Posted On: March 14, 2011

Notation On Subdivision Map Inadequate To Preclude Development of Lots

The Appellate Division concluded that a notation on a subdivision map "not approved for building lots" was inadequate to place a purchaser on notice that there was an intention to maintain the two lots in question as undeveloped space. In Matter of Fuentes v. Planning Board of the Village of Woodbury, the petitioner had purchased two lots in a tax sale, with the only notation on the filed subdivision map being " not approved for building lots." Thereafter, petitioner sought permission to build on the lots. The planning board denied the application finding that the original subdivision was a cluster layout and that the two lots in question were intended to be maintained as permanent open space.

The Court noted that the minutes of the original subdivision approval reflected the intended restriction on the lots. However, the Court found that statements in the minutes were inadequate because they did not place the restriction in any document that would appear in the chain of title.

As a result the Court found:

"Thus, although the Planning Board could properly enforce the language recorded on the plat map (see O'Mara v Town of Wappinger, 9 NY3d 303, 309; Patten Corp. v Association of Prop. Owners of Sleepy Hollow Lake, 172 AD2d 996, 999; Town of Brookhaven v Dinos, 76 AD2D at 562), the language contained thereon does not adequately convey a perpetual restriction on development of these lots (see generally Patten Corp. v Association of Prop. Owners of Sleepy Hollow Lake, 172 AD2d at 999-1000). Accordingly, the Planning Board's conclusion that the plat map contained a perpetual restriction on the development of the subject lots lacked a rational basis."

The Court also found that there was insufficient support in the record for the conclusion of the planning board that removing the restriction would be detrimental to the neighborhood.

-Steven Silverberg

Posted On: March 12, 2011

Challenge To Planning Board Rendered Academic When No Injunction Is Sought To Preserve Status Quo

The Appellate Division held this week that by failing to obtain a preliminary injunction the challenge to a preliminary subdivision approval was ultimately rendered academic. In Matter of Sherman v.Planning Board of Village of Scarsdale, the Court found that while the challenge to a preliminary subdivision was pending the property owner obtained final approval and proceeded with substantial work.

The Court held:

"The appellants failed to move in the Supreme Court for a preliminary injunction to enjoin the Gelboims from undertaking the steps needed to obtain final plat approval. In addition, the appellants failed to move in this Court for a preliminary injunction to preserve the status quo pending the determination of this appeal. Consequently, the appellants failed to preserve their rights pending appellate review, and the appeal must be dismissed as academic..."

-Steven Silverberg