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COASTAL ZONE INFORMATION CENTER a GUIDE to the PLANNING and ZONING LAWS of N.Y. State HT 123.5 .N7 G85 1972 EW YORK, Nelson A. Rockefeller, Governor OFFICE OF PLANNING SERVICES, Richard A. Wiebe, Director TITLE: Guide to the Planning and Zoning Laws ofNew York State AUTHOR: New York State Office of Planning Services DATE: June1972 SOURCE OF COPI ES: New York State Office of Planning Services 488 Broadway, Albany, New York 12207 National Technical Information Service 2285 Port Royal Rd., Springfield, Virginia 22151 FOR REFERENCE: Library U. S. Department of Housing and Urban Development 451 Seventh Street, S. W., Washington, D. C. 20410 Region 2 Library U, S. Department of Housing and Urban Development 26 Federal Plaza, New York, New York 10007 Planning Depository Libraries Planning School Libraries PROJECT NO.: N. Y. P. 245 SERIESNO.: N.A. NO. OF PAGES: 116 ABSTRACT: This report is a consolidation of the laws pertaining to planning and zoning in New York State. It is intended to provide a ready reference to local officials. The laws are arranged by subject matter, with marginal notes to point out the basic content of the sections. Provisions covered in- clude General City Law, Town Law, Village Law and the General Municipal Law. Enabling legislation is given for the creation of metropolitan, regional, county, town and village planning boards; zoning boards of appeals; zoning; establishment of Official Maps; subdivision control regulations; and laws relating to conflict of interest. Other statutes relating to planning and zoning, such as the Public Health Law and the Real Property Law are also included. Court decisions and administrative opinions affecting the inter- pretation of these laws are noted at the end of each section of the report. A listing of other planning and zoning aids available from the State Office of Planning Services completes the document. The preparation of this report was financed in part through a comprehensive planning grant from the U. S. Department of Housing and Urban Development. The paper was researched and written in the Legal Services Bureau of the New York State Office of Planning Services by Sheldon W. Damsky and James A. Coon, attorneys, under the general direction of Richard A. Persico, Counsel. COASTAL ZONE INFORMATION CENTER Foreword A GUIDE TO THE PLANNING AND ZONING LAWS has been prepared by the Bureau of Legal Services of the New York State Office of Planning Services as a one-volume source book to help municipal officials and attorneys make more efficient use of the planning and zoning enabling acts. The complete text of each pertinent section of law is provided, to- gether with marginal notes to assist in ready reference to the content of each. Notes at the end of each section list court decisions, administrative opinions and OPS publications pertaining to that particular section. To insure the best use of this guide, it is important to bear two things in mind regarding its contents. First, while each section of law is set forth verbatim, the marginal references are not part of the statutes. They are meant only to highlight the key points of each statute. Second, the statutes are not always arranged in numerical order, as they are in various volumes of the Consolidated Laws. Instead, they are arranged according to subject matter. It is felt that this arrangement will make research easier for those seeking information on closely related topics. It should be kept in mind, in seeking statutory provisions, that more than one set of statutes may apply to and govern municipal action. For example, while the provisions of the Town Law naturally govern towns, important provisions affecting town planning and zoning also appear in the General Municipal Law, the Public Health Law and others. It is es- sential that all applicable statutes be considered.. r_J U - S - DEPARTMENT OF COMMERCE NOAA COASTAL SERVICES CENTER June,1972 2234 SOUTH HOBSON AVENUE CHARLESTON SC 29405-2413 Property of CSC Library CONTENTS 266 Zoning commission 33 @00' 264 Enactment of zoning ordinances - 1. GENERAL CITY LAW 5 procedure 34 Planning boards 6 265 Amendments and changes 35 �27 Creation and appointment 6 267 Board of appeals 36 28 Officers, employees and expenses 7 Subdivision control 39 30 Reports on matters referred to it 7 �276 Approval of plats 39 31 General reports 8 277 Approval of plats - 28-a Master plan 8 additional requisites 4S Zoning 9 278 Recording of plats 49 �20 Grant of power to zone; purposes 9 26S-a Exemption from zoning ordinance 83 Amendments, alterations@ and of lots shown on approved changes in district lines 10 subdivision plats 50 81 Board of appeals 11 281 Changes in zoning regulations 51 81-a Power of local legislative body to fix 282 Court review of decisions 53 terms of office of board of appeals 12 Official maps 54 82 Certiorari to review decision �270 Official map - establishment 54 of board of appeals 12 273 Official map - changes 54 Subdivision control 14 279 Pern-dt for building in bed of mapped street 55 �32 Approval of plats 14 280-a Permit for building not on 33 Approval of plats, additional improved mapped streets S5 requisites 15 280 Municipal improvements in streets 57 34 Record of plats 17 Other provisions 58 83-a Exemption from zoning ordinance of lots shown on approved subdivision �268 Enforcement and remedies 58 plats 18 283 Issuance of licenses and 37 Changes in zoning regulations 19 permits in certain towns 59 38 Court review of decisions 20 269 Conflict with other laws 59 284 Separability clause 59 Official maps 21 �26 Official map - establishment 21 111. VILLAGE LAW - ARTICLE VI-A 61 29 Official map - changes 21 Planning boards 62 35 Permit for building in bed of mapped street 22 � I 79-f Creation and appointment; 35-a Limitation of time for terms of office 62 revocation of permit 23 179-g Organization; employees 63 36 Municipal improvements in streets, 179-i Reports on matters referred to it 63 buildings not on mapped streets 23 179-j Power to make investigations Other provisions 26 and reports 64 179-g Master plan 64 �39 Separability 26 Zoning 65 11. TOWN LAW 27 � 175 Grant of power to zone 65 Planning boards 28 176 Districts 66 177 Purposes 66 �271 Creation and appointment 28 179-a Zoning commission 66 272 Officers, employees and expenses 29 178 Enactment of zoning 274 Reports on matters referred to it 29 ordinance procedure 67 275 General reports 30 179 Amendments and changes 68 272-a Master plan 30 179-b Board of appeals 70 Zoning 32 Subdivision control 73 �261 Grant of power to zone; appropriations � 179-k Approval of plats 73 for certain expenses 32 179-1 Approval of plats - 262 Districts 33 additional requisites 75 263 Purposes 33 179-m Recording of plats 77 2 X252dia 083 10 y'T%0Q0%q 179-p Changes in zoning regulations 78 MISCELLANEOUS STATUTES RELATING 179-q Court review of decisions 80 TO PLANNING AND ZONING 105 Official maps 81 Public Health Law; Article 11, Title 11 106 � 179-e Official map - establishment 81 � 1115 Realty subdivisions - 179-h Official map - changes 81 definitions 106 179-n Permit for building in bed 1115-a Remedy for purchaser of one of mapped streets 82 percel of unimproved realty 179-o Construction of municipal utility in subdivision - application 106 mapped street; permits for erection 1116 Realty subdivisions - plans to be of buildings 82 filed and approved 107 Other provisions 85 1117 Realty subdivisions; duty of � 179-c Enforcement and remedies 85 county clerk or register in respect 179-d Conflict with other laws 85 to filing of plans or map 108 179-r Separability clause 86 1118 Realty subdivisions; local regulations 108 GENERAL MUNICIPAL LAW - ARTICLE 12-A 87 1119 Realty subdivisions - filing fees 108 City and village planning commissions 88 1120 Realty subdivisions - �234 Creation, appointment and regulations 108 qualifications 88 Real Property Law; Article 9 109 235 Officers, expenses and assistance 88 �334 Filing of subdivision maps - 236 General powers of planning penalty for non-filing 109 commissions 89 General Municipal Law ill 237 Maps and recommendations 90 238 General powers of planning �96-a Protection of historic places, commissions 90 buildings and works of art ill 239 Rules 91 99-g Capital programs ill 239-a Construction of article 91 247 Acquisition of open Metropolitan, regional and county spaces and areas 112 planning boards - Article 12-B 92 809 Conflict of interest - disclosure 114 �239-b Establishment 92 239-c Expenses 93 BIBLIOGRAPHY 115 239-d Powers of board; authority to receive funds 93 239-e Planning associations or federations 96 239-f Money for maintaining planning federations 96 239-g County official maps; declaration of policy 97 239-h County official map; establishment 97 239-i County official maps; changes 98 239-j Permits for buildings in rights-of-way preserved by official map 99 239-k Building permits; regulations for control of development 100 239-1 Coordination of municipal zoning and planning actions; legislative intent 101 2394n Notice of certain proposed municipal zoning actions to be submitted to county, metropolitan or regional planning agencies; report thereon; final action 102 239-n Notice of certain subdivision plats to be submitted to county planning agency; report thereon; final action 104 3 from the GENERAL CITY LAW Planning boards � 27. Planning board, creation and appointment Such legislative body of each city is hereby authorized and em- Oeated by resolution or ordinance powered to create by resolution or ordinance a planning board to consist Members of five or seven members, in the discretion of such legislative body, to be appointed by the mayor or other duly authorized appointing authority with authority to remove any member of such board for cause and after public hearing. Not more than a minority of the members of such board shall hold any other public office or position in such city. No person who is a member of the legislative body of a city to which the provisions of this section are applicable, and no member of the planning board of such city, shall be eligible for membership on Eligibility of members of other public the board of appeals of such city. The terms of the officials or em- offices ployees of the municipality shall terminate with the term of the mayor or other duly authorized appointing authority selecting them. The appointment of as nearly as possible of one-third of the other Term of office members of the board shall be for a term of one year, one-thir& for. a term of two years and one-third for a term of three years. At the ex- piration of such terms, the terms of office of their successors shall be three years, so that the term of office of one-third of such members of such board, as nearly as possible, shall expire each year. Their successors and the successors of those now in office shall be appointed for the term of three years from and after the expiration of the term of their pre- decessors in office. The members of such boards now in office shall con- tinue in office until the end of the term for which they were appointed and their sucessors have been appointed as provided in this section as hereby amended and have qualified. If a vacancy shall occur otherwise than by expiration of term, it shall be filled by appointment for the un- Municipal officials not to forfeit powers, expired term. The municipal officials or employees on such board shall duties and compensation by reason of not, by reason of membership thereon, forfeit their right to exercise the membership powers, perform the duties or receive the compensati Ion of the municipal office or position held by them during such membership. In any city in which there is a planning commission created in accordance with article twelve-a of the general municipal law the ordinance or resolution instead of providing for the appointment of a new planning commission or Existing planning commission may be board may provide that the existing commission shall continue the appointed as planning board members thereof thereafter to be appointed in accordance with the pro- visions of such article twelve-a, with the powers and duties as specified for a planning board appointed as provided in this article in addition to 6 the powers and duties as specified in such article twelve-a; provided, however, that in any such city section two.hundred and thirty-eight of the general municipal law shall not be in force. Notes: - For planning commission provisions, see Article 12-A of - For a discussion of incompatibility of office and conflict of General Municipal Law. interest imposing bars on planning board membership, see Bibliography Item 4. � 28. Planning board, officers, employees and expenses The mayor or other duly authorized appointing authority shall Designation of chairman designate a member of said planning board to act as chairman thereof; or on his failure so to do, the planning board shall elect a chairman from its own members. It shall have the power and authority to employ ex- Employment of experts and staff perts and a staff, and to pay for their services and such other expenses as may be necessary and proper. not exceeding, in all, the appropriation that may be made for such board; excepting and providing that in cities in which the general power and authority to fix salaries and prescribe posi- tions is placed in some other board or officer the foregoing power and authority shall be in such other duly authorized board or officer. Each Appropriation city is hereby authorized and empowered to make such appropriation as it may see fit for such expenses, such appropriation to be made by those officers or bodies having charge of the appropriation of the public funds. Adoption of rules and regulations The planning board may adopt rules and regulations in respect to pro- public hearing and approval of legisla- cedure before it and in respect to any subject matter over which it has tive body jurisdiction under this article or any other statute, after public hearing by the planning board and subject to the approval of such legislative body. � 30. Planning board, reports on matters referred to it The body creating such planning board may by general or special P@ovision for reference of matters to rule provide for the reference of any matter or class of matters to the plan- planning board before final action ning board before final action thereon by the public body or officer of said city having final authority thereon with or without the provision that final action thereon shall not be taken until said planning board has sub- mitted its report thereon or has had a reasonable time to be fixed in said rule to submit the report. Note: Under city zoning ordinance decision and resolution of plan- on but was advisory to board of appeals (Matter of Milton ning board constituted only a report which was not binding Point Association vs. Clark, 14 Misc. 2d. 633). 7 � 31. Planning board, general reports Authority to make investigations, The planning board shall have full power and authority to make such reports, etc. investigations, maps and reports and recommendations in connection therewith relating to the planning and development of the city As to it seems desirable providing the total expenditures of said board shall not .exceed the appropriation for its expenses. � 28-a. Master plan Authority to prepare master plan The planning board may prepare and change, a comprehensive master plan for the development of the entire area: of the city, which master plan Contents of master plan shall show existing and proposed streets, bridges and tunnels and the ap- proaches thereto, viaducts, parks, public reservations, roadways in parks, sites for public buildings and structures, zoning districts, pierhead and bulkhead lines, waterways and routes of public utilities and such other features existing and proposed as will provide for the improvement of the city and its future growth, protection, and development, and will afford adequate facilities for the public housing, transportation, distribution, comfort, convenience, public health, safety and general welfare of its popu- lation. Notice and hearing Such planning board may advertise and hold public hearings when it desires, notice of which hearings shall be advertised at least once in an of- ficial newspaper or in a newspaper of general circulation in said city at least five days before each such hearing. Filing of master plan The master plan and all modifications thereof shall be on file in the office of the planning board, and the planning board shall file certified copies in the offices of the city engineer and the city clerk. Notes: For a discussion of the elements of a comprehensive plan, see - For city participation in metropolitan, regional or county Bibliography Items 5 and IS. master plan, see General Municipal Law, See. 239-d. 8 Zoning � 20. Subject to the constitution and general laws of this state, every city is empowered: Scope of grant of power 24. To regulate and limit the height, bulk and location of buildings hereafter erected, to regulate and determine the area of yards, courts and other open spaces, and to regulate the density of population in any given area, and for said purposes to divide the city into districts. Such regulations shall be uniform for each class of buildings throughout any district, but the regulations in one or more districts may differ from those in other Purpose of regulations districts. Such regulations shall be designed to secure safety from fire, flood and other dangers and to promote the public health and welfare, including, so far as conditions may permit, provision for adequate light, air and convenience of access, and shall be made with reasonable@ regard to the character of buildings erected in each district, the value of land and the use to which it may be put, to the end that such regulations may pro- mote public health, safety and welfare and the most desirable use for which the land of each district may be adapted and may tend to conserve the value of buildings and enhance the value of land throughout the city. Regulation of trade and industry 25. To regulate and restrict the location of trades and industries and the location of buildings, designed for specified uses, and for said pur- poses to divide the city into districts and to prescribe for each such district the trades and industries that shall be excluded or subjected to special regulation and the uses for which buildings may not be erected or Purpose of regulations altered. Such regulations shall be designed to prom,)te the public health, safety and general welfare and shall be made with reasonable consideration, among other things, to the character of the district, its peculiar suita- bility for particular uses, the conservation of property values and the Considerations - well considered plan direction of building development, in accord with a well considered plan. Notes: Multiple Dwellings: 1. Height, bulk, open spaces - Multiple Dwelling Law, ning board of comprehensive zoning plan to cities, towns Sec. 26. and villages - see General Municipal Law, 239A (5). 2. Two or more buildings on same lot - Multiple Dwelling For discussions of the comprehensive plan, see Bibliography Law, Sec. 28. Recommendation of metropolitan, regional or county plan- Items 5 and 15. 10, - For a discussion of interim zoning to preserve the status quo the community (Clune vs. Walker, I -0 Misc. 2d 858, affd. pending the adoption of an ordinance furthering the com- 7 A.D. 2d 651). prehensive plan, see Bibliography Item 2. To sustain an attack on the validity of a zoning ordinance, - For information regarding the preparation of a zoning ordi- an aggrieved property owner must show that, if the ordi- nance, see Bibliography Item 12. nance is enforced, the consequent restrictions on his - Municipal regulations limiting use of property must be property preclude its use for any purpose to which it is strictly construed, and if there is any doubt as to their reasonably adapted (Arverne Bay Construction Co. vs meaning, it must .be resolved in favor of the property owner Thatcher, 278 N.Y. 222). (Turiano vs. Gilchrist, 8 A.D. 2d 953). Zoning ordinances enacted by duly constituted legislative - Zoning ordinances are enacted to promote the health, safety bodies are ordinarily considered to be constitutional unless and welfare of the community at large, to protect property they can be shown to be arbitrary (Flax vs. City of Rome, values against depreciation and to preserve the character of 57 Misc. 2d 905). � 83. Amendments, alterations and changes in district lines Authorization to common council The common council may from time to time on its own motion Notice and hearing or petition, after public notice and hearing, which hearing may be held by the council or by a committee of the council or by the planning board, amend, supplement, repeal or change the regulations and districts established under any ordinance adopted pursuant to paragraphs twenty- four and twenty-five of section twenty of this chapter. Wherever the owners of fifty per centurn or more of the frontage in any district or part Petition by owners of50% offrontage thereof shall present a petition duly signed and acknowledged to the common council, requesting an amendment, supplement, change or re- peal of the regulations prescribed for such district or part thereof, it shall be the duty of the council to vote upon said petition within ninety days after filing of the same by the petitioners with the secretary of the Procedure in event ofprotest council. If, however, a protest against a proposed amendment, supplement, repeal or change be presented, duly signed and acknowledged by the owners of twenty per centurn or more of the area of the land included in such proposed change, or by the owners of twenty per centurn or more of the area of the land immediately adjacent extending one hundred feet therefrom, or by the owners of twenty per centum or more of the area of land directly opposite thereto eKtending one hundred feet from the street frontage of such opposite land, such amendment shall not be passed except by a three-fourths vote of the council. Notes: This Section must be read in connection with subdivisions upon the presentation of any particular fc;rm of petition 24 and 25 of Section 20, and consideration must be given (Homesfield Association of Yonkers vs. Frank, 273 A.D. to Section 83 as well as Section 20 (Shefler vs. City of 788). Geneva, 1 Misc. 2d. 807). - Provision of this section requiring a three-fourths vote in There is no provision in this section that the exercise of the event of protest means a three-fourths vote of entire mem- common council's power to enact ordinances is conditioned bership, not just of those present (Savatgy vs. City of Kingston, 20 N.Y. 2d. 258). 10 � 81 Board of appeals Authority of mayor or city manager 1. The mayor or in a city having a city manager, the city manager to appoint board of appeals of any city to which paragraphs twenty-four and twenty-five of section twenty of this chapter are applicable, except a city having a population of Number of members more than one million may appoint a board of appeals consisting of five members, each to be appointed for three years. Such board of appeals may consist of six members if the local legislative body of any such city shall so provide, which they are hereby authorized to do by ordinance. Powers and duties Such board of appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to paragraphs twenty-four and twenty-five of section twenty of this chapter. They shall also hear and decide all matters referred to them or upon which they are required to pass under any ordinance of the common council adopted pursuant to such two paragraphs. The concurring vote of Necessary vote four members of the board shall be necessary to reverse any order, re- quirement, decision or determination of any such administrative official, or to decide in favor of the applicant any matter upon which they are required to pass under any such ordinance or to effect any variation in Review such ordinance. Every decision of such board shall, however, be sub- ject to review as provided in article seventy-eight of the civil practice law and rules. Such appeal may be taken by any person aggrieved or by an officer, department, board or bureau of the city. Appeal to board of appeals 2. Appeal, how taken. Such appeal shall be taken within such time as shall be prescribed by the board of appeals by general rule, by filing with the officer from whom the appeal is taken and with the board of ap- peals of a notice of appeal, specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken. Stay of proceedings 3. Stay. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of appeals after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life and property, in which case proceedings shall not be stayed otherwise than by a re- straining order which may be granted by the board of appeals or by the supreme court, on application, on notice to the officer from whom the appeal is taken and on due cause shown. Hearing and decision 4. Hearing of and decision upon appeal. The board of appeals shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties, and decide the same within reasonable time. Upon the hearing, any party may appeal in person or by agent or by Action by board attorney. The board of appeals may reverse of affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make-such order, requirement, decision or determination as in its opinion ought to ' be made in the premises, and to that end shall have all the powers of the officer from whom the appeal is taken. Where there are practical difficulties or unnecessary hardship in the way Power to grant variance of carrying out the strict letter of any such ordinance, the board of ap- peals shall have the power, in passing upon appeals, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction, structural changes in, equipment or alteration of buildings or structures, or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and sub- stantial justice done. Notes: - Notice of certain proposed municipal zoning actions to be the land in question cannot yield a reasonable return if used submitted to county, metropolitan or regional planning only for a purpose allowed in that zone; (2) that the plight agency - see General Municipal Law, 239-m. of the owner is due to unique circumstances and not to - The members of a zoning board of appeals are permitted general conditions in the neighborhood; and (3) that the to use their personal knowledge in passing on cases coming use to be authorized by the variance will not alter the es- before them, but if they do so, they must explicitly state in sential character of the locality (Matter of Congregation Beth their return the substance of the facts outside the record El vs. Crowley, 30 Misc. 2d. 90). upon which they rely (Matter of Wehr vs. Crowley 6 A.D. With respect to area variances, the basic rule which has 2d 214). evolved is that where the property owner will suffer signi- - The board of appeals is not vested with despotic and arbi- ficant economic injury by the application of an area stan- trary powers; it must act intelligently and fairly and within dard ordinance, that standard can be justified only by a the domain of reason (Friend vs. Feriola, 35 Misc. 2d 250, showing that the public health, safety and welfare will be aff'd, 23 A.D. 2d 822). served by upholding the application of the standard and denying the variance (Matter of Fulling vs. Palumbo, 21 - The basic rules of hardship that must be found are (1) that N.Y. 2d. 30). � 81-a Power of local legislative body to fix terms of office of members of board of appeals Authority of mayor or city manager to The local legislative body of any city to which this article applies may appoint members provide by ordinance that the mayor or in a city having a city manager, the city manager of any such city shall appoint two members of the board of appeals for a term of office of one year, two members for a term of office of two years and one member or, if the board consists of six members, two members for a term of office of three years. The term of Terms of office office of the successors of such members shall be three years. � 82. Certiorari to review decision of board of appeals Aggrieved person or department or of- 1. Any person or persons, jointly or severally aggrieved by any ficer may apply for review decision of the board of appeals or any officer, department, board or bureau of the city, may apply to the SUPT eme court for relief by a pro- ceeding under article seventy-eight of the civil practice law and rules. Procedure Such proceeding shall be governed by the provisions of article seventy- eight of the civil practice law and rules, except that (a) it must be in- stituted as therein provided within thirt@ days after the filing of a decision in the office of the board; (b) the court may take evidence or appoint a 12 N referee to take such evidence as it may direct and report the same with his findings of fact and conclusions of law, if it shall appear that testimony is necessary for the proper disposition of the matter, and (c) the court at special term shall itself dispose of the cause on the merits, determining all questions which may be presented for determination under the pro- visions of section seventy-eight hundred three of said article. - Costs 2. Costs. Costs shall not be allowed against the board, unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from. Preference over other civil actions 3. Preferences. All issues in all proceedings under this section shall have preference over all other civil actions and proceedings. Notes: Petitioner must be aggrieved, his personal or property rights A court may not substitute its judgment for that of the injured, before he may maintain this proceeding to restrain zoning board of appeals and set aside its determination un- less it appears that the board's action was arbitrary, capri- the alleged violation of ordinances enacted to protect the cious, constituted an abuse of discretion, or was not based public (Matter of Meadows vs. Binkowski, SO Misc. 2d 19). on substantial evidence (Matter of First National Bank vs. Sheehan, S7 Misc. 2d 3 11; aff'd. 3 0 A.D. 2d 912). Subdivision control � 32. Approval of plats Purposes For the purpose of providing for the future growth and development of the city and affording adequate facilities for the housing, trans- portation, distribution, comfort, convenience, safety, health and welfare of its population, the body creating such planning board may by Authority of planning board to approve ordinance or resolution authorize and empower the planning board to plats approve plats showing lots, blocks or sites, with or without streets or highways. For the same purposes and under the same conditions, the body creating such planning board may, by ordinance or resolution, authorize and empower the planning board to approve the development Approval of Plats already filed of plats, entirely or partially undeveloped and which have been filed in the office of the county clerk or register in which such plat is located prior to the appointment of such planning board and the grant to such board of the power to approve plats. Before such approval is given, a public Notice and hearing hearing shall be held by the planning board which hearing shall be ad- vertised at least once in an official paper or in a newspaper of general circulation in said city at least five days before such hearing. The plan- Action by planning board ning board may thereupon approve, modify and approve, or disapprove such plat. The approval required by this section or the refusal to approve shall take place within forty-five days from and after the time of the sub- Effect of inaction mission of the plat for approval; otherwise such plat shall be deemed to have been approved, and the certificate of such city as to the date of the submission of the plat for approval and the failure to take action thereon within such time, shall be issued on demand and shall be sufficient in lieu of dr, written endorsement or other evidence of approval herein required. The ground of refusal of any plat submitted shall be stated upon the re- cords of such planning board. The ordinance or resolution authorizing the planning board to approve Filing of resolution or ordinance author- plats shall make it the duty of some appropriate official or employee of izing planning board to approve plats said city to file with the clerk or register of the county or counties in which said city is situated a certificate showing that said planning board has been so authorized and shall specify the officer or employee of said city who shall issue in its behalf the certificate of failure to take action as aforesaid. The approval by the planning board of a plat showing lots, blocks, or sites, with or without streets or highways, or the certificate of the city as 14 to the date of the submission of such plat and the failure of the planning Expiration of planning board approval board to take action thereon within forty-five days, shall expire ninety unless plat filed or recorded with co un ty days from the date of such approval or of such certificate, unless within clerk within specified time such ninety day period such plat shall have been duly filed or recorded by the owner in the office of the county clerk or register. Notes: - Purpose of this Section and Section 33 was to preserve a Notice of certain proposed subdivision plats requiring re- uniform and harmonious development of the municipality ferral to county superintendent of highways and/or county and to prevent the individual owner from laying out streets planning agency see General Municipal Law, Sec. 239-k. according to his own will without official approval (Elsinore Property Owner's Association vs. Morwand Homes Inc., 2 86 For a discussion of subdivision regulation enforcement, see A.D. 1105). Bibliography Item 3. � 33. Approval of plats, additional requisites Before the approval by the planning board of a plat showing lots, Authority of planning board to require blocks or sites, with or without streets or highways or the approval of parks for playgrounds or other recre- the development of a plat entirely or partially undeveloped and which ational purposes has been filed in the office of the clerk of the countywherein such plat is situated prior to the appointment of such planning board and the grant to such board of the power to approve plats, such plat shall also show in proper cases and when required by the planning board a park or parks suitably located for playground or other recreation purposes. If the plan- ning board determines that a suitable park or parks of adequate size can not be properly located in any such plat or is otherwise not practical, the Authority to require monetary payment board may require as a condition to approval of any such plat a pay- in lieu of reservation of land ment to the city of a sum to be determined by the common council or other governing board of such city, which sum shall constitute a trust fund to be used by the common council or other governing board of such city exclusively for neighborhood park, playground or recreation pur- poses including the acquisition of land. In approving such plats the plan- Requirements for streets and highways ning board shall require that the streets and highways shall be of suf- ficient width and suitable grade and shall be suitably located to accom- modate the prospective traffic, to afford adequate light and air, to facili- tate fire protection, and to provide access of fire-fighting equipment to buildings, and to be coordinated so as to compose a convenient system conforming to the official map and properly related to the proposals Other specific requirements shown by the planning board on the master plan; that the land shown on such plats shall be of such a character that it can be used safely for building purposes without danger to health or peril from fire, flood or other menace; that suitable monuments have been placed at such block corners And other necessary points as may be required by the board and the location thereof is shown on the map of such plat; and that the parks shall be of reasonable size for neighborhood playgrounds- or other re- creation uses; that all streets or other public places shown on such plats shall be suitably graded and paved and that sidewalks, street lighting 15 standards, curbs, gutters, street trees, water mains, sanitaty sewers, fire alarm cables and necessary ducts, fire signal boxes and storm drains or combined sewers shall be installed all in accordance with standards, specifications and procedure acceptable to the appropriate city depart- Posting of bond to insure performance ment, or alternatively that a performance bond sufficient to cover the full cost of the same as estimated by the planning board or other ap- propriate city departments designated by the planning board shall be furnished to the city by the owner; provided however, that the plan- Waiver ofrequirements by planning board ning board may waive, subject to appropriate conditions and guarantees, for such period as it may determine, the provision of any or all such im- provements as in its judgement of the special circumstances of a particular plat or plats are not requisite in the interest of the public health, safety and general welfare. Such performance bond shall be issued by a bond- ing or surety company approved by the corporation counsel of the city, or by the owner with security acceptable to the legislative body, and shall also be approved by such corporation counsel as to form, sufficiency and manner of execution. Such performance bond shall run for a term Term of performance bond to be fixed by the planning board, but in no case for a longer term than three years, provided however that the term of such performance bond may be extended by the planning board with the consent of the "parties thereto. If the planning board shall decide at any time during the term of the performance bond that the extent of building development that has taken place in the subdivision is not sufficient to warrant all the improvements covered by such performance bond, or that required improvements have been installed as provided in this section and by the planning board in sufficient amount to warrant reduction in the face amount of said bond, or that the character and extent of such development requires additional improvements previously waived for a period stated at the time of fixing the original Modification of requirements by plan- terms of such bond, the planning board may modify its requirements ning board for any or all such improvements, and the face value of such per- formance bond shall thereupon be reduced or increased by an appro- priate amount so that the new face value will cover the cost in full of the amended list of improvements required by the planning board and any security deposited with the bond may be reduced or increased propor- tionately. In the event that any required improvements have not been in- stalled as provided in this section within the term of such performance Power of city to act in event of de- bond, the legislative body may thereupon declare the said performance fault of conditions of performance bond bond to be in default and collect the sum remaining payable thereunder and upon the receipt of the proceeds thereof the city shall install such improvements as are covered by such performance bond and are com- mensurate with the extent of building development that has taken place in the subdivision but not exceeding in cost the amount of such proceeds. In making such determination regarding streets, highways, parks and Guides to planning board determination required improvement, the planning board shall take into consideration the prospective character of the development, whether dense residence, open residence, business or industrial. Notes: sential facilities to meet the basic needs of the new resi- - The statute reflects a legislative judgment that the building dents of the area (Brous vs. Smith, 304 N.Y. 164). up of unimproved and undeveloped areas ought to be ac- - For information on requirement for the installation of un- companied by provision of roads and streets and other es- derground electric service, see Bibliography item i. 16 34. Record of plats No plat to be recorded without plan- No plat of a subdivision of land showing lots, blocks or sites, with or ning board approval and endorsement without streets or highways, shall be filed or recorded in the office of the county clerk or register until it has been approved by a planning board which has been empowered to approve such plats, and such approval be endorsed in writing on the plat in such manner as the planning board Contents of endorsement may designate. Such endorsement shall stipulate that the plat does not conflict with the county official map, where one exists, or, in cases where plats do front on or have access to or are otherwise related to roads or drainage systems shown on the county map, that such plat has been approved in the manner specified by section two hundred thirty7nine-k of the general municipal law. It shall be the duty of the county clerk or Notification to planning board by county register to notify the planning board in writing within three days of the clerk of recording of plat filing or recording of any plat approved by such planning board, identi- fying such plat by its title, date of filing or recording, and official file number. After such plat is approved and filed, subject, however, to re- Streets and highways on recorded plat vieN@ by court as hereinafter provided, the streets, highways and parks shown on such plat shall be and become a part of the official map or plan of the city. The owner of the land or his agent who files the plat may add Notation that no dedication intended as part of the plat a notation if he so desires to the effect that no offer of dedication of such streets, highways, or parks or any of them is made to the public. Formal offer of cession Formal offers of cession to the public of all streets, highways or parks not marked with such notation on the plat shall be filed with the planning board prior to the approval of the plat by the planning board. In the event that the owner or his agent shall elect not to file his plat prior to the expiration date of the validity of such approval provided in section thirty-two, then formal offers of cession shall be deemed to be invalid, void and of no effect on and after such expiration date. Streets shown on plat to be private until Every street shown on a plat that is hereafter filed or recorded in the offered to city and accepted office of the county clerk or register as provided in this section, shall be deemed to be a private street until such time as it has been formally offer- ed for cession to tIr public and formally accepted as a public street by ordinance of the local legislative body, or alternatively until it has been ondernned by the city for use as a public street. Effect of other provisions of law re- In so far as provisions of law other than those contained in this lating to approval of plats article, require the approval of a plat, map or plan of land by the authority of the city, as a prerequisite of its record, or allow it to be recorded on failure of the city to approve or disapprove of the same within a given time, said provisions shall not be in force in so far as they apply to plats, maps or plans of land within the limits of any city which has established an official map or plan and authorized a planning board appointed by it to approve plats of land within said city showing lots, blocks or sites, with or without streets or highways, under this article. Notes: - County official maps - see General Municipal Law, See. - To con stitute a dedication there must not only be an offer 239-g to 239-k. and acceptance, but there must be a formal opening of the - Approval of plats related to roads or drainage systems shown street by the public authorities or a user (Bayer vs. Pugsley, on county official map - see General Municipal Law, See. 13 Misc. 2d 610; aff'd. 7 A.D. 2d 828). 239-k. 17 � 83-a Exemption of lots shown on approved subdivision plats Zoning ordinances adopted or amended, 1. Notwithstanding any inconsistent provision of this chapter or of increasing lot areas or dimension, not to any general, special or local law, the provisions of a zoning ordinance affect certain subdivision plats previously approved and filed hereafter adopted, and the provisions of a change or amendment here- after adopted to a zoning ordinance, which provisions establish or increase lot areas, lot demensions which are greater than or in excess of the lot areas or lot dimensions of the lots shown and delineated on a subdivision Plat of land into lots for residential use and which said subdivision plat also shows and delineates one or more new streets, roads or highways in addition to lot lines and dimensions of the lots thereon delineated and which said subdivision plat has been duly approved by the planning board, if any, of the city in which the land shown on said plat is situate, or ap- proved by such other board or officer, if any, of such city, vested with authority to approve subdivision plats, and duly filed in the office of the recording officer of the county in which the land shown on said subdivision plat is situate, or which provisions establish or increase side, rear or front yard or set back requirements in excess of those applicable to building plats under the provision of the zoning ordinance, if any, in force and effect at the time of the filing of the said subdivision plat, shall not, for the period of time prescribed in subdivision two of this section, be applicable to or in any way affect any of the lots shown and delineated on such subdivision plat. Periods of exemption of such plats 2. If at the time of the filing of the subdivision plat referred to in subdivision one of this section there was in the city both a zoning ordinance and a planning board vested with authority to approve sub- division plats, then the exemption provided for in such subdivision shall Three-year exemption apply for a period of three years after the filing of the subdivision plat. If at the time of the filing of the subdivision plat referred to in subdivision one of this section there was a zoning ordinance in effect in the city but there was no planning board in said city vested with authority to approve subdivision plats, then the exemption provided for in such subdivision Two-year exemption shall apply for a period of two years after the filing of the subdivision plat. If at the time of the filing of the subdivision plat referred to in subdivision one of this section there wasno zoning ordinance in the city but there was a planning board vested with authority to approve sub- division plats, then the exemption provided fcr in such subdivision shall apply for a period of two years after the filing of the subdivision plat. If at the time of the filing of the subdivision plat referred to in subdivision one of this section there was no zoning ordinance in the city and fio planning board vested with authority to approve subdivision plats, then the ex- One-year exemption emption provided for in such subdivision shall apply for a period of one year after the filing of said subdivision plat. 18 N � 37. Planning board, changes in zoning regulations Authority of planning board, simultane- The body creating said planning board is hereby authorized by ously with plat approval, to modify ordinances or resolution applicable to the zoning regulations of such city provisions of zoning ordinance if so authorized or any portion of such zoning regulations, to empower it, simultaneously with the approval of any such plat either to confirm the zoning regulations of the land so platted as shown on the official zoning maps of the city or to make any reasonable change therein, and such board is hereby em- Submission of proposed building plan; powered to make such change. The owner of the land shown on the plat contents of building plan may submit with the plat a proposed building plan indicating lots where group houses for residences or apartment houses or local stores and shops are proposed to be built. Such building plan shall indicate for each lot or proposed building unit the . maximum density of population that may exist thereon and the minimum yard requirements. Such plan,if approved by the planning board, shall modify, change or supplement the zoning regulations of the land shown on the plat within the limitations prescribed by such legislative body in said ordinance or resolution. Limitations Provided that for such land so shown there shall not be a greater average density of population or cover of the land with buildings than is permitted in the district wherein such land lies as shown on the official zoning map. Such building plan shall not be approved by the planning board unless in its judgement the appropriate use of adjoining land is reasonably safeguarded and such plan is consistent with the public welfare. Before the board shall make any change in the zoning regulations there shall be a Public hearing public hearing preceded by the same notice as in the case of the approval Written notice of proposed change to of the plat itself. A written notice of any proposed change or amendment housing authority, and municipalities affecting property within the protectively zoned area o@ a housing affected project authorized under the public housing law, as such area is shown on an approved zoning map filed with the officer charged with enforcement of zoning regulations, shall be given to the housing authority erecting or owning the project and to the government providing financial aid or assistance thereto at least ten days prior to the date of such public hearing. A written notice of any proposed change or amendment affecting property within five hundred feet of the boundaries of any city, village, town or county, shall be given, in the case of a city, village or town to the clerk of such city, village or town, and in the case of a county, to the clerk of the board of supervisors or other person performing like duties. Such city, village, town or county shall have the right to appear and to be heard at such public hearing with respect to any such proposed change or amendment, but shall not have Effect of filing of Plat the right of review by a court as hereinafter provided. On the filing of the plat in the office of the county clerk or registrar such changes, subject, however, to review by court as hereinafter provided, shall be and become part of the zoning regulations of the city, shall take the place of any regulations established by the board of estimate or other legislative authority of the city, shall be enforced in the same manner and shall be similarly subject to change. Notes- submitted to county, metropolitan or regional planning - Notice of certain proposed municipal zoning actions to be agency - see General Municipal,Law, 239-m. 19 001, � 38. Boards of appeal Right of review by aggrieved persons Any person or persons, jointly or severally aggrieved by any decision of the planning board concerning such plat or the changing of the zoning regulations of such land, or any officer, department, board or bureau of the city, may obtain a review in the manner provided by the civil practice law and rules provided the proceeding is commenced within thirty days 30-day limitation after the filing of the decision in the office of the board. Stay of proceedings Commencement of the proceeding shall stay proceedings upon the decision appealed from. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. Costs Costs shall not be allowed against the planning board, unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from. Preference over other civil actions All issues in any proceeding under this section shall have preference over all other civil actions and proceedings. Notes: application had been denied and no compensation had Where entire property or plaintiff has been included in the been paid to plaintiff, resolution and official map of the city's official map for construction of a proposed highway city constituted such deprivation as amounted to an un- and Plaintiff purchased the premises for the purpose of constitutional interference with the vested rights of plain- erecting thereon an apartment building and had applied to tiff's property and was void (Roer Construction Corp. vs. the zoning board of appeals for a building permit but such City of New Rochelle, 207 Misc. 46). 20 Official maps � 26. Official map, establishment Authority to establish official map Every city by ordinance or resolution of the legislative body which has the authority to lay out, adopt and establish streets, highways and Contents of map parks may establish an official map of the city showing the streets, high- ways and parks theretofore laid out, adopted and established by law. Map to be final and conclusive with Drainage systems may also be shown on this map. Such map is to be respect to streets, parks and drainage deemed to be final and conclusive with respect to the location and systems shown thereon width of streets, highways, drainage systems and the location of parks shown thereon. Such official map is hereby declared to be established to Purpose of official map conserve and promote the public health, safety and general welfare. Said ordinance or resolution shall make it the duty of some appropriate official or employee of said city at once to file with the clerk or register of the Filing county or counties in which said city is situated a certificate showing that the city has established an official map. Notes: - For general information on official maps, see Bibliography Adoption of "official" map laws is a grave step with respect Item 19. to the property rights of the freeholders of a municipality. - An official city map need not be established. Where such It is essential that the scheme be comprehensive and map is established, however, a certificate must be filed in scrupulously followed (Di Masi vs. City of New York, 19 the office of the county clerk (14 Op. St. Compt. 4 3 1). A.D. 2d 323, aff'd 14 N.Y. 2d 711). � 29. Official map, changes Authority to change or add to official Such legislative body is authorized and empowered, whenever and as Map often as it may deem it for the public interest, to change or add to the official map of the city 90 as to lay out new streets, highways or parks, or to widen or, close existing streets, highways or parks. Drainage systems Notice and hearing may also be shown on ihis map. At least five days' notice of a public hearing on any proposed action with reference to such change in the official map shall be published at least once in an official publication of said city or in a newspaper of general circulation therein. Before Referral to planning board for report making such addition or change the matter shall be referred to the plan- ning board for report thereon, but if the planning board shall not make its 21 report within thirty days of such reference, it shall forfeit the right Effect of changes further to suspend action, Such additions and changes when adopted shall become a part of the official map of the city, and shall be deemed to be final and conclusive with respect to the location of the streets, highways and parks shown thereon. Changes in streets and highways pur- The layout, widening or closing, or the approval of the layout, widen- suant to other provisions of law deem- ing or closing of streets, highways or parks by the city under provisions of ed to be change or addition to official law other than those contained in this article shall be deemed to be a Map change or addition to the official map, and shall be subject to all the provisions of this article. Notes: - City council's adoption or revision of general map does not city to open street shown thereon until council decides that obligate city to commence condemnation proceedings to it is actually needed (Headley vs. City of Rochester, 272 acquire land in bed of street as shown on map nor compel N.Y. 197). � 35. Permits for building in bed of mapped streets. Purpose For the purpose of preserving the integrity of such official map or No permit to be issued for any build- plan no permit shall hereafter be issued for any building in the bed of any ing in bed of street shown on official street or highway shown or laid out on such map or plan provided, map or plan however, that if the land within such mapped street or highway is not yielding a fair return on its value to the owner, the board of appeals or other similar board in any city which has established such a board having Authority to vary terms of section power to make variances or exception in zoning regulations shall have under certain circumstances and to im- power in a specific case by the vote of a majority of its members to pose conditions grant a permit for a building in such street or highway which will as little as practicable increase the cost of opening such street or highway, or tend to cause a change of such official map or plan, and such board may impose reasonable requirements as a condition of granting such permit, which requirements shall inure to the benefit of the city. Before taking any action authorized in this section, the board of appeals or similar Notice, hearing, publications board shall give a hearing at which parties in interest and others shall have an opportunity to be heard. At least fifteen days notice of the time and place of such hearing shall be published in an official publication of said city or in a newspaper of general circulation therein. Any such de- Review cision shall be subject to review by certiori order issued out of a court of record in the same manner and pursuant to the same provisions as in appeals from the decisions of such board upon zoning regulations. Granting ofpermit where proposed street Where. a proposed street wideni ng or extension has been shown on widening or extension has been shown such official map or plan for ten years or more and the city has not on official map for ten years acquired title thereto, the city may, after a hearing on notice as herein- above provided, grant a permit for a building and/or structure in such street or highway and shall impose such reasonable requirements as are necessary to protect the public interest as a condition of granting such permit, which requirements shall inure to the benefit of the city. 22 Notes: There is little doubt that an objective which seeks to achieve - As in all matters dealing with ordinances and statutes, the better city planning falls fully within the concept of pro- court must so construe the official map law as to sustain its moting the general welfare (Rochester Business Institute Inc. constitutionality in a given situation if it is possible to do vs. City ofRochester, 25 A.D. 2d 97). so (Rochester Business Institute Inc. vs. City of Rochester, 25 A.D. 2d 97). � 35-a Limitation of time for revocation of permit Action to revoke permit on ground that An action or proceeding to revoke a building permit on the ground building is in bed of mapped street must that the building erected pursuant thereto stands wholly or partly be commenced within 15 years within the bed of any .street or highway shown on the official map or plan of a city must be commenced within fifteen years from the time Extension of time of the issuance of such permit; but if at the time this act takes effect more than fourteen years have elapsed since the time of the issuance of the permit, an action or proceeding to revoke the permit on such ground must be commenced within one year from the time this act takes effect. Effect offailure to commence action If no action or proceeding is commenced within the time limited, the permit shall be deemed as valid as if it had been issued pursuant to the provisions of section thirty-five of this chapter. � 36. Municipal improvements in streets, buildings not on mapped streets. No public municipal street utility or 1. A city having a population of less than one million. No public improvement to be constructed in city municipal street utility or improvement shall be constructed by any of less than one million unless it is pub- lic street shown an official map city having a population of less than one million in any street or highway until it has become a public street or highway and is duly placed on the No permit to be issued for any building official map or plan. No permit for the erection of any building shall be unless access street suitably improved is issued unless a street or highway giving access to such proposed structure shown on official map has been duly placed on the official map or plan, which street or highway shall have been suitably improved to the satisfaction of the planning board in accordance with standards and specifications approved by the appro- priate city departments as adequate in respect to the public health, safety and general welfare for the special circumstances of the particular street Performance bond in lieu of improve- or highway or alternately that a performance bond sufficient to cover ment the full cost of such improvement as estimated by such board shall be furnished to the city by the owner. Such performance bond shall be issued by a bonding or surety company approved by the corporation counsel of the city, or by the owner with security acceptable to the legislative body, and shall also be approved by such corporation coun- sel as to form, sufficiency and manner of execution. The term, manner of modification and method of enforcement of such bond shall be determined by the planning board in substantial confor- mity with section thirty-three of this article. Where the enforce- 23 Variance procedure in event of un- ment of the provisions of.this section would entail practical difficulty or necessary hardship or practical diffi- unnecessary hardship, and where the circumstances of the case do not culty require the structure to be related to existing or proposed streets or highways, the applicant for such a permit may appeal from the decision of the administrative officer having charge of the issue of permits to the board of appeals or other similar board in any city which established a board having power to make variances or exceptions in zoning regulations, and the same provisions are hereby applied to such appeals and to such board as are provided in cases of appeals on zonii:g regulations. The board may in passing on such appeal make any reasonable exception and issue the permit subject to conditions that will protect any future street or highway layout. Any such decision shall be subject to review under the provisions of article seventy-eight of the civil practice law and rules. Procedure relating to cities of one mil- 2. A city having a population of one million or more. No public lion or more municipal street utility or improvement shall be constructed by any city having a population of one million or more in any street or highway until it has become a public street or highway and is duly placed on the No certificate of occupancy to be issued official map or plan. No certificate of -occupancy shall be issued in such unless access street has been placed on city for any building unless a street or highway giving access to such official map structure has been duly placed on the official map or plan, which street or highway shall have been suitably improved to the satisfaction of the department of highways of the city in accordance with standards and specifications approved by such department as adequate in respect to the public health, safety and general welfare for the special circumstances Performance bond of the particular street or highway, or, alternately, unless the owner has furnished to the department of highways of such city a performance bond naming the city as obligee, approved by such department, to the full cost of such improvement as estimated by such department, or other security approved by such department, that such improvement will be completed within the time specified by such department. If such improve- ment has not been installed within the time specified by such department, such department may declare such performance bond or other security to be in default and shall collect, in the name of the city, the sum remaining payable thereunder. Upon receipt of the proceeds thereof, the city shall install such improvement. If the cost of such improvement exceeds the sum remaining payable under such bond or other security, the owner shall be liable for and shall pay to the city, the amount of such excess. Where the enforcement of the provisions of this section would entail practical difficulty or unnecessary hardship, and where the circumstances of the case do not require the structure to be related to existing or pro- posed streets or highways, the applicant for such a certificate of oc- cupancy may appeal from the decision of the administrative officer having charge of the issuance of certificates of occupancy to the board of standards and appeals or other similar board of such city having power Variance procedure to make variances or exceptions in zoning regulations, and the same provisions are hereby applied to such appeals and to such board as are provided in cases of appeals on zoning regulations. The board may in passing on such appeal make any reasonable exception and issue the certificate of occupancy subject to conditions that will protect any 24 future street or highway layout. Any such decision shall be subject to re- view under the provisions of article seventy-eight of the civil practice act. No permit to be granted for erection of No permit shall be granted for the erection of any building or structure building unless liability policy furnished in such. city unless the owner has furnished to the commissioner of highways of such city a policy of liability insurance, marked paid, in such amounts as may be fixed by such department, insuring, indemnify- ing and saving the city harmless from any claims, suits, demands, causes of action and judgements by reason of personal injuries sustained by any person or persons, including death, and from any claims ', suits, demands, causes of action and judgements for damages to property, occur- ring on any such street or highway giving access to such structure, up to the date of the issuance of the certificate of occupancy or up to the date of the completion of the improvement of such street or highway as re- quired by or pursuant to this section, whichever is later. In the event that the owner is covered by such a policy of liability insurance, the depart- ment of highways may accept a certificate of endorsement extending Every permit to contain statement that such policy to include and cover the city. Every permit issued for the no certificate of occupancy to be issued erection of any such building or structure shall contain a statement that unless access street suitably improved is shown on official map or performance no certificate of occupancy will be issued with respect to such building bond furnished or structure unless a street or highway giving access to such structure has been duly placed on the official map or plan, which street or highway shall have been suitably improved to the satisfaction of the department of highways of the city in accordance with standards and specifications approved by such department as adequate in respect to the public health, safety and general welfare for the special circumstances of the particular street or highway or, alternately, unless the owner has furnished to the department of highways a performance bond naming the city as obligee, approved by such department, sufficient to cover the full cost of such improvement as estimated by such department, or other security approved by such department, that such improvement will be completed within the time specified by such department. Notes: statute does not require any particular form of physical ac- The purpose of this statute is to insure and provide reason- cess, merely any reasonable means (Matter of Turner vs. able means as coping with fires and other emergencies. The Calgi, 12 Misc. 2d 1026). 25- Other provisions � 39. Separability clause If any part or provision of this article or the application thereof to any person or circumstance be adjudged invalid by any court of com- petent jurisdiction, such judgement shall be confined in its operation to the part, provision or application directly involved in the controversy in which such judgement shall have been rendered and shall not affect or impair the validity of the remainder of this article or the application thereof to other persons or circumstances and the legislature hereby declares that it would have enacted this article or the remainder thereof had the invalidity of such provision of application thereof been apparent. 26 from the TOWN LAW 27 Planning boards See. 271. Planning board, creation and appointment Power to create; number of members; 1. The town board of each town is hereby authorized and empower- power to remove; compensation ed to appoint a planning board of, five members or seven members in the discretion of the board, and shall have authority to remove any member of such planning board for cause and after public hearing. The town board may also provide for compensation to be paid to the members of the planning board. Of the members first appointed to a planning board Terms of office consisting of five members, one shall hold office for the term of one year, one for the term of four years and one for the term of five years, from and after his appointment. Their successors shall be appointed for a term of five years from and after the expiration of the terms of their predeces- sors in office. Of the members first appointed to a newly created planning board consisting of seven members, one shall hold office for the term of one year, one for the term of two years, one for the term of three years, one for the term of four years, one for the term of five years, one for the term of six years and one for the term of seven years after his ap- pointment. Where the membership of an existing planning board is in- creased as authorized by the provisions of this section as amended, one of the new members shall be appointed for a term of six years and the other for a term of seven years, such terms to commence on the same calendar day of the year as the original appointments and thereafter upon the expiration of the term of each member, his reappointment or the appointment of his successor shall be for a term of seven years. If a Filling of vacancy vacancy shall occur otherwise than by expiration of term, it shall be fined by the town board by appointment for the unexpired term. Additional member in certain agricultu- 2. Notwithstanding any inconsistent provision of this chapter or of ral towns any general, special or local law, the town board in any town in which a planning board has heretofore been or may hereafter be created may, if at least twenty per cent of the area of such town is devoted to agricultural pursuits, appoint an additional member to such planning board, for a term of five years from and after his appointment. If the town board determines to appoint such additional member, he shall be a person who derives more than one-half of his annual income from agricultural pursuits. As used in this subdivision, the term "agricultural pursuits" means the grow- ing, producing, processing or selling of the products of agriculture. 28 Notes: - For town participation in establishment of metropolitan, A town board, which has established a planning board, may county and regional planning boards, see General Municipal abolish it at any time (6 Op. St. Compt. A. Law, Sec. 239-b et seq. For aIdiscussion of incompatibility of office and conflict - An individual may be a member of both a town and county of interest imposing bars on planning board membership, planning board (1968 Atty. Gen. (Inf.) 379). see Bibliography Item 4. Sec.272. Planning board, officers, -employees and expenses Appointment of chairman The town board shall designate a member of said planning board to act as chairman thereof, or on failure so to do, the planning board shall Adoption of rules and regulations, Pub- elect a chairman from its own members. The planning board may adopt lic hearing and appro pal of town board rules and regulations in respect to procedure before it and in respect to any subject matter over which it has jurisdiction under this article or any other statute, after public hearing by the planning board and subject to Employment of staff- expenses; appro- the approval of the town board. The planning bo 'ard shall have power and priations authority to employ experts, clerks and a secretary, and to pay for their services and such other expenses as may be necessary and proper, not ex- ceeding in all the appropriation that may be made therefor by the town board for such planning board. The town board is hereby authorized and N empowered to make such appropriation as, it may see fit for such expenses, provided, however, that in a town containing one or more villages or parts thereof the amount of the appropriation shall be the estimated charges and expenses less fees if any collected; such charges and expenses shall be a charge upon the taxable property of that part of the town outside of incorporated villages and shall be assessed, levied and collected therefrom Town charge in the same manner as other town charges. Notes: - Notice of public hearing required by this section need -not contain full text of proposed rules and regulations (10 Op. 138 N.Y.S. 2d 362). St. Compt. 145). - Regulations adopted by town planning board and approved - Town planning boards are authorized to appoint experts, by town board have force of legislative enactment. (Villa- clerks and a secretary and to pay them within the appro- Laken Corp. vs. Planning Board of Town of Eastchester, priation therefore. (1968 Atty. Gen. (Inf.), March 11). Sec.274. Planning board, reports on matters referred to it Authorization by town board The town board may by general or special rule provide for the re- ference of any matter or class of matters, other than those referred to in section two hundred seventy-two of this article, to the planning board be- Referral of matters to planning board; fore the final action thereon by the body or officer of said town having pro vision for withholding offinal action final authority thereon with or without the provision that final action pending board report thereon shall not be taken until said planning board has submitted its 29 report thereon, or has had a reasonable time to be fixed by the town board in said rule to submit the report. Authority from town board, to approve The town board may by resolution authorize and empower the plan- street or highway changes in filed sub- ning board to approve or disapprove (a) changes in the lines of existing division plats and other street changes streets, highways or public areas shown on subdivision plats or maps filed in the county clerk's office in the county in which such town is located, (b) the laying out, closing off or abandonment of streets, highways or public areas under the provisions of the town and highway laws, within that part of the town outside the limits of any incorporated city or village. Where the town board has authorized such planning board to ap- prove or disapprove such matters, final action thereon by the body or officer of said town having final authority thereon shall not be taken until such planning board has had a reasonable time to submit its re- Withholding offinal action pending plan- port thereon. Nothing contained in this section shall be construed as ning board report limiting final action or the authority now possessed by law of any body or officer of the said town. Notes: - Application for site plan approval was governed by this 2d 705). section and not Section 276 of the Town Law, which in- - A planning board should keep a record of its meetings (7 volves subdivision plats. (Thurman vs. Snowden, 28 A.D. Op St. Compt. 236). � 275. Planning board, general reports Authority to make investigations, re- The planning board shall have full power and authority to make such ports, etc. investigations, maps and reports and recommendations in connection therewith relating to the planning and development of the town as to it seems desirable providing the total expenditures of said board shall not exceed the appropriation for its expenses. Sec.272-a. Master Plan Authority to prepare master plan The planning board may prepare and change, a comprehensive master plan for the development of the entire area of the town, which master plan shall show desirable street, bridges and tunnels and the approaches Features of master plan thereto, viaducts, parks, public reservations, roadways in parks, sites for public buildings and structures, zoning districts, pierhead and bulkhead lines, waterways and routes of public utilities and such other features existing and proposed as will provide for the improvement of the town and its future growth, protection, and development, and will afford adequate facilities for the public housing, transportation, distribution, comfort, convenience, public health, safety and general welfare of its population. Notice and public hearing Such planning board may advertise and hold public hearings when it desires, which hearings shall be advertised in a newspaper of general 30 N circulation in said town at least ten days before each such hearing. Filing of master plan The master plan and all modifications thereof shall be on file in the office of the planning board, and the planning board shall file certified copies in the office of the town engineer or town highway superintendent and the town clerk. - For town participation in metropolitan, reeional or county Notes: master plan, see General Municipal Law, Sec. 239-d. There is nothing in this section which requires, or even im- _ For a discussion of the elements of a comprehensive plan, plies, that a board of zoning appeals should review or ap- see Bibliography Item 5 and 15. prove the master plan, or any changes in such plan as de- vised by the planning board. (23 Op. St. Compt. 225). - For information on available financing and technical as- The master plan, although it may contain zoning recom- sistance in preparing a comprehensive plan, see Bibliography mendations, is not really an official town pronouncement, tern 16. as is the official map or the zoning ordinance itself. Unless - It is clear that from history of Article 16 of the Town Law and until the town board officially incorporates the master that description "official map or plan" appearing in Section plan into an ordinance to give it the force of law, the master 279 was not intended to refer to or include the "master plan remains only an advisory document or documents and plan" authorized by Section 272-a. (Walder vs. Cook, is not capable of enforcement. (23 Op. St. Compt. 226). A.D. 2d 917, affd. 25 N.Y. 2d 661). 31 Zoning � 261. Grant of power; appropriations for certain expenses incurred under this article. Purposes - exercise of police power For the purpose of promoting the health, safety, morals, or the general welfare of the community, the town board is hereby empowered by ordinance to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for Scope of grant of power trade, industry, residence of other purposes; provided that such regulations shall apply to and affect only such part of a town as is outside the limits of any incorporated village or city; provided further, that all charges and expenses incurred under this article for zoning and planning shall be a Part of town affected charge upon the taxable property of that part of the town outside of any incorporated village or city. The town board is hereby authorized and em- powered to make such appropriation as it may see fit for such charges and Appropriations expenses, provided however, that such appropriation shall be the estimated charges and expenses less fees, if any, collected, and provided, that the amount so appropriated shall be assessed, levied and collected from the property outside of any incorporated village or city. Such regulations Authority to vary regulations may provide that a board of appeals may determine and vary their ap- plication in harmony with their general purpose and intent, and in accord dance with general or specific rules therein contained. Notes: - Town zoning board may exercise power to makz-zoning - Multiple dwellings: regulations only to promote health, safety, morals or gen- 1. Heights, bulk, open spaces Multiple Dwelling Law See. eral welfare of community (Connell vs. Town of Granby, 26. 12 A.D. 2d 177). 2. Two or more buildings on same lot - Multiple. Dwelling Law, Sec. 28. - Local legislative body's judgment in zoning case must be al- - A town board, in exercising its legislative power to zone lowed to control if classification is fairly debatable and property in the town, must consider the overall effect on courts may not interfere unless local body's determination the area zoned and on adjacent areas. (Hewlett vs. Town of is arbitrary (Thomas vs. Town of Bedford, I I N.Y. 2d. 4 28). Hempstead, 3 Misc. 2d 945, affd. I A.D. 2d 954). - The dominant design of any zoning ordinance is to promote - Zoning ordinances, restricting free use of property by owner, the general welfare subject always to the constitutional being in derogation of the common law, should be strictly limitation that it must not be employed arbitrarily or un- construed (Hinna vs. Board of Appeals of Town of Hemp- reasonably (Style Rite Homes, Inc. vs. Zoning Board of Ap- stead, 11 Misc. 2d. 349). peals of Town of Chili, 54 Misc. 2d. 866). 32 9 262. Districts Division of town into districts For any or all of said purposes the town board may divide that part of the town which is outside the limits of any incorporated village or city into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this act; and within such districts it may regulate and restrict the erection, construction, reconstruction, altera- Uniformity of regulations within each tion or use of buildings, structures or land. All such regulations shall be district uniform for each class or kind of buildings, throughout such district but the regulations in one district may differ from those in other districts. Notes: Town district must be created in light of municipal or town - A zoning ordinance may provide for various categories of objective as opposed to an exclusively district purpose business districts, each permitting operation of certain types (Connell vs. Town of Granby, 12 A.D. 2d 177). of businesses therein (I I Op. St. Compt. 364). � 263. Purposes in view Regulations in accordance with com- Such regulations shall be made in accordance with a comprehensive prehensive plan plan and designed to lessen congestion in the streets, to secure safety from Specific purposes fire, flood, panic and other dangers; to promote health and general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate pro- vision of transportation, water, sewerage, schools, parks and other public Considerations to character of district, requirements. Such regulations shall be made with reasonable consideration, suitability, etc. among other things, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality. Notes: - Recommendation of metropolitan, regional or county plan- of the community's problems and applying the ordinance ning board of comprehensive zoning plan to cities, towns itself or a general policy to obtain a uniform result (Walus and villages - see General Munciipal Law 239-d (5). vs. Millington, 49 Misc. 2d 104). - A "comprehensive plan" within the requirement of this For a discussion of interim zoning to preserve the status quo section that zoning regulations shall be made in accordance pending the adoption or amendment of an ordinance further- with a comprehensive plan is not necessarily a written docu- ing the comprehensive plan, see Bibliography Item 2. ment; it is an underlying purpose to control land uses for benefit of the whole community based upon consideration - For a discussion of spot zoning, see Bibliography Item 10. � 266. Zoning commission Appointment by town board In order to avail itself of the powers conferred by this article, such town board shall appoint a commission to be known as the zoning com- Purposes mission to recommend the boundaries of the various original districts and 33 appropriate regulations to be enforced therein. Such commission shall Public hearings and preliminary report make a preliminary report and hold public hearings thereon before sub- mitting its final report and such town board shall not hold its public Final report hearing or take action until it has received the final report of such com- mission. Where a planning board already exists it may be appointed as the zoning commission. Notes: - The town board has specific authority under this section to - The town board may not apvoint one of its own members appoint the members of the town planning board to the to the zoning commission (10 Op. St. Compt. 350). zoning commission. 264. Method of procedure Authority of town board The town board shall provide for the manner in which such regula- tions and restrictions and the boundaries of such districts shall be deter- mined, established and enforced, and from time to time amended, sup- plemented or changed. However, no such regulation, restrictions or Notice and public hearing boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least ten days' notice of the time and place of such hear- ing shall be published in a paper of general circulation in such town and a Written notice of zoning changes within written notice of any proposed change or amendment affecting property housing projects, or within 500 feet of within the protectively zoned area of a housing project authorized under boundaries of county, city, town, Pil- lage, State park or parkways the public housing law, as such area is shown on approved zoning map filed with the town officer charged with enforcement of zoning regula- tions, or property within five hundred feet of the boundaries of any city, village, town, county, state park or parkways shall be given, in the case of a housing project to the housing authority erecting or owning the project and to the government providing financial aid or assistance there- to, in the case of any state park or parkway, to the regional state park com- mission having jurisdiction over such state park or parkway, in the case of a city, village or town to the clerk of such city, village or town, and in the case of a county, to the clerk of the board of supervisors or other person performing like duties, at least ten days prior to the date of such public hearing. Such city, village, town or county shall have the@ right to appear and to be heard at such public hearing with respect to any such proposed change or amendment, but shall not have the right of review by a court as hereinafter provided. Every zoning ordinance and every amendment to a zoning ordinance (excluding any map incorporated therein) adopted pursuant to the pro- Zoning ordinance or amendments and visions of this chapter shall be entered in the minutes of the town board map to be entered in minutes of town and a copy thereof (exclusive of any map incorporated therein) shall be board published once in a newspaper published in the town, if any, or in such newspaper published in the county in which said town may be located having a circulation in such town, as the town board may designate, Publication and affidavits of the publication thereof shall be filed with the 34 Effective date of ordinance town clerk. Such ordinance shall take effect ten days after such publica- tion, but such ordinance or amendment shall take effect from the date of its service as against a person served personally with a copy thereof, certified by the town clerk under the corporate seal of the town; and showing the date of its passage and entry in the minutes. Notes: - Notice of certain proposed municipal zoning actions to be - Where no zoning map was entered in the minutes of the submitted to county, metropolitan or regional planning town board, or incorporated in the ordinance by specific agency - see General Municipal Law, 239-m. This require- description, the amendment to the zoning ordinance was ment is mandatory and failure to follow it will result in an void (Soron Realty Co., Inc. vs. Town of Geddes, 23 A.D. invalid ordinance although no reference is made to the re- 2d 165). quirement in the Town Law. - Every property owner is entitled to know with precision in - There is no authority for a town to conduct a referendum on which district his property has been placed (Keeney vs. a proposed zoning ordinance (10 Op. St. Comp. 329). Village of Le Roy, 22 A.D. 2d 159). - While the statute does not specify a particular form of - Attempted original districting of area was ineffective where notice, it must be intended to reasonably apprise the pub- town had not complied with requirement of publication lic of the essence of the regulations to be adopted, so that pursuant to this section (Barry vs. Town of Glenville, members of the public can appear at the hearing and pre- 8 N'Y'2d 1153). sent their views to the board either in favor of or in op- - Local laws relating to zoning changes, adopted without post- position to the regulation (Village of Sands Point vs. Sands publication thereof, may be subject to attack as uncon- Point Day School, 2 Misc. 2d. 885; affd. 2 A.D. 2d 769). stitutional (Op. St. Compt. 69-838). � 265. Changes Amendment, modification, repeal, etc. Such regulations, restrictions and boundaries may from time to time by ordinance be amended, supplemented, changed, modified or repealed by ordinance. Procedure in event of protest In case, however, of a protest against such change signed by the owners of twenty per centurn or more, either of the area of the land included in such proposed change, or of that immediately adjacent extending one hundred feet therefrom or of that directly opposite thereto, extending one hundred feet from the street frontage of such opposite land, such amend- ment shall not become effective except by the favorable vote of at least three-fourths of the members of the town board. The provisions of the previous section relative to public hearings and official notice shall apply, equally to all changes or amendments. Changes, amendments or supplements made to any zoning ordinance (excluding any map incorporated therein) adopted pursuant to the pro- Entry in minutes, publication visions of this chapter shall be entered in the minutes of the town board and a copy thereof (exclusive of any map incorporated therein) shall be published once in a newspaper published in the town, if any, or in such newspaper published in the county in which such town may be located having a circulation in such town, as the town board may designate, and affidavits of the publication thereof shall be filed with Effective date the town clerk. Such ordinance shall take effect ten days after such publication, but such ordinance shall take effect from the date of its service as against a person served personally with a copy thereof, certi- 35 fied by the town clerk under the corporate seal of the town; and showing the date of its passage and entry in the minutes. Notes: - Notice of certain proposed municipal zoning actions to be - A town may not repeal a town zoning ordinance without submitted to county, metropolitan or regional planning holding a public hearing thereon (15 Op. St. Compt. 38). agency, see General Municipal Law 239-m. This requirement is mandatory; failure to follow it will result in an invalid - The entire amending ordinance and not a summary thereof amendment, even though the Town Law make no reference must be published (8 Op. St. Compt. 244). to the requirement. � 267. Board of appeals Appointment of members, compensa- 1. Such town board shall appoint a board of appeals consisting of tion, staff, expenses five members, shall designate its chairman and may also provide for com- pensation to be paid to said members, experts, clerks and a secretary and provide for such other expenses as may be necessary and proper, not ex- ceeding in all the appropriations that may be made by the town board for Member of town board precluded from such board of appeals. No person who is a member of the town board shall membership be eligible for membership on such board of appeals. Of the members of Terms ofoffice, additional members the board first appointed, one shall hold office for the term of one year, one for the term of two years, one for the term of three years, one for the term of four years, one for the term of five years from and after his ap- pointment; provided, however, that such town board may, by resolution, increase the number of members of the board to seven, and provide for their compensation and thereafter such additional members shall be first appointed for terms of two and four years respectively. Their successors, including such additional members as may be ap- pointed by the town board, shall be appointed for the term of five years Filling of vacancy from and after the expiration of the terms of their predecessors in office. If a vacancy shall occur otherwise than by expiration of term, it shall be filled by the town board by appointment for the Removal of member unexpired term. The town board shall have the power to remove any member of the board for cause and after public hearing. All meetings of the board of appeals shall be held at the call of the chair- man and at such other times as such board may determine. Such Meetings chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of such board shall be open to the public. Such board shall keep minutes of its proceedings, showing the vote of each member upon every question, or if absent or failing to vote, indicating such fact, and shall also keep records of its ex- Filing of decisions amination and other official actions. Every rule, regulation, every amend- ment or repeal thereof, and every order, requirement, decision or deter- mination of the board shall immediately be filed in the office of the town clerk and shall be a public record. Powers and duties of board ofappeals 2. Such board of appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance 36 adopted pursuant to this article. It shall also hear and decide all matters referred to it or upon which it is required to pass under any such ordi- Majority vote nance. The concurring vote of a majority of the members of the board shall be necessary to reverse any order, requirement, decision or deter- mination of any such administrative official, or to decide in favor of the applicant any matter upon which it is required to pass under any such ordinance or to effect any variation in such ordinance. Such appeal may be taken by any person aggrieved, or by any officer, department, board or bureau of the town. Appeal procedure 3. Such appeal shall be taken within such time as shall be prescribed by the board of appeals by general rule, by filing with the officer from whom the appeal is taken and with the board of appeals a notice of ap- peal, specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken. Stay of proceedings, except if life or 4. An appeal stays all proceedings in furtherance of the action ap- property is imperiled pealed from, unless the officer from whom the appeal is taken certifies to the board of appeals, after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of appeals or by a court of record on application, on notice to the officer from whom the appeal is taken and on due cause shown. 5. The board of appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it and give public notice thereof by Notice and hearing the publication in the official paper of a notice of such hearing, at least five days prior to the date thereof, and shall, at least five days before such hearing, mail notices thereof to the parties, and to the regional state park commission having jurisdiction over any state park or parkway within five hundred feet of the property affected by such appeal, and shall decide the same within sixty days after the final hearing. Upon the hearing, any party Action by board may appear in person or by agent or by attorney. The board of appeals may reverse or affirm wholly or partly, or may modify the order, re- quirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made in the premises and to that end shall have all the powers of the officer from whom the appeal is taken. Where there are practical dif- ficulties or unnecessary hardships in the way of carrying out the strict letter of such ordinances, the board of appeals shall have the power in Power to grant variances - criteria passing upon appeals, to vary or modify the application of any of the regulations or provisions of such ordinancing relating to the use, construc- tion or alteration of buildings or structures, or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done. 6. Upon motion initiated by any member and adopted by the un- animous vote of the members present, but not less than a majority of all Re-hearing the members, the board of appeats shall review at a re-hearing held upon notice given as upon an original hearing, any order, decision or deter- mination of the board not previously reviewed. Upon such re-hearing, and provided it shall then appear that the rights vested prior thereto in per- 37 sons acting in good faith in reliance upon the order, decision or deter- mination reviewed will not be prejudiced thereby, the board may, upon the concurring vote of all the members then present, reverse, modify or annul its original order, decision or determination. 7. Any person or persons, jointly or severally aggrieved by any deci- sion of the board of appeals or any officer, department, board or bureau Appeal to Supreme Court from decision of the town, may apply to the supreme court for review by a proceeding of board under article seventy-eight of the civil practice law and rules. Such pro- Time limit for appeal ceeding shall be instituted within thirty days after the filing of a deci- sion in the office of the town clerk. The court may take evidence or ap- point a referee to take such evidence as it may direct and report the same with his findings of fact and conclusions of law, if it shall appear that testimony is necessary for the proper disposition of the matter. The court at a special term shall itself dispose of the cause on the merits, de- termining all questions which may be presented for determination. Costs 8. Costs shall not be allowed against the board of appeals unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from. 9. All issues in any proceeding under this section shall have prefer- ence over all other civil actions and proceedings. 10. If upon the hearing at a special term of the supreme court, it shall appear to the court that testimony is necessary for the proper dis- Appointment of referee to hear and position of the matter, it may take evidence or appoint a referee to take report such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceed 'ings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the Notes: decision brought up for review. - Notice of certain proposed municipal zoning actions to be submitted to county, metropolitan or regional planning - Special hardship need not be established asaconditionto agency, see General Municipal Law Sec. 239-m. granting of an area variance. It is sufficient if there be a showing of practical difficulty (Ozolins vs. Horn, 26 A.D. - Town zoning appeal board may act upon its own knowledge 2d. 555). or make its own survey, provided it sets forth facts so - Fact that a court may disagree with conclusion of zoning found in decision (Bettman vs. Michaelis, 27 Misc. 2d. 1010). board of appeals is not sufficient to justify it in sub- - The town zoning board of appeals has no power to amend stituting its judgment for that of board (Brush vs. Zoning a zoning ordinance (18 Op. St. Compt. 124). Board of Appeals of Town of Huntington, S7 Misc. 2d 751. - Unlike variance, which involves varying a zoning ordinance, - A proceeding to review a decision of a zoning board of ap- special permit deals with compliance with ordinance and peals may be maintained by owners of property in im- imposes duty on zoning board of appeals to grant the per- mediate vicinity, even though properties are over 500 yards mit once the applicant has complied with particular condi- away (Mueller vs. Anderson, 60 Misc, 2d 568). tions specified in ordinance (Krust vs. Hill, 212 N.Y.S. 2d. - For general discussion of powers of zoning boards of appeals, 981). variances and special permits, see Bibliography'ltem 14. - A variance is an authorization to use Property for a pur- pose prohibited by the zoning ordinance; and a use which - With respect to area variances the basic rule which has is authorized by a variance is not limited to a particular evolved is that where the property woner will suffer signif- owner but runs with the land (Balodis vs. Fallwood Park icant economic injury by the application of an area standard Homes, 54 Misc. 2d. 936). contained in an ordinance, that standard can be justified only by a showing that the public health, safety and welfare will - Before the zoning board of appeals may grant a variance be served by upholding the application of the standard and upon the ground of unnecessary hardship, the record must denying the variance (Matter of Fulling vs. Palumbo, 21 N.Y. show that (1) the land in question connot yield a reason- 2d. 30). able return if used only for a purpose allowed in that zone- (2) that the plight of the owner is due to unique circu@;_' - Nothing in Fulling vs. Palumbo has changed the principle stances and not to the general conditions in the neighbor- that a denial of an area variance will be'upheld by the courts hood which may reflect the unreasonableness of the zon- where the substandard condition results from the owner's ing ordinance itself; and (3) that the use to be authorized own decision to subdivide his property in such a way as to by the variance will not alter the essential character of the create one or more substandard plots (Matter of 113 Hillside locality (Otto vs. Steinhiber, 282 N.Y. 75). Avenue Corp. vs. Zaino, 27 N.Y. 2d. 258). 38 N Subdivision control Section 276 has been rewritten by Chapter 964 of the Laws of 1972. The new section becomes effective January 1, 1973. Until that time, the following language remains in effect. � 276. Approval of plats Purposes 1. For the purpose of providing for the future growth and develop- ment of the town and affording adequate facilities for the housing, transportation, distribution, comfort, convenience, safety, health and welfare of its population such town board may by resolution authorize Authority of planning board to approve and empower the planning board to approve plats showing lots, blocks plats or sites, with or without streets or highways, and to conditionally approve. preliminary plats, within that part of the town outside the limits of any incorporated city or village. For the same purposes and under the same conditions the town board may, by resolution, authorize and empower the planning board to pass and approve the development of plats already Approval of plats already filed filed in the office of the clerk of the county in which such plat is located if such plats are entirely or partially undeveloped. 2. When used in this article, the term "preliminary plat" means a drawing showing the salient features of a proposed subdivision submitted to the planning board for purposes of consideration prior to submission of the plat in final form; the term "plat" means a drawing, in final form, Definitions: plat, preliminary plat, con- showing a proposed subdivision containing all information or detail re- ditional approval quired by this article or any other applicable state law or local law, ordi- nance, rule, regulati on or resolution and, if modified, as a conditionally approved preliminary plat, such modification; and the term "conditional approval" of a preliminary plat means approval of the layout of the proposed subdivision as set forth in such preliminary plat, but subject to approval of the plat, in final form, in accordance with the provisions of subdivision four of this section. Submission of plats to planning board 3. All plats shall be submitted to the planning board for approval in their final form provided, however, that where the planning board has been empowered to conditionally approve preliminary plats, the owner may submit or the planning board may require that he submit a prelimi- nary plat for consideration. A preliminary plat shall be clearly marked "preliminary plat" and shall be of sufficient detail to apprise the plan- ning board of the layout of the proposed subdivision. Within forty-five days after the time of submission of a preliminary plat, the planning Action by planning board board shall take action to conditionally approve, with or without modifi- cations, or disapprove.such preliminary plat and the ground of any modi- fication required or the ground for disapproval shall be stated upon the 39 Effect of inaction by planning board; records of such planning board. Failure of the planning board to act conditional approval; final plat sub- within such forty-five day period shall constitute a conditional approval mission of the preliminary plat. If the final plat is not submitted within six months of the conditional approval of the preliminary plat, the planning board may refuse to approve the final plat. 4. A public hearing shall be held by the planning board within thirty days after the time of submission of a plat, in final form, for approval, Notice and hearing which hearing shall be advertised in a newspaper of general circula- tion in such town at least five days before such hearing. The planning board may thereupon approve, modify and approve, or disapprove such plat. Finalapproval The approval required by this section, or the refusal to approve, shall take place within forty-five days from and after the time of the hearing for the approval or disapproval of the plat. Effect of lack of hearing or timely In the event that such hearing shall not be held, or that such plat shall disapproval; certificate of town clerk not have been disapproved after such hearing, within the time prescribed therefor, such plat shall be deemed to have been approved, and the certifi- cate of the clerk of such town as to the date of submission or hearing for the approval or disapproval of the plat, as the case may be, and the failure to take action thereon within such time, shall be issued on demand and shall be sufficient in lieu of the written endorsement or other evidence of approval herein required. The ground of refusal of any plat submitted shall be stated upon the records of such planning board. 5. The clerk of every town which has authorized its planning board to approve plats showing lots, blocks or sites, with or without streets or highways, or the entire or partial development of plats already filed in the Filing of town planning board authority office of the clerk of the county in which such plats are located, or to with county clerk conditionMly approve preliminary plats, as provided in this article, shall immediately file a certificate of that fact with the clerk or register of the county in which such town is located. Expiration of planning board approval 6. The approval by the planning board of a plat showing lots, blocks or certificate of town clerk unlessfiled or sites, with or without streets or highways, or the approval by such or recorded with county clerk within specified time board of the development of a plat or plats already on file in the office of the clerk of the county in which such plat or plats are situated, or the certificate of the town as to the date of the submission for which no hear- ing was duly held, or the date of the hearing for the approval or disap- proval of such plat, as the case may be, and the failure of the planning board to take action thereon within the time prescribed, shall expire nine- ty days from the date of such approval or of such certificate, unless with- in such ninety day period such plat or a section thereof shall have been duly filed or recorded by the owner in the office of the county clerk or register. Prior to granting' ,its approval, the town planning board may permit the plat to be subdivided into two or more sections and may im- pose such conditions upon the filing of the sections as it may deem neces- Approval of plats by sections sary to assure the orderly development of the plat. Approval to the sec- tions, subject to any conditions imposed by the board, shall be granted concurrently with the approval of the plat. If the owner shall file only a section of an approved plat within such ninety day period, such section shall encompass at least ten per cent of the total number of lots contained 40 in the approved plat and the approval of the remaining sections of the approved plat shall expire unless said sections are filed before the expira- tion of the exemption period to which such plat is entitled under the provisions of subdivision two of section two hundred sixty-five-a of this Filing of entire plat with town clerk article. In the event the owner shall file only a section of such approved plat in the office of the county clerk or register, the entire approved plat shall be filed within thirty days of the filing of such section with the town clerk in each town in which any portion of the land described in the plat is situated. 7. Not withstanding the foregoing provisions of this section, the Extension of time for filing planning board may extend the time for filing and recording such plat, if in its opinion such intention is warranted by the particular circum- stance thereof, for not to exceed two additional periods of ninety days each. Notes: - Referral to county superintendent of highways and/or county - A public hearing is mandatory following submission of a planning agency of certain proposed subdivision plats - see properly processed plat. The hearing may not be withheld General Municipal Law, Sec. 239, k and n. by reason of town planning boards predisposition to dis- - A town planning board has no authority to prescribe, on approve (Fisherman vs Arnzen, 52 Misc. 2d. 329). its own motion, requirements and procedures preliminary - 'Me approval of a plat, its filing within the time required and to the public hearing on a subdivision plat (16 Op. St. action promptly taken in reliance on the approval vest in Compt. 144). the developer the right to improve the subdivision in ac- - Failure of planning board to take action on "preliminary cordance with the regulations as they existed on the date plat," not in, final form, was not tantamount to approval the final plat is signed by the designated official (Northbury (Pellillo vs. Fine, 32 A.D. 2d. 788). Estates, Inc. vs. Long Island Lighting Company, 47 Misc. - Planning_ boards are. not required to pass on parcels of land 2d. 134). which are not subdivided into more than one lot or budd- - For a discussion of subdivision regulation enforcement, see ing site (19 1Op. S.t. C-ompt. 352). Bibliography Item 3. Effective January 1, 1973, the following language will be in force � 276. Approval of plats; development of f iled plats Purposes 1. For the purpose of providing for the future growth and development of the town and affording adequate facilities for the housing, transpor- tation, distribution, comfort, convenience, safety, health and welfare of its Authority of planning board to ap- population, the town board may by resolution, authorize and empower prove plats the planning board to approve plats showing lots, blocks, or sites, with or without streets or highways, and to approve preliminary plats, within that part of the town outside the limits of any incorporated city or village. For the same purposes and under the same conditions, the governing body may by resolution authorize and empower the planning board to approve the Approval of plats already filed development of plats already filed in the office of the county clerk or register of the county in which such plat is located if such plats are en- tirely or partially undeveloped. The term "undeveloped" shall mean those 41 plats where twenty percent or more of the lots within the plat are unim- proved unless existing conditions, such as poor drainage, have prevented their development. The clerk of every town which has so authorized its planning board shall immediately file a certificate of that fact with the clerk or register of the county in which such town is located. When so authorized, a planning board may adopt such rules and regulations as it deems necessary, consistent with the provisions of this article, to approve such plats. Definitions: 2. Definitions. When used in this article the following terms shall have the respective meanings set forth herein except where the context shows otherwise: preliminary plat (a) Preliminary plat - a preliminary plat is a drawing prepared in a manner prescribed by local regulation, showing the layout of a proposed subdivision including but not restricted to, road and lot layout and ap- proximate dimensions, key plan, topography and drainage, all proposed facilities unsized, including preliminary plans and profiles, at suitable scale and in such detail as local regulation may require. final plat (b) Final plat - a final plat is a drawing prepared in a manner pre- scribed by local regulation, showing a proposed subdivision, containing in such additional detail as shall be provided by local regulation all infor- mation required to appear on a preliminary plat and the modifications if any, required by the planning board at the time of approval of a prelim- inary plat of such proposed subdivision if such preliminary plat has been so approved. preliminary plat approval (c) Preliminary plat approval - approval by a planning board of a preliminary plat is the approval of the layout of proposed subdivision as set forth in a preliminary plat, but subject to approval of the plat in final form in accordance with the provisions of subdivision seven of this section. conditional approval ofa final plat (d) Conditional approval of a final plat - conditional approval by a planning board of a final plat is the approval of a final plat subject to conditions set forth by the planning board in a resolution condi- tionally approving such plat. Such conditional approval does not qualify a final plat for recording nor authorize issuance of building permits prior to the signing of the plat by a duly authorized officer of the planning board and recording of the plat in the office of the county clerk or register in accordance with provisions of this article. final plat approval (e) Final plat approval - final approval of a plat in final form is the signing of a final plat by a duly authorized officer of a planning board after a resolution granting final approval to the plat, or after conditions specified in a resolution granting conditional approval of the plat are 42 N completed. Such final approval qualifies the plat for recording in the office of county clerk or register, in the county in which such plat is located. Submission ofplats to planning board 3. All plats shall be submitted to the planning board for approval in final form Provided however, that where the planning board has been authorized to approve preliminary plats, the owner may submit or the planning board may require that he submit a preliminary plat for consid- eration. Such a prelinfinary plat shall be clearly marked "preliminary plat" and shall conform to the definition provided in this section. Within forty-five days after the receipt of such preliminary plat by the clerk of Notice and hearing the planning board the planning board shall hold a public hearing, which hearing shall be advertised at least once in a newspaper of general circula- tion in the town at least five days before such hearing. The planning board may provide that the hearing be further advertised in such manner as it deems most appropriate for full public consideration of such preliminary Action by planning board plat. Within forty-five days after the date of such hearing, the planning board shall approve with or without modification or disapprove such pre- liminary plat, and the ground of a modification if any, or the ground for disapproval shall be stated upon the records of the planning board. Not- withstanding the foregoing provisions of the subdivision the time in which a planning board must take action on such plat, may be extended by mutual consent of the owner and the planning board. When so approving a preliminary plat, the planning board shall state in writing modifications if any, as it deems necessary for submission of the plat in final form. With- in five days of the approval of such preliminary plat it shall be certified by the clerk of the planning board as granted preliminary approval and a copy filed in his office and a certified copy mailed to the owner. Within six months of the approval of the preliminary plat the owner must submit the plat in final form. If such plat is not so submitted, approval of the pre- lin-dnary plat may be revoked by the planning board. In the event a plan- Effect of inaction ning board fails to take action on a preliminary plat within the time pre- scribed therefor, such plat shall be deemed granted preliminary approval. The certificate of the clerk of the town as to the date of submission and the failure to take action within such prescribed time shall be issued on de- mand and shall be sufficient in lieu of written endorsement or other evidence of approval herein required. Hearing on final plat 4. Within forty-five days of the submission of a plat in final form for approval by the planning board a hearing shall be held by the planning board, which hearing shall be advertised at least once in a newspaper of general circulation in the town at least five days before such hearing, pro- vided however, that when a planning board deems the final plat to be in substantial agreement with a preliminary plat approved under subdivision 43 000, three of this section and modified in accordance with requirements of such approval if such prehn-dnary plat has been approved with modification, the Waiver of hearing planning board may waive requirement for such public hearing. The plan- ning board shall by resolution conditionally approve, conditionally ap- prove with or without modification, disapprove, or grant final approval and authorize the signing of such plat, within forty-five days of its receipt by the clerk of the planning board if no such hearing is held, or in the event such hearing is held, within forty-five days after the date of such hearing. Notwithstanding the foregoing provisions of this subdivision, the Action by planning board time in which a planning board must take action on such plat, may be ex- tended by mutual consent of the owner and the planning board. In the event a planning board fails to take action on a final plat within the time prescribed therefor, the plat shall be deemed approved and a certificate of the clerk of the town as to the date of submission and the failure to take action within such prescribed time shall be issued on demand and shall be sufficient in lieu of written endorsement or other evidence of approval Conditional approval herein required. Upon resolution of conditional approval of such final plat the planning board shall empower a duly authorized officer to sign the plat subject to completion of such requirements as may be stated ill the resolution. Within five days of such resolution the plat shall be certified by the clerk of the planning board as conditionally approved and a copy filed in his office and a certified copy mailed to the owner in- cluding a certified statement of such requirements which when completed will authorize the signing of the conditionally approved final plat. Upon completion of such requirements the plat shall be signed by said duly authorized officer of the planning board. Conditional approval of a final plat shall expire within one hundred eighty days after the date of the resolution granting conditional approval unless such requirements have been certified as completed. 5. Notwithstanding the foregoing provisions of this section, the Extension of time planning board may extend the time in which a conditionally approved plat in final form must be submitted for signature, if in its opinion such intention is warranted by the particular circumstances thereof, for not to exceed two additional periods of ninety days each. 6. Prior to granting conditional or final approval of a plat in final Approval of sections form the town planning board may permit the plat to be subdivided into two or more sections and may in its resolution granting conditional or final approval state that such requirements as it deems necessary to insure the orderly development of the plat be completed before such sections may be signed by the duly authorized officer of the planning board. Con- ditional or final approval of the sections of a final plat, subject to any con- ditions imposed by the board, shall be granted concurrently with con- ditional or final approval of the plat. 44 ITme for filing approved plat 7. The signature of the duly authorized officer of the planning board constituting final approval by a planning board of a plat showing lots, blocks or sites, with or without streets or highways, or the approval by such board of the development of a plat or plats already filed in the office of the county clerk or register of the county in which such plat or plats are located if such plats are entirely or partially undeveloped, or the the certificate of the town as to the date of the submission of the final plat and the failure of the planning board to take action thereon within the time prescribed, shall expire within thirty days from the date of such approval, or from the date such certificate is issued, unless within such thirty day period such plat or a section thereof shall have been duly filed or recorded by the owner in the office of the county clerk or register. In the event the owner shall file only a section of such approved plat in the office of the county clerk or register, the entire approved plat shall be filed within thirty days of the filing of such section with the town clerk in each town in which any portion of the land described in the plat is situated. Such section shall encompass at least ten percent of the total number of lots contained in the approved plat and the approval of the remaining sections of the approved plat shall expire unless said sections are filed before the expiration of the exemption period to which such plat is en- titled under the provisions of subdivision two of section two hundred sixty-five-a of this article. � 277. Approval of plats; additional requisites Authority of planning board to require 1. Before the approval by the planning board of a plat showing lots, parks for playgrounds or other recrea- blocks or sites, with or without streets or highways, or the approval of tional purposes a plat already filed in the office of the clerk of the county wherein such plat is situated if such plat is entirely or partially undeveloped, such plat shall also show in proper cases and when required by the planning board, a park or parks suitably located for playground or other recreational purposes. If the planning board determines that a suitable park or parks of adequate size can not be properly located in any such plat or is Authority to require monetary payment otherwise not practical, the board may require as a condition to ap- in lieu of reservation of land proval of any such plat a payment to the town of a sum to be deter- mined by the town board, which sum shall constitute a trust fund to be used by the town exclusively for neighbornood park, playground, or 45 recreation purposes including the acquisition of property. In approving Requirements for streets and highways such plats the planning board shall require that the streets and highways shall be of sufficient width and suitable grade and shall be suitably located to accomodate the prospective traffic, to afford adequate light and air, to facilitate fire protection, and to provide access of fire-fighting equipment to buildings, and if there be an official map or master plan, they shall be coordinated so as to compose a convenient system con- forming to the official map and properly related to the proposals shown Compliance with zoning ordinance by the planning board on the master plan; that where a zoning ordinance has been adopted by the town the plots shown on said plat shall at least comply with the requirements thereof; that the land shown on such plats shall be of such character that it can be used safely for building Purposes without danger to health or peril from fire, flood or other Other specific requisites menace; that suitable monuments have been placed at such block corners and other necessary points as may be required by the board and the location thereof is shown on the map of such plat; and that the parks shall be of reasonable size for neighborhood playgrounds or other recreational uses; that all streets or other public places shown on such plats shall be suitably graded and paved and that street signs, sidewalks, street lighting standards, curbs, gutters, street trees, water mains, fire alarm signal devices including necessary ducts and cables or other con- necting facilities, sanitary sewers and storm drains or combined sewers shall be installed all in accordance with standards, specifications and procedure acceptable to the appropriate town departments except as Posting of bond to insure performance hereinafter provided, or alternatively that. a performance bond sufficient to cover the full cost of the same as estimated by the planning board or other appropriate town departments designated by the planning board shall be furnished to the town by the owner. In the event that the owner shall be authorized to file the approved plat in sections, as provided in subdivision three of section two hundred seventy-six of this article, ap- proval of the plat may be granted upon the installation of the required improvements in the section of the plat filed in the office of the county clerk or register or the posting of a bond covering the cost of such im- provements. The owner shall not be permitted to begin construction of buildings in any other section until such section has been filed in the office of the county clerk or register and the required improvements have been installed in such section or a bond covering the cost of.such improvements is posted. Such performance bond shall be issued by a bonding or surety company approved by the town board or by the owner with security acceptable to the town board, and "I also be approved by such town board as to form, sufficiency and manner of execution. Such performance bond shall run for a teffn to be fixed Term of performance bond by the planning board, but in no case for a longer term than three years, provided, however, that the term of such performance bond may be extended by the planning board with consent of the parties thereto. If the planning board shall decide at any time during the term of the performance bond that the extent of building development that has taken place in the subdivision is not sufficient to warrant all the im- provements covered by such performance bond, or that required improve- ments have been installed as provided in this section and by the plan- ning board in sufficient amount to warrant reduction in the face amount 46 of said bond, and upon approvalby the town board, the planning board Modification of requirements by plan- after due notice and public hearing may modify its requirements for ning board any or all such improvements, and the face value of such performance bond shall thereupon be reduced by an appropriate amount so that the new face value will cover the cost in full of the amended list of im- provements required by the planning board and any security deposited with the bond may be reduced proportionately. In the event that any Power of town to act in event of default required improvements have not been installed as provided in this sec- of conditions of performance bond tion within the term of such performance bond the town board may thereupon declare the said performance bond to be in default and collect the sum remaining payable thereunder and upon the receipt of the proceeds thereof the town shall install such improvements as are cov- ered by such performance bond and are commensurate with the extent of building development that has taken place in the subdivision but not exceeding in cost the amount of such proceeds. Guides to planning board determination 2. In making such determination regarding streets, highways, parks and required improvements, the planning board shall take into considera- tion the prospective character of the development, whether dense residence, open residence, business or industrial. 3. Notwithstanding, the foregoing provisions of this section the Waiver of requisites planning board may waive, subject to appropriate conditions, the provision of any or all of such improvements and requirements as in its judgment of the special circumstances of a particular plat or plats are not requisite in the interest of the public health, safety and general welfare, or which in its judgment are inappropriate because of in- adequacy or lack of connecting facilities adjacent or in proximity to the subdivision. Provisions dealing with fire alarm signal 4. The installation of fire alarm signal devices including nec- devices essary connecting facilities shall be required or waived pursuant to this section only with the approval of (1) the board of supervisors of the county if the installation is to be made in an area included in a central fire alarm system established pursuant to paragraph (h) of sub- division one of section two hundred twenty-five of the county law or (2) the town board in any other case unless the installation is to be made in a fire district in a town in which no central fire alarm system has been established pursuant to subdivision eleven-c of section sixty-four of the town law, in which event only the approval of the board of fire-commis- sioners of such fire district shall be necessary. Required installations of fire alarm signal devices including necessary connecting facilities shall be made in accordance with standards, specifications. and procedure ac- ceptable to the appropriate board. Provisions dealing with disposal of sew- 5. If in the county of Suffolk the plat is not situate within a age in Suffolk County plats county or town sewer district and the county department of environ- mental control or the health department shall have directed that disposal of sewage shall be provided for by a communal sewerage system, con- sisting of a treatment plant and collection system, then the Suffolk county sewer agency shall determine, specify and direct the means and method by which the aforesaid system shall be best provided by and at the expense of the developer. Among the alternative means and methods the Suffolk county sewer agency may direct, shall be, (a) that the developer, at its 47 own cost and expense, install, build and construct such system according to such plans, specifications, conditions and guarantees as may be re- quired by the Suffolk county sewer agency, and upon satisfactory completion thereof, the developer shall dedicate and donate same, with- out cost to the Suffolk county sewer agency, or its nominee and the developer shall also petition to form a county district, but if the Suffolk county sewer agency shall determine that a suitable complete com- munal sewerage system of adequate size cannot be properly located in the plat or is otherwise not practical, then (b) the developer shall install, build and construct temporary cesspools or septic tanks together with a sewage collection system according to such plans, specifications, con- ditions and guarantees as may be required by the Suffolk county sewer agency, and upon satisfactory completion thereof, the developer shall dedicate and donate same, without cost, to the Suffolk county sewer agency or its nominee, and in addition thereto, the agency may also require the payment to the Suffolk county sewer agency of a sum of money in an amount to be determined by the Suffolk county sewer agency, and the developer shall also petition to.form a county district, or (c) the developer shall install, build and construct temporary cess- pools or septic tanks and in addition thereto, shall pay to the Suffolk county sewer agency, a sum of money in an amount to be determined by the Suffolk county sewer agency and the developer shall also petition to form a county district, or (d) the developer shall provide such other means and methods or combination thereof as the Suffolk county sewer agency may determine, specify and direct. Any surns paid to the Suffolk county sewer agency pursuant to any provisions of this section, shall constitute a trust fund to be used ex- clusively for a future communal sewerage system which shall be owned and operated by a county sewer district, which district shall include the subject plat within its bounds. Such monies and accrued interest, if any, when paid to such district, shall be credited over a period of time determined by the district, pro rata, against the sewer assessment of each tax parcel of the subject plat as may exist at the time of the payment of such monies and accrued interest to such district. The useable value of any sewage collection system built under sub- paragraphs (b), (c) and (d) above shall be credited over a period of time determined by the district, pro rata, against the sewer assess- ment of each tax parcel of the plat as may exist at the time such sys- tem is incorporated into a county sewer district which shall include the subject plat within its bounds. Notes: improve a pre-existing substandard town road as a condi- - A town planning board may require a monetary payment tion either to subdivision approval or to the granting of a in lieu of land reservation for recreational purposes even building permit (21 Op. St. Compt. 73). though recreational facilities are provided and reserved solely - Where a performance bond has been declared to be in de- for the exclusive use of residents of a garden apartment or fault pursuant to this section, the town can complete such condominium (Op. St. Compt. 68-551). work either by contract or by using town employees (18 - A town may not require, as a condition for plat approval, Op. St. Compt. 252). that a dedication of property for school purposes be made _ Town board may empower a planning board to approve (Op. St. Compt. 68-939). plats containing a specified minimum number of lots or sites - A town planning board may not require an applicant to therein, so that plats which have a lesser number of lots or 48 sites therein do not require planning board approval (Op. town is confiscatory (EastNeck Estates vs. Luchsinger, 61 St. Compt. 69-447). misc. 2d. 619). Town planning board's requirement that subdivider of - For information on requirements for the installation of un- $208,000 tract dedicate $92,000 worth of beach front to derground electric service, see Bibliography Item 1. � 278. Record of plats No plat to be recorded without plan- 1. No plat of a subdivision of land showing lots, blocks or sites, with ning board approval and endorsement or without streets or highways, shall be filed or recorded in the office of the county clerk or register until it has been approved by a planning board which has been empowered to approve such plats, and such ap- proval be endorsed in writing on the plat in such mannef as the planning Contents of endorsement board may designate. Such endorsement shall stipulate that the plat does not conflict with the county official map, where one exists, or, in cases where plats do front on or have access to or are otherwise related to roads or drainage systems shown on the coutity map, that such plat has been approved in the manner specified by section two hundred thirty-nine-k of the general municipal law. It shall be the duty of the Notification to planning board by county county clerk or register to notify the planning board in writing within clerk of recording of plat three days of the filing or recording of any plat approved by such plan- ning board, identifying such plat by its title, date of filing or record- ing, and official file number. After such plat is approved and filed, subject, however, to review by court as hereinafter provided, the streets, Streets and highways on recorded plat highways and parks shown on such plat shall be and become a part of the official map or plan of the town. The owner of the land, or his agent who files the plat, may add as part of the plat a notation, if he so desires, to the effect that no offer of dedication of such streets, highways or parks, or any of them, is made to the public. If the owner of the land or his agent who files the plat does not add as part of the plat a notation Offer of dedication of streets and high- to the effect that no offer of dedication of such street, highways or parks, ways unless otherwise noted or any of them, is made to the public, the filing of the plat in the office of the county rlerk or register shall constitute a continuing offer of dedi- cation of the streets, highways or parks, or any of them, to the public and said offer of dedication may be accepted by the Town Board at any time prior to revocation of said offer by the owner of the land or his agent. Formal offer of cession of streets and 2. Formal offers of cession to the public of all streets, highways or highways shown on plat parks not marked with such notation on the plat shall be filed with the planning board prior to the approval of the plat by the planning board. In the event that the owner or his agent shall elect not to file his plat prior to the expiration date of the validity of such approval provided in section two hundred seve.nty-six, then such formal offers of cession shall be deemed to be invalid, void and of no effect on and after such expiration date. Streets shown on plat to be private un- 3. Every street shown on a plat that is hereafter filed or recorded til offered to town and accepted in the office of the county clerk or register as provided in this section, shall be deemed to be a private street until such time as it has been 49 formally offered for cession to the public and formally accepted as a public street by resolution of the town board, or alternatively until it has been condemned by the town for use as a public street. Effect of other provisions of law re- 4. Insofar as provisions of law other than those contained in this lating to approval of plats article require the approval of a plat, map or plan of land within that part of the town outside the limits of any incorporated city or village by some authority of said town as a prerequisite to the record of said plat, map or plan, or allow it to be recorded on its failure to receive such ap- proval within given time, such provisions shall not be in force in any town which has established an official map or plan and authorized a planning board appointed by it to approve plats of land showing new streets and highways in accordance with the provisions of this article. Notes: - County official maps, see General Municipal Law Secs. 239-g Ile filing of a map of a subdivision constitutes an offer of to 239-k. dedication of all streets shown thereon for use as public - Approval of plats related to roads or drainage systems shown highways in the absence of a reservation to the contrary. on county official map - see General Municipal Law, Sec. Such offers are continuing offers until a valid revocation or 239-k. rescission is effected (Sauchelli vs. Town of Hempstead, 143 - To constitute a dedication, there must not only be an offer N.Y.S. 2d. 889; aff 'd, 1 A.D. 2d. 689). and acceptance, but there must be a formal opening of the A town may accept dedication of streets in a subdivision street by the public authorities or a user (Bayer vs. Pugsley, prior to their completion on condition that the subdivider 13 Misc. 2d. 610; affd 7 A.D. 2d. 828); will thereafter complete the streets (Op. St. Compt. 69-181). � 265-A. Exemption of lots shown on approved subdivision plats Zoning ordinances adopted or amended, I . Notwithstanding any inconsistent provision of this chapter or of increasing lot areas or dimensions not any general, special or local law, the provisions of a zoning ordinance to affect certain subdivision plats pre- viously approved and filed hereafter adopted, and the provisions of a change or amendment here- after adopted to a zoning ordinance, which provisions establish or in- crease lot areas, lot dimensions which are greater than or in excess of the lot areas or lot dimensions of the lots shown and delinated on a subdivision plat of land into lots for residential use and which said subdivision plat also shows and delineates one or more new streets, roads or highways in addition to lot lines and dimensions of the lots thereon delineated and which said subdivision plat has been duly ap- proved by the planning board, if any, of the town in 'which the land shown on said plat is situate, or approved by such other board or officer, if any, of such town vested with authority to approve subdivision plats, and which said subdivision plat or the first section thereof has been duly filed in the office of the recording offic"er of the county in which the land shown on said subdivision plat is situate, or which provisions establish or increase side, rear or front yard or set back requirements in excess of those applicable to building plots under the provisions of the zoning ordinance, if any, in force and effect at the time of the filing of the said subdivision plat or first section thereof, shall not, for the period of time prescribed in subdivision two of this section, be applicable to or in any way affect any of the lots shown and delineated on such subdivision plat. 50 Periods of exemption of such plats 2. If at the time of filing of the subdivision plat or first section thereof referred to in subdivision one of this section there was in the town both a zoning ordinance and a planning board vested with authority to approve subdivision plats, then the exemption provided for in such Three-year exemption subdivision shall apply for a period of three years after the filing of the subdivision plat or first section thereof. If at the time of the filing of the subdivision plat or first section thereof referred to in subdivision one of this section there was a zoning ordinance in effect in the town but there was no planning board in said town vested with authority to ap- prove subdivision plats, then the exemption provided for in such sub- 7Wo-year exemption division shall apply for a period of two years after the filing of the sub- division plat or first section thereof. If at the time of the filing of the sub- division plat or first section thereof referred to in subdivision one of this section there was no zoning ordinance in the town but there was a planning board vested with authority to approve subdivision plats, then the exemption provided for in such subdivision shall apply for a period of two years after the filing of the subdivision plat or first section thereof. If at the time of the filing of the subdivision plat or first section thereof referred to in subdivision one of this section there was no zoning ordinance in the town and no planning board vested with authority to approve subdivision plats, then the exemption provided for in such sub- One-year exemption division shall apply for a period of one year after the filing of said sub- division plat or first section thereof. If such period of exemption would expire within one year from the date of the filing of a section of the Extension of period of exemption approved plat, it shall be extended for that section for a period of one year from the date of the filing of such section. Notes: on subdivision plats already filed with county clerk. (DeJo - Petitioner acknowledges that this section denies to towns Construction Corp. vs. Building Inspector of Town of Hemp- the right to change lot areas and dimensions on lots existing stead, 36 Misc. 2d. 288). 281. Approval of plats; conditions for changes in zoning provisions Authority of planning board, simul- The town board is hereby empowered by resolution to authorize the taneously with plat approval, to modify planning board, simultaneously with the approval of a plat or plats pur- provisions of zoning ordinance, if so suant to this article, to modify applicable provisions of the zoning authorized ordinance, subject to the conditions hereinafter set forth and such other reasonable conditions as the town board may in its discretion add thereto. Where authorization applicable Such authorization shall specify the lands outside the limits of any in- corporated village to which this procedure may be applicable. The pur- Purposes poses of such authorization shall be to enable and encourage flexibility of design and development of land in such a manner as to promote the most appropriate use of land, to facilitate the adequate and economical provision of streets and utilities, and to preserve the natural and scenic Conditions: qualities of open lands. The conditions hereinabove referred to are as follows: 51 a) benefit to towp (a) If the owner makes written application for the use of this procedure, it may be followed at the discretion of the planning board if, in said board's judgment, its application would benefit the town. b) density not to exceed that in ap- (b) The application of this procedure shall result in a permitted num- plicable zoning ordinance ber of building plots or dwelling units which shall in no case exceed the number which could be permitted, in the planning board's judgment, if the land were subdivided into lots conforming to the minimum lot size and density requirements of the zoning ordinance applicable to the district or districts in which such land is situated and conforming to all other applicable requirements. c) type of structure allowed (c) In the case of a residential plat or plats, the dwelling units permitted may be, at the discretion of the planning board and subject to the conditions set forth by the town board, in detached, semi-detached, attached, or multi-story structures. d) preservation of land for park and (d) In the event that the application of this procedure results in a recreational use as condition for plat showing lands available for park, recreation, open space, or other plat approval; approval by town municipal purposes directly related to the plat, then the planning board board as a condition of plat approval may establish such conditions on the ownership, use, and maintenance of such lands as it deems necessary to assure the preservation of such lands for their intended purposes. The town board may require that such conditions shall be approved by the town board before the plat may be approved for filing. (e) The proposed site plan, including areas within which structures may be located, the height and spacing of buildings, open spaces and their landscaping, off-street open and enclosed parking spaces, and streets, driveways and all other physical features as shown on said plan or other- wise described, accompanied by a statement setting forth the nature of such modification, changes, or supplementations of existing zoning provisions as are not shown on said site plan, shall be subject to review Public hearing and review by planning and public hearing by the planning board in the same manner as set board forth in sections two hundred seventy-six and two hundred seventy-seven of this article for the approval of plats. Filing (f) On the filing of the plat in the office of the county clerk or register, a copy shall be filed with the town clerk, who shall make appropriate notations and references thereto in the town zoning ordinance or map. Change in permissible use prohibited (g) The provisions of this section shall not be deemed to authorize a change in the permissible use of such lands as provided in the zoning ordinance applicable to such lands. Notes: - The standards of reasonableness in the change, maintenance sizes of individual building lots are reduced and houses are of average population density, safeguarding adjoining lands grouped closer together and in such manner as will leave and consistency with public welfare are sufficient to em- large areas open for the use of the home owners for park power the board to perform the limited functions granted and recreational facilities (23 Op. St. Compt. 633). by the enabling statute (Hiscox vs. Levine, 31 Misc. 2d. 151), power to amend the zoning regulations of the land I - Where a town permits a developer to provide park area by does not carry with it the power to change the zoning dis- means of cluster zoning, it may not require him to make trict of the land tHiqcox vs. Levine, 31 Misc. 2d. 151). cash payments in lieu of land (23 Op. St. Compt. 633), For a discussion of cluster development under this section, - "Cluster zoning" is a means of site planning whereby the see Bibliography Items 13 and 18. 52 � 282. Court review Review of decisions of planning board Any person or persons, jointly or severally aggrieved by any decision before supreme court of the planning board concerning such plat or the changing of the zoning regulations of such land, or any officer, department, board or bureau of the town, may have the decision reviewed by a special term of the supreme court in the manner provided by article seventy-eight of the civil practice law and rules provided the proceeding is commenced within 27me to commence proceeding thirty days after the filing of the decision in the office of the board. Commencement of the proceeding shall stay proceedings upon the decision appealed from. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence Appointment of referee by court or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and condlusions of law, which shall constitute a part of the proceedings upon which the deter- mination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. Costs Costs shall not be allowed against the planning board, unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from. Preference over other civil actions All issues in any proceeding under this section shall have preference over all other civil actions and proceedings. 53 Official maps 270. Official map, establishment Establishment by town board The town board may establish an official map of that part of the town outside the limits of any incorporated city or village showing the Co n t en ts of officia I map streets, highways and parks therefore laid out, adopted and established by law and drainage systems may also be shown on such map. Such map Effect of official map shall be final and conclusive with respect to the location and width of streets and highways, drainage systems and the location of parks shown Purpose thereon. Such official map is hereby declared to be established to conserve and protect the public health, safety and general welfare. The clerk of every town which has established such an official map shall immediately Filing file a certificate of that fact with the clerk or registrar of the county in which said town is located. Note: Effect of change in county official map on official map of - For general information on official maps, see Bibliography municipality, affected - see General Municipal Law, 2394. Item 19. � 273. Official map, changes Authority of town board to change or Such town board is authorized and empowered, whenever, and as add to official map often as it may deem it for the public interest, to change or add to the Purposes official map of the town so as to lay out new streets, highways, drainage systems or parks, or to widen or close existing streets, highways, drainage systems or parks within that part of the town outside the limits of any Notice, hearing and publication incorporated city or village. At least ten days' notice of a public hearing on any proposed action with reference to any such change in the official map shall be published in a newspaper of general circulation in such town. Referral to town planning board Before making any such addition or change, the town board shall refer the matter to the planning board for report thereon, but if the planning board shall not make its report within thirty days of such reference, it shall Effect of changes forfeit the right further to suspend action. Such additions and changes, when adopted, shall become a part of the official map of the town, and shall be deemed to be final and conclusive with respect to the location of the streets, highways, drainage systems and parks shown 54 Changes in streets and highways pur- thereon. The layout, widening or closing, or the approval of the layout, suant to other provisions of law deemed widening or closing, of streets, highways, drainage systems or parks, by to be addition or change to official map the town board, or the town superintendent of highways, under pro- visions of law other than those contained in this article, shall be deemed to be an addition or change of the official map, and shall be subject to all the provisions of this article with regard to such additions or changes. Note: Same as those following 270. � 279. Permits for buildings in bed of mapped streets Purpose For the purpose of preserving the integrity of such official map or No permit to be issued for any building plan no permit shall hereafter be issued for any building in the bed of any in bed of street shown on official map street or highway shown or laid out on such map or plan, provided, how- or plan ever, that if the land within such mapped street or highway is not yield- ing a fair return on its value to the owner, the board of appeals , or other similar board, in any town which has established such a board having power to make variances or exceptions in zoning regulations, shall have Authority to vary terms of section under power in a specific case by the vote of a majority of its members to certain circumstances and to impose grant a permit for a budding in such street or highway which will as conditions little as practicable increase the cost of opening such street or highway, or tend to cause a change of such official map or plan, and such board may impose reasonable requirements as a condition of granting such permit, which requirements shall inure to the benefit of the town. Before taking any action authorized in this section, the board of appeals or Notice, hearing, publication similar board shall give a hearing at which parties in interest and others shall have an opportunity to be heard. At least ten days' notice of the time and place of such hearing shall be published in a newspaper of general circulation in such town. Any such decision shall be subject Judicial review to review in the same manner and pursuant to the same provisions as in appeals from the decisions of such board upon zoning regulations. � 280-a. Permits for buildings not on improved mapped streets Requisites for issuance of permit 1. No permit for the erection of any building shall be issued unless a street or highway giving access to such proposed structure has been duly placed on the official map or plan, or if there be no official map or plan, unless such street or highway is (a) an existing state, county or town highway, or (b) a street shown upon a plat approved by the plan- ning board as provided in sections two hundred seventy-six and two 55 .S hundred seventy-seven of this article, as in effect at the time such plat was approved, or (c) a street on a plat duly filed and recorded in the of- .fice of the county clerk or register prior to the appointment of such plan- ning board and the grant to such board of the power to approve plats. Adequacy of street or highway as con- 2. Before such permit shall be issued such street or highway shall dition for issuance of permit have been suitably improved to the satisfaction of the town board or planning board, if empowered by the town board in accordance with standards and specifications approved by the town board, as adequate in respect to the public health, safety and general welfare for the special circumstances of the particular street or highway. Alternatively, and in Performance bond in lieu of improve. the discretion of such board, a performance bond sufficient to cover the ment full cost of such improvement as estimated by such board shall be furnish- ed to the town by the owner. Such performance bond shall be issued by a bonding or surety company approved by the town board or by the owner with security acceptable to the town board, and shall also be approved by such town board as to form, sufficiency and manner of execution. The term, manner of modification and method of enforcement of such bond shall be determined by the appropriate board in substantial conformity with section two hundred seventy-seven of this article. Variance procedure in even t of practical 3. Where the enforcement of the provisions of this section would difficulty or unnecessary hardship entail practical difficulty or unnecessary hardship, or where the circum- stances of the case do not require the structure to be related to existing or proposed streets or highways, the applicant for such a permit may ap- peal from the decision of the administrative officer having charge of the issue of permits to the board of appeals or other similar board, in any Power of appropriate board to issue town which has established a board having power to make variances or ex- permit subject to conditions ceptions in zoning regulations, and the same provisions are hereby applied to such appeals and to such board as are provided in cases of appeals on zoning regulations. The board may in passing on such appeal make any reasonable exception and issue the permit subject to conditions that will protect any future street or highway layout. Any such decision shall be Review of decision subject to review by certiorari order issued out of a special term of the supreme court in the same manner and pursuant to the same provisions as in appeals from the decisions of such board upon zoning regulations. Establishment of open development 4. The town board may, by resolution, establish an open de- areas by town board velopment area or areas within the town, wherein permits may be issued for the erection of structures to which access is given by right of way or easement, upon such conditions and subject to such limitations as may be prescribed by general or special rule of the planning board, if one exists, or of the town board if a planning board does not exist. If a plan- ning board exists in such town, the town board, before establishing any Referral to planning board such open development area or areas, shall refer the matter to such plan- ning board for its advice and shall allow such planning board a reasonable time to report. "Access " defined 5. For the purposes of this section the word "access" shall mean that the plot on which such structure is proposed to be erected directly abuts on such street or highway and has sufficient frontage thereon to allow the ingress and egress of fire trucks, ambulances, police cars and other emergency vehicles, and, a frontage of fifteen feet shall presumptive- ly be sufficient for that purpose. 56 Notes: - This statute was enacted not only for the purpose of pro- built (N. Y.S. Electric and Gas Co. vs. McCabe, 3 2 Misc. 2d. tecting the health, safety and general welfare of the com- 898). munity, but for the protection of the residents of the pro- Whether or not such a permit is to be issued is not in any posed buildings (Robinson vs. Jagger 57 Misc. 2d. 507). way made dependent by this section upon the fact that ac- - A building permit may not be issued for a parcel within a cess to the proposed structure be by a dedicated highway, filed subdivision plat where developer has defaulted in con- but rather upon factors enumerated in the statute (Bayer struction of required improvements (Op. St. Compt. 68-8 88). vs. Pugsley, 13 Misc. 2d. 610). - Although no particular form of physical access between a A town planning board may not require an applicant to im- roadway and a proposed structure is required, the physical prove a pre-existing substandard town road as a condition access must be to each proposed structure and not merely either to subdivision approval or to the granting of a build- to a portion of the plat on which the structures are to be ing permit (21 Op. St. Compt. 73). � 280. Municipal improvements in streets ,vo construction or improvement unless No public municipal street utility or improvement shall be constructed street or highway is public and is placed by the town in any street or highway within that part of the town outside on official map the limits of any incorporated city or village until it has become a public street or highway and is duly placed on the official map or plan, provided, however, that subject to the discretion of the town board, a subsurface Exception for certain improvements utility or improvement operated for revenue by the town or by a special district may be constructed by the town in a private street, provided a public easement satisfactory to the town board is obtained for such utility or improvement. 57 Other provisions � 268. Enforcement and remedies Enforcement by town board by ordi- 1. The town board may provide by ordinance for the enforcement nance of this article and of any ordinance or regulation made thereunder. A vio- lation of this article or of such ordinance or regulation is hereby declared Fine andlor imprisonment to be an offense punishable by a fine not exceeding fifty dollars or im- prisonment for a period not to exceed six months, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of this article or of such ordinance or regulation shall be deemed misdemeanors and for such purpose only all provisions of law relating to misdemeanors shall apply to such violations. Each week's continued violation shall constitute a separate additional violation. Actions or proceedings for violations by 2. In case any building or structure is erected, constructed, recon- appropriate local authorities structed, altered, converted or maintained, or any building, structure or land is used in violation of this article or of any ordinance or other regula- tion made under authority conferred thereby, the proper local authorities of the town, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, re- constructed, alteration, conversion, maintenance or use, to restrain, cor- rect or abate such violation, to prevent the occupancy of said building, structure, or land or to prevent any illegal act, conduct, business or use in or about such premises; and upon the failure or refusal of the proper local officer, board or body of the town to institute any such appropriate Taxpayer's action action or proceeding for a period of ten days after written request by a resident taxpayer of the town so to proceed, any three taxpayers of the town residing in the district wherein such violation exists, who are jointly or severally aggrieved by such violation, may institute such appropriate action or proceeding in like manner as such local officer, board or body of the town is authorized to do. Notes: - "Enforcement and remedy" provisions of this section are demolish or remove a building, or in the alternative to con- applicable to town zoning regulations adopted by local law form it to the town building zone ordinance, even though as well as those adopted by ordinance (1965 Atty. Gen. 106). the ordinance made it the duty of a building official to en- - A town may proceed against zoning or building violators up- force construction codes and zoning ordinance of the town on enactment of a zoning or building code and provision for (Town of North Hempstead vs. Eckerman, 30 Misc. 2d 798; enforcement thereof (16 Op. St. Compt. 453). aff d 21 A.D. 2d. 7 5 1). A town board had power under this section to institute - For a discussion of subdivision regulation enforcement, see action for mandatory injunction requiring a landowner to Bibliography Item 3. 58 � 283. Issuance of licenses and permits in certain towns If, in any town of the first class at the time of the enactment of this chapter, there exists a building department, set up as an adjunct of the planning board, all licenses or permits, whenever and in the manner re- quired by any building zone ordinance or building code, shall be issued by sa id department, and all fees therefore be collected as provided by the requirements of the building zone ordinance or building code. Note: In the absence of any provision therefor in a building code, a struction was never begun (21 Op. St. Compt. 526; Op. St. building permit fee cannot be refunded even though con- Compt. 69-438). � 269. Conflict with other laws Stricter regulations to control Wherever the regulations made under authority of this article require a greater width or size of yards or courts, or require a lower height of building or less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required in any other statute or local ordinance or regulation, the pro- visions of the regulations made under authority of this article shall govern. Whenever the provisions of any other statute or local ordinance or regula- tion require a greater width or size of yards or courts, or require a low- er height of budding or a less number of stories, or require a greater per- centage of lot to be left unoccupied, or impose other higher standards, than are required by the regulations made under authority of this article, the provisions of such statute, or local ordinance or regulation shall govern. Ratification of town zoning ordinances In towns where the town boards have already adopted a zoning adopted under previous town law pro- ordinance, pursuant to the provisions of chapter three hundred twenty- visions two of the laws of nineteen hundred twenty4wo, or chapter seven hundred fourteen or chapter seven hundred fifteen of the laws of nineteen hundred twenty-six, such board shall not be required to adopt a new ordinance and all actions taken and proceedings had by such town boards and boards of appeal under the provisions of said chapter, are hereby ratified and confirmed. All necessary expenses incurred by any such board in connection with the adoption and enforcement of the zoning ordinance shall be a town charge. � 284. Separability clause If any part or provision of this article or the application thereof to any person or circumstance be adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation 59 to the part, provision or application directly involved in the controversy in which said judgment shall have been rendered and shall not affect or impair the validity of the remainder of this article or the application thereof to other persons or circumstances and the legislature hereby de- clares that it would have enacted this article or the remainder thereof had the invalidity of such provision or application thereof been apparent. 60 from the VILLAGE LAW Chapter 892 of the Laws of 1972 enacted an entirely new Village Law. The planning and zoning provisions of the new Village Law will become effective September 1, 1973. Until that time, the following provisions are applicable. 61 Planning boards � 179-f. Planning board; appointments; terms of off ice Appointment by board of trustees; num- The board of trustees of each village is hereby authorized and em- ber of members; removal for cause powered to appoint a planning board of five members, and shall have authority to remove any member of such planning board for cause and after public hearing. The respective terms of the members of the board first appointed shall be one, two, three, four and five years from and after their appointment. Their successors and the successors of those in office at the time this section as hereby amended takes effect shall be Terms of office appointed for the term of five years from and after the expiration of the term of their predecessors in office; provided, however, that the members first appointed as successors to members of any such boards now in office who are officials of the village and who were appointed as such members because of being officials of the village shall be appointed for terms of such period of years, not more than five, as shall integrate with the terms of successors to other members of such boards in such manner that after the expiration of the terms of office of members now in office the term of one member of the board shall expire each year. The members of such board in office at the time this section as hereby amended takes effect shall continue in office until the end of the term for which they were appointed and their successors have been appointed as provided in this Filling of vacancy section as so amended and have qualified. If a vacancy shall occur other- wise than by expiration of term, it shall be filled by appointment for the unexpired term. Any officials of the village on such board shall not, by Membership of village officials not cause reason of membership thereon, forfeit their right to exercise the powers, to forfeit rights of office perform the duties or receive the compensation of the municipal office held by them during such membership. In any village in which there is a planning commission created under Appointment of existing planning com- article twelve-a of the general municipal law, the board of trustees, instead mission as planning board of authorizing the appointment of a planning board under this article, may provide that the existing commission shall continue, the members thereof thereafter to be appointed in accordance with the provisions of such article twelve-a, and to have the powers and duties as therein specified in addition to the powers and duties as specified for a planning board ap- pointed under this article, provided, however, that in any such village section two hundred and thirty-eight of the general municipal law shall not be in force. 62 Notes: is entirely permissive. In absence of separate planning board, For village participation in establishment of,metropoUtan, village board of trustees has authority to perform statutory county and regional planning boards, see General Municipal duties of planning boards (Russell Oaks, Inc vs. Planning Law, See. 2 3 9-b et. seq. Board of Incorporated Village of Russell Gardens, 28 A.D. 2d. 569, afird. 21 N.Y. 2d. 784). A village mayor may be a member of the village planning For a discussion of incompatibility of office and conflict of board (16 Op. St. Compt. 373). interest imposing bars on planning board membership, see Language of section 179-f of the village law, which author- Bibliography Item 4. izes and empowers the trustees to appoint a planning board, � 179-9. Organization of planning board; employees Designation of chairman The board of trustees shall designate a member of said planning board to act as chairman thereof; or on failure so to do, the planning board shall elect a chairman from its own members. It shall have the power and Employment of experts authority to employ experts, clerks and a secretary, and to pay for their services and such other expenses as may be necessary and proper, not ex- ceeding in all the appropriation that may be made for such planning Appropriation; expenses board. The board of trustees is hereby authorized and empowered to make such appropriation as it may see fit for such expenses. The planning Adoption of rules and regulations, pub- board may adopt rules and regulations in respect to procedure before it lic hearing, approval by board of trus- and in respect to any subject matter over which it has jurisdiction under tees this article or any other statute, after public hearing by the planning board and subject to the approval of the board of trustees. Note: - Members of village planning board are appointed by village nation of a chairman is for one year only (Olesen vs. Dorner, board of trustees for a term of five years; but board's desig- 8 Misc. 2d. 656). � 1794. Referring proposed changes to planning board Authority of board of trustees to refer The board of trustees may by general or special rule provide for matters the reference of any matter or class of matters to the planning board before final action thereon -by the public body or officer of said village having final authority thereon with or without the provision that final action thereon shall not be taken until said planning board has submitted its report thereon or has had a reasonable time to be fixed by the board of trustees in said rule to submit the report. Note: - Village ordinance requiring planning commission to pre- but prescribed standards sufficient to guide discretionary scribe height, length and width of buildings, setbacks, etc., powers of 1planning commissionMtstchester Reform Temple of certain buildings not an unlawful delegation of authority, VS. Griffin, 52 Misc. 2d. 726). 63 179-j. Power of planning board to make investigations Authority of planning board The planning board shall have full power and authority to make such investigations, maps and reports and recommendations in connection therewith relating to the planning and development of the village as to it Extent of expenditures seems desirable providing the total expenditures of said board shall not exceed the appropriation for its expenses. � 179-gg. Master plan Comprehensive master plan - contents The planning board may prepare and change, a comprehensive master plan for the development of the entire area of the village, which master plan shall show desirable streets, bridges and tunnels and the approaches thereto, viaducts, parks, public reservations, roadways in parks, sites for public buildings and structures, zoning districts, pierhead and bulkhead lines, waterways and routes of public utilities and such other features existing and proposed as will provide for the improvement of the village and its future growth, protection, and development, and will afford adequate facilities for the public housing, transportation, distribution, comfort, convenience, public health, safety and general welfare of its population. Notice and hearing Such planning board may advertise and hold public hearings when it desires, which hearings shall be advertised at least once in a newspaper of general circulation in said village and post a notice of hearing in at least three prominent places at least five days before each such hearing. Filing The master plan and all modifications thereof shall be on file in the office of the planning board, and the planning board shall file certified copies in the offices of the village engineer and the village clerk. For a discussion of the elements of a comprehensive plan, For information on available financial and technical as- see Bibliography Items 5 and 15. sistance in preparing a comprehensive plan, see Biblio- graphy Item 16. 64 N Zoning � 175. Grant of power Purposes; exercise of police power I . For the purpose of promoting the health, safety, morals, or the general welfare of the community, the board of trustees of a village Scope of grant of power is hereby empowered, by ordinance, to regulate and restrict the height, number of stories and size of buildings and other structures, the per- centage of lot that may be occupied, the size of yards, courts and other open spaces, the derisity of population, and the location and use of buildings, structures, and land for trade, industry, residence or other purposes. As a part of the comprehensive plan and design, the village board is empowered by local ordinance or amendment of existing ordinances, to regulate and restrict certain areas as national historic land- marks, special historic sites, places and buildings for the purpose of Regulation and protection of historic conservation, protection, enhancement and perpetuation of these places sites of natural heritage. Such regulations may provide that a board of ap- Authority to vary regulations peals may determine and vary their application in harmony with the general purpose and intent, and in accordance with general or specific rules therein contained. Maintenance of home of deceased U.S. 2. The home of a deceased president of the United States of P@esident America, occupied by him as such at the time of his death, may be maintained and conducted as a memorial, shrine, historical museum or park by a non-profit association incorporated under the laws of the state of New York or by act of congress notwithstanding the terms of any ordinance or regulation enacted pursuant to this chapter. Notes: 1. Height, bulk, open-spaces - Multiple Dwelling Law, section 261 of the town law specifically states that a town's Sec. 26. zoning regulations "affect only such part of a town as is outside the limits of any imcorporated village," (Incorpor- 2. Two or more buildings on same lot - Multiple Dwelling ated Viyage of Atlantic Beach vs. Town of Hempstead, 47 Law, Section 28. Misc. 2d. 29). - Zoning ordinance, being in derogation of the common law, - The ultimate purpose of zoning regulations is to promote must be strictly construed (Flanagan vs. Zoning Board of the health, safety, morals and general welfare of the com- Appeals of Village of Bayville, 2 Misc. 2d. 922; aff*d. 1 munity (Incorporated Village of Upper Brookville vs. Torr, A.D. 2d. 979). 7 Misc. 2d. 725). - To be valid, a zoning ordinance must be in substantial con- - Right of village to zone, granted under this section, is a formity with the enabling act authorizing it (Wardone vs. basic power of incorporated villages. It is so basic that Ryan, 49 Misc. 2d. 93). 65 � 176. Districts Division of village into districts For any or all of said purposes the board of trustees may divide the village into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this act; and within such districts Regulation and restrictions within dis- it may regulate and restrict the erection, construction, reconstruction, tricts alteration, repair or use of buildings, structures or land. All such regula- Uniformity of regulations tions shall be uniform for each class or kind of buildings throughout each district but the regulations in one district may differ from those in other districts. Notes: - The extent of a commercial zone in a village is primarily a legislative question (Otto vs. Steinhiber, 282 N.Y. 71). � 177. Purposes in view Regulations in accordance with com- Such regulations shall be made in accordance with a comprehensive prehensive plans plan and designed to lessen congestion in the streets; to secure safety from fire, panic, floods and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the over-crowding Specific purposes of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with Consideration to character of district, reasonable consideration, among other things, as to the character of the suitability, etc. district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality. Notes: -Recommendation of metropolitan, regional or county plan- in scope of coverage, all-inclusive in control of use, height ning board of comprehensive zoning plan to cities, towns or area, or internally consistent zoning based on a rational and villages, see General Municipal Law, 239-d (5). underlying policy (Udell vs. McFadyen, 40 Misc. 2d. 265). -Good zoning or planning connotes community develop- - For a discussion of New York judicial interpretation of the ment in accordance with consistent plans and policies of comprehensive plan requirement, see Bibliography Item S. legislative body (Hyde vs. Incorporated Village of Baxter - For a discussion of interim zoning to preserve the status quo Estates, 140 N.Y.S. 2d. 890; affd 2 A.D. 2d. 889; 3 N.Y. pending the adoption of an ordinance furthering the com- 2d. 875). prehensive plan, see Bibliography Item 2. - The phrase "in accordance with a comprehensive plan" may - For a discussion of spot zoning, see Bibliography Item 10. be understood to mean conforming to a master plan, broad � 179-a. Zoning commission Power available to board of trustees in The powers conferred upon boards of trustees by this act shall be villages which adopted zoning ordinances available to the board of trustees of any village which, prior to May prior to 1923 pursuant to Village Law section 89 (30) twenty-first, nineteen hundred and twenty-three, adopted a zoning 66 ordinance pursuant to the provisions of subdivision thirty of section eighty-nine of the village law; but in order to avail itself of the powers Also to any other village in which board conferred by this act, the board of trustees of any other village shall of trustees shall appoint zoning com- mission to recommend districts and appoint a commission to be known as the zoning commission to recom- regulations mend the boundaries of the various original districts and appropriate Commission to hold hearings and make regulations to be enforced therein. Such commission shall make a pre- preliminary report before final report liminary report and hold public hearings thereon before submitting its final report; and such board of trustees shall not hold its public hear- Board of trustees not to hold hearings or ings, or take action, until it has received the final report of such take action until receipt of final report commission. of commission Notes: - A zoning commission is only necessary to recommend the mission hold public hearings. This mandate must be con- boundaries of theoriginal districts and appropriate regula- sidered jurisdictional and a preliminary requirement to any tions to be enforced therein (7 Op.St. Compt. 221). action or consideration by the board of trustees (Incor- - This section is only applicable where a village is about to porated Village of Muttontown vs. Friscia, 58 Nsc. 2d. enact a zoning ordinance for the first time (Hermann vs. 912). Incorporated Village of East Hills, 104 N.Y.S. 2nd.592; Public hearings must be held by a village zoning commis- aff'd. 279 A.D. 753). sion on its preliminary report on an original zoning ordi- - This section unequivocably requires that the zoning com- nance before any action may be taken thereon by the board of trustees (23 Op. St. Compt. 512). � 178. Method of procedure Authority of village board I . The board of trustees shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established and enforced, and from time to time amended, supplemented or changed. However, no such regulation, re- Notice and public hearing striction or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen days' notice of the time and place of such hearing shall be published in the official newspaper. A Written notice of zoning changes within written notice of any proposed change or amendment affecting property housing projects or within 500 feet of within the protectively zoned area of a housing project authorized under boundaries of county, city, village, town, the public housing law, as such area is shown on an approved zoning state park or parkway map filed with the village officer charged with enforcement of zoning regulations, shall be given to the housing authority erecting or owning the project and to the government providing financial aid or assistance thereto at least ten days prior to the date of such public hearing. A written notice of any proposed change or amendment affecting property within five hundred feet of the boundaries of any state park or parkway or city, village, town or country shall be given in the case of a city, village or town to the clerk of such city, village or town, and in the case of a county, to the clerk of the board of supervisors or other person performing Re duties, and in the case of any state park or parkway, to the regional state park commission having jurisdiction over such state park or parkway at least ten days prior to the date of such public hearing. Such city, village, town or county shall have the right to appear and to be heard at such public hearing with respect to any such proposed change 67 or amendment, but shall not have the right of review by a court as herein- after provided. Zoning ordinance or amendment (in- 2. Every zoning ordinance and every amendment to a zoning cluding map) to be entered in minutes ordinance (including any map incorporated therein) adopted pursuant to of village board the provisions of this chapter shall be entered in the minutes of the village board and a copy thereof (exclusive of any map incorporated Publication and posting therein) shall be published once in the official newspaper and a copy of such ordinance or amendment together with a copy of any map in- corporated therein shall be posted conspicuously at or near the main entrance to the office of the village clerk and affidavits of the publication and posting thereof shall be filed with the village clerk. Such ordinance Effective date of ordinance shall take effect ten days after such publication and posting, but such ordinance or amendment shall take effect from the date of its service as against a person served personally with a copy thereof, certified by the village clerk; and showing the date of its passage and entry in the minutes. Notes: - Notice of certain proposed municipal zoning actions to be to change its zoning regulations or boundaries Will suffice. submitted to county, metropolitan or regional planning There is no requirement that personal service be made on agency - see General Municipal Law, 239-m. such clerk (23 Op. St. Compt. 270). - The procedural steps required by the enabling acts of muni- Local laws relating to zoning changes, adopted without post- cipalities are regarded as mandatory and failure to comply publication thereof, may be subject to attack as uncon- therewith invalidates the enactment (Keeney vs. Village of stitutional (Op. St. Compt. 69-838). LeRoy) 22 A.D. 2d. 159). For a discussion of zoning maps in towns and villages, see - Any manner of giving actual written notice to a clerk of a Bibliography Item 6. town or village within 500 feet of a village which proposes � 179. Changes Power of board of trustees to amend, 1. Such regulations, restrictions and boundaries may from time modify, change or repeal regulations to time be amended, supplemented, changed, modified or repealed by the Procedure in event of protest board of trustees on its own motion or on petition. In case, however, of a protest against such change signed by the owners of twenty per centum or more of the area of the land included in such proposed change, or by the owners of twenty per centum or more of the land immediately adjacent extending one hundred feet therefrom, or by the owners of twenty per centurn or more of the land directly opposite thereto, extending one hundred feet from the street frontage of such opposite land, such amend- ment shall not become effective except by the favorable vote of two- thirds of the members of the board of trustees in villages having three members on the board of trustees and three-fourths of the members of the board of trustees in all the other villages. The provisions of the previous section relative to public hearings and official notice shall apply equally to all changes or amendments. Zoning ordinances adopted or amended 2. (a) Notwithstanding any inconsistent provision of this chapter increasing lot areas or dimensions not or of any general, special or local law, the provisions of a zoning to affect certain subdivision plats pre- viously approved andfiled ordinance hereafter adopted, and the provisions of a change or amend- 68 ment. hereafter adopted to a zoning ordinance, which provisions estab- lish or increase lot areas, lot dimensions which are greater than or in excess of the lot areas or lot dimensions of the lots shown and delineated on a subdivision plat of land into lots for residential use and which said subdivision plat also shows and delinates one or more new streets, roads or highways in addition to lot lines and dimensions of the lots thereon delineated and which said subdivision plat has been duly approved by the planning board, if any, of the village in which the land shown on said plat is situate, or approved by such other board or officer, if any, of such village, vested with authority to approve subdivision plats, and which said subdivision plat or the first section thereof has been duly filed in the office of the recording officer of the county in which the land shown on said subdivision plat is situate, or which provisions establish or increase side, rear or front yard or set-back requirements in excess of those applicable to building plats under the provisions of the zoning ordinance, if any, in force and effect at the time of the filing of the said subdivision plat or first section thereof, shall not, for the period of time prescribed in paragraph (b) of this subdivision, be applicable to or in any way affect any of the lots.shown and delineated on such sub- division plat. Periods of exemption of such plats (b) If at the time of the filing of the subdivision plat or first section thereof referred to in paragraph (a) of this subdivision there was in the village both a zoning ordinance and a planning board vested with author- ity to approve subdivision plats, then the exemption provided for in such Three-year exemption paragraph shall apply for a period of three years after the filing of the subdivision plat or first section thereof. If at the time of the filing of the subdivision plat or first section thereof referred to in paragraph (a) of this subdivision there was a zoning ordinance in effect in the village but there was no planning board in said village vested with authority to ap- prove subdivision plats, then the exemption provided for in such para- Two-year exemption graph shall apply for a period of two years after the filing of the sub- division plat or first section thereof. If at the time of the filing of the sub- division plat or first section thereof referred to in paragraph (a) of this subdivision there was no zoning ordinance in the village but there was a planning board vested with authority to approve subdivision plats, then the exemption provided for in such paragraph shall apply for a period of two years after the filing of the subdivision plat or first section thereof. If at the time of the filing of the subdivision plat or first section thereof referred to in paragraph (a) of this subdivision there was no zoning ordinance in the village and no planning board vested with author- ity to approve subdivision plats, then the exemption provided for in One-year exemption such paragraph shall apply for a period of one year after the filing of said subdivision plat or first section thereof. Notes: In some instances, after a public hearing has been held on a - Notice of certain proposed municipal zoning actions to be proposed ordinance and thereafter certain changes are made, submitted to county, metropolitan or regional planning a further public hearing must be held to consider such agency - see General Municipal Law, 239-m. changes before the ordinance can be finally adopted. How- ever, the changes made must be substantial changes as dis- - An ordinance covering the whole field of zoning in a village tinguished from those which are minor and inconsequential repeals by necessary implication earlier ordinances which (Village of Island Park vs. J.E.B. Associates, Inc., 21 Misc. are inconsistent therewith (1967 Atty. Gen. 90). 2d. 249). 69 - A traffic problem was a valid basis for action by a board to - The provisions of this statute, providing for three-fourths change a zoning ordinance to lessen congestion in the streets vote of trustees where protest is made by owners of 20 per- and facilitate the adequate provision of transportation (Udell cent or more of immediately adjacent land, is clear and un- vs. McFadyen 40 Misc. 2d. 265). ambiguous and provides for a certain percentage of owners - Under this section and Section 178, it is not essential that a of adjacent land, even in a situation where an adjacent own- new map be drawn in zoning districts (Levitt vs. Incorpora- er is the municipality itself or owner of land for which ted Village of Sands Point. 2 A.D. 2d. 688). change of zone has been requested (Hittl vs. Buckhout, 13 Misc. 2d. 230). � 179-b. Board of appeals Appointment of members, number, term Such board of trustees shall provide for the appointment of a board of appeals consisting of three or five members, each to be appointed for Member of village board precluded three years. No person who is a member of the village board of trustees shall be eligible for membership on such board of appeals. The board Removalfor cause of trustees shall have the power to remove any member of the board Filling of vacancies for cause and after public hearing. Vacancies shall be filled for the un- expired term of the member whose place has become vacant. All meet- ings of the board of appeals shall be held at the call of the chairman and at such other times as such board may determine. Such chairman, or in his absence, the acting chairman, may administer oaths and Meetings compel the attendance of witnesses. All meetings of such board shall be open to the public. Such board shall keep minutes of its proceedings, showing the vote of each member upon every question, or if absent or failing to vote, indicating such fact, and shall also keep records of its examinations and other official actions. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or Filing of decisions determination of the board shall immediately be filed in the office of the board and with the village clerk and shall be a public record. Powers and duties of board of appeals Such board of appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to this act. It shall also hear and decide all matters referred to it upon which it is required to pass under any such ordinance. Majority vote The concurring vote of a majority of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant any matter upon which it is required to pass under any such ordinance or to effect any variation in such ordinance. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the village. Appeal procedure Such appeal shall be taken within such time as shall be prescribed by the board of appeals by general rule, by filing with the officer from whom the appeal is taken and with the board of appeals a notice of appeal, specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all of the papers constituting the record upon which the action appealed from was taken. Stay of proceedings except if life An appeal stays all proceedings in furtherance of the action appealed or properly is imperiled 70 from, unless the officer from whom the appeal is taken certifies to the board of appeals after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate a stay would in his opinion, cause imminent peril to life or property, in which case pro- ceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of appeals or by a court of record on ap- plication, on notice to the officer frorn. whom the appeal is taken and on due cause shown. Notice and hearing The board of appeals shall fix a, reasonable time for the hearing of the appeal and give due notice thereof to the parties, and decide the same within sixty-two days after the final hearing. Upon the hear- ing, any party may appear in person or by agent or by attorney. The Action by board board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made in the premises and to that end shall have all the powers of the officer from whom the appeal is taken. Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, the board of appeal Power to grant variances shall have the power in passing upon appeals, to vary or modify the application of any of the regulations or provisions of such ordinahce relating to the use, construction or alteration of buildings or structures, or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done. Any person or persons, jointly or severally aggrieved by any decision of the board of appeals or any officer, department, board or bureau of Appeal to supreme court from decision the village, may apply to the supreme court for relief by a proceeding of board under article seventy-eight of the civil practice law and rules. It must TYme limit for appeal be instituted within thirty days after the filing of a decision in the of- fice of the village clerk. The court may take evidence or appoint a referee to take such evidence as it may direct and report the same with his findings of fact and conclusions of law, if it shall appear that testimony is necessary for the proper disposition of the matter. The court at special term shall itself dispose of the cause on the merits, determining all questions which may be presented for determination. Costs Costs shall not be allowed against the board, unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from. Preference All issues in any proceeding under this section shall have preference over all other civil actions and proceedings. Notes: - Notice of certain proposed municipal zoning actions to be show that (1) the land in question cannot yield a reasonable submitted to county, metropolitan or regional planning return it used only for a purpose allowed in that zone; (2) agency - see General Municipal Law See. 239-m. that the plight of the owner is due to unique circumstances - For illustrative zoning ordinance provisions regarding boards and not to the general conditions in the neighborhood which of appeals, see Bibliography Item 10. may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized uy the variance - Before the zoning board of appeals may grant a variance up- will not alter the essential character of the locality (Otto vs. on the ground of unnecessary hardship, the record must Steinhilber, 282 N.Y. 75). 71 As a general rule, where the landowner has made the requi- the variance power granted by the Legislature to the board site showing of financial hardship and compatability of under that section (Matter of Fina Homes vs. Beckel, 24 his proposed use with the existing land use pattern, it would Misc. 2d. 823). seem preferable to grant the variance. To deny the variance With respect to area variances the basic rule which has solely on the ground that "Unique circumstances" had not evolved is that where the property owner will suffer signifi- been shown leaves open the prospect of a successful assault cant economic injury by the- application of an area standard on me zoning' ordinance as being confiscatory (Matter of contained in an ordinance, that standard can be justified Jayne Estates, vs. Raynor, 22 N.Y. 2d. 417). only by a showing that the public health, safety and welfare - The spirit and intent of zoning, combined with justice it- will be served by upholding the application of the stan- self requires that under section 179-b of the Village Law the dard and denying the variance (Matter ofFulling vs. Palumbo, broadest possible interpretation should be given to the 21 N.Y. 2d. 30). works "Such appeal may be taken by any person ag- Nothing in Fulling vs. Palumbo has changed the principle that grieved, or by an officer, department, board or bureau of a denial of an area variance will be upheld by the courts the village" (Horan vs. Board ofAppeals, 6 Misc. 2d. 571). where the substandard condition results from the owner's - If a variance is not authorized under an ordinance, the own decision to subdivide his property in such a Way as to board must then consider the application as one for a vari- create one or more substandard plots. (Matter of) 13 Hill- ance under Village Law, 179-b, for no ordinance may abridge side Avenue Corp. vs. Zaino, 27 N.Y. 2d. 258). 72 Subdivision control � 179-k. Approval of plats; development of filed plats Purposes 1. For the purpose of. providing for the future growth and develop- ment of the village and affording adequate facilities for the housing, transportation, distribution, comfort, convenience, safety, health and welfare of its population, such board of trustees may by resolution Authority of planning board to approve authorize and empower the planning board to approve plats showing plats lots, blocks or sites, with or without streets or highways, and to condi- tionally approve preliminary plats. For the same purposes and. under Approval of plats already filed the same conditions, the board of trustees may, by resolution, authorize and empower the planning board to approve the development of plats, entirely or partially undeveloped and which have been filed in the office of the clerk of the county in which such plat is located prior to the ap- pointment of such planning board and the grant to such board of the power to approve plats. Definition of "plat" and "preliminary 2. When used in this article, the term "preliminary plat" means plat" a drawing showing the salient features of a proposed subdivision sub- mitted to the planning board for purposes of consideration prior to sub- mission of the plat in final form; the term "plat" means a drawing, in final form, showing a proposed subdivision containing all information or detail required by this article or any other applicable state law or local law, ordinance, rule, regulation or resolution and, if modified as a conditionally approved preliminary plat, such modification; and the Conditional approval term "conditional approval" of a preliminary plat means approval of the layout of the proposed subdivision as set forth in such preliminary plat, but subject to approval of the plat, in final form, in accordance with the provisions of subdivision four of this section. Submission of plats 3. All plats shall be submitted to the planning board for approval in their final form provided, however, that where the planning board has been empowered to conditionally approve preliminary plats, the owner may submit or the planning board may require that he submit a preliniinary plat for consideration. A preliminary plat shall be clearly marked "preliminary plat" and shall be of sufficient detail to apprise the planning board of the layout of the proposed subdivision. Within forty-five days after the time of submission of a preliminary plat, the Action by planning board on preli- planning board shall take action to conditionally approve, with or minary plats without modifications, or disapprove such preliminary plat and the ground of any modification required or the ground for disapproval 73 Effect of inaction shall be stated upon the records of such planning board. Failure of the planning board to act within such forty-five day period shall constitute a conditional approval of the preliniinary plat. If the final plat is not submitted within six months of the conditional approval of the pre- liminary plat, the planning board may refuse to approve the final plat. Notice and hearing 4. A public hearing shall be held by the planning board after the submission of a plat, in final form, for approval, which hearing shall be advertised at least once in a newspaper of general circulation in such village and a notice of hearing posted in at least three prominent places Action by planning board; effect of at least five days before such hearing. The planning board may there- inaction upon approve, modify and approve, or disapprove such plats or the pro- posed development thereof. The approval required by this section or the refusal to approve shall take place within forty-five days from and after the time of the submission of the plat or the proposed development thereof for approval; otherwise such plat or such proposed development shall be deemed to have been approved, and the certificate of the clerk of such village as to the date of the submission of the plat or the pro- posed development thereof for approval and the failure to take action thereon within such time, shall be issued on demand and shall be suffi- cient in lieu of the written endorsement or other evidence of approval herein required. The ground of refusal of any plat or proposed develop- ment submitted shall be stated upon the records of such planning board. Filing of planning board authority with 5. The clerk of every village which has authorized its planning county clerk board to approve plats showing lots, blocks or sites, with or without streets or highways or the entire or partial development of plats filed in the office of the clerk of the county in which such plats are located, or to conditionally approve preliminary plats, as provided in this article "I immediately file a certificate of that fact with the clerk or register of the county in which such village is located. Expiration of planning board approval 6. The approval by the planning board of a plat showing lots, or certificate of village clerk unless plat blocks or sites, with or without streets or highways, or the approval filed or recorded within specified time and development completed or bond by such board of the development of a plat filed in the office of the posted clerk of the county in which such plat or plats are situated prior to the appointment of such planning board and the grant to such board of the power to approve plats, or the certificate of the village as to the date of the submission of such plats or such proposed develop- ment and the failure of the planning board to take action thereon within forty-five days, shall expire ninety days from the date of such approval or of such certificate unless within such ninety day period such plat or a section thereof shall have been duly filed or recorded by the owner in the office of the county clerk or register and the proposed development of such plat has been either completed or a bond therefor posted with the village board as provided in section one hundred seventy-nine-I of the Approval of plat by sections village law. Prior to granting its approval, the village planning board may permit the plat to be subdivided into two or more sections and may impose such conditions upon the filing of the sections as it may deem necessary to assure the orderly development of the plat. Approval to the sections, subject to any conditions imposed by the board, shall be granted concurrently with the approval of the plat. If the owner shall 74 file only a section of an approved plat within such ninety day period, such section shall encompass at least ten per cent of the total number of lots contained in the approved plat and the approval of the remaining sections of the approved plat shall expire unless said sections are filed before the expiration of the exemption period to which such plat is entitled under the provisions of subdivision two of section one hundred Filing of entire plat with village clerk seventy-nine of this article. In the event the owner shall file only a section of such approved plat in the office of the county clerk or register, the entire approved plat shall be filed within thirty days of the filing of such section with the village clerk. Extension of time for filing 7. Notwithstanding the foregoing provisions of this section, the planning board may extend the time for filing and recording such plat, if in its opinion such intention is warranted by the particular circum- stances thereof, for not to exceed two additional periods of ninety days each. Notes: Approval of subdivisions by Health Department - see Public ments (Levin.vs. 77iornbury, 2 A.D. 2d. 774). Health Law, Article 11. Failure of planning board to approve, modify or disapprove - Notice required of certain proposed subdivision plats re- plat within 45 days of submission shall be deemed approval, quiring referral to county planning agency and/or county and certificate of village clerk as to date of submission and superintendent of highways - see General Municipal Law, failure to take action shall be issued on demand and be suf- 239-k and 239-n. ficient in lieu of written endorsement of approval (Levin vs. - This section must be read together with 179-1, which re- Thornbury, above). quires the planning board to estimate the amount of the For a discussion of subdivision regulation enforcement, see performance bond to be filed to cover the cost of improve- Bibliography Item 3. � 179-1. Approval of plats; development of filed plats; additional requisites Authority of planning board to require 1. Before the approval by the planning board of a plat showing parks for playgrounds or other recrea- lots, blocks or sites, with or without streets or highways, or the approval tional purposes of the development of a plat entirely or partially undeveloped and which has been filed in the office of the clerk of the county wherein such plat is situated prior to the appointment of such planning board and the grant to such board of the power to approve plats, such plat-or plan of proposed development shall also show in proper cases and when required by the planning board, a park or parks suitably located for playground or other recreation purposes. If the planning board deter- mines that a suitable park or parks of adequate size can not be properly located in any such plat or is otherwise not practical, the board may Authority to require monetary payment require as a condition to approval of any such plat a payment to the in lieu of reservation of land village of a sum to be determined by the board of trustees, which sum shall constitute a trust fund to be used by the board of trustees exclu- sively for neighborhood park, playground or recreation purposes includ- ing the acquisition of land. In approving such plats the planning board Requirement for streets and highways shall require that the streets and highways shall be of sufficient width 75 and suitable grade and shall be suitably located to accommodate the prospective traffic, to afford adequate light and air, to facilitate fire protection, and to provide access of fire-fighting equipment to buildings, and to be co-ordinated so as to compose a convenient system conforming to the official map and properly related to the proposals shown by the planning board on the master plan; that the land shown on such plats shall be of such a character that it can be used safely for building pur- poses without danger to health or peril from fire, flood or other menace; that suitable monuments have been. placed at such block corners and other necessary points as may be required by the board and the location Other specific requisites thereof is shown on the map of such plats; and that the parks shall be of reasonable size for neighborhood playgrounds or other recreation uses; that all streets or other public places shown on such plats shall be suit- ably graded and paved and that sidewalks, street lighting standards, curbs, gutters, street trees, water mains, fire alarm signal devices includ- ing necessary ducts and cables or other connecting facilities, water mains, sanitary sewers and storm drains or combined sewers and storm drains shall be installed all in accordance with standards, specifications and procedure acceptable to the appropriate village departments except Posting of performance bond as hereinafter provided, or alternatively that a performance bond suffi- cient to cover the full cost of the same as estimated by the planning board or other appropriate village departments designated by the plan- ning board shall be furnished to the village by the owner; provided, Waiver by planning board however, that the planning board may waive subject to appropriate con- ditions and guarantees, for such period as it may determine, the pro- vision of any or all such improvements as in its judgment of the special circumstances of a particular plat or plats are not requisite in the interests of the public health, safety and general welfare. In the event that the owner shall be authorized to file the approved plat in sections as provided in subdivision three of section one hundred seventy-nine-I Approval of plat filed in sections of this article, approval of the plat may be granted upon the installation of the required improvements in the section of the plat filed in the office of the county clerk or register or the posting of a bond covering the cost of such improvements. The owner shall not be permitted to begin con- struction of buildings in any other section until such section has been filed in the office of the county clerk or register and the required im- provements have been installed in such section or a bond covering the Performance bond requirements cost of such improvements is posted. Such performance bond shall be issued by a bonding or surety company approved by the board of trus- tees, or by the owner with security acceptable to the board of trustees, and such performance bond shall also be approved by the village attorney as to form, sufficiency and manner of execution. Such performance bond shall run for a term to be fixed by the planning board, but in no case for a longer term than three years, provided, however, that the term of such performance bond may be extended by the planning board with the consent of the parties thereto. If the planning board shall decide at any time during the term of the performance bond that the extent of building development that has taken place in the subdivision is not sufficient to warrant all the improvements covered by such performance bond, or that required improvements have been installed as provided in this section and by the planning board in sufficient amount to war- 76 rant reduction in the face amount of said bond, or that the character and .extent of such development requires additional improvements previously waived for a period stated at the time of fixing the original terms of Modification of requirements by plan- such bond, the planning board may modify its requirements for any or ning,board all such improvements, and the face value of such performance bond shall thereupon be reduced or increased by an appropriate amount so that the new face value will cover the cost in full of the amended list of improvements required by the planning board and any security deposited with the bond may be reduced or increased proportionately. In the event that any required improvements have not been installed as provid- ed in this section within the term of such performance bond, the village Power of village board to act in event of board may thereupon declare the said performance bond to be in default default of conditions of performance and collect the sum remaining payable thereunder, and upon the receipt bond of the proceeds thereof the village shall install such improvements as are covered by such performance bond and are commensurate with the extent of building development that has taken place in the subdivision but not exceeding in cost the amount of such proceeds. In making such deter- mination regarding streets, highways, parks and required improvements, the planning board shall take into consideration the prospective char- acter of the development, whether dense residence, open residence, busi- ness or industrial. Notes: enforcible (Jenad, Inc. vs Village of Scarsdale, 18 N.Y. 2d. - Approval of subdivisions by Health Department - see Pub- 78). hc Health Law, Article 11. A village may require a cash deposit, in lieu of a specific reservation of park land, by a subdivider if the ordinance - Filing of subdivision plats - see Real Property Law, .ing such payments specifically requires that the monies Sec. 334. requir be used for permanent parks available to the residents of - For information on requirement for the installation of un- the subdivision concerned (17 Op. St. Compt. 79). derground electric service, see Bibliography Item 1. Land conveyed to a village by a developer for park pur- - There is a sufficient grant of power in this section to permit poses under the authority of this section becomes im- developers to pay cash in lieu of setting aside areas for pressed with a public trust and may not be alienated with- parks, playgrounds and similar purposes and it is valid and out a special act of the Legislature (Op. St. Compt. 68-976). 179-m.Approval of plat for filing or recording; notification of filing; notation against dedication; offer of cession No plat to be recorded without plan- No plat of a subdivision of land showing lots, blocks or sites, with or ning board approval and endorsement without new streets or highways, shall be filed or recorded in the office of the county clerk or register until it has been approved by a planning board which has been empowered to approve such plats, and such approval be endorsed in writing on the plat in such manner as the plan- Contents of endorsement ning board may designate. Such endorsement shall stipulate that the plat does not conflict with the county official map, where one exists, or, in cases where plats do front on or have access to or are otherwise related to roads or drainage systems shown on the county map, that such plat has been approved in the manner specified by section two hundred thirty-nine-k of the general municipal law, it shall be the duty of the Notification to planning board by county county clerk or register to notify the planning board in writing within clerk of recording of plat three days of the filing or recording of any plat approved by such plan- 77 ning board, -identifying such plat by its title, date of filing or recording, and official file number. After such plat is approved and filed, subject Streets and highways on recorded plat however, to review by court as hereinafter provided, the streets, high- ways and parks shown on such plat shall be and become a part of the of- ficial map or plan of the village. The owner of the land or his agent who Notation that no offer of dedication filed the plat may add as part of the plat a notation if he so desires to the intended effect that no offer of dedication. of such streets, highways or parks or any of them is made to the public. Formal offers of cession to the public of all streets, highways or parks not marked with such notation on the plat shall be filed with the planning board prior to the approval of the plat by the planning board. In the event that the owner or his agent shall elect not to file his plat prior to the expiration date of the validity of such approval provided in section one hundred seventy-nine-k, then Formal offer of streets to be filed with such formal offers of cession shall be deened to be invalid, void and of planning board no effect on and after such expiration date. Every street shown on a plat that is hereafter filed or recorded in the office of the county clerk or register as provided in this section, shall Streets private until formal cession and be deemed to be a private street until such time as it has been formally acceptance or condemnation offered for cession to be public and formally accepted as a public street by resolution of the village or alternatively until it has been condemned by the village for use as a public street. In so far as provisions of law other than those contained in this article, require the approval of a plat, map or plan of land by the authority of the village, as a prerequisite of its record, or allow it to be recorded on failure of the village to approve or disapprove of the same within a given Effect of other provisions of law re- time, said provisions shall not be in force in so far as they apply to plats, lating to approval of Plats maps or plans of land within the limits of any village which has established an official map or plan and authorized a planning board appointed by it to approve plats of land within said village showing new streets and highways, under this article. Notes: 'part of the official map or plan of the village (Application - County official maps - see General Municipal Law, Sec. of Simonson, 191 N.Y.S. 2d. 857). 2 39-g to Sec. 2 39-k. - Proposed realty subdivision layouts must be approved by the - Approval of plats related to roads or drainage systems local planning board and department of health and the map shown on county official map - see General Municipal Law, thereof must then be filed of record. A tract owner cannot Sec. 239-k. evade these requirements by showing no new streets on his - Where a map of a subdivision improvement was approved unfiled map, and by conveying portions of the tract to two by village planning board, and thereafter filed in the office grantees in a sort of cneckerboard pattern lVillage of Nisse- of the county clerk, streets shown thereon thereafter werp a quogue vs. Meixsell, 55 Misc. 2d. 1069). � 179-p. Approval of plats. conditions for changes in zoning provisions Authority of planning board, simul- The board of trustees is hereby empowered by resolution to authorize taneously with plat approval, to modify the planning board, simultaneously with the approval of a plat or plats provisions of zoning ordinance pursuant to this article, to modify applicable provisions of the zoning ordinances, subject to the conditions hereinafter set forth and such other reasonable conditions as the board of trustees may in its discretion 78 add thereto. Such authorization shall specify the lands to which this Purposes procedure may be applicable. The purposes of such authorization shall be to enable and encourage flexibility of design and development of land in such a 'manner as to promote the most appropriate use of land, to facilitate the adequate and economical provisions of streets and utilities, and to preserve the natural and scenic qualities of open lands. The Conditions: conditions hereinabove referred to are as follows: a) benefit to village; (a) If the owner makes written application for the use of this pro- cedure, it may be followed at the discretion of the planning board if, in said board's judgement, its application would benefit the village. _ b) residential purposes only - density (b) This procedure shall be applicable only to lands zoned for not to exceed that in applicable residential purposes, and its application shall result in a permitted zoning ordinances; number of dwelling units which shall in no case exceed the number which could be permitted, in the planning board's judgment, if the land were subdivided into lots conforming to the minimum lot size and density requirements of the zoning ordinance applicable to the district or districts in which such land is situated and conforming to all other applicable requirements. c) typeof structure allowed; (c) The dwelling units permitted may be, at the discretion of the planning board and subject to the conditions set forth by the board of trustees, in detached, semi-detached, attached, or multi-story structures. d) preservation of land for park and (d) In the event that the application of this procedure results in a recreational use as condition for plat plat showing lands available for park, recreation, open space, or other approval; approval by village board municipal purposes directly related to the plat, then the planning board of trustees as a condition of plat approval may establish such conditions on the own- ership, use, and maintenance of such lands as it deems necessary to assure the preservation of such lands for their intended purposes. The board of trustees rnay require that such conditions shall be approved by the board of trustees before the plat may be approved for filing. e) review and public hearing by plan- (e) The proposed site plan, including areas within which structures ning board may be located, the height and spacing of buildings, open spaces and their landscaping, off-street open and enclosed parking spaces, and streets, driveways and all other physical features as shown on said plan or otherwise described, accompanied by a statement setting forth the nature of such modifications, changes, or supplementations of ex- isting zoning provisions as are not shown on said site plan, shall be sub- ject to review and public hearing by the planning board in the same manner as set forth in sections one hundred seventy-nine-k and one hundred seventy-nine-I of this article for the approval of plats. Filing (f) On the filing of the plat in the office of the county clerk or register, a copy shall be filed with the village clerk, who shall make ap- propriate notations and references thereto in the village zoning ordinance or map. Notes: - Notice of certain proposed municipal zoning actions to be - For a discussion of cluster development under this Section, submitted to county, metropolitan or regional planning see Bibliography Items 13 and 18. agency - see General Municipal Law, Sec. 239-m. 79 � 179-q. Review of decisions of planning board Persons aggrieved by decision of Plan- Any person- or persons, jointly or severally aggrieved by any decision ning board, or officer or department, of the planning board concerning such plat or the changing of the zoning may apply for review regulations of such land, or any officer, department, board or bureau of the village, may bring a proceeding to review in the manner provided by article seventy-eight of the civil practice law and rules in a court of record on the ground that such decision is illegal, in whole or in part. 77me to commence proceeding Such proceeding must be commenced within thirty days after the filing of the decision in the office of the board. Commencement of the proceeding shall stay proceedings upon the decision appealed from. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence Appointment of referee or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the deter- mination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. Costs Costs shall not be allowed against the planning board, unles s it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from. Preference over other civil actions All issues in any proceeding under this section shall have preference over all. other civil actions and proceedings. Notes: - Plaintiffs sufficiently alleged pecuniary loss in the value of - In our opinion, the complaint sufficiently alleged pecuniary their land, as distinguished from prospective loss, so as to loss so as to constitute plaintiffs aggrieved parties who could constitute them aggrieved parties to contest the validity of contest the validity of the zoning enactment (Marcus vs. the rezoning ordinance (Westchester Motels Inc. vs. Village Incorporated Village of Spring Valley, 24 A.D. 2d. 1021). of Elmsford, 20 A.D. 2d. 818). 80 Official maps � 179-e. Official maps May be established by resolution Of Every village may by resolution of its board of trustees establish an village board of trustees official map of the village showing the streets, highways and parks there- Contents and effect of official map tofore laid out, adopted and established by law. Drainage systems may also be shown on this map. Such map is to be deemed to be final and con- clusive with respect to the location and widths of streets, highways, drainage systems and the location of parks shown thereon. Such official Purpose map is hereby declared to be established to conserve and promote the public health, safety and general welfare. The clerk of every village which Filing has established such an official'map shall immediately file a certificate of that fact with the clerk or register of the county in which said village is located. Notes: - An official map of a village should be properly certified by - Effect of change in county official map on official map of the village clerk on its face that it was the proper one in- municipality affected - see General Municipal Law, Sec. corporated in a designated resolution and adopted by it 239-i. (1967 Atty. Gen 162). - For general information on official map, see Bibliography Item 19. � 179-h. Changes in official map; notice of hearing Authority of board of trustees Such board of trustees is authorized and empowered, whenever and as often as it may deem it for the public interest, to change or add to the official map of the village so as to lay out new streets, highways or parks, or to widen or close existing streets, highways or parks. At least five Notice, hearing and publication days' notice of a public hearing on any proposed action with reference to any such change in the official map shall be published at least once in a newspaper of general circulation in such village and posted in at least three prominent places. Before making any such addition or change the board of trustees shall refer the matter to the planning board for Report of planning board report thereon, but if the planning board shall not make its report within thirty days of such reference, it shall forfeit the right further to suspend Effect of adoption action. Such additions and changes when adopted shall become a part of the official map of the village, and shall be deemed to be final and con- at clusive with respect to the location of the streets, highways and parks shown thereon, The granting by the board of trustees of a petition for Changes in streets the approval of the laying out, altering, widening, narrowing or dis- continuing of a street, shall be deemed to be an addition or change of the official map and shall be subject to all the provisions of this article with Drainage systems regard to such additions or changes. Drainage systems may also be shown on this map. Notes: Effect of change in county official map on official map of - For general information on official maps, see Bibliography municipality affected - see General Municipal Law, Sec. Item 4. 2394. 9 179-n. Buildings in streets; permits; hearings; review Purpose For the purpose of preserving the integrity of such official map or No permit to be issued for building in plan no permit shall hereafter be issued for any building in the bed of bed of street shown on official map any street or highway shown or laid out on such map or plan, provided, however, that if the land within such mapped street or highway is not yielding a fair return on its value to the owner, the board of appeals or other similar board in any village which has established such a board having power to make variances or exceptions in zoning regulations shall have power in a specific case by the vote of a majority of its members to Variance procedure grant a permit for a building in such street or highway which will as little as practicable increase the cost of opening such street or highway, or tend to cause a change of such official map or plan, and such board may Imposition of conditions impose reasonable requirements as a condition of granting such permit, which requirements shall inure to the benefit of the village. Before taking any action authorized in this section, the board of appeals or similar Notice and hearing board shall give a hearing at which parties in interest and other shall have an opportunity to be heard. At least fifteen days' notice of the time and place of such hearing shall be published in a newspaper of general Review of decision circulation in such village. Any such decision shall be subject to review in the same manner and pursuant to the same provisions as in appeals from the decisions of such board upon zoning regulations. Notes: - This section deals only with buildings proposed to be erected any official map or plan (Henry Norman Associates vs. in the bed of any street or highway shown or laid out on Ketler, 16 Misc. 2d. 764). � 179-o. Construction of municipal utility in streets; permits for erection of buildings; appeal; review by court No construction or improvement unless I . No public municipal street utility or improvement shall be street or highway is public and is placed constructed by the village in any street or highway until it has become a on official map public street or highway and is duly placed on the official map or plan; 82 Exception for certain imp,-o Pements except that the board of trustees may authorize the construction of a public municipal street utility or improvement in or under a street which has not been dedicated, but which has been used by the public as a street for five years or more, prior to March second. nineteen hundred thirty- eight, and is shown as a street on a plat of a subdivision of land which had been filed prior to March second, nineteen hundred thirty-eight, in the office of the county clerk or register of the county in which such village is located. 2. No permit for the erection of any building shall be issued unless a street or highway giving access to such proposed structure has been duly placed on the official map or plan, or if there be no official map or Requisites for issuance of permit plan, unless such street or highway is (a) an existing state, county, town or village highway, or (b) a street shown upon a plat approved by the plan- ning board as provided under the provisions of this article, as in effect at the time such plat was approved, or (c) a street on a plat duly filed and recorded in the office of the county clerk or register prior to the ap- pointmIent of such planning board and the grant to such board of the Adequacy of street or highway as con- power to approve plats. Before such permit shall be issued such street dition for issuance of permit or highway shall have been suitably improved to the satisfaction of the planning board in accordance with standards and specifications approved by the appropriate village officers as adequate in respect to the public health, safety and general welfare for the special circumstances of the N particular street or highway, or alternatively, and in the discretion of Performance bond in lieu of improve- such board, a performance bond sufficient to cover the full cost of such ment improvement as estimated by such board or other appropriate village departments designated by such board shall be furnished to the village by the owner. Such performance bond shall be issued by a bonding or surety company approved by the board of trustees or by the owner with security acceptable to the board of trustees, and shall also be ap- proved by the village attorney as to form, sufficiency and manner of execution. The term, manner of modification and method of enforce- ment of such bond shall be determined by the appropriate board in substantial conformity with section one hundred seventy-nine-I of this article. Variance procedure in event of practical 3. Where the enforcement of the provisions of this section would difficulty or unnecessary hardship entail practical difficulty or unnecessary hardship, or where the circum- stances of the case do not require the structure to be related to existing or proposed streets or highways, the applicant for such a permit may appeal from the decision of the administrative officer having charge of the issue of permits to the board of appeals or other similar board in Power of appropriate board to issue any village which has established a board having power to make vari- permit subject to conditions ances or exceptions in zoning regulations, and the same provisions are hereby applied to such appeals and to such board as are provided in cases of appeals on zoning regulations. The board may in passing on such appeal make any reasonable exception and issue the permit subject to conditions that will protect any future street or highway layout. Any Review of decision such decision shall be subject to review in the same manner and pur- suant to the same provisions as in appeals from the decisions of such board upon zoning regulations. 83 Notes: The power and authority of a village to regulate the im- or fail to accord due process of law to the owners' vested provement of public streets within the village as a pre- property rights (Village of Baxter Estates vs. G.N.M. Con- requisite to the granting of building permits for structures struction Co., 49 Misc. 2d. 333). abutting on public streets is not open to question (Brous Planning board should not have been directed to act on vs. Sinith, 304 N.Y. 164). . petitioner's application in the absence of proof that the Improvement of "paper streets" so as to provide access from paper street which is the subject of the application had certain lots to existing public streets does not per se entitle been placed on the-official map of the village or, if there defendants to building permits. Observance of the provisions was no such map, that the street met other requirements of Section 179-o of the Village Law is still requisite; but in of subdivision 2 of Sedtion 179-o of the Village Law (Rus- the event application is made for building permits, the sell Oaks Inc. vs. Planning Board of Incorporated Village of determination of the village authorities cannot be arbitrary Russell Gardens, 28 A.D. 2d. 569, affd. 21 N.Y. 2d. 784). 84 Other provisions � 179-c. Remedies In case any building or structure is erected, constructed, recon- structed, altered, repaired, converted, or maintained; or any building, structure or land is used in violation of this act, or of any ordinance or other regulation made under authority conferred thereby, the proper Action by village board in event of local authorities of the village, in addition to other remedies, may in- violations stitute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, main- Authority to restrain, correct or abate tenance or use, to restrain, correct or abate such violation, to prevent the N violations occupancy of said building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises. All issues in any P@eference of proceeding action or proceeding for any of the purposes herein stated shall have preference over all other civil actions and proceedings. Notes: A provisions in a village zoning ordinance which provided special damage by reason of violation of ordinance from that an official of the viflage should enforce the ordinance maintaining action for redress (Marcus vs. Village of Mama- did not prevent a private property owner who suffered roneck, 283 N.Y. 330). � 179-d Conflict with other laws If. this act imposes strictor controls than Wherever the regulations made under authority of this act require other statute or local ordinance, this a greater width of size of yards or courts, or require a lower height of act governs building or less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required in any other statute or local ordinance or regulation, the pro- visions of the regulations made under authority of this act shall govern. If other statute or ordinance imposes Whenever the provision of any other statute or local ordinance or regula- stricter controls, that statute or ordi. tion require a greater width or size of yards or courts, or require a lower nance governs height of building or a less number of stories, or require a greater per- centage of lot to be left unoccupied, or impose other higher standards than are required by the regulations made under authority of this act, the provisions of such statute, or local ordinance or regulation shall govern. 85 � 179-r. Separability clause If any part of provision of this article or the application thereof to any person or circumstance be adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part, provision or application directly involved in the controversy in which said judgment shall have been rendered and shall not affect or impair the validity of the remainder of this article or the application thereof to other persons or circumstances and the legislature hereby de- claTes that it would have enacted this article or the remainder thereof had the invalidity of such provision or application thereof been apparent. 86 GENERAL MUNICIPAL- LAW ARTICLE 12 -A 87 City and village 0 0 0 planning commissions � 234. Creation, appointment and qualifications Authority of cities and villages to create Each city and incorporated village is hereby authorized and em- planning commissions powered to create a commission to be known as the city or village plan- ning commission. Such commission shall be so created in incorporated Creation by legislative body villages by resolution of the trustees, in cities by ordinance of the com- mon council, except that in cities of the first class, having more than a million inhabitants, it shall be by resolution of the board of estimate and apportionment or other similar local authority. In cities of the first Membership class such commission shall consist of not more than eleven, in cities of the second class of not more than nine, in cities of the third class and in- corporated villages of not more than seven members. Such ordinance or resolution shall specify the public officer or body of said municipality that shall appoint such commissioners, and shall provide that the ap- pointment of as nearly as possible one-third of them shall be for a term Term of office of one year; one-third for a term of two years; and one-third for a term of three years; and that at the expiration of such terms, the terms of office of their successors shall be three years; so that the term of office of one-third of such commissioners, as nearly as possible, shall expire each year. All appointments to fill vacancies shall be for the unexpired term. Not more than one-third of the members of said commission shall hold any other public office in said city or village. In a county containing Residence requirement a population of over three hundred thousand one of the members of any such commission may reside outside of such village or city as the case may be. � 235. Officers, expenses and assistance Election of chairman The commission shall elect annually, a chairman from its own mem- Employment of staff bers. It shall have the power and authority to employ experts, clerks, and a secretary, and to pay for their services and such other expenses as may be necessary and proper, not exceeding, in all, the annual ap- 88 propriation that may be made by said city or village for said commis- sion. The body creating the commission shall by ordinance or resolution Compensation provide what compensation if any, each of such commissioners shall receive for his services as such commissioner. Each city and incorpo- rated village is hereby authorized and empowered to make such appro- Appropriations priation as it may see fit for such expense and compensation, such ap- propriations to be made by those officers or bodies in such city or village having charge of the appropriation of the public funds. � 236. General powers The body creating such planning commission may, at any time, by .ordinance or resolution, provide that the following matters, or any one Provision for referral of certain matters or more of them, shall be referred for report thereon, to such com- to planning commission mission by the board, commission, commissioner or other public officer or officers of said city or village which is the final authority thereon before final action thereon by such authority; the adoption of any map Specific matters or plan of said city or incorporated village, or part thereof, including drainage and sewer or water system plans or maps, and plans or maps for any public water front, or marginal street, or public structure upon, in or in connection with such front or street, or for any dredging, filling or fixing of lines with relation to said front; any change of any such maps or plans; the location of any public structure upon, in or in con- nection with, or fixing lines with relation to said front; the location of any public building., bridge, statue or monument, highway, park, park- way, square, playground or recreational ground, or public open place of said city or village. In default of any such ordinance or resolution all of said matters shall be so referred to said planning commission. The body creating such planning commission may, at any time, by Fixing, by ordinance or resolutions, time ordinance or resolution, fix the time within which such planning com- for . commission's report on referred mission shall report upon any matter or class of matters to be referred matters to it, with or without the further provision that in default of report within the time so fixed, the planning commission shall forfeit the right further to suspend action, as aforesaid with regard to the par- ticular matter upon which it has so defaulted. In default of any such No action to be taken until repo -rt ordinance or resolution, no such action shall be taken until such report received, in absence of ordinance or is so received, and no adoption, change, fixing or location as aforesaid resolution by said final authority, prior thereto, shall be valid. No ordinance or Ordinance or resolution not to deprive resolution shall deprive said planning commission of its right or re- commission of right to report heve it of its duty, to report, at such time as it deems proper upon any matter at any time referred to it. This section shall not be construed as intended to limit or impair the power of any art commission, park commission, or commissioner, now or hereafter existing.. by virtue of any provision of law, to refuse consent to the acceptance by any municipality of the gift of any work of art to said municipality, without reference of the matter, by reason of its proposed location or otherwise, to said planning commission. 89 Section not to impair power of art Nor shall this section be construed -as intended to limit or impair any commission other power of any such art commission or affect the same, except in so far as it provides for reference or report, or both, on any matter before final action thereon by said art commission. � 237. Maps and recommendations Preparation and contents of maps and Such planning commission may cause to be made a map or maps of plans said city or village or any portion thereof, or of any land outside the limits of said city or village so near or so related thereto that in the opinion of said planning commission it should be so mapped. Such plans may show not only such matters as by law have been or may be referred to the planning commission, but also any and all matters and things with relation to the plan of said city or village which to said planning commission seem necessary and proper, including recom- mendations and changes suggested by it; and any reports at any time made, may include any of the above. Such planning commission may Expert assistance in preparation of maps obtain expert assistance in the making of any such maps or reports, or and reports in the investigations necessary and proper with relation thereto. � 238. Private streets Authority to provide that no plan, plot, The body creating such planning commission may at any time, by etc., showing streets on private property ordinance or resolution provide that no plan, plot or description, show- or building lots in relation to a private street be recorded until approved by ing the layout of any highway or street upon private property, or of commission building lots in connection with or in relation to such highway or street shall, within the limits of any municipality having a planning com- mission, as aforesaid, be received for record in the office of the clerk of the county where such real property is situated, until a copy of said plan, plot or description has been filed with said commission and it has certified, with relation thereto, its approval thereof. Such certificate shall be recorded as a part of the record of said original instrument No street to be accepted without ap- containing said plan, plot, or description. No such street or highway proval of planning commission, except which has not received the approval of the planning commission shall if laid out in accordance with map of municipality be accepted by said city or village until the matter has been referred to such commission under the provision of section two hundred and thirty-six of this article. But if any such street is plotted or laid out in accordance with the map of said municipality, adopted according to law, then it shall not be necessary to file such copy, or obtain or record such certificate., 90 J � 239. Rules Such commission may make rules not contrary to law, to govern its action in carrying out the provisions of this article. � 239-a. Construction of article Grant of additional power, not im- This article shall be construed as the grant of additional power and pairment of existing power authority to cities and incorporated villages, and not as intended to limit or impair any existing power or authority of any city or village. Any city or incorporated village in order to appoint a planning commission under this article shall recite, in the ordinance or resolu- tion so creating the commission, the fact that it is created under this article. 91 Metropolitan regional and county planning boards Article 12-B � 239-b. Establishment of metropolitan, regional or county planning boards Establishment by board of supervisors The board of supervisors of any county alone or in collaboration of regional or county planning board with the governing bodies of the cities, towns and villages in such county or any of them or in collaboration with the board or boards of supervisors of any adjacent county or counties may establish a regional Membership or county planning board to consist of representatives of such county or counties and where the local governments of the municipalities partici- pate in the formation of such regional or county planning board, such board may also contain representatives of such municipalities to be selected in a manner to be determined by the board or boards of super- visors. The county engineer or superintendent of highways or district Ex officio members superintendent in each county participating shall be a member ex- officio of any such regional or county planning board, and in a county which has established the office of comptroller, or commissioner of finance, such official shall also be a member ex-officio of such regional or county planning board. Said board of. supervisors may also desig- nate the chief engineers of any special county improvement commissions or bodies to serve as members ex-officio of such regional or county planning board. The members of such regional or county board shall receive no salary or compensation for their services as members of such Establishment of regional or metropoli- board. The governing bodies of cities, towns and villages in any county tan planning board by governing bodies or counties may collaborate in establishing a regional or metropolitan of cities, towns and villages planning board to consist of representatives of the constituent munici- palities to be selected in a manner to be determined by agreement among the participating municipalities. Notes: - For a discussion of incompatability of office and conflict - A member of village board of trustees may not serve as a of interest imposing bars on board membership, see Biblio- member of a regional planning (Op. St. Compt. 68-172) graphy Item 4. 92 � 239-c. Expenses Governing body of county, town, city The board of supervisors of a county, the town board of a town, and village authorized to appropriate the common council of a city, and the board of trustees of a village, money for expenses of board or the governing bodies of the participating municipalities comprising membership in a regional or metropolitan planning agency are hereby authorized independently or in collaboration with the other local govern- ments, in their discretion, to appropriate and raise by taxation money for the expenses of such metropolitan, regional or county planning board; and such municipal corporations shall not be chargeable with any expenses incurred by such planning board except pursuant to such an appropriation. Notes: of the participants of any or all monies made available for Participating municipalities should enter into an agreement the regi6tial planning board and how claims shall be sub- providing for allocating cost, custody by fiscal officer of one mitted and audited (18 Op. St. Compt. 327). � 239-d. Powers of board; authority to receive funds Powers of board 1. Said planning board is hereby empowered to perform planning work, including but not limited to surveys, land use studies, urban re- newal plans and technical services, and shall study the needs and condi- tions of metropolitan, regional, county and community planning in such county or counties or the area covered by constituent municipalities and Preparation and adoption of master plan prepare and adopt in whole or in part and, whenever and as often as such board may deem it for the public interest, to change or add to, a compre- hensive master plan for the development of the entire area of the county or counties or municipalities participating, which master plan shall in- Contents of master plan clude the highways, parks, parkways and sites for public buildings or works including sub-surface facilities, in the acquisition, financing or con- struction of which the county or the constituent municipalities has participated or may be called upon to participate, acquire, finance or construct. Power of board of supervisors to change 2. The board of supervisors in any county is hereby empowered to or add to county plan adopt and establish and whenever and as often as such board may deem it for the public interest, to change or add to a county plan showing the highways, parks, parkways and sites for public buildings or works, including sub-surface facilities, other than state or federal projects, in the acquisition, financing or construction of which the county has par- ticipated or may be called upon to participate. Before acting thereon in the first instance and before adopting any amendments thereto, such board of supervisors shall give two weeks' notice thereof and hold a Notice and hearing public hearing or hearings thereon at which representatives of the regional or county planning board, the state commissioner of trans- Approval binding on county and its de- portation or his representative, the county departments, municipalities, partments, no expenditure for acquisi- property owners and others interested therein shall be heard. When so tion of land or public improvements to be made except Iin accordance with approved in whole or in part by the board of supervisors in any county county plan or counties such approved county plan or part thereof shall be deemed 93 to be binding upon the board of supervisors of the county and the several county departments thereof, and no expenditure of public funds by such county for the acquisition of land except for state or federal pro- jects or for any public improvements shown on such county plan shall be made except in accordance with such county plan, and no expenditure of public funds by the county shall be made for any other public im- provements other than state or federal projects not shown on such county plan or on the acquisition of land dierefor, which would necessitate the modification of such county plan, until such county plan has been amended as hereinafter provided. Before holding any such public hearing with respect to a proposed change in or addition to the county plan such Submission of plan to regional or county board of supervisors shall submit such proposed change or addition to the planning board regional or county planning board for its consideration and advice and shall fix a reasonable time in which such regional or county planning board may report thereon. Upon receipt of such advisory report from the county or regional planning board or upon the failure of such board to report within the time limit so fixed such board of supervisors after public hearing thereon as hereinbefore provided may thereupon act upon the Report - majority vote in event of ad- proposed change, but any action adverse to the report of the county or verse report regional planning board shall require affirmative vote of a majority of all the members of such board of supervisors. Before the final approval of any plan involving the construction or reconstruction of any state or county highway, either with or without federal aid, the county or regional planning board shall be given an opportunity to examine such plans and offer suggestions with respect thereto. This section shall in no wise be construed as nullifying or contravening in any manner the provisions of section three hundred and twenty-b of the highway law with respect to the final approval of the state superintendent of high- ways. 3. Such county or regional planning board shall also through its Collection and distribution of planning own staff or such agencies as it may designate, collect and distribute in- information formation relative to metropolitan, regional and community planning and zoning in such county or counties, or the area of the participating muni- cipalities and the exercise of such powers is hereby declared to be for a public purpose and all moneys expended for such purposes are declared to be for municipal use. Research into business and industrial 4. Such planning board may conduct researches into business and conditions industrial conditions in the county and the municipal subdivisions thereof and may seek to cooperate with official and unofficial bodies organized for such purposes. Recommendation of comprehensive zon- 5. Such planning board may recommend to the governing bodies ing plan to municipalities of the several cities, villages and towns whose jurisdictions are served by the regional or county planning board a comprehensive zoning plan which shall designate suitable areas to be zoned for residential, com- mercial and industrial uses, taking into consideration, but not limited to, such factors as existing and projected highways, parks, parkways, public works, public utilities, public transportation facilities, population trends, topography and geologic structure. Annual report 6. Every such metropolitan, county or regional planning board shall 94 make a report to the board of supervisors or the governing bodies of the constituent municipalities on or before January first of each year. Designation of county or regional sub- 7. Any such county or regional planning board may designate one division control areas outside of cities or more areas of the county or region, outside the limits of any in- and villages corporated village or city or any area beyond such limits over which a city exercises powers of plat approval, as a county or regional subdivision control area or areas. In order to exercise the power authorized by this Adoption of regulations for subdivision paragraph, such planning board shall adopt regulations for the subdivision within such area of lands within such areas, which regulations shall be in accord with the requirements set forth in section two hundred seventy-seven of the town law. Upon approval by the board of supervisors of a county, such regula- tions shall become effective and shall be enforced within the subdivision Not applicable in towns without con- control area of such county; provided, however, that such regulations sent of town board shall not apply, except pursuant to a resolution of the town board con- senting thereto, in any town where there is a town planning board in existence or which is subsequently create& pursuant to the provisions of section two hundred seventy-one of the town law, with given power to ap- prove subdivision plats pursuant to the provisions of section two hundred seventy-six of the town law, and which has adopted subdivision regula- tions approved by the town board. A certified copy of such consenting Filing of resolution resolution shall be filed in the office of the county clerk and a copy thereof transmitted to the board of supervisors and to the county or Definition of "subdivision" regional planning board. For the purposes of this section, the term "sub- division" shall mean the division of any parcel of land into two or more lots, blocks or sites, with or without streets or highways. Upon the ap- proval by the board of supervisors of the subdivision regulations sub- mitted by the county or regional planning board, which approval shall include the approval of a majority of the town supervisors voting there- Filing of subdivision regulations with on, the clerk of such board of supervisors shall forthwith file a certified county clerk copy of the resolution approving such regulations in the office of the clerk of the county. Thereafter no subdivision map of any land which Effect of filing is subject to such control and regulations shall be filed or recorded in the office of the county clerk unless it shall have been approved by said county or regional planning board. The county or regional planning board shall act in relation to such subdivision maps in the same manner and in Action by planning board to conform to conformity with the provisions imposed upon a town planning board town law provi .st.ons pursuant to the provisions of sections two hundred seventy-six, two hundred seventy-seven, and two hundred seventy-eight of the town law, Public hearings provided that public hearings shall be held within the town in which the proposed subdivision is located. The common council of any city or the board of trustees of any village or town wholly or partially situated with- in any county or region for which a county or regional planning board has been established, may assign to such planning board the authority herein set forth in relation to subdivisions within or adjacent to such city, village or town, in the same manner and with the same force and effect Assignment by cities and villages of as though such authority has been assigned to a duly established city, subdivision control powers village or town planning agency. After acceptance in writing such county or regional planning board shall exercise the authority so vested in it and shall continue to do so until terminated by the local governing body or Approval of subdivision map not ac- in writing by the county or regional planning board. The approval of a ceptance of dedication 95 subdivision map by the county or regional planning board shall not be deemed to be the acceptance by any town, city or village of a dedication of or responsibility for any street, highway, park, area, facility or pro- grain shown on such map. 8. The planning board of any county with the approval of the Furnishing of services to municipalities board of supervisors is hereby authorized and empowered to furnish to communities within the county, its services when such services are re- quested by the municipality. The board of supervisors shall establish the charges to be made for the services furnished under the provisions of this subdivision. 9. In furtherance of the purposes of this article, such county, Acceptance by planning boards of grants metropolitan or regional planning board may receive and expend grants from private foundations or agencies and may apply for and accept grants from the federal government or the state government and enter into contracts for and agree to accept such grants, donations or subsidies in accordance with such reasonable conditions and requirements as may be imposed thereon. Notes: - For provisions imposed upon town planning board re sub- - A county planning board may hire experts for the purpose division control, see Town Law, Secs. 276, 277, 278. of drafting maps (13 Op. St. Compt. 190). � 239-e. Planning associations or federations Association of cities, towns and villages In any county or counties the cities, towns and villages may as- sociate themselves together in a federation to promote community or Purposes intercommunity planning within or by such municipalities, to provide for the collection and distribution of information on planning, platting and zoning matters and kindred subjects to co-operate with appropriate state and county authorities in matters affecting the master plan of such county and the county plan. � 239-f. Money for maintaining a planning federation of munici- palities within a county or counties and any of its activities The common council of a city, the board of trustees of a village, the town board of a town, or the board of supervisors of a county is hereby Authorization to appropriate money, to authorized to include annually in the budget and raise by taxation in be raised by taxation such city, village, town or county a sum to meet the actual and necessary expenses of establishing, maintaining and continuing a federation of municipalities within a county or counties and any of its activities in Purposes of planning federation this state for the purpose of devising practical ways and means for ob- 96 taining greater economy and efficiency in the design, layout and develop- ment of such city, town, village or county or for promoting the public health, safety, morals and general welfare by means of local and inter- community planning, platting and zoning activities, or for establishing and maintaining information and bulletin services with relation to such above enumerated and similar purposes. Notes: expenses of maintaining a planning f .ederation in such county A county is authorized to appropriate money to meet the (11 Op. St. Compt. 19 1). � 239-g. County official map, declaration of legislative policy and intent Intent of sections authorizing county It is the general purpose of sections two hundred thirty-nine-g to official maps two hundred thirty-nine-k inclusive to enable counties to utilize certain regulatory powers which are essential for the purpose of providing for orderly growth and development, for affording adequate facilities for Purposes the safe, convenient, and efficient means for the traffic circulation of its population. and the vehicular movement of goods, for safeguarding the public against flood damage, and for providing needed space for public development. Such purposes are declared to be in promotion of the safety, convenience, and general welfare of the community. In order to facilitate the planning and development of roads and drainage systems and sites for public development, provision is hereby Adoption by counties of official maps made for the adoption by counties of official maps, analogous in func- tion and operation to municipal official maps, which will assist in the Purpose of official map protection of rights-of-way that will be needed for widened, realigned or new roads and which will protect drainage systems from encroach- ment or from excessive runoff, and sites for public development and for the adoption and administration of regulations for the control of develop- ment located along or otherwise related to roads, drainage channels and sites for public development. Note: For a discussion of official maps, see Bibliography Item 4. � 239-h. County official map, establishment May be established by board of super- The county board of supervisors may establish an official map cover- visors ing the entire county, or selected portions thereof, showing existing and proposed rights-of-way for county roads as established pursuant to article six of the highway law; and drainage systems; provided, how- ever, that in counties where the county or regional planning board has prepared and adopted a comprehensive master plan, there may also be 97 Co n ten ts included in the official map rights-of-way required for any proposed transportation network, whether to be constructed under county, state or federal authority, and sites for any proposed county, state or fed- eral development facilities, including parks, drainage and water courses, and public buildings, whether such development facilities require ac- quisition of fee or less than fee interests in land. Provided, however, No state or federal facility to be shown no state or federal development facility shall be included, changed or without appro pal deleted in the official map until receipt of written approval by the appropriate state or federal agency. Effect of official map Such map shall be final and conclusive with respect to the loca- tion, width and dimensions of all rights-of-way and sites as shown Definition of "county planning board" thereon. The term county planning board as used in sections two hundred thirty-nine-g through two hundred thirty-nine-k shall mean any county planning board, commission, department or agency. Note: - See note under See. 239-g. � 239-i. County official map, changes May be changed by board of super- The county board of supervisors is authorized and empowered, when- visors ever and as often as it may deem it in the public interest, to add new elements and change or delete existing elements on the official map Notice and hearing of the county. A public hearing shall be held on any proposed action with reference to any such change in the official map. At least ten days' notice of such public hearing shall be published in a newspaper of general circulation in the county and, in the case of each municipality affected by such proposed action, in a newspaper of general circulation in such municipality. Notice shall-also be given to the appropriate state or federal agency for the development facilities affected. Before making Referral to county or regional planning any such addition or change, the county board of supervisors shall refer board and county superintendent of the matter to the county or regional planning board, if any, and to the highways for report county superintendent of highways or commissioner of transportation for report thereon within thirty days of such reference. The county board of supervisors shall also refer the matter at the same time to the Referral to governing body of muni- governing body and to the planning board or commission of each of cipalities the municipalities affected, which may report thereon to the county board of supervisors and to the county or regional planning board, If the governing body of a municipality affected by such change or addi- Effect of disapproval by municipality tion shall by resolution disapprove of such change or addition to the county official map, then the county board of supervisors may not so change the official map except by a two-thirds vote of said board, except that in counties where the county or regional planning board has adopted a comprehensive master plan the county board of supervisors may change the official map by a majority vote notwithstanding such municipal disapproval so long as the change is in accordance with the comprehensive master plan. The county official map, together with 98 N such changes and additions as may be authorized pursuant to the pro- Effect on municipal official maps visions of this section, shall be deemed to be in addition to or change of the official map of any municipality affected. If any such munici- pality shall not have an official map, then the county official map as it affects. such municipality shall be considered to be the official map of such municipality and all the provisions of law applying to municipal official maps shall be applicable in the case of county official maps Certified copies to be sent to affected where they affect municipalities. Certified copies of such county offi- municipalities cial maps, and all amendments thereto, shall be sent to each affected municipality and appropriate state and federal agency affected, within ten days of the date of adoption. For the purposes of this section, the word municipality shall refer to a city, a village, or to a town with respect to the unincorporated portions thereof. The adoption of such a Not to supersede highway maps map shall in no way supersede or otherwise substitute for highway maps or procedures adopted pursuant to the state highway law. Note: See note under Sec. 239-g. � 239-j. Permits for buildings in rights-of-way or sites preserved by the off icial map Purpose For the purpose of preserving the integrity of such official map, no permit shall hereafter be issued for any building in any right-ofway or site, shown or laid out on such map, provided, however, that if the land within such right-of-way or site is not yielding a fair return on its value to 4he owner, the board of appeals, or other similar board, in any municipality which has established such a board having power to Authority to vary terms of section make variances or exceptions in zoning regulations, shall have power under certain circumstances, and to im- in a specific case by the vote of two-thirds of its members to grant pose conditions a permit for a building in such right-of-way or site which will as little as practicable increase the cost of acquiring such right-of-way or site or tend to cause change of such official map, and such board may im- pose reasonable requirements as a condition of granting such permit, which requirements shall inure to the benefit of the county and of the municipality affected. In the case of municipalities which do not have zoning regulations or a board of appeals, for the purposes of this sec- tion such board may nevertheless be established in a manner elsewhere prescribed by law. Before taking any action authorized in this sec- Notice, hearing, publication tion, the board of appeals or similar board shall give a hearing at which parties in interest, which for the purposes of this section shall include the county, and others shall have an opportunity to be heard. At least ten days' notice of the time and place of such hearing shall be published Notice to superintendent of highways, in a newspaper of general circulation in such municipality, and ten days' clerk of board of supervisors and county notice of such hearing shall also be given to the county by a registered planning board letter to the superintendent of highways or commissioner of public works, to the clerk of the board of supervisors of such county, and to 99 the county planning board if any, and appropriate state and federal Review agency affected. Any such decision shall be subject to review by the supreme court by a proceeding under article seventy-eight of the civil practice law and rules in the same manner and pursuant to the same provisions as in appeals from the decisions of such board upon zoning regulations. � 239-k. Regulations for control of development No building permit to he issued when No building permit shall be issued or approved by any municipality proposed building is related to right-of- when such proposed building shall have frontage on, access to, or be way shown on official map, except as provided otherwise directly related to any existing or proposed right-of-way or site shown on the county official map, except in accord with the fol- lowing procedures. Upon receipt of application for such building per- mit, the municipal building inspector or other authorized municipal Pro cedure for building permit: official shall notify the county planning board and the county super- a) Notification ofcounty planning board intendent of highways or commissioner of public works. The county and superintendent of highways superintendent of highways or commissioner of public works shall notify b) Notification of state orfederal agency appropriate state or federal agency affected. Such state and federal affected C) Report of superintendent of high- agency may file their objections within five days. Within ten days ways - matters to be considered of receipt of such notification, the county superintendent or commis- sioner shall report to the municipality on his approval or disapproval, or on his approval subject to stated conditions, of the application for a building permit insofar as such building, including curb cuts or other means of access, may be related to any existing or proposed right-of- way or site shown on the county official map. In making such report, the county superintendent of highways or commissioner of public works may consult with the county planning board, if any, and shall take into consideration the prospective character of the development, any appro- priate access standards or non-access or limited access provisions of state and federal agencies, the traffic which it will generate, and the effect of said traffic upon existing or proposed rights-of-way or sites shown on the county official map. He shall also consider the design and frequency of access, the effect of this development upon drainage as related to drainage systems, and the extent to which such develop- ment may impair the safety and traffic carrying capacity of existing Effect of failure to report and proposed rights-of-way affected. If the superintendent or com- missioner shall not make his report within ten days of such reference, the county shall forfeit the right further to suspend action. The subsequent issuance of a building permit shall be in accord and con- sistent with such report, provided that the board of appeals, or other Variance procedure similar body, may vary the requirements of such report by a two-thirds vote of all the members where there are practical difficulties or unneces- sary hardships in the way of carrying out the strict letter of such report. The provisions of section two hundred thirty-nine-j relative to notifica- tion and hearing shall prevail. The superintendent or commissioner Promulgation of rules and regulations in cooperation with the county planning board, if any, shall promulgate rules and regulations governing the approval of building permits and curb 100 cuts relating to elements @contajned in the county official map, in- cluding provision for direct application to him by prospective build- ers or by persons desiring to secure access to existing or proposed rights- of-way, or alter existing means of access. Any approval of such ap- plication shall be subject to all the provision of law pertaining in the municipality affected. No subdivision plat to be approved No subdivision plat shall be approved by any municipality when such when proposed structures or right-f- proposed structures or proposed new streets shall have frontage on, way shown on official map access to, or be otherwise directly related to any existing or proposed right-of-way or site shown on the county official map, except in accord with the following procedures. Upon receipt of application for approval Procedure for approval: of such subdivision plat, the clerk of the municipal planning board, or a) Notification ofcounty planning board the clerk of the municipality if there be no municipal planning board, and county superintendent of high- shall so notify the county planning board, if any, and the county super- ways intendent of highways or commissioner of public works. The county b) Notification of state or federal agency affected superintendent of highways or commissioner of public works shall notify c) Report of county planning board - appropriate state or federal agency affected. Within thirty days of matters to be considered receipt of such notification, the county planning board shall report to the municipality on its approval or disapproval, or on its approval sub- ject to stated conditions, of the proposed subdivision plat, insofar as the proposed structures or new streets may be related to any existing or proposed right-of-way or site as shown on the county official map. In making such report, the county planning board shall take into con- sideration the prospective character of the development, any appro- priate ac cess standards of state and federal agencies, the traffic which it will generate, the effect of said traffic upon existing or proposed rights-of-way and sites as shown by the official map, the design and frequency of access, the effect of this development upon drainage as related to drainage systems, and the extent to which such development may impair the safety and traffic carrying capacity of the existing and proposed rights-of-way affected. The plat may be approved by the municipality subject to stated conditions, notwithstanding such report, Two-thirds vote for approval subject to by a two-thirds vote of all the members, when the application of such conditions in certain circumstances report will act to deprive the owner of the reasonable use of his land. Note: The whole tenor of this section anticipates a reaction by a division plat filed with it for approval. Notice is to be planning commission or department of public works be-. given upon receipt of an application (Matter of Connecticut fore a local planning board acts with finality as to a sub- River Estates vs. Luchsinger, 52 Misc. 2d. 620). i 239- 1 Coordination of certain municipal zoning and planning ac- tions; legislative policy and intent Legislative intent; review by county or It is hereby declared that it is in the public interest that certain class- regional planning board of certain pro- es of zoning and planning actions by a city, town or village, as proposed posed planning and zoning actions by the agencies thereof having jurisdiction, be reviewed by the county planning agency for the county in which such municipality is located or, in the absence of such a county planning agency, by the metropoli- 101 tan or regional planning agency, if any, established pursuant to law for the territory in which such municipality is located, as an aid in co- ordinating such zoning actions and planning among municipalities by bringing pertinent inter-community and county-wide considerations to the attention of the aforesaid municipal agencies having jurisdiction. Considerations It is the intention of this act that such considerations shall include: compatibility of various land uses with one another; traffic genera- ting characteristics of various land uses in relation to the effect of such traffic on other land uses and to the adequacy of existing and proposed thoroughfare facilities; impact of proposed land uses on existing and proposed county or state institutional or other uses; protection of com- munity character as regards predominant land uses, population density, and relation between residential and nonresidential areas; community appearance; drainage; community facilities; official development poli- cies, municipal and county, as may be expressed through comprehensive plans, capital programs, or regulatory measures; and such other mat- ters as may relate to the public convenience, to governmental efficiency, and to the achieving and maintaining of a satisfactory community en- Application of section vironment. This section shall apply to municipal zoning and planning actions including those proposed zoning actions to be submitted to com- ty, metropolitan or regional planning agencies in accordance with pro- visions of section two hundred thirty-nine-m of this chapter, and to subdivision plats to be submitted to county planning agencies in ac- cordance with provisions of section two hundred thirty-nine-n of this chapter. � 239-m. Notice of certain proposed municipal zoning actions to be submitted to county, metropolitan or regional planning agency; report thereon; final action In any city, town or village which is located in a county which has a county planning board, commission or other agency, hereinafter referred to as a county planning agency, or, in the absence of a county planning ag ency, which is within the jurisdiction of a metropolitan or regional planning commission, board or other agency, duly created pursuant to the provisions of law, hereinafter referred to as a metropolitan or regional planning agency, each municipal body which has jurisdiction to adopt or amend zoning regulations, or to issue special permits or grant variances pursuant to such regulations, shall, before taking final action on certain Referral by municipal body of certain of such matters, refer the same to such county, metropolitan or regional zoning actions to county, metropolitan planning agency. The term "special permit" shall be deemed to include or regional planning agency any special permit, use permit, exception, or other special authorization which a board of appeals, planning board or legislative body is authorized to issue under the provisions of any zoning ordinance. Matters subject to review The matters covered by this section shall include: (a) any municipal zoning regulation, or any amendment thereof, which would change the, district classification of or the regulations applying to real property 102 lying within a distance of five hundred feet from the boundary of any city, village, or town, or from the boundary of any existing or proposed county or state park or other recreation area, of from the right-of-way of any existing or proposed county or state parkway, thruway, express- way, road or highway, or from the existing or proposed right-of-way of any steam or drainage channel owned by the county or for which the county has established channel lines, or from the existing orproposed boundary of any county or state owned land on which a public building or institution is sitilated; and (b) any special permit or variance affect- ing such real property within such distance of five hundred feet. The Definition of "proposed" term "proposed" shall be deemed to include only those recreation areas, parkways, thruways, expressways, roads or highways which are shown on a county plan adopted pursuant to subdivision two of section two hundred thirty-nine-d of the general municipal law or adopted on an official map pursu ant to section two hundred thirty-nine-g of such law. Within thirty days after receipt of a full statement of suc 'h referred matter, the county, metropolitan or regional planning agency to which referral is made, or an authorized agent of said agency, shall report its Recommendation of planning agency recommendations thereon to the referring municipal agency, accom- panied by a full statement of the reasons for such recommendations. If Failure to make recommendation with- such planning agency fails to report within such period of thirty days or in 30 days such longer period as may have been agreed upon by it and the referring agency, the municipal body having jurisdiction to act may do so without such report. If such planning agency disapproves the proposal, or recommends modification thereof, the municipal agency having jurisdic- tion shall not act contrary to such disapproval or recommendation except Majority plus one vote needed in event by a vote of a majority plus one of all the members thereof and after of disapproval the adoption of a resolution fully setting forth the reasons for such contrary action. Within seven days after final action by the municipal agency having jurisdiction on the recommendations, modifications or disapproval of a Report of final action referred matter, such municipal agency shall file a report of the final action it has taken with the county, metropolitan or regional planning agency which had made the recommendations, modifications or disap- proval. Notes: - Provisions of this section requiring a town board of zoning town Or village without repeating it in the General City appeals to refer an application for a variance affecting real Law, the Town Law and the Village Law (Weinstein vs. property, located within 500 feet of certain boundaries to Nicosia, 32 Misc. 2d. 246, affd. 18 A.D. 2d. 881). the county pianning agency are mandatory and failure to do - This legislative mandate imposed on municipal zoning boards so is jurisdictional, and any action by such board without of appeal is jurisdictional; it is a condition precedent to the such referral is nugatory, even though the vote thereon is acquiring of jurisdiction by such boards; unless complied unanimous (1967 Atty. Gen 127). with, these boards are powerless to act (Weinstein vs. Nicosia, - This section was written generally so as to apply to a city, above). 103 � 239-n. Notice of certain subdivision plats to be submitted to county planning agency; report thereon; final action The planning board of any county when authorized by the county leg- Review of subdivision plats by county islative body is hereby authorized to review certain subdivision plats planning board when authorized by as covered by this section, and to adopt such rules and regulations as county legislative body are necessary to perform such function. In any city, town or village which is located in a county which has es- tablished a county planning board, commission or other agency, herein- after referred to as a county planning agency, each municipal agency authorized by a municipal legislative body to approve plats showing lots, blocks, or sites, with or without streets or highways, or the develop- ment of plats entirely or partly undeveloped and which have been filed in the office of the clerk of the county in which such plat is located prior to the appointment of such planning board and the grant to such Referral by municipal agency of certain board of the power to approve plats shall refer certain of such plats to plats to county plann .ing agency the county planning agency for comment if such county planning agency has been authorized by the county legislative body to review such plats, as provided herein. Plats included in section The plats covered by this section shall include plats of real property lying within a distance of five hundred feet from the boundary of any city, village, or town, or from the boundary of any existing or proposed county or state park or other recreation area, or from the right-of-way of any existing or proposed county or state parkway, thruway, express- way, road or highway, or from the existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines, or Trom the existing or proposed boundary of any county or state owned land on which a public building Definition of "proposed" or institution is situated. The term "proposed" shall be deemed to in- clude only those recreation areas, parkways, thruways, expressways, roads or higliways which are shown on a- county plan adopted pursuant to subdivision two of section two hundred thirty-nine-d of the general municipal law or adopted on an official map pursuant to section two hundred thirty-nine-g of such law. Referral of application by municipal The clerk of the municipal planning agency, shall upon receipt of clerk application for final approval of such subdivision plat shall so notify the county planning agency. Within thirty days of the receipt of such Report of county planning agency notification the county planning board shall report to the municipality on its approval, disapproval, or on its approval subject to stated condi- tions of the subdivision plat. The county planning agency in making such report shall consider county wide effects of the proposed subdivi- sion, with respect to considerations stated in section two hundred thirty- nine-1 of this chapter. If the county planning agency disapproves, or recommends modification of such a proposed subdivision plat, the mu- nicipal agency having jurisdiction, shall not act contrary to such dis- Majority plus one vote needed in event approval or recommendation of modification except by a vote of a ma- of disapproval iority plus one of all the members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary action. 104 MISCELLANEOUS STATUTES 105 Public Health Law; Article 11, Title 11 � 1115. Realty subdivisions; definitions As used in sections one thousand one hundred fifteen to one thousand one hundred eighteen of this chapter, inclusive, the word Definition of "subdivision" - tract of subdivision" shall mean any tract of land which is hereafter divided land divided into five or more parcels into five or mote parcels along an existing or proposed street, highway, easement or right-of-way for sale or for rent as residential lots or residential building plots, regardless of whether the lots of plots to be sold or offered for sale, or leased for any period of time, are described by metes and bounds or by reference to a map or survey of the property or by any other method of description. Notes: - Since "subdivision" is defined in sec. 1115 as, a tract of - For a discussion of subdivision regulation enforcement, see land divided into five or more parcels for residential purposes Bibliography Item 14. along a street or right-of-way, Sec. 1116 would have no appli- cation to a plot of land subdivided into less than five par- cels (11 Op. St. Compt. 181). � 11 15-a. Remedy for purchaser of one parcel of unapproved realty subdivision Application for Health Department ap- 1. The owner of a parcel of land acquired as one parcel for resi- proval of single parcel dential purposes may apply to the local or state health department having jurisdiction for a certificate approving the water supply for said parcel as adequate and satisfactory. The application shall include the description of the parcel as specified in the instrument, by which owner acquired title. Standards 2. The proper department shall entertain said application and issue said certificate providing that the water supply shall, in the opinion of such department, be adequate in quality and potable and unobjection- able in physical and chemical quality and not be or become so Polluted or subject to such pollution as to constitute a menace or potential menace to the public health or the health of persons using or who may use the water thereby supplied. 106 Cer tifica te of approval 3. The certificate approving the water supply for said parcel shall contain the name of the owner-applicant and the description of the property set forth in the application. The owner shall append the certificate of approval to a verified petition directed to the county clerk of the county wherein the property is located, pray- ing that the petition and certificate of approval annexed be recorded and indexed against the owner-petitioner. 4. The county clerk upon receiving the petition with annexed cer- tificate of approval, and upon tender of the lawful recording fees, shall record the same in his office and index it against the owner- Recording petitioner. The recording of the petition with annexed 6ertificate of approval shall be deemed compliance with section eleven hundred sixteen of this title, for the parcel described. Application single, residential lot ac- 5. This section shall apply only to a single residential lot which was quired without compliance with article acquired without having complied with the provisions of former section eighty-nine of the public health law or section eleven hundred sixteen of this title but was: (a) acquired by the owner-applicant prior to January first, nineteen hundred seventy-one; or (b) acquired by the owner-applicant through devise or intestate succession; or (c) not at the time of acquisition of title by the owner-applicant, a part of a subdivision, as such term is defined in section eleven hundred fifteen of this title. In addition, this section shall apply to a single residential lot which the appropriate department deems proper for approval because of hardship or other special circumstances established to its satisfaction by the owner- applicant. � 1116. Realty subdivisions: Plans required to be f iled and approved I , No subdivision or portion thereof shall be sold, Offered for sale, leased or rented by any corporation, company or person, and no perma- nent building @hall be erected thereon, until a plan or map of such sub- division shall be filed with and approved by the department or city, Map or plan of subdivision must be county, or part-county department of health having jurisdiction and in the approved by appropriate health depart- county of Suffolk until a plan or map shall have been also filed with and ment and recorded in county clerk's approved by the county department of environmental control, and office such plan or map thereaft Ier filed in the office of the clerk of the county in which such subdivision is located. Contents of map or plan 2. Such plan or map shall show methods for obtaining and furnishing adequate and satisfactory water supply to said subdivision. Installation of facilities 3. The installation of such facilities shall be in accordance with the plans or any revision or revisions thereof approved by the department or Notes: city, county or part-county department of health having jurisdiction. - A subdivider whose plat contains five or more lots must ob- - Where only a single building lot has been sold from a larger tain prior approval of the State Department of Health (or tract, a building permit may not be refused on the ground city, county or part county health department having juris- that the subdivision requirements of this section have not diction) before proceeding to develop his property (20 Op. been complied with (13 Op. St. Comp. 48). St. Compt. 44). 107 � 1117. Realty subdivisions; duty of county clerk or register in respect to filing of plans and map No subdivision map or plat to be ftled or The county clerk or register shall not file nor record nor accept for recorded unless water supply approved filing or recording any map or plat showing a subdivision of land in any town, village or city having a population of less than one million unless there is endorsed thereon or annexed thereto a certificate of the department or city, county or part-county department of health having jurisdiction and in Suffolk County, unless there is also endorsed thereon or annexed thereto a certificate of the county department of environmental control approving the water supply system proposed or installed for such subdivision and consenting to the filing thereof. � 1118. Realty subdivisions; local regulations Power of certain counties and cities to 1. Any city or county which has established or establishes a city, adopt regulations county or part-county department of health may adopt regulations for the control of such developments. Regulations adopted by a county or city board of health may include, but not be limited to, establishment of such requirements as it may deem necessary to guarantee the installation of such water supply in accordance with the plans heretofore or herein- after approved by the county or city department of health or any approved revision or revisions thereof. Section not to impair powers of Water 2. Nothing contained in sections one thousand one hundred fifteen Resources Commission to one thousand one hundred eighteen of this chapter, inclusive, shall be construed to delegate the general powers of the department of environ- mental conservation nor to impair nor to deprive such department of its powers and functions as now provided by law. � 1119 Realty subdivisions; filing fees to accompany plans Filing fee 1 . At the time of submitting a plan for approval as required by this article, a filing fee computed at the rate of one dollar and seventy-five cents per lot shall be paid to the department or to the city, county or part-county health district wherein such plans are filed. No review until fee is paid 2. The department, or the city, county or part-county health dis- trict, shall not review or approve any such subdivision map submitted for approval after this section takes effect until such fee, as herein pro- vided, has been received by it. Return of plan upon disapproval 3. If any plan submitted to the department, or to a city, county or part-county health district, cannot be approved, such plan shall be returned to the person who submitted the plan with a summary of the reasons for disapproval. 108 4. Notwithstanding any other provision of this title the com- rnissioner of health is empowered to make administrative arrangements with the commissioner of environmental conservation for joint or cooper- ative administration of this title and title fifteen of article seventeen of the environmental conservation law, such that only one plan must be filed and only one fee totaling three dollars and fifty cents per lot must be paid. � 1120. Realty subdivisions; regulation by commissioner The commissioner may from time to time establish by rule or regu- lation standards for subdivisions necessary to effect the purposes of this title and not inconsistent with regulations of a city, county or part- county department of health having jurisdiction, now or hereafter adopt- ed pursuant to law. In the event of and to the extent of such incon- sistency, the standards established by the commissioners shall be deemed inapplicable. Real Property Law; Article 9 � 334. Maps to be filed; penalty for nonfiling Map of subdivided property must be It shall be the duty of every person or corporation who, as owner filed in county clerk's office or agent. subdivides real property into lots, plots, blocks or sites, with or without streets, for the purpose of offering such lots, plots, blocks or sites for sale to the public, to cause a map thereof, together with a certificate of the licensed land surveyor attached showing the date of completion of the survey and of the making of the map and the name of the subdivision as stated by the owner, to be filed in the office of the county clerk or, in any county having a register of deeds, in the office of the register of deeds, of the county where the property is situated prior to the offering of any such lots, plots, blocks or sites for sale; and a duplicate copy of such map shall also be filed in the office of the city, town or village clerk, where the property is situated, and, if situated in a county maintaining a tax map department, a copy shall also be filed Map specifications with such department, before -any such sale. All such maps must be print- ed upon linen or canvas-backed paper or drawn with a pen and India ink upon tracing cloth, and must be a minimum of eight and one half inches by eleven inches, and a maximum of thirty-four inches by forty- .four inches in size, except that in the countie@ of Westchester, Putnam, Rockland, Clinton and Dutches all maps presented for filing must be printed or drawn with pen and ink upon tracing cloth; except that in the county of Saratoga, all maps presented for filing in the office of the 109 county clerk must be printed or drawn with pen and India ink.upon trans- parent tracing cloth or polyester film or be photographic copies on trans- parent tracing cloth or polyester film and further, that such maps to be filed in the county of Saratoga be not less than eight and one-half inches by fourteen inches nor more than thirty inches by forty-two inches in size and in the county of Clinton must be either twenty inches by twenty inches or twenty inches by forty inches in size, and in the county of Putnam must be not less than twenty inches by twenty inches and not more than thirty-six inches by forty- eight inches in size, and in the counties of Westchester and Dutchess must be thirty-six inches by forty-eight inches or less in size. Every such subdivision map of property, inthe towns of Tonawanda, Provisions respecting certain towns in Evans, West Senaca, Cheektowaga, Amherst, Lancaster, Grand Island, Erie County Aurora, Concord, Collins, Alden, Newstead, Clarence, Elina, Orchard Park and Hamburg, Erie county, located wholly or partly outside an incorporated village, shall before the filing thereof as herein provided, have attached thereto in writing, the approval of the town board of such town, and every such map'of property located wholly or partly in an incorporated village in such town, shall, if located wholly within the village have attached the approval of the board o*f trustees of the village, and if located partly within a village and partly within one of such towns, have attached the approval of both the town board of the town and the board of trustees of the village. Every such map of subdivided land in Special provisions affecting counties of the counties of Erie, Monroe and Broome, whether intended as an Erie, Monroe and Broome original subdivision or as an alteration of a prior subdivision in such county, shall have annexed thereto at the time such map is offered to be filed the certificate of the county treasurer or of an abstract and title company stating fhat all taxes which are a lien prior to the time such original or subsequent map is offered to be filed, whether assessed against the entire tract of land or against any lot or'other part of such land, have been paid, and the county clerk of any such county shall not file any such map without such certificate. All of such maps shall be placed and kept, by some suitable method, in consecutive order and shall be consecutively numbered in the order of their filing and shall be indexed under the initial letters of all substantives in the title of the subdivision. A Penalty failure to file any such map as required by the provisions of this section shall subject the owner of such subdivision, or of the unsold lots therein, to a penalty to the people of the state of twenty-five dollars for each and every lot therein sold and conveyed by or for such owner prior to the due filing of such map. Notes: - This section requires the filing of a map in the office of the been subdivided into lots for the purpose of offering such county clerk before a subdivider may commence the salf lots for sale to the public (1969 Atty. Gen 98). of lots in his subdivision (20 Op. St. Compt. 44). A failure to comply with this section when required is sub- - Compliance with this section is not required when an indivi- ject to an action to recover a penalty brought by the At- dual or corporation sells a portion of land which land had not torney General or district attorney of the county wherein the action is triable (1961 Atty. Gen. 98). 110 General Municipal Law � 96-a. Protection of historical places, buildings and works of art. In addition to any power or authority of a municipal corporation to regulate by planning or zoning laws and regulations or by local laws and regulations, the governing board or local legislative body of any county, city, town or village is empowered to provide by regulations, special conditions ar@d restrictions for the protection, en- hancement, perpetuation and use of places, districts, sites, buildings, structures, works of art, and other objects having a special character or special historical or aesthetic interest or value. Suth regulations, special conditions and restrictions may include appropriate and reasonable con- trol of the use or appearance of neighboring private property within public view, or both. In any such instance such measures, if adopted in the exercise of the police power, shall be reasonable and appropriate to the purpose, or if constituting a taking of private property shall. pro- vide for due compensation, which may include the limitation or remission of taxes. � 99-g. Capital program Authority to undertake program 1. Any municipal corporation, by resolution or ordinance of the governing board, may undertake the planning and execution of a capital program in accordance with the provisions of this section. Definition of capital program 2. A capital program shall be a plan of capital projects proposed to be undertaken during a six-year period, the estimated cost thereof and the proposed method of financing. 3. The officer charged with the preparation of the tentative budget shall annually cause the capital program to be prepared, and shall submit it to the governing board with the tentative budget. It shall be ar- ranged in such manner as to indicate the order of priority of each pro- Contents ject, and to state for each project: (a) a description of the proposed project and the estimated total cost thereof; (b) the proposed method of financing, indicating the amount pro- posed to be financed by direct budgetary appropriation or duly estab- lished reserve fund; the amount, if any, estimated to be received from the federal and/or state governments; and the amount to be financed by the issuance of obligations, showing the proposed type or types of obligations, together with the period of probable usefulness for which they are proposed to be issued; (c) an estimate of the effect, if any, upon operating costs of the municipal corporation within each of the three fiscal years following completion of the project. Tentative budget 4. The tentative budget shall include the amount proposed for the capital program to be financed by direct budgetary appropriation during the fiscal year to which such tentative budget pertains. Budget message 5. There shall be included in the budget message, if any, a general summary of the financial requirements for the capital program for the fiscal year to which the budget message relates. Additional comments and recommendations of any other board, officer or agency may also be included in the budget message. Annual adoption 6. The governing board shall annually adopt the capital program after review and revisions, if any. The provisions of any law relating to a public hearing on the tentative budget, and to the adoption of the budget, shall apply to the capital program. 7. At any time during the fiscal year for which the capital program was adopted, the governing board by the affirmative vote of two-thirds of Amendment its total membership, may amend the capital program by adding, modi- fying or abandoning the projects, or by modifying the methods of financing. No capital project shall be authorized or undertaken unless it is included in the capital program as adopted or amended. Definition of capital project 8. The term "capital project" as used in this section shall mean: (a) any physical betterment or improvements, including furnishings, machinery, apparatus or equipment for such physical betterment or improvement when first constructed or acquired, or (b) any preliminary studies and surveys relating to any physical betterment or improve- ment, or (c) land or rights in land, or (d) any combination of (a), (b) and (c)., 9. Nothing in this section shall be construed to authorize a municipal corporation to incur indebedness for which obligations may be issued except as provided by the local finance law. � 247. Acquisition of open spaces and areas Definitions I . Definitions. For the purposes of this diapter an "open space" or open area" is any space or area characterized by (1) natural scenic beauty or, (2) whose existing openness, natural condition, or present state of use, if retained, would enhance the present or potential value of abutting or surrounding urban development, or would maintain or 112 enhance the conservation of natural or scenic resources. For purposes of this section natural resources. shall include but not be limited to agricultural lands defined as open lands actually used in bona fide agri- cultural production. 2. The acquisition of interests or rights in real property for the Public purpose preservation of open spaces and areas shall constitute a public purpose for which public funds may be expended or advanced, and any county, Acquisition notice and hearing city, town or village after due notice and a public hearing may acquire by purchase, gift, grant, bequest, devise, lease or otherwise, the fee or any lesser interest, development right, easement, covenant, or other con- tractual right necessary to achieve the purpose of this chapter, to land within such municipality. In the case of a village the cost of such Acquisition by village acquisition of interest or rights may be incurred wholly at the expense of the village, at the expense of the owners of the lands benefited thereby, or partly at the expense of such owners and partly at the expense of the village at large as a local improvement in the manner provided by article eleven-A of the village law. 3. After acquisition of any such interest pursuant to this act the Valuation valuation placed on such an open space or area for purposes of real estate taxation shall take into account and be limited by the limitation on future use of the land. Notes: Ile acquisition by a village of lands located outside the vil- A village may acquire property for open spaces by con- lage to be used for park and recreational purposes is not demnation (18 Op. St. Compt. 42 2). subject to the provisions of Sec. 247 (21 Op. St. Compt. 368). 113 CONFLICTS OF INTEREST � 809. Disclosure in certain applications Applies to application for variance, zon- 1. Every application, petition or request submitted for a variance, ing amendment, change, plat approval, amendment, change of zoning, approval of a plat, exemption from a plat permit under zoning and planning regu- lations or official map, license or permit, pursuant to the provisions of any ordi- nance, local law, rule or regulation constituting the zoning and planning regulations of a municipality shall state the name, residence and the nature and extent of the interest of any state officer or any officer or employee of such municipality or of a municipality of which such muni- cipality is a part, in the person, partnership or association making such application, petition or request (hereinafter called the applicant) to the extent known to such applicant. 2. For the purpose of this section an officer or employee shall be Parties deemed to have interest deemed to have an interest in the applicant when he, his spouse, or their brothers, sisters, parents, children, grandchildren, or the spouse of any of them (a) is the applicant, or (b) is an officer, director, partner or employee of the applicant, or (c) legally of beneficially owns or controls stock of a corporate applicant or is a member of a partnership or association applicant, or (d) is a party to an agreement with such an applicant, express or im- plied, whereby he may recieve any payment or other benefit, whether or not for services -rendered, dependent or contingent upon the favorable approval of such application, petition or request. Nassau county 3. In the county of Nassau the provisions of subdivisions one and two of this section shall also apply to a party officer. 'Tarty officer" shall mean any person holding any position or office, whether by election, appointment or otherwise, in any party as defined by subdivision four of section two of the election law. Ownership of stock 4. Ownership of less than five per cent of the stock of a corporation whose stock is listed on the New York or American Stock Exchanges shall not constitute an interest for the purposes of this section. Violation of section 5. A person who knowingly and intentionally violates this section shall be guilty of a misdemeanor. 114 Bibliography 1. Municipal Control of Underground Transmission Lines, OPS Legal Memorandum 2. Interim - Stop-gap Zoning, OPS Legal Memorandum 3. Subdivision Regulation Enforcement, OPS Legal Memorandum 4. Planning & Zoning Boards: Incompatibility of Office, Conflict of Interest, OPS Legal Memorandum 5. Zoning and the Comprehensive Plan, OPS Legal Memorandum 6. Zoning Maps in Towns and Villages, OPS Legal Memorandum 7. Regulation of Unsafe Buildings, OPS Legal Memorandum 8. Non-Conforming Uses, CIPS Legal Memorandum 9. Partial Zoning, OPS Legal Memorandum 10. Spot Zoning, OPS Legal Memorandum 11. Municipal Regulation of Mobile Homes, OPS Legal Memorandum 12. Adopting a Zoning Ordinance, OPS Legal Memorandum 13. Innovative Zoning - Cluster Design and Planned Unit Development, OPS Legal Memorandum 14. The Zoning Board of Appeals, OPS Legal Memorandum 15. The Comprehensive Plan, OPS 16. A Guide to the Comprehensive Planning Assistance Program, OPS 17. Adopting a Zoning Ordinance, OPS Planning Guide Series 18. The Open Space Subdivision, OPS Planning Guide Series 19. The Official Map, OPS 20. Control of Land Subdivision, OPS 115 OFFICE OF PLANNING SERVICES 488 Broadway, Albany, New York 12207 Telephone (518) 474-7028 DIRECTOR-RICHARD A. WIEBE DEPUTY DIRECTOR-Henry G. Williams, Jr. HEALTH PLANNING ADMINISTRATOR Edward H. Van Ness COUNSEL-Richard A. Persico ASSISTANT DIRECTORS Charles L. Crangle William W. Horne Vincent Stallone CHIEF, BUREAU OF DATA AND SYSTEMS Charles R. Guinn DISTRICT OFFICE DIRECTORS CAPITAL DISTRICT-James K. VanDervort 488 Broadway Albany, New York 12207 (518) 474-8640 CENTRAL NEW YORK-Robert C. Hansen State Tower Building 109 S. Warren Street, Room 302 Syracuse, New York 13202 (315) 474-5951 Ext. 291 METROPOLITAN NEW YORK-Howard S. Quinn 1841 Broadway, Room 711 New York, New York 10023 (212) 586-7800 WESTERN NEW YORK-Myron J Elkins Ellicott Square Building 295 Main Street Buffalo, New York 14203 (716) 842-2393 I., I COASTAL ZONE INFORMATION CENTER 90111 .11 3 6668 00002 4481 ld 4