Land Use Training Program
for Local Officials
Tutorial
Component III - Subdivision Approval
New York Municipal Insurance Reciprocal
Land Use Law Center - Pace University School of Law
New York Planning Federation
TABLE
OF CONTENTS
SUBDIVISION
REGULATION *
Local
Legislature *
Reviewing
Board *
Decisions *
INFRASTRUCTURE
& GROWTH MANAGEMENT *
PRELIMINARY AND
FINAL PLAT APPROVAL *
Variations *
CONDITIONS *
Parkland
Dedication *
Other
Conditions *
LIMITATIONS ON
CONDITIONS *
ENVIRONMENTAL
REVIEW *
AREA VARIANCE
REQUEST *
COUNTY/REGIONAL
PLANNING AGENCY *
SUMMARY *
Preliminary
Subdivision Plat Review *
Final Subdivision
Plat Review *
REFERENCES *
QUIZ *
Why regulate subdivisions?
"Subdivision" refers to the legal division of parcels into smaller
parcels that can be sold. A subdivision plat is a drawing or sketch showing the
placement of roads, buildings, and infrastructure on the property
proposed to be divided. By requiring local approval and requiring that certain
standards be met, local governments can ensure thoughtful, well-balanced
development.
Villages, towns, and cities in New
York are authorized by state statutes to adopt and implement subdivision
regulations. The adoption of subdivision regulations is permitted, not
required, by state law. These statutes authorize localities to impose
conditions on subdivision approval, waive requirements where they are not
needed to protect the public, require the reservation of parkland on a
residential site, or require the payment of a sum of money in lieu thereof,
require the posting of a performance bond to secure the development of
improvements on the site, approve the clustering of permitted density
on portions of the parcel in order to preserve open space, and require the
compliance with environmental review provisions
when approving plat applications.
The statutory provisions authorizing municipalities to adopt subdivision
regulations and to provide for the review and approval of subdivisions are
found in Village Law §§7-728 - 7-730, Town Law §§ 276 - 278, and General City Law §§ 32 - 34. Village Law § 7-718(13), Town Law § 271(13), and General City Law § 27(13) authorize the planning board to
prepare subdivision regulations, subject to final approval and adoption by local
law by the local legislative body.
The state enabling acts define subdivision as follows: "the
division of any parcel of land into a number of lots, blocks or sites as
specified in a local ordinance, law, rule, or regulation, with or without
streets or highways, for the purpose of sale, transfer of ownership, or
development. The term "subdivision may include any alteration of lot lines
or dimensions of any lots or sites shown on a plat previously approved and
filed in the office of the county clerk or registrar of the county in which
such plat is located. Subdivisions may be defined and delineated by local
regulation as either "major" or “minor”, with the review procedures
and criteria for each set forth in such local regulations." Village Law § 7-728(4)(a), Town Law § 276(4)(a), and General City Law § 32(4)(a).
The Court of
Appeals has affirmed that a village board of trustees (the same
would be true for a city or a town) or a planning board may define the term
'subdivision' to include the division of land into two or more lots.
Delaware Midland Corp. v. Incorporated Village of Westhampton Beach
(1976).
Regulating and approving subdivision plats is an important element of land use regulation in a community. Subdivision
controls ensure that adequate services and facilities exist to support
potential development by reviewing the design and layout of divided properties.
About 70% of the municipalities in the State have adopted subdivision
regulations: 92% of cities, 72% of towns and 67% of villages. Although
subdivision and site plan regulations have been used in New York for most of
the century, most communities did not adopt their subdivision regulations until
the 1960s and 1970s.
Subdivision regulations may be
enacted as their own chapter of the municipal code or as their own article
within the zoning chapter of the code. Under a typical set of subdivision
regulations, the landowner must submit a plat of the proposed subdivision
that shows the layout and approximate dimensions of lots and roads, the
topography and drainage, and all proposed facilities at an appropriate scale. A
plat is a map, drawing, or rendering of the subdivision which can contain
narrative elements.
Local regulations can require that
the subdivision plat show all streets at sufficient width and suitable grade,
sanitary sewers and storm drains, water mains and systems, landscaping,
sidewalks, curbs and gutters, fire alarm signal devices, street lighting,
signs, and trees. Additional features may be required such as the location of floodplains,
wetlands,
building footprints, large trees, archeological sites, and utility easements
and lines. Further, the statutes authorize the planning board, under certain
circumstances, to require the applicant to reserve land for a park, playground,
or other recreational purposes or to require the payment of a sum of money in
lieu of such a reservation.
The local legislature has the authority to adopt subdivision
regulations, to decide what standards to include, to determine what types of
private land subdivisions are subject to approval, and to appoint the planning
board as the local reviewing body.
The local legislature, in adopting
subdivision regulations, can exempt small subdivisions from the approval
process, specify whether minor and major subdivisions are to be treated
differently, state whether lot line alterations are controlled by the
subdivision regulations, and indicate whether subdivision applicants must go
through a preliminary and final approval process or only a final approval
process. For example, in the definition given in the Town of Clinton's
regulations, the division of land into parcels of more than ten acres, not
involving any new street or easement of access, is not subject to subdivision
regulation. The locality can also specify how detailed subdivision applications
must be and how many elements or factors the submitted subdivision map must
contain.
Review authority for subdivision approval varies from locality to
locality. The process is governed by local regulation, which must be consulted
to determine how subdivision regulation works in any given community.
State law authorizes the local
legislature to adopt subdivision regulations and delegate subdivision review
and approval authority to the local planning board.
Village Law § 7-718(13), Town Law § 271(13), and General City Law § 27(13) authorize the planning board to
recommend subdivision regulations to the local legislature for adoption.
Once the planning board has been authorized to approve subdivisions in
the municipality, the municipal clerk shall file a certificate of that fact
with the county clerk or register of deeds. This is critical to the
administration and effectiveness of subdivision regulations - creating county
awareness of compliance prior to a deed filing.
Real Property Law § 334 prohibits the sale of subdivided lots to the
public until a map of the subdivision has been filed with the county clerk or
register of deeds. Where the planning board has been authorized to approve
subdivisions, Village Law § 7-732, Town Law § 279, and General City Law § 34 prohibit the filing of subdivision maps
with the county land records office unless the approval of the board has been
endorsed on the map.
A board reviewing a subdivision
application has the power to decide whether the application is to be approved,
approved upon conditions, or disapproved. Decisions
of the reviewing board must be based on the standards contained in
the subdivision laws and regulations. The applicant must demonstrate that it
has met all standards contained in the regulations to be entitled to an approval.
Generalized complaints by local residents are insufficient to justify the
denial of an application. Similarly, approval cannot be withheld based solely
on conclusory allegations that the subdivision or site plan is not consistent
with the character of the neighborhood if the plans meet all the applicable
requirements. Where a subdivision application meets the standards contained in
the regulations, it must be approved. Where it does not, the planning board may impose conditions to insure that it meets
the specifications, or it can be rejected.
When the planning board approves a
subdivision application, the record should reflect that the proposal meets the
regulations so established. The statutes further require that decisions to
modify or disapprove applications be based on evidence found in the record.
Keeping a detailed record containing such evidence in all cases, insures that
board decisions are not arbitrary, capricious, or an abuse of discretion. Such
records provide the type of information parties need when deciding whether to
appeal board decisions, and create the type of record that is necessary for a
court to determine the validity of the board's decisions to approve
subdivisions.
Within 30 days of the filing of the
reviewing board's decision with the municipal clerk, any aggrieved
person may apply to the Supreme Court to review the decision under Article 78 of the Civil Practice Law and Rules. The Supreme
Court will consider the record of the local reviewing board, and, if necessary,
take additional evidence, directly or through a referee, for the proper
resolution of the matter.
The provisions governing judicial review of the planning
board's decisions are found at Village Law § 7-740, Town Law § 282, and General City Law § 38.
INFRASTRUCTURE
& GROWTH MANAGEMENT
By adopting and applying subdivision
regulations, the community seeks to insure that new development is properly
designed, and has a favorable, rather than negative, impact on the
neighborhood.
In Golden
v. Planning Board of the Town of Ramapo, (1972), the New York Court of Appeals
upheld the authority of local governments to regulate and approve the
subdivision of land. The court found that this authority was central to the
municipality's ability to control and manage growth.
Statutes delegating subdivision
authority indicate that it is to be used "[f]or the purpose of providing
for the future growth and development of the [municipality] and affording
adequate facilities for the housing, transportation, distribution, comfort,
convenience, safety, health and welfare of the population." Localities
adopt subdivision regulations to assure that land proposed for development
"can be used safely for building purposes without danger to health or
peril from fire, flood, drainage or other menace to neighboring properties or
the public health, safety or welfare." The Court of Appeals wrote that the
adoption of subdivision regulations "reflects, in essence, a legislative
judgment that the development of unimproved areas be accompanied by provision
of essential facilities."
The regulation of land subdivision
is a key element of community planning. When used by communities that have not
adopted zoning provisions, subdivision control is the principal method by which
the locality ensures that land is developed in a beneficial way. When used in
conjunction with zoning, the community has an excellent method of insuring that
land is developed in accordance with the provisions of the zoning law and can
further facilitate the proper layout, design, and development of the community.
Subdivision standards complement
zoning regulations and help protect neighborhoods from flooding and erosion,
traffic congestion and accidents, unsightly design, noise pollution, and the
erosion of neighborhood character.
"'[W]here
subdivision of land is unregulated, lots are sold without paving, water,
drainage, or sanitary facilities, and then later the community feels forced to
protect the residents and take over the streets and . . . provide for the
facilities.' Thus, [subdivision] regulations benefit both the consumer, who is
protected 'in purchasing a building site with assurance of its usability for a
suitable home,' and the community at large, which naturally gains greatly from
the use of 'sound practices in land use and development.'" Brous v.
Smith (1952).
PRELIMINARY AND FINAL PLAT APPROVAL
Procedures for subdivision approval
may vary from locality to locality. Many communities require the developer of a
major subdivision of land to submit both a preliminary plat of the proposed
subdivision and then a final plat, both of which are subject to review and
approval. Having a preliminary plat submission promotes efficiency and
communication because the reviewing board can be involved early in the process.
At the same time, there is flexibility in such a two-step process because the
final plat may be adjusted to provide for the best subdivision design.
State statutes define "preliminary plat approval" to mean
"the approval of the layout of a proposed subdivision as set forth in a
preliminary plat but subject to the approval of the plat in final form." Village Law § 7-728(4)(c), Town Law § 276(4)(c), and General City Law § 32(4)(c).
As an
example, Section 21.1 from the Town of Clinton subdivision regulations states
that "prior to filing an application for the approval of a Plat, the
applicant shall file an application for the approval of a Preliminary Plat.
Section 21.2 states that the planning board shall carefully study the Preliminary
Plat taking into consideration the requirements of the community and the best
use of the land being subdivided. The regulations direct particular attention
to the proposed arrangement, location and width of streets; the relation of
proposed streets to the topography of the land; sewage disposal; drainage;
proposed lot sizes, shape and layout; future development of adjoining lands as
yet unsubdivided; and the requirements of the town plan and the official
map.
"In the event a planning board fails to take action on a preliminary
plat or a final plat within the time prescribed, ... after completion of all
requirements under the state environmental quality review act, ... such
preliminary or final plat shall be deemed granted approval." Village Law § 7-728(8), Town Law § 276(8), and General City Law § 32(8).
The planning board must hold a public hearing within sixty-two days of
the submission of the preliminary plat, subject to public notice
at least five days prior to the hearing, and 14 days notice if held jointly
with the hearing on the draft EIS. The planning board's decision on the
preliminary plat must be made within sixty-two days after the close of the
public hearing. The statutes require that public hearings be closed within 120
days of the date they are opened. This may be extended if SEQRA review is
required.
Where the decision is to approve the preliminary plat, that decision must
be filed with the planning board and municipal clerk within five days of the
decision. Where the decision is to modify the preliminary submission, the
grounds for modification must also be stated upon the record and the board must
state in writing any modifications it deems necessary for the final submission.
In Twin
Lakes Farms Associates v. Town of Bedford (1995), the court determined that
the plaintiff was entitled to preliminary subdivision plat approval since the
application for preliminary approval was complete. The Planning Board had
accepted a draft environmental impact statement on the proposal and had
conducted a public hearing on the statement pursuant to the State Environmental
Quality Review Act (SEQRA). The court held that "the Board's refusal to
issue a decision on the application on the ground that the owner had not yet
complied with the entire SEQRA process was in violation of the Town Law § 276(3) in effect at the time." As a result,
the preliminary subdivision application was deemed approved by default. The
court found, however, that "the owner was not yet entitled to final
subdivision plat approval because complete compliance with SEQRA was required
before such approval."
Within six months after an approval
of a preliminary subdivision plat, the applicant must submit his final map for
review. This time may be extended upon mutual agreement. If he fails to do so,
the preliminary approval may be revoked. If the plat is submitted within the
six-month period and meets the requirements of the subdivision regulations, the
plat must be approved. An additional public hearing is required if the final
plat is substantially different than the preliminary plat, or when no
preliminary plat was required to be submitted. If the plat is in substantial
agreement with the approved preliminary plat, a hearing is not necessary.
State statutes define "final plat approval as "the signing of a
plat in final form by a duly authorized officer of a planning board pursuant to
a planning board resolution granting final approval to the plat or after
conditions specified in a resolution granting conditional approval of the plat
are completed. Such final approval qualifies the plat for recording in the
office of the county clerk or register in the county in which such plat is
located." Village Law § 7-728(4)(f), Town Law § 276(4)(f), and General City Law § 32(4)(f).
Where the final plat is in substantial agreement with the approved
preliminary plat, the planning board must approve or disapprove the final plat
within sixty-two days of its submission to the planning board clerk. Within
five business days of the adoption of the resolution granting approval of
the final plat, the plat must be certified by the planning board clerk and
filed in that clerk's office, as well as in the office of the municipal clerk.
The failure of the planning board to take
action within the established time periods is deemed an approval by default (see
discussion above). The approval of the planning board expires sixty-two
days after the date of final approval if the approved final plat is not filed
by the property owner in the office of the county clerk or register.
Local authorities may decide not to
require a preliminary plat submission and approval process for some or all
subdivisions. In such a case, a public hearing, subject to notice, must be held
regarding the submission of the final plat. A public hearing, on notice, may
also be required when the submitted final plat is not in substantial agreement
with the approved preliminary plat. In these instances, the final plat
submission is subject to the environmental review process as well.
Conditions may be placed on the
approval of subdivision applications, including the set aside of recreational
land, installing infrastructure, and other design modifications. Site
improvements required on approved plats are to be provided directly by the
subdivider. The provision of required infrastructure can be guaranteed by
requiring a performance bond or other security to be posted by the subdivider.
State statutes limit the reviewing
board to imposing conditions on subdivision applications that are
"directly related and incidental to the proposed" plan. The applicant
must show that these conditions have been met before the local building inspector can issue a building
permit or certificate of occupancy.
Conditions imposed on subdivision approvals must bear a reasonable relationship
to the impact of the subdivision on the community itself, and be imposed to
meet standards contained in local subdivision regulations.
The state statutes authorize planning boards
to ensure that the recreational needs of the occupants of residential
subdivisions be met by requiring land to be set aside for recreation. Such a
condition may be imposed where a municipal study shows that there is an unmet
need for recreational facilities in the municipality. The planning board may
only require a financial contribution in lieu of a land reservation where it
specifically determines that, in a particular case, a suitable park or parks of
adequate size to meet identified needs cannot be properly located on such a
plat. Village Law § 7-730(4), Town Law § 277(4), and General City Law § 33(4).
The statutes that allow for the
reservation of parkland, or money in lieu thereof, were adopted to address the
need for recreational facilities of the residents of the subdivision and their
guests, not to provide recreational facilities for the public at large. This
was reinforced by the Court of Appeals when it rejected a local requirement
that the reserved recreational area be dedicated to the town 
for park purposes.
In Kamhi
v. Planning Board of the Town of Yorktown (1983), the Court of Appeals held
that title to land reserved for parks and recreation on a subdivision map
cannot be required to be transferred to the municipality for the use of the
public.
The courts and legislature have made
it clear that the authority to require land reservation for recreation, or the
payment of money in lieu thereof, must be exercised on a case-by-case basis and
may not be administered under fixed formulas applicable to all development. In
each situation, a two step process must be followed. First, the planning
board must make a determination that the subdivision under review will add
to the recreational needs of the community. This finding must be based on an
evaluation of the present and anticipated future recreational needs of the
municipality as determined by estimates of the projected population growth to
which the particular subdivision will contribute. Second, based on a
review of the particular plat before it, the planning board must determine
whether it contains adequate and suitable space for recreational facilities.
Only if it finds that such space does not exist can the planning board require
the subdivider to make a cash contribution. All such contributions must be
deposited into a trust fund to be used by the municipality exclusively for
recreational purposes.
Before approving an owner's
application for a permit to develop land, local agencies are authorized to
impose conditions that are "directly related to and incidental to the
proposed" use of the property. Most applications for local land use
approvals are discretionary in nature and conditions can be attached to any
development permit to harmonize the proposed land use with surrounding
properties and the community. State law specifically authorizes planning boards
to conditionally approve final subdivision plats. The local agency uses the
permit condition to balance the benefit of the approval to the owner against
the potential adverse impact of that development on the surrounding area.
Once a condition is imposed on a
local land use approval, it must be complied with before a building permit is
issued by the local building inspector or department. If the condition is one
that is to be met during construction, then its terms must be complied with
before the construction is complete and before a certificate of occupancy can
be granted by local authorities.
Among the types of conditions that
have been sustained by the courts are fences, safety devices, landscaping,
screening, access roads, soil erosion prevention, drainage facilities, outdoor
lighting, the enclosure of buildings, restrictive covenants preventing development of land in a
floodplain, archeological site or viewshed, and a variety of measures to
contain the emission of odors, dust, smoke, noise, and vibrations.
The purpose of imposing conditions on an
owner's application for a subdivision is to balance the owner's interest in
developing the land and the community's interest in being protected from any
adverse impacts of development. Conditions are imposed to minimize any adverse
impact of the proposed use on the neighborhood or community. Conditions on land
use approvals add an element of flexibility in decision-making for the purpose
of responding to the concerns of applicants as well as others affected by the
decisions of local land use agencies.
When the agency fears that a project
or proposal will negatively impact the community, it may deny the application
or approve it subject to reasonable conditions that lessen or contain the
negative impacts of that development.
Conditions
placed on subdivisions are limited to those which "seek to ameliorate any
demonstrable adverse effects attributable to the petitioners' proposed use of
the land." Brous v. Planning Bd. of the Village of Southampton
(1993).
"A
planning board is within its power in imposing conditions related to fences,
safety devices, landscaping, access roads, and other factors incidental to
comfort, peace, enjoyment, health, or safety of the surrounding area." Koncelik
v. Planning Board of the Town of East Hampton (1992). The court in Koncelik
held that the Planning Board had the authority to require an adequate means of
access for emergency vehicles, as well as the authority to impose conditions to
protect the site's extensive area of undisturbed forest and numerous important
plant species.
In Black
v. Summers (1989), the court annulled conditions imposed on a subdivision
approval that required the applicant to agree not to develop another piece of
property they owned. Because the board did not indicate any reason why
development of the property would be in any way problematic, the court held
that "the subject condition is not reasonably designed to mitigate any
demonstrable defects" in the proposed subdivision.
In Bayswater
Realty & Capital Corp. v. Planning Board of the Town of Lewisboro
(1990), it was decided that the municipality cannot adopt a general
recreational fee schedule and arbitrarily require every subdivider to pay the
established fee. The court held that a planning board must make two findings
before it may exercise its authority to require a payment in lieu of setting
aside park or recreation lands under the Town Law § 277(1). First, the planning board must determine
whether a "proper case" exists for imposing the requirement by
evaluating the present and future needs for park and recreational facilities in
the town. Second, the planning board must determine whether the proposed plat
contains adequate and suitable space for recreational facilities. Only if it
determines that a "proper case" exists and that the plat does not
contain such space may the planning board require the subdivider to pay money
as a substitute.
Before granting its approval of the
application, the reviewing board must insure that the standards contained in
the law or other regulations are complied with by the proposed development.
Frequently, approval is conditioned on the developer agreeing to modify the
design of the development or to the addition of site features to meet the
underlying standards adopted by the legislature. Local subdivision regulations
may contain detailed standards and govern more specifically how and for what
purposes conditions may be imposed.
Although the imposition of
conditions is clearly within the authority of local governments, the conditions
must comply with several standards or they can be declared invalid. Courts
invalidate a condition when there is no rational basis in the record for its
imposition, when the condition is unreasonable, or when it is not related to
the impacts of the proposed development.
Rational Basis: Courts invalidate conditions which are not supported by
evidence in the record of the land use agency’s proceedings. Such record
evidence shows that the planning board carefully deliberated the matter,
complied with basic due process requirements, and obtained specific evidence of
the need for the condition. In several instances, courts have invalidated
conditions which were justified only by the neighbors opposition to the
project. Some courts have stated that the administrative agency has a
"burden of proving" the need for the condition. This burden requires,
at least, that the agency consider evidence that justifies the imposition of
the condition.
Reasonableness: The statutes and cases authorizing the imposition of
conditions state that they must be "reasonable." Conditions may be
invalidated when, under the circumstances, they impose an undue burden on the
landowner. In these instances, it may be that the cost, inconvenience, or other
impact on the landowner is too onerous given the benefit to the public of the
condition. This is particularly so when there is a less burdensome alternative
to the condition or no indication that the agency considered less burdensome
conditions that are adequate to protect the public.
Relatedness: The authority to impose most conditions makes it clear that
they must be "directly related to and incidental to the proposed land
use." This is sometimes described as requiring a nexus between the
condition imposed and the impacts of the proposed development. When the
condition does not relate to the particular impacts of the development, it is
not related or incidental to the proposed land use as required by law.
Conditions dealing with the personal characteristics of the persons who use the
land, or the details of particular business operations, are quite often not
incidental to or related to the use of the land itself.
Vagueness: Conditions can be struck for vagueness. Agencies imposing
conditions must take care to articulate them clearly and definitely so they can
be implemented without confusion by the landowner and local building official.
The property owner should not be left with any doubt as to the extent of use
that is permitted.
Conditions
must be:
1.
Reasonable;
2.
Directly
related to the proposed use of the property;
3.
Consistent with
the local zoning ordinance and other local laws; and
4.
Imposed for the
purpose of minimizing the impact on the surrounding community.
The provisions of the State Environmental
Quality Review Act (SEQRA) which require public agencies to consider the impacts
of their land use decisions on the environment must be complied
with by a planning board that receives a subdivision application. These are
discussed in greater detail in Tutorial VII. Where the approval of a
subdivision may have a significant adverse impact on the environment, the
extensive procedural requirements and the extended timetable of SEQRA must be
followed and coordinated with other requirements for subdivision approval.
Regulations adopted under the State
Environmental Quality Review Act (SEQRA) make it clear that subdivision
applications are "actions" by a local agency subject to environmental
review. The statutes governing subdivision approval attempt to coordinate the
procedures required for the review of the subdivision with those required by
SEQRA.
The law states that a subdivision
plat submission is not deemed complete until the planning board has determined
that the subdivision will not have a negative impact on the environment or, if
it may have such an impact, until a draft environmental impact statement has
been prepared. The time periods contained in the subdivision statutes do not
begin to run until one of these two events has occurred. Further procedural
adjustments may be required to comply with SEQRA depending on how the
environmental review process proceeds and whether the planning board is the lead
agency responsible for that process.
The subdivision statutes require a
planning board, if lead agency for SEQRA purposes, to hold a single public
hearing on the subdivision application in compliance with the hearing
provisions under both SEQRA and subdivision regulations. Where the public
hearing is held to comply with SEQRA's requirements, 14 days advance notice of
the public hearing is required. SEQRA hearings are optional, not mandatory.
The applicant for subdivision approval is required to submit an environmental
assessment form for the planning board to consider in determining whether the
subdivision will have a significant adverse impact on the environment.
The provisions of law that require the coordination of environmental and
subdivision review processes are found at Village Law § 7-728(5) & (6), Town Law § 276(5) & (6), and General City Law § 32(5) & (6).
Subdivision approval time periods
must be coordinated with those required by the State Environmental Quality
Review Act regarding the environmental review of projects which may have a significant
adverse impact on the environment. When a subdivision applicant is required to
submit a draft environmental impact statement, the extensive process and
extended timetable contained in the regulations of the Commissioner of the
Department of Environmental Conservation must be followed. Any public hearing
held during the environmental review process can be used to satisfy any public
hearing requirement for the subdivision itself.
Where a proposed subdivision
contains one or more lots that do not conform to the zoning requirements, an area
variance can be requested from the zoning board of appeals
without first obtaining a determination from the official charged with the enforcement
of the zoning regulations. The request must be accompanied by a written
recommendation of the planning board regarding the proposed variance. (See
tutorial V entitled "Variances" for more information.)
COUNTY/REGIONAL PLANNING AGENCY
General Municipal Law § 239-n requires certain applications
for subdivision review be submitted to the county or if there is no county
planning agency, regional planning agency for review and comment.
Village Law § 7-728(10), Town Law § 276(10), and General City Law § 32(10) require the planning board clerk
to submit all applicable plats to the county, if the county has authority to
review the matter under § 239-n of the General Municipal Law.
Actions must be referred when they
affect property within 500 feet of (a) a city, town, or village boundary; (b)
the boundary of an existing or proposed county or state park or recreation
area; (c) the right-of-way of any existing or proposed county or state parkway,
thruway, expressway, road or highway; (d) the right-of-way of any stream or
drainage owned by the county; (e) the boundary of any county or state owned
land on which a public building or institution is situated; or (f) the boundary
of a farm operating under an agricultural zoning district governed by the Agriculture and
Markets Law. Actions requiring referral include authorization issued under the
provisions of any zoning ordinance or local law, which would include subdivision
approvals.
Where such referral is required, the 62 day time period for the planning
board's decision does not begin until the county or regional planning board has
been heard from, or thirty days have elapsed from the date of referral,
whichever is sooner.
The county board must make a
recommendation within 30 days of receipt of the referral. If the board
recommends modification or disapproval, the planning board may accept and
implement the recommendation, or it may vote to override the county board. In
order to override the county recommendation, the planning board must vote by a
majority plus one, or an "extraordinary vote," to do so.
The subdivision approval process is
begun when a property owner applies to divide a piece of property into multiple
parcels. The process is often a two-stage process which can involve preliminary
and final subdivision plat review.
Preliminary Subdivision Plat Review
o
The preliminary
plat is submitted to the planning board.
o
A public
hearing must be held within sixty-two days of preliminary plat submission.
o
Hearing may be
open for up to 120 days and the planning board has sixty-two days from the
close of the public hearing to make a decision on the preliminary plat. Failure
to decide within sixty-two days results in default approval.
o
The planning
board's decision must be filed with the clerk within five days.
o
Applicant has
six months after a determination on the preliminary plat to submit a final
subdivision plat for review by the planning board.
o
The planning
board has sixty-two days to make a decision on the final subdivision plat,
assuming that the final plat is in substantial agreement with the preliminary
plat. If they are not in agreement, a further public hearing is required as
outlined above. The time may be extended by agreement among the parties.
Failure to decide within sixty-two days results in default approval.
o
The planning
board's decision must be filed with the clerk within five days.
o
Following approval,
the applicant must file the final plat with the county within sixty-two days.
All these time periods may be
extended as needed to comply with state statutory requirements regarding
environmental (SEQRA) review and county or regional board review.
- John R. Nolon, Well Grounded, Shaping the Destiny of the Empire
State, Local Land Use Law and Practice, Chapter -- www.law.pace.edu/landuse.
- Herbert H. Smith, The Citizen's Guide to Zoning, (1983), The
American Planning Association, pp. 144-58.
- Herbert H. Smith, The Citizen's Guide to Planning, (1993), The
American Planning Association, pp. 129-40.
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