Local Governments § 10(6) gave towns the power to adopt and amend zoning regulations. Municipal Home Rule Law § 10(1)(ii)(d)(3) let the town supersede provisions of the Town Law on those subjects, except where the Legislature had restricted that supersession authority. The opinion checked the standard restriction, Cohen v. Saddle Rock, which had held that the Legislature occupied the field for area-variance review, and concluded the same kind of preemption was not present in § 274-a. The express language allowing designation of "such other administrative body" cut the other way.
The AG also blessed dual membership: a person could sit on both planning boards because their jurisdictions did not overlap and neither board would review or supervise the other.
Currency note
This opinion was issued in 2012. 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: Why couldn't Islip just have its existing planning board absorb the work?
A: It could have. The question was whether it had to. Islip wanted to insulate the regular planning board from a long-running, complex review process and to dedicate a board with focused expertise to the planned development district. The AG's answer was about authority, not strategy.
Q: How did the AG read the phrase "such other administrative body" in § 274-a(2)?
A: As express legislative permission for towns to designate a body other than the regular planning board to do site plan review. The phrase didn't require the alternative body to be a different kind of entity (e.g., a department head or commission); a second planning board fit the description.
Q: What did Cohen v. Saddle Rock do here?
A: Cohen held that when the Legislature amended the Village Law's area-variance review provision in the 1990s, it intended to occupy that field, so a village could not supersede the new state standard with its own pre-amendment standard. The AG distinguished § 274-a from the area-variance provision in Cohen because § 274-a expressly contemplates that the town board will pick the reviewing body, which signals that the Legislature was not preempting local choice.
Q: Are there any limits on the special board's jurisdiction?
A: The opinion expressed only on the narrow facts: a special board limited to site plan review of one planned development district. It didn't address how far this authority extends to subdivision review, special permits, or comprehensive plans. The narrow scope was consistent with the precedents the opinion cited (Torsoe Bros., Sherman v. Frazier, Kasper v. Brookhaven), which all involved special boards with defined slices of jurisdiction.
Q: Can a planning-board member also serve on the special planning board?
A: Yes, under the facts the AG considered. Compatibility-of-office doctrine forbids one person from serving as supervisor and subordinate, but here neither board has any review or oversight role over the other and they have non-overlapping jurisdictions. The AG also noted that the number of regular planning board members appointed to the special board would be less than a majority, which avoids a quorum-overlap problem.
Q: Could a town establish a special board for non-PUD site plans too?
A: Logically, the same statutory authority would reach that case, but the opinion deals only with the PUD context the town presented. A town considering a broader designation would want to confirm that nothing in the broader statutory scheme imposes a more narrowly drawn rule for routine subdivisions.
Background and statutory framework
Town Law § 261-c authorizes towns to use planned unit development (PUD) districts as part of their zoning local law or ordinance. PUD districts allow flexible mixes of residential, commercial, industrial, or other uses with the goal of achieving economies of scale, creative architectural and planning concepts, and open space preservation, in furtherance of the comprehensive plan. They tend to be large parcels developed in phases, exactly the structural challenge Islip was facing.
Town Law § 274-a is the source of site plan review authority. It defines a "site plan" as a rendering, drawing, or sketch prepared to specifications and showing the arrangement, layout, and design of a proposed use of a single parcel. Section 274-a(2) gives the town legislative body the power to authorize either the planning board or another administrative body to review and approve or disapprove site plans.
Home rule provides the broader power to organize the town's own boards. Municipal Home Rule Law § 10 lets a town adopt local laws relating to its property, affairs, government, the powers and duties of its officers and employees, and matters covered by the Statute of Local Governments. Section 10(1)(ii)(d)(3) lets a town supersede Town Law provisions in relation to those subjects, except to the extent the Legislature has restricted that authority. The Court of Appeals in Cohen v. Saddle Rock has policed the limits of supersession when the Legislature has occupied a field, but that doctrine doesn't reach a provision that, like § 274-a(2), expressly delegates choice to the local body.
Citations and references
Statutes:
- Town Law § 261-c (planned unit development districts)
- Town Law § 274-a (site plan review)
- Municipal Home Rule Law § 10
- Statute of Local Governments § 10
Cases:
- Matter of Torsoe Bros. Constr. Corp. v. Architecture & Cmty. Appearance Bd. of Review, 120 A.D.2d 738 (2d Dep't 1986) (special site plan review board)
- Sherman v. Frazier, 84 A.D.2d 401 (2d Dep't 1982) (special permit board)
- Kasper v. Town of Brookhaven, 142 A.D.2d 213 (2d Dep't 1988) (accessory apartment permits)
- Matter of Cohen v. Bd. of Appeals of Vill. of Saddle Rock, 100 N.Y.2d 395 (2003) (preemption of area-variance review)
Source
- Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
- Original PDF: https://ag.ny.gov/sites/default/files/opinions/2012-1_pw.pdf
Original opinion text
TOWN LAW §§ 261-c, 274-a, 274-a(1), 274-a(2); MUNICIPAL HOME RULE LAW
§§ 10, 10(1)(ii)(a)(1), 10(1)(ii)(a)(14), 10(1)(ii)(d)(3); STATUTE OF LOCAL
GOVERNMENT § 10(6)
A town board is authorized to establish a second planning board to review
and determine only site plans within a proposed planned development district.
January 13, 2012
Alicia S. O'Connor
Town Attorney
Town of Islip
Town Hall
Islip, New York 11751
Informal Opinion
No. 2012-1
Dear Ms. O'Connor:
You have requested an opinion regarding whether the Town is authorized to
establish, in addition to its regular planning board, a special planning board that
will be limited in its jurisdiction. You have explained that the town board is
entertaining an application for a change of zone to create a planned development
district pursuant to Town Law § 261-c. The developer proposes to develop a 452-acre parcel to include a range of mixed uses, including housing, office buildings,
retail, entertainment, and civic uses. The developer further proposes to submit site
plan applications for approval of segments or blocks in a series of single
applications. The Town anticipates that completion of the development project will
take 15 to 20 years, to be completed in phases.
The Town is concerned that the site plan review for this development project
will overburden the existing planning board. Thus, the Town is contemplating
creation of a separate planning board that will consider applications for site plans
only within the planned development district.
We believe that the town board is authorized to create the contemplated
special planning board to review and decide only applications for site plans within
the planned development district. First, Town Law § 274-a(2) expressly provides
that the town board may give the power to review and approve or disapprove site
plans to "the planning board or such other administrative body that it shall so
designate." On its face this provision grants town boards the flexibility to
determine what local board should have jurisdiction over site plan review.
Second, the broad authority of Municipal Home Rule Law § 10 allows the
town board to adopt local laws in several areas relevant here. It may adopt local
laws relating to the property, affairs, and government of the Town, to the powers
and duties of its officers and employees, and to the powers granted to it by the
Statute of Local Governments, and it may amend or supersede any provision of the
Town Law in relation to matters on which it is authorized to adopt local laws,
except to the extent the Legislature restricts the adoption of such a local law.
Municipal Home Rule Law § 10(1)(ii)(a)(1),(a)(14),(d)(3). Because the town board
has the power to adopt, amend, and repeal zoning regulations, Statute of Local
Governments § 10(6), it therefore has the power to supersede a provision of the
Town Law in its application to the town and the power to adopt zoning regulations.
These powers in turn have been held to authorize the creation of a special board to
which the town board delegated the authority to determine certain applications.
See Matter of Torsoe Bros. Constr. Corp. v. Architecture & Cmty. Appearance Bd. of
Review, 120 A.D.2d 738 (2d Dep't 1986) (site plan review by special board); see also
Sherman v. Frazier, 84 A.D.2d 401 (2d Dep't 1982) (upholding town's authority to
create board to determine special permit applications by those who own illegally
converted two-family houses); Kasper v. Town of Brookhaven, 142 A.D.2d 213 (2d
Dep't 1988) (same, accessory apartment permits).
For both of these reasons, we believe that establishing a special board as you
have described falls within the town board's authority. The remaining question is
whether the Legislature has restricted the town board's exercise of this authority.
This question arises because in the 1990s, the Legislature enacted a series of laws
that amended the zoning provisions of the Town Law and the analogous provisions
in the Village Law and the General City Law. Subsequently, the Court of Appeals
held in Matter of Cohen v. Bd. of Appeals of Vill. of Saddle Rock, 100 N.Y.2d 395
(2003), that the amendment of a provision of the zoning laws governing villages
constituted a restriction by the Legislature that prevented villages from
superseding it. At issue was a local law adopted to re-establish, within the village,
a standard of review of applicants' denials of area variances that had existed under
the pre-amended zoning provisions of the Village Law. The village argued that its
supersession authority allowed it to amend, insofar as it applied to the village, the
new standard enacted by the Legislature. The Court disagreed, holding that the
Legislature had intended to occupy the field of area variance review, and thus that
it had preempted local supersession authority. 100 N.Y.2d at 402.
We are of the opinion, however, that the holding in Cohen does not apply to
Town Law § 274-a. In light of the express language in Town Law § 274-a(2)
permitting a town board to authorize the planning board or another administrative
body to review and decide site plans, we believe that the Legislature has not evinced
an intent to preempt the town board's authority to select, by local legislation, the
board designated to review site plans.
We therefore are of the opinion that the town board is authorized to establish
a second planning board that will review and determine only site plans within the
proposed planned development district.
You have further asked whether a member of the existing planning board can
be a member of the special planning board. You have explained that the special
board will have either three or five members and that the number of members of
the existing planning board appointed to the special planning board will constitute
less than a majority of the special board.
Because the planning boards will not have overlapping jurisdictions, nor will
either board have any review or oversight responsibility over the other, we believe
that the positions of planning board member and special planning board member
are compatible. We have identified no other restriction on the town board's ability
to appoint planning board members to the special planning board in a number that
will constitute less than a majority of the special planning board.
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