Robert J. Krugler, Esq. Attorney for Town Zoning Board of Appeals, Mohawk
You have asked whether a person may hold simultaneously the positions of member of the zoning board of appeals of a town and member of the board of education of a school district located in the same town.
A town zoning board of appeals determines appeals from orders and decisions by administrative officials charged with enforcement of zoning regulations, decides other matters referred to it under the terms of local zoning regulations and makes determinations on applications for variances from the zoning laws (Town Law, § 267[2], [5]). The board of education of a school district is the governing body of the district.
In a previous opinion of this office, we stated that school district property utilized for governmental purposes is exempt from building and zoning laws (1979 Op Atty Gen [Inf] 234). However, real property used for proprietary purposes would be subject to these regulations (ibid.).
Since it is likely that most school district property would be utilized for governmental purposes, only on rare occasions would school district property be subject to local zoning laws and therefore be subject to the jurisdiction of the zoning board of appeals. Assuming that the occasions for such conflict will be infrequent, we believe that one person may hold simultaneously the positions of member of the town zoning board of appeals and member of the board of education. It is our opinion, however, that on these occasions the member of the board of appeals also serving as a member of the board of education should recuse him or herself from participation.
We conclude that one person may hold simultaneously the positions of member of the town zoning board of appeals and member of the board of education. If questions involving school district property come before the board of appeals this person should recuse him or herself from participating in the deliberations and decision.