Hon. David M. Garber Corporation Counsel Syracuse
Assistant Corporation Counsel Eleanor Theodore has requested our opinion in relation to General Municipal Law § 239-m, stating:
"The Zoning Ordinance of the City of Syracuse requires the approval of the Planning Commission and the Common Council of the City of Syracuse prior to the issuance of a special permit. In the event an application for a special permit is referred to the County Planning Board pursuant to Section 239-m and the said Board renders a negative decision, must the City Planning Commission and/or the Common Council approve the application for a special permit at a majority plus one vote?"
The portion of section 239-m concerning which she inquires provides:
"If such planning agency disapproves the proposal, or recommends modification thereof, the municipal agency having jurisdiction shall not act contrary to such disapproval or recommendation except by a vote of a majority plus one of all the members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary action."
She asks whether the "municipal agency having jurisdiction" refers just to the planning commission or to the planning commission and the common council.
The zoning ordinance of the City of Syracuse did not have to provide for approval of both the common council and the planning commission prior to the issuance of a special permit, but because your city wants to provide that extra precaution it is our opinion that if the county planning board disapproves the application or approves the application with modifications, both those bodies must provide the approval by the extra vote specified in the statute and must state in the approval resolution the reasons for such action.