Posted On: November 21, 2007

Site Plan Application Annulled Due to Prejudging By Planning Board Members

The Appellate Division Fourth Department reversed the granting of a site plan approval where it found that three planning board members had “impermissibly prejudged” an application. In Schweichler v. Village of Caledonia the court dismissed claims of improper spot zoning and violations of SEQRA but remitted the site plan application for further review by the planning board stating “the appearance of bias and actual bias in this case require annulment of the Planning Board’s site plan approval.”

The court noted that three members of the planning board had signed a petition in favor of rezoning the property. Further, the chair had “manifested actual bias” when she wrote to the Mayor supporting the rezoning. Her letter went so far as to state that she would like to see the new housing made available to her so she could sell her home. To further seal the fate of the application, the court found that there were no measurements provided to demonstrate compliance with the Village Code.

How to hold further hearings on an application where the court found three of the members were biased? The court noted that Village Law section 7-718 (16)(b) permits designation by the chair of alternate members and directed that an acting chair perform the duties of the chair pursuant to Village Law section 7-718 (10).

Posted On: November 19, 2007

City Attorney May Extend Time to Act Under Variance Without Zoning Board Action

The New York Court of Appeals held today in Haberman v. Zoning Board of Appeals of the City of Long Beach that the attorney representing the zoning board may extend the time to commence construction under the terms of a variance without action by the zoning board. The Court held, absent proof that the attorney had acted in violation of instructions from the zoning board there is no statutory prohibition against the attorney extending the time to begin building.

While action by a zoning board is required to grant a variance, the Court found there was no statutory requirement for a new hearing to extend the time to commence construction permitted by the variance. Therefore, where the variance required that construction commence within a specified time period, the attorney representing the board could grant an extension of time.

Posted On: November 15, 2007

Open Space Restriction on Subdivision Plat Binds Future Property Owners

In a case of first impression, the New York Court of Appeals ruled today that an open space restriction which appears solely on a subdivision map but is not otherwise recorded in land records is binding upon subsequent purchasers of the property. In O’Mara v. Town of Wappinger the Second Circuit Court of Appeals had certified the following question to the New York Court of Appeals: “Is an open space restriction imposed by a subdivision plat under New York Law §276 enforceable against a subsequent purchaser, and under what circumstances?”

The New York Court of Appeals held that such an open space restriction “when filed in the Office of the County Clerk pursuant to Real Property Law §334, is enforceable against a subsequent purchaser.” The property in question had been subdivided in 1963 and the plat had a notation indicating there was an open space restriction. It was then purchased by the Plaintiffs in 2000 at a tax sale. At the time of acquiring title, a title insurance policy was issued which did not disclose the open space restriction, which was only on the plat and not part of a separately recorded instrument. A survey was performed after purchase in order to obtain approvals for construction. Although the surveyor apparently observed the open space notation on the original subdivision plat he did not note it on the survey. Permits were issued and construction nearly completed on a house when the new building inspector discovered the open space notation and stopped work.

The Plaintiffs unsuccessfully brought a number of claims in federal court which resulted in certification of the question to the Court of Appeals. Their position was that the reservation of open space to the benefit of the Town was effectively a conveyance of an interest in real property which required recording in the County Clerk’s Office under Real Property Law §291, in the same manner as a deed. Plaintiffs argued that absent such a recording they were not, as subsequent purchasers, placed on notice and should not be bound by the restriction.

The Court of Appeals held the open space reservation was not a conveyance and therefore did not meet the criteria for requiring separate recording under §291 of the Real Property Law. It further noted the purchasers “should have searched the County Clerk’s property records until it found the subdivision plat that created its parcel.” This case should serve as a warning to title companies and purchasers of real property of the need to review all filed maps for notations that may restrict the use of the property.