Opn. No.

Jonathan R. Kopald, Esq. Town Attorney, Highland Falls

We acknowledge receipt of your letter inquiring whether the Town of Highlands, for which you are town attorney, may adopt zoning legislation in which special use permits and site plans, which the town board may authorize the town planning board to review and approve under the provisions of Town Law, § 274-a, may adopt legislation instead to authorize special use permits and site plans to be reviewed and approved by a board made up of the five members of the town board and the five members of the planning board.

Town Law § 267, subdivision 1 provides that no member of the town board shall be eligible for membership on the town zoning board of appeals which is a board required by statute if a town has adopted zoning. Town Law § 271 has to do with creation of planning boards and appointment of members. It is not required that a town have a planning board if it has adopted zoning; a planning board is permissive. In an informal opinion of this office reported in 1971 Opinion of the Attorney General 151 (copy enclosed), we concluded that a town board may not restrain, overrule or make the decisions of a planning board subject to town board approval. In support of our conclusion we relied upon Walton vTown of Brookhaven, 41 Misc.2d 798 (1964). See, also, Matter of Boxer vTown of Cortlandt, 60 A.D.2d 913 (1978).

In our opinion, if a town establishes a planning board the town board no longer has jurisdiction to perform any of the functions which are assigned to a planning board by State statute even though without the creation of the planning board the town board itself might have had authority to act in that field; similarly, where a State statute authorizes a town board to permit a town planning board to approve plats and issue special permits, that authority exists for the purpose and to be exercised in the form and manner contemplated by the State statute; it would not be proper for the town board to create a different agency of town government consisting of its own members and the five members of the planning board, the functions of which would be to approve plats and issue special permits.

We enclose a copy of 1967 Opns St Comp 409 which discusses town boards, zoning boards of appeals and planning boards. We feel that opinion may also be of interest to you.