Court Finds that 82 Year Old Filed Map Does Not Vest Rights to Subdivision

An attempt to circumvent planning board approval of a subdivision using a subdivision map filed in the county clerk’s office 1928 was rejected by the Appellate Division. In Matter of Atlantic Development LLC v. Town/Village of Harrison the court found that a 1923 provision of the local town code, still in effect in 1928, required town board approval for any subdivision and therefore the 1928 map, which had not received such approval, did not create a valid subdivision. The appellant had argued that the provisions of New York State Town Law section 276(2) grandfathered development of the 45 lot subdivision shown on the 1928 map. The cited provision permits continued development of a property which has at least 80% of a site developed and is shown on a subdivision map filed with the county clerk’s office prior to the appointment of a planning board by the town. Since the 1928 map predates the creation of a planning board in the Town/Village of Harrison, the appellant claimed the provisions of Town Law 276(2) applied and the property was exempt from the requirement of subdivision approval by the planning board.

In rejecting this argument, the court noted that the property was undeveloped and since 80% of the property was not improved the grandfathering provisions of Town Law section 276(2) did not apply. Further, in an interesting interpretation of the statute, the court also found that Town Law section 276(2) did not apply because in 1928 the town board was the "functional equivalent of a planning board." The court held:

“…while the 1928 Map was filed prior to the creation of the Planning Board, the 1923 Town Code, as previously noted, required Town Board approval of any subdivision plat. As of 1928, the Town Board was, for the purposes of the current version of Town Law § 276(2), also the functional equivalent of a planning board for the Town (see e.g. Matter of Russell Oaks, Inc. v Planning Bd. of Inc. Vil. of Russell Gardens, 28 AD2d 569, affd 21 NY2d 784), and the 1928 Map was filed at a time when approval was required by the functional equivalent of a planning board, that is, the Town Board.”

-Steven Silverberg