State and County Laws Require Oversight of Certain Local Land Use Decisions

Farrell Fritz, P.C.
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As a “home rule” state, New York’s zoning and other land use decisions are typically made at the village, town, or city level.  However, Section 239-m of the General Municipal Law (GML) requires a referral to, and a subsequent recommendation by, the local county planning commission for certain local land use actions that might affect the interests of other jurisdictions. The failure of a local board to make a required referral can have severe consequences, including having its decision deemed void and unenforceable.

General Municipal Law § 239-m

GML § 239-m(2) provides that any village, town, or city that is located in a county that has a county planning agency or, in the absence of a county planning agency, that is located in the jurisdiction of a regional planning council, must refer the following proposed actions to the planning agency or council before taking final action:

  • Adoption or amendment of a comprehensive plan;
  • Adoption or amendment of a zoning ordinance or local law;
  • Issuance of special use permits;
  • Approval of site plans;
  • Granting of use or area variances; and
  • Other authorizations that a referring body may issue under the provisions of any zoning ordinance or local law.

However, referrals of these actions are required only if they apply to real property within 500 feet of any of the following:

  • The boundary of any village, town, or city;
  • The boundary of any existing or proposed county or state park or other recreation area;
  • The right-of-way of any existing or proposed county or state parkway, thruway, expressway, road, or highway;
  • The existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines;
  • The existing or proposed boundary of any county or state owned land on which a public building or institution is situated; or
  • The boundary of a farm operation located in an agricultural district (except with respect to the granting of area variances).

The purpose of a GML § 239-m referral is to ensure that regional or county-wide concerns are taken into consideration in the local planning process.

The county planning agency or regional planning council to which a referral is made has 30 days (subject to being extended by mutual agreement) to report its recommendations to the referring body. This time starts to run only after the planning agency or council has received a full statement of the proposed action.  The planning agency or council’s report must be accompanied by a statement of the reasons for its recommendations. If the planning agency or council fails to issue a report within this period, the referring body may act on the proposed action.

Once the planning agency or council has reviewed the proposed action, it may recommend approval, modification, or disapproval of the proposed action, or it may report that the proposed action has no significant county-wide or inter-community impact and deem it to be a matter for local determination.  If the planning agency or council recommends modification or disapproval of a proposed action, the referring body may not act contrary to the recommendation unless a supermajority of the referring body – that is, a majority plus one of all of its members – votes to do so.

GML § 239-m(3)(c) also authorizes a county planning agency or council to enter into agreements with municipalities to provide that certain proposed actions otherwise subject to referral are matters of local determination, rather than of inter-community or county-wide concern, and are not subject to referral.

Suffolk County

Zoning and planning actions in Suffolk County must also comply with the referral requirements of the Suffolk County Administrative Code (SCAC), which requires review and recommendation over a slightly expanded scope of zoning actions within the county as compared to GML § 239-m.

In particular, Section A14-14 of the SCAC requires that towns and villages refer to the Suffolk County Planning Commission (SCPC) any zoning regulation or amendment that would change the district classification of, or regulations applying to, real property lying within one mile of a nuclear power plant or airport or within 500 feet from:

  • The boundary of any village or town;
  • The boundary of any existing or proposed county, state, or federal park or other recreation area;
  • The right-of-way of any existing or proposed county or state parkway, thruway, expressway, road, or highway;
  • The existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines;
  • The existing or proposed boundary of any other county, state, or federally owned land held or to be held for governmental use;
  • The Atlantic Ocean, Long Island Sound, any bay in Suffolk County, or an estuary of any of the foregoing bodies of water; or
  • The boundary of a farm operation located in an agricultural district.

Following the referral of a zoning action to the SCPC, the Commission has 45 days after receipt of a full statement on the proposed action to issue its report.

In order to reduce the administrative burden on local municipalities and to focus on actions with inter-community or county-wide implications, the SCPC, by resolution passed on September 3, 2008, determined that the following actions are matters for local determination that will not be subject to referral pursuant to the GML or the SCAC, provided that an inter-municipal agreement with the referring body is entered into:

  • All area variances associated with single-family residences.
  • Change of one permitted use to another with no changes in parking requirements (i.e. retail to office).
  • Minor additions less than 1,000 square feet with no change to use or occupancy.
  • Site plan applications proposing less than 5,000 square feet of new or renovated floor area or less than 10,000 square feet of land disturbance.

However, if any of the above actions are the subject of a Positive Declaration pursuant to the State Environmental Quality Review Act or involve property abutting state or county parkland, the Atlantic Ocean, Long Island Sound, any bay in Suffolk County or estuary of any of the foregoing bodies of water, they shall be subject to the full SCPC review process.  For a more detailed discussion of the benefits of inter-municipal cooperation under GML § 239-m, see our prior blog post, No More General Municipal Law 239-m County Referrals!

Conclusion

The law is clear that a local government’s failure to refer a proposed zoning or land use planning action to the relevant county commission can lead to its approval of the proposed action being invalidated by the courts. For example, in Matter of LCS Realty Co., Inc., 273 A.D.2d 474 (2d Dep’t 2000), the Appellate Division, Second Department, ruled that the Village of Roslyn’s comprehensive master plan was void and unenforceable because the village failed to comply with GML § 239-m.  More recently, in Matter of Calverton Manor, LLC, 160 A.D.3d 842 (2d Dep’t 2018), the  same court ruled that the Town of Riverhead’s failure to refer a proposed transfer of development rights law constituted a “jurisdictional defect” that rendered the adopted law void and unenforceable.

Accordingly, local officials must adhere to the requirements of GML § 239-m and other county referral laws in order to limit the risk that their zoning or other land use decisions will be invalidated.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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