ROBERT E. PEASE, ESQ. Town Attorney, Somers
We acknowledge receipt of your letter requesting an opinion regarding the power of a town board of a town in which zoning has been adopted and which has established a board of zoning appeals. You inquire whether the town board may grant to the board of zoning appeals power to decide on certain special use permits and reserve to itself the power to decide on certain other special use permits and/or whether the town board may reserve to itself the power to decide upon all special use permits within certain of the zoning districts of the town. The questions are extremely broad. However, there are certain fundamentals of the zoning law upon which we can comment.
Special use permits relate to uses or improvements expressly permitted by the zoning ordinance, but subject to prior approval. A special use permit differs from a variance in that a variance is granted to permit an owner, under unusual circumstances, to use the property for a use otherwise unauthorized by the ordinance (Greenpoint Savings Bank v Boardof Zoning Appeals, 281 N.Y. 534 [1939]; Simensky v Mangravite,16 A.D.2d 977, affd 12 N.Y.2d 908 [1963]; Stine v Kirvin, 17 A.D.2d 716 [1962]; Adams Holding Corporation v Spitz, 17 A.D.2d 853 [1962]; Katz vBoard of Appeals, 21 A.D.2d 693 [1964]; Mandis v Gorski, 24 A.D.2d 181 [1965]; Bar Harbor Shopping Center v Andrews, 23 Misc.2d 894 [1959]).
In our opinion, a municipal legislative body in the ordinance may reserve the power to issue special use permits or assign all or part of that duty to the board of zoning appeals or the planning board but may not reserve to itself the power to grant variances, this being a function which can be exercised solely by the board of zoning appeals.