Posted On: September 12, 2008

Planning Board May Require Recreation Fee at Time of Final Subdivision Approval

A Planning Board is not required to make a determination regarding a fee in lieu of parkland at the time of preliminary subdivision approval but may wait until it grants final subdivision approval. In the Matter of Davies Farms LLC v. Planning Board of the Town of Clarkstown, the Appellate Division Second Department found that Town Law sections 276 and 277 do not preclude a determination at the time of final subdivision approval that such a fee should be paid, even though there was no determination of recreational need at the time of preliminary subdivision approval.

Planning Boards are authorized to make a determination, under appropriate circumstances, that developers should dedicate parkland for recreational purposes or that the developer should pay a fee in lieu of dedicating parkland. The court found that the practice of the particular planning board to make such determination at the time of final approval, rather than preliminary approval, is not arbitrary and capricious. The decision was also influenced by the fact that the applicant was told prior to preliminary approval that a fee would be fixed and that the same procedure was followed for a nearby development by the same applicant.

Posted On: September 9, 2008

An Invalid Permit Cannot Confer Vested Rights

Reiterating that “vested rights cannot be acquired in reliance upon an invalid permit” the Appellate Division of the First Department upheld a determination of the New York City Board of Standards and Appeals (“BSA”) in the case In re GRA, LLC v. Srinivasan.

The petitioner owned property in the R6 district which initially permitted buildings of up to 12 stories. The neighborhood consists of mostly one and two family homes. As a result of petitioners proposed project the neighbors lobbied for a rezoning to prohibit such construction. As the court noted “a race ensued” to see whether petitioner could complete enough of the building to obtain vested rights under the existing zoning before the rezoning took effect. Initially it appeared the petitioner had won the race as it was able to complete enough of the foundation to obtain a vested right to complete the building under the old zoning.

However apparently in an effort to save time and win the race petitioner used a “Sanborn Map” stamped by his architect as accurate, as opposed to a survey as required by regulations. It turned out the map was inaccurate and as a result the foundation was placed closer to the property line than is permitted under the regulations. When the petitioner produced an actual survey this error was confirmed. The department of buildings therefore rejected the claim by petitioner of vested rights to complete the building under the old zoning based upon percentage of completion of the structure before the new zoning went into effect.

Thereafter the BSA denied the petitioner’s appeal. In upholding the BSA the court found that the department of buildings and BSA had acted properly and were not being arbitrary. It was noted they were even willing to accept the Sanborn Map, which did not comply with the regulation requiring a survey, if it could be demonstrated that the information in the Sanborn Map was in fact accurate. It was only after the Sanborn Map was demonstrated, by an actual survey, to be in accurate that the department of buildings refused to acknowledge any vested rights.

The BSA noted that it was not the filing of the Sanborn Map, instead of a survey, that was critical to the decision but “the fact that the architect filed for an erroneous street wall setback” albeit based upon the Sanborn Map. Thus, it was ultimately the setback error, not the use of the Sanborn Map, which invalidated the permit and precluded a claim of vested rights. In responding to a vigorous dissent the court stated equitable principles require noting “that Owner created the very condition leading to revocation of the permit by attesting to a Sanborn Map as accurate without verifying whether that assertion was true.”

Posted On: September 8, 2008

Legislature Modifies the Rules Governing Adverse Possession

In July, 2008 the rules governing Adverse Possession in New York were modified by Chapter 269 of the Laws of 2008. As a result of a number of judicial decisions over the last several years which added further confusion to an already complex legal concept, the Legislature obviously felt it was time to try to add some clarity to this evolving area of the law.

The amendments to several provisions of the Real Property Actions and Proceedings Law (“RPAPL”) more clearly define adverse possession (section 501) including that one may be an adverse possessor “with or without knowledge of the other’s superior ownership rights.” Sections 512 and 522 were changed by taking out the requirement that the property be cultivated or improved by the adverse possessor and instead inserting a provision that in order to claim adverse possession there must “have been acts sufficiently open to put a reasonably diligent owner on notice.”

While disagreement over what constitutes “sufficiently open” and a “reasonably diligent owner” may cause additional litigation, the amendment to section 543 of the RPAPL may provide some relief and clarity in an area that is probably the most common cause of adverse possession claims. The new provisions of section 543 state:

“1. Notwithstanding any other provision of this article, the existence of de minimus non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed permissive and non-adverse.
2. Notwithstanding any other provision of this article, the acts of lawn mowing or similar maintenance across the boundary line of an adjoining owner’s property shall be deemed permissive and non-adverse.”

It appears that at least the issue of a neighbor’s fence or shrubs encroaching slightly onto another property has been put to rest, although no doubt there will be litigation over what constitutes a de minimus encroachment.