NY AG Opines that Town Board May Establish a Second Planning Board to Review and Determine Only Site Plans Within a Proposed Planned Development District

The Town of Islip, NY requested an opinion of the Office of the Attorney General (OAG) about whether the town board could create a secondary, yet limited, planning board to oversee applications for site plans for a rather large upcoming planned development district project pursuant to Town Law 261-c.  The reason for the request was the town board’s concern about “overburden[ing] the existing planning board.”  The project is a change of zoning over a “452-acre parcel to include a range of mixed uses, including housing, office buildings, retail, entertainment, and civic uses,” with an expected completion in fifteen to twenty years.

The OAG responded that the Town Law § 274-a(2) allowed for the town board to choose which board oversees and decides each issue. Further, the OAG reasoned that  “[b]ecause 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.” The OAG relied on cases that had permitted town boards to create special boards for issues that fall within its authority. The OAG continued, although the Legislature has stepped in to limit the superseding power of towns and villages with respect to area variances (see, Matter of Cohen v Bd. of Appeas of Vill. of Saddle Rock), that was a separate matter that has no bearing on the current issue.

Therefore the Attorney General opined that the town board has the authority to create a secondary planning board to deal specifically with this particular project. Furthermore, the AG opined that it was permissible to have one member of the existing planning board as a member of the secondary planning board since one board would not have authority over the other and further these boards would have separate jurisdictions.

NY AG Informal Opinion No. 2012-1 (01/13/2012)

The opinion can be accessed at:  http://www.ag.ny.gov/sites/default/files/opinion/2012-1%20pw.pdf