David M. Christy, Esq. Attorney for the Village of Lewiston

You request our opinion whether the chairman of your village planning commission, created under General Municipal Law Article 12-A (§§ 234-239-a), simultaneously may hold the office of village trustee. You point out that the commission was authorized and empowered by the board of trustees to approve subdivisions within the village. We assume that the grant of authority was under Village Law § 7-728 and that the trustees under Village Law § 7-718 have provided that the commission is the board operating under Village Law Article 7 §§ 7-718-7-734. You state that your inquiry arises because the authorization granted to the commission includes the power to grant zoning variances in the course of approving a subdivision, a power vested in a board of zoning appeals under normal zoning law enforcement.

Village Law § 3-300 subd 3 provides that no person simultaneously may hold an elective and an appointive village officeexcept that no more than two trustees may be members of each board and commission. This is the standard applicable within a village. An exception to the standard is in Village Law § 7-712 subd 1, which forbids trustees to be members of zoning boards of appeals. Both zoning and planning are dealt with in Village Law Article 7 but a zoning board of appeals and a planning board (or commission) are different, having different functions, purposes and powers. The exception contained in Village Law § 7-712 subd 1 applies only to members of zoning boards of appeals; section 7-718, which deals with planning, states that members of the village planning board do not, because of such membership, forfeit their right to exercise the powers, perform the duties or receive compensation of the municipal office held by them during such membership.

The statute creates a pattern. We must assume that the Legislature created the pattern deliberately.

In our opinion, a member of a village board of trustees simultaneously may be chairman of a village planning board or commission.