Opn. No. ( 1981 )

John E. Murray, Esq. County Attorney, Broome County

Assistant County Attorney Paniccia has requested a legal opinion in relation to zoning, planning and site plans. We issued an informal opinion published in 1977 Op Atty Gen 200 to the effect that when city, town and village planning boards are empowered to review site plans, such site plans are not reviewable by county planning agencies under General Municipal Law § 239-m even though such site plans are located within the areas specified by the section. Mr. Paniccia points out that the informal opinion of this office and the conclusion of the Department of State differ in that the Department of State concludes that county planning agencies do have review authority over site plans, citing

"Site Development Plan Review, Volume 2.01 (Site Review Procedure and Guidelines), paragraph entitled ``Final Site Development Plan Phase' commencing on page 5: no date of publication listed: published by the Department of State".

In common parlance a building site, a homesite or a site plan means a place where a home has been or will be built. Statutes and zoning ordinances use the expression in that sense and many ordinances require a review of all building or "site" plans and that special permits be issued. (See, e.g., General City Law § 30-a; Town Law § 274-a; Village Law § 7-725.) That is the sense in which the concept was used in our 1977 opinion.

Confusion has arisen because "site plan" is used as a term of art to mean the proposed public, commercial or industrial development of property in single ownership for one principal building and permitted accessory buildings or for a group of buildings intended to remain in one ownership. The term has been used in statutes without definition and without recognition of its use and application in common parlance. (See,Matter of Stateline Plaza, Inc. v Lehrecke, et al. 87 Misc.2d 234 [Sup Ct, Rockland Co, 1976].)

In our opinion, the conclusions reached by both offices are correct; confusion can be eliminated through proper draftsmanship of statutory amendments.