HomeMy WebLinkAboutChocomount
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MEMORANDUM TO FILE ON FIDCO
RE:
Lot #3, Chocomount
SCTM # 1000-4-5-5.9
FROM:
Minor subdivision Application of
Samuel S. Polk
(AKA Lieb and Danforth)
Valerie Scopaz, Town Plannerj~
September 17, 1991
DATE:
The Fishers Island Development Corporation owns the east
end of Fishers Island. Through the years, the Corporation
(FIDCO) sold lots more or less in accordance with a development
map that had been drawn by Frederick Law Olmstead in 1928.
In 1958, the Town Board adopted the Olmstead development
map as an 'open development' area or subdivision, pursuant to
Section 280-A.4 of New York State Town Law. (A copy of the Town
Board's resolution is attached (and labeled Exhibit A.).
Section 280-A.4. of New York State Town Law requires the
Planning Board to approve the creation of each lot. A copy of
that section of the law is attached herein as Exhibit B.
According to the Planning Board's records, there was a
period of time during which FIDCO was creating (and selling)
lots without Planning Board knowledge or approval. This practice
was stopped in June of 1982, when the Planning Board adopted a
set of maps for FIDCO's property. New lots that had been created
without benefit of Planning Board's approval before that date
were shown on this map. Exhibit C is a copy of the Planning
Board's resolution of June 1982.
The Planning Board's 1982 resolution did not specify which
map it was adopting. However the two maps in the file that were
drawn just before and after the June resolution both show the
Chocomount area as being subdivided into three lots. Lot 3 of
this subdivision carries the notation '2 lots'. Neither map
shows an actual subdivision line for these two lots. Exhibit D
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is a copy of this section of the map. At this time, based on
this evidence, and none other to the contrary, it seems safe to
say that Lot 3 was destined to be two lots in 1982.
However, the zoning of this area was changed by the Town
Board in 1989. Under the current requirements, neither of the
proposed lots will meet the minimum area requirements of the
R-120 zoning district. At first glance, it would seem that the
Planning Board could not approve the proposed subdivision
without a variance from the Zoning Board of Appeals. However,
Harvey Arnoff, the Town Attorney, at a meeting held on April 12,
1991, stated that it was his opinion that the 1990 decision of
Ellington Construction Corp. v. Zoning Board of Appeals, 77 N.Y.
2d 114, provided a sufficient basis for the Town to subdivide
the two lots in accordance with the zoning that was in effect in
1982. Exhibit E has the minutes of that meeting along with a
copy of the Ellington decision. He felt that FIDCO, as the
subdivider and developer, had manifested a committment to follow
through with its development map, and consequently, had vested
rights in the map as it was adopted in 1982. Accordingly, Lot 3
will not be affected by the 1989 upzoning.
with this interpretation, the Town Attorney removed all
obstacles to the Planning Board proceeding with an application
save one; which was that FIDCO had failed to file the 1982 map.
Since there was no filed map, the Planning Board could not
proceed with any subdivision applications within the open
development area. In accordance, the Planning Board suspended
its review of all applications, be they subdivisions or lot-line
amendments within the open development area.
In September of 1991, the 1982 map was resubmitted in a
form acceptable to the Suffolk County Clerk's office for filing.
The Planning Board renewed its 1982 approval of the open
development map and authorized its Chairman to endorse it on
September 9th.
FIDCO has sixty (60) days from September 9, 1991 to file
this map. Until that time, no further subdivision applications
will be processed by the Planning Board.
For further information on the subdivision of Lot 3 of
Chocomount, the reader should read the subdivision file for this
lot. It is referenced in the Planning Board's Master file drawer
as SCTM ~ 1000-4-5-5.9, and the name Samuel S. Polk (aka Lieb
and Danforth).
Addendum:
On the issue of mergers, Section 100-32.B. of the current
Zoning code extends the provisions of Section 265-a of New York
State Town Law, which provides for a three year extension for
those subdivisions that were approved under less restrictive
zoning requirements. Section 100-32.B. of the Town's Zoning code
exempts certain subdivision maps from the zoning shown on the
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zoning map. This extension appears to be an open-ended
extension. However, there have been no discussion with the Town
Attorney as to whether the Ellington decisions will affect the
traditional interpretation of Section IOO-32.B. of the Zoning
code. Exhibits F and G include the above noted sections of Town
and State law.
cc: Victor Lessard, Principal Building Inspector
Harvey Arnoff, Town Attorney
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1/lI?RC.1I
II '/1..!/57
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Moved by Councilm~n Dem~rest; secodned by Justice Edwards:
~\'HEREAS, FISHERS ISLAiW ESTATES ha s made applica tion to the T01m Board
for the est8tlish~ent of an OPEN DEVELOPMENT AREA pursuant to the provi-
sions of Section 280-A of the Town Law, and
~m:=:RE"S, the To'.m Board h2s heretofore referred the ma tter to the
Planning Board for its advice, and
WHSREAS, the Planning Board has recommended that the application of
FISI!~RS ISLA;lD ESTATES be granted,
. NCH, TH2REFCRE, BE IT RESOLVED: That the Town Board of the Town of
Southold does hereby establish an OPEN DEVELOP~ffiNT AREA over the premises
of FISHERS ISLAND ESTATES as shown forth on the map attached to the
application, and it is recommended that 50 feet be reserved for highwayi
. 'purposes wherever it is possible. .
Vote of Town Board: Ayes-Supervisor Klipp; Councilmen Albertson and
Dema rest; Justices :Luthill ,anCl-- Edwar:dS:"l'.'<;rds.
Noes-Henry A. Clark. . ...
Moved by Councilman Demarest; seconded by Justice Clark;
VlHE:>EAS, at a meeting of this Board, held on Bebruary 25, 1958, a resol-
ution W~s duly adopted referring to the Planning Board of the Town of
~outhold, proposals to amend the Building Zone Ordinance of the Town
of Southold, Suffolk County, New York for its recommendation and report,
2~ .
~JIERSAS, the Planning Board did th"reafter file with the T01m Board its
writtenrecommend<;tion and report on said proposals, Now,1.,therefore, be it
RESOLVED: that this Board hold a pUblic hearing be held at the Supervisor's
Office, 16 South Street, Greenport, N.Y. on the 8th day of April, 1958,
at 2:30 P.M. o'clock in th afternoon of that day, and it is further
RESOLVED: That the Town Clerk cause a no~ice of said proposed hearing,
containing a copy of the proposed amendments, to be published once in
the Ha tti tuclc l'!a tch::an-Long Island Traveler, the official Town newspa per
at lC3st 10 days prior to the time of said hearing.
Vote of Town Bo~rd: Ayes-Supervisor Klipp;Councilmen Albertson and
Demarest; Justices Tuthill, Clark and Ed"lards.
Moved by Justice Ralph Tuthill; seconded by Council~an Lester Albertson
h1EREAS, the TOHn Superintendent of Highways did, on the 25th day of .
February, 1958, duly recoT-mcnd the purchase of certain machinery pursu-
a~t to the proviSions of Section 142 of the Highway Law,
NOd, THEREFO:E, BE IT RESOLVED that pursuant to Section 142 of the High-
way Law the Town Superintendent of Highways is hereby authorized to
purchase, in accordance with the provisions of Article 5-a of the General
Municipal Law, with the approval of the County Superintendent of Highways,
the following:
One j.jodel A. S. B. S. Halter Snow Fi"ht",... ~ 4_"ni nt: nn,,1 t:1 V" n,.,,,,,, .
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TOWN LAW
Art. 16
ZONING AND PLANNING
Art. 16
.- where section 52 of the Highway Law
only required permit from state for
work in or upon state highway, and par-
ty seeking bUilding permit Was entitled
to it without obtaining permit from
state. where proposed work did not even
require curb cuts along highway. Corrao
do v. Wolf. 1962. 37 Misc.2d 89. 235
N. Y.S.2d 336.
~ 280-a
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I street or highway is not yielding a fair
~r. the board of appeals.' or other similar
'Stablishcd such a board having power 10
zoning regulations. shall h".ve power in a
jority of its members to grant a permit for
jhway which wm as little as practicable
ch street or highway, or tend to cause a
plan. and such board may impose reason-
n of granting such permit. which require-
r of the town. Before taking any action
lrd of appeals or similar board shall give a
!st and others shall have an opportunity to
ice of the time and place of such hearing
r of general circulation in such town. Any
review in the same manner and pursuant
:als from the decisions of such board upon
3. DenIal of penn It
A particular use of land may be en.
jOined as in violation of a restrictive
COvenant. although the use is permissible
under zoning ordinance. and the is~
suance of a permit for a use allowed by
a zoning ordinance may not be denied
because the proposed use would be in
violation of a restrictive covenant.
Friends of Shawangunks. Inc. v. Knowl-
ton. 1985. 64 N.Y.2d 387. 487 N.Y.S.2d
543. 476 N.E.2d 988.
In absence of statute allowing bal-
ancing of public and private rights in.
valved. property OWners were entitled to
compel building inspector to issue build-
ing permit which had been denied on
basis that town was in process of con.
demning property for swimming pool.
Winepol v. Town of Hempstead, 1969, 59
Misc.2d 768.300 N.Y.S.2d 197.
648. ~ 14; L.1962, c. 310. ~ 457.)
~ 280. Municipal Improvements In streets
No public municipal street utility or improvement shall be constructed by
the town in any street or highway within that part of the town outside the
limits of any incorporated city or village until it has become a public street
or highway and is duly placed on Ihe official map or plan, provided,
however, that subject to the discretion of the town board, a subsurface
utility or improvement operated for revenue by t,b.e 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.
(L.1932, c. 634; amended L.1938, c. 264. ~ 5; L.1939. c. 590. ~ 2: L.1949, c. 750 ~ I.)
stor1cal Note
63,
tfcKJnney's Fonns
al Government Forms under Town Law, ~ 279:
nting Permit for Building in Bcd of Mapped
acceding to Compel Board of Appeals to Grant
apped Street, see Form 2.
Compel Board of Appeals to Grant Permit for
"t. see Form J.
.mpelling: Board of Appeals to Grant Permit for
I, SCe Form 4.
HistorIcal Note
Derivation. Town Law of 1909, c. 63,
~ 149-<1. as added L.I927, c. 175.
ry References
C.J.S. Zoning and Land Planning
~~ 25. 192, 233.
Library References
Zoning and Planning e::=>87. 382.2.
C.J.S. Zoning and Land Planning
~~ 25, 197, 233.
60.
Noles of DecisIons
, of Decisions
permit is constitutional. Winepol v.
Town of Jrcmpstead, 1969, 59 Misc.2d
768, 300 N. Y.S.2d 197.
I. lIghllng
Until the streets in a suhdivision have
been dcdic;}ted and acceplcd, a lown
may not aSSUme responsibility for rhe
costs of energy and maintenance of a
slrcct Jighling syslem. Gp. State Compt.
83-47.
A town may not install subsurface
sln~et lighls ;:)long.1 street which has not
heen dedicated to the town and which
has not l>ccome a public street by pre-
scription. Op.State Compt. 81-127.
2. Slale hIghway rlghts.of~way
Municip:llity's requirement that party
ld seeking budding permit obtain permit
Ie (rom Stale for construction of building
19 alongside Slate highway was arbitrary
376
~ 280-a. Permits for bUildIngs not on Improved mapped streets
1. No permit for the erection of any bUilding shall be issued unless a
street or highway giving access to such propos~d structure has been duly
placed on the official map or plan, or if there be no official map or plan.
377
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TOWN L\ W
Art. 16
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unless such street or highway is (a) an existing state, county or town
highway, or (b) astreet shown upon a plat approved by the planning board
as provided in sections two hundred seventy-six and two 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 office of the county clerk or
register prior to the appointment of such planning board and the grant to
such board of the power to approve plats.
2. Before such permit shall be issued such street or highway shall 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 the discretion of such board, a performance bond
sufficient to cover the full cost of such improvement as estimated by such
board shall be furnished 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.
3. Where the enforcement of the provisions of this section would ent:til
practical difficulty or unnecessary hardship, or where the circumstances 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 any town which has
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 zoning
regulations. The board may in passing on such appeal make any reason-
able exception and issue the permit subject to conditions that wiII protect
any future street or highway layout. Any such decision shall be 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.
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4. The lown board may, by resolution, establish an open development
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 casement,
upon such conditions and subject to such limitations as may be prescribed
by general or special rule of the planning board, if onc exists, or of the
town board if a planning board does not exist. If a planning bo"ard exists
in such town, the lown board, before establishing any such open develop-
ment area or areas, shall refer the matter to such planning board for its
advice and shall allow such planning board a reasonable time to report.
378
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TOWN LAW
Art. 16
.ly is~) an eXlstmg ~te. COunty Or town
I upon a-pial approved b)( the planning board
undred seventy-six and two hundred seventy.
=1 al the lime such plat was approved, Or (c) a
recorded in the office of the COunty clerk or
enl of such planning board and the grant to
)prove plats.
I be issued such street Or highway shall have
: satisfaction of the town board Or planning
Wn bo;]rd in accordance with standards and
~ town board. as adequate in respect to the
raJ welfare for the special circumstances of
.y.
;cretion of such board. a performance bond
of such improvement as estimated by such
Ie town by the OWner. Such performance
ng or surety company approved by the town
Jrily acceptable 10 Ihe town board, and shall
loard as fa form, sufficiency and manner of
If modification and method of enforcement
ed by the appropriate board in substantial
ndTed seventy-seven of this articIe.
. the provisions of this section would entail
ry hardship, or where the circumstances of
cture to be related to existing Or propOsed
01 for such a permit may appeal from the
Fieer having charge of the issue of permits
'r similar board, in any town which has
ver to make variances or exceptions in
le prOViSions are hereby applied to such
C prOVided in cases of appeals On zoning
1Jssing- on such appeal make any rcason~
nit subject to Conditions that will protect
Ut. Any such decision shall be subject to
Jut of a special term of the supreme COUrt
nt to the same provisions as in appeals
upon loning regulations.
~()'ution, establi~h an Open development
'..h~rcin pcrmils may be issued for the
~'ss is given by right of way or easement,
() Such limitations as may be prescribed
llanning board, if one exists. Or of the
~s nOI exist. If a planning board exists
.re establiShing any such open develop~
maller to Such planning board for its
n~ bOJrd a reasonable time to report.
378
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ZONING AND PLANNING
Art. 16
~ 280-
Note
5. For the purposes of this section the word "access" shall mean that tl
pial on which such structure is proposed to be erected directly abuts 0
such street or highway and has sufficient frontage thereon to allow th
ingress and egrese of fire lrucks, ambulances, police cars and other eme;
gency vehicles, and, a frontage of fifleen feet shall presumptively b,
sufficient for that purpose.
(Formerly S 280 in p"rt, L.1932, c. 634; "mended L.1938, c. 264, S 5; L.1939, e. 590
S 2; L.1942. c, 497, S 1; L.1945, c. 741, S 1; renumbered S 28Cl-a and amendec
L.1949, c. 750, S I; "mended L.1954, c. 750, S 1; L.1958, c. 334, S 1.)
Historical Note
DerIvation. Town Law of 1909, c. 63,
S 149-r. "s added L.1927, c. 175.
West's McKJnney's Forms
The follOWing forms "ppear in Loc,,1 Government Forms under Town Law,
S 28Cl-a:
Compl"int for Declaratory Judgment as 10 Legalily of Requirements of Planning
Board as a Condition to Issuance of Building Pcrmit, see Form 1.
NOlice of Petilion in Arricle 78 Proceeding 10 Review Delermination of Board of
Appeals Denying Permit and Variance. see Form 2..
Petition in Article 78 Proceeding 10 Review Delerminarion of Board of Appeals
Denying Permit and Variance, see Form 3. , '
Judgment in Arricle 78 Proceeding Annulling Delermination of Board of Appeals
Denying Permit and Variance, see Form 4.
Library References
Zoning and Planning ~86, 372.4.
C.J.S. Zoning and Land Planning
~S 25, 191, 192.
Notcs of Dcclslons
Subdivision plat Improvements 12
Acccss roads
Gener.llly 6
Emer~ency vehicle Ingress and
egress 7
Fronta~e requirements 8
Improvement,. 9
ConstitutionalIty I
ConsrriJcUolI 2
Emcrgency vehicle Ingress and egress.
access roads 7
Fronrage rcquJrements, acccss roads 8
Improvements
Access roads 9
SubdIvIsion pJals J2
Mandatory nature uf secUon 4
Ml<lcellaneoul'l conl'lldcratJons 10
OfflclaJ map 5
Performance honds .1
Purpose 3
Review 13
I. Consrltutlonallty
Provision of this section requiring that
road giving access to proposed structure
be SUitably improved before bUilding
permit may be issued, merely conditions
approval of construction upon compli~
ance wilh reasonable conditions de~
signed for protection both of uhimate
purchascrs of home and public, is within
police power, and is not objectionable as
compclling Construction of roads on
land at owner's expense without com~
pensation from town. Brous v. Smith.
1952.304 N.Y. 164, 106 N.E.2d 503.
Subdivision 2 of this seclion requiring
thai Slreet giving access to proposed
379
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!l 280-a
Note 1
Y.
structure be suitably improved before a
building permit -may be issued is consti-
tutional. Bayer v: Pugsley. 1958. 13
Misc.2d 610. 176 N.y.s.2d 848. affirmed
7 A.D.2d 828. 181 N.Y.S.2d 781.
2. Construction
Under this section provision that no
bUilding permit shall issue until roads
shown on plat have been Improved to
satisfaction of town board and that if
applicant feels he has exceptional case.
he may go to wning board of appeals
which may make exception or direct is.
suance of conditional permit. must be
strictly construed, in view of facts that
provision is derogatory of common law
and that town is municipal corporation
of limited powers. Luomor Homes, Inc.
v. Johnson. 1953. 122 N.Y.S.2d 149.
3. Purpose
Provision of this section requiring that
road giving access to proposed structure
be suitably improved before bUilding
permit may be issued, is concerned with
problem of community planning and is
designed to secure uniform and harmo-
nious development of growth. llrous v.
Smith. 1952, 304 N.Y. 164, 106 N.E.2d
503.
Purpose of this-section requiring that
road giving access to proposed structure
be suitably improved before building:
permit may be issued is not only to pro-
tect health, safety and general welfare of
community, but also to protect residents
of proposed structure. Robinson v. Jag.
ger, 1968. 57 Misc.2d 507, 293 N.Y.S.2o
258.
Purpose of this section providing that
building permits shall not be issued ex-
cept for parcels fronting on, among oth-
er things, a street shown on a map ap-
proved by planning board and that no
building permit shall issue until roads
have been improved to satisfaction of
town board, is to guarantee that before
bUildings on streets shown on filed map
or other streets shall be occupied and
streets used, streets shall meet certain
requirements for protection of health,
safety and general welfare. Lunmor
Homes, Inc. Y. Johnson, 1953, 122 N.Y.
S.20 149.
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TOWN L\ W
Art. 16
town not on an improved mo.pped street
until there has been compliance with
this section. 15 Op.State CampI. 261.
1959. See, also, 11 Op.5tatc Compt. 181.
1955.
5. Official map
Town was without an "official maD
by reason of failure of town clerk to tile
certiticate of its establishment with
county clerk as required by this section
and that defect was jurisdictional. and
zoning board of appeals could not prop-
erly deny building permit on ground
that dirt road on which parcel had front.
age and over which it had easement did
not appear on official map. \Vhite v.
Town of Pound Ridge Zoning Bd. of
Appeals. 1973. 42 A.D.2d 904. 347 N.Y.
S.2d 725.
This section prohibiting issuance of
building permit unless street Of' highway
giving access to proposed structure is on
map or plan or street or highway exists
or is shown on approved plat did not
require owners and contract vendee of
three lots frontmg on town hjghwav to
file subdivision map to o9tain bUilding
permit. Jack Homes, Inc. v. Baldwin,
1963.39 Misc.2d 693. 241 N.Y.5..2d 487.
6. Access roads-Generally
Where contract required that road,
which vendors were to construct. be of-
fered for dedication to town upon com.
pletion, road was prerequisite to obtain~
ing a building permit, and vendors ulti.
mately constructed road at their own
expense, vendors had obligation to con-
struct road acceptable for dedication
within specifii.."d time. C. & C. Blashka
Inc. v. Frazer, 1969, 32 A.D.2d 774 302
N.Y.S.2d 443. affirmeo 30 N.Y.2d' 64S
331 N.Y.S.2d 669. 282 N.E.2d 623_ .
One-acre plot resulting from subdivi.
sion of two-acre tract would have sutfi-
dent access to improved public r03d
over strip of bnd 17 feet wide and 396
feet long as would warrant issuance of
area variance. r..lastromonaco v_ llar-
tels, 1962, 16 A.D.2o 676. 227 N-Y.S.2d
74.
This section does not require. as condi-
tion of issuance of permit for erection of
building on lot abutting on an improved
county highway, any form of physical
access, but merelv any reasonable
A building permit may not he lawfully means. Annandale~ Inc. v.Brienza,
issued for the erection of a building in a 1956, 1 A.D.2d 785, 148 N.Y.S.2d 17.
380
4. Mandatory nature of section
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PLANNING'BOARD
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T?~ O~SOlJ,Y&~D
SUFFOLK COUNTY
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Southold, N.Y. 11971
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IfE~RY E. R..\ Y~OR. Jr.. Otairnum
1,\\1;:$ \\'ALL
lti>"lTT ORLOWSKI. Jr.
GfORGE RITC'IIIE 1..'THAM.k
WllU.\.\1 F. ~fUlLEN. Jr.
TELEPHONE
765.1938
A meeting of the Southold Town Planning Board was called to order
June 15, 1982, 11:10 a.m. at the Fishers Island Firehouse, Fishers
Island, New York. Present were:
Chairman Henry E. Raynor, Jr.
Member G. Ritchie Latham, Jr.
Member William F. Mullen, Jr.
Member Bennett Orlowski, Jr.
Member James Wall
BUilding Administrator Victor Lassard
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Allerton Cushman - The Planning Board inspected this property prior
to the meeting noting the applicant's request to split the property
into two sites. The board requested James Wall to suPply them with
a letter from the applicant stating no further subdivisions will be
made on this property before taking any action.
On motion made by Mr. Orlowski, seconded by Mr. Mullen, it was
RESOLVED that the Southold Town Planning Board ~Dt those maps of
the east end of Fishers Island with a condition that the areas that
are undesignated will fall under the present subdivision regulations.
Vote of the Board:
Ayes:
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Raynor, Latham, MUllen, Orlowski, Wall
Annette Zabohonski - The Planning Board inspected this property prior
to the meeting. James Wall was asked to supply the board with stipu-
lations as to the improvements of the right-of-way and width.
On motion made by Mr. Mullen, seconded by Mr. Latham, it was
RESOLVED that the Southold Town Planning Board declare itself lead
aacncy in regard to the State Environmental Quality Review Act in
the matter of the minor subdivision of Annette Zabohonski. located at
Fishers Island. An initial determination ot nons~gn~iicance has been
made.
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Vote of the Board:
Ayes: Raynor, Latham, MUllen, Orlowski
Abstained James Wall (interested party)
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MEMORANDUM TO FILE - Fishers Island Development Corporation
April 12, 1991
A meeting was held this morning from 9:00 a.m. to about 9:30 a.m.
Harvey Arnoff called the meeting to discuss the status of the
FIDCO subdivision map. This meeting was related to the Lieb
and Danforth application that was made by Steve Ham on behalf
of his clients. (See previous correspondence in the file from
Steve Ham, and proposed correspondence from the Town, which was
never sent for the background.)
Also present at this meeting were:
Ken Edwards, Planning Board member from Fishers Island.
Mark McDonald, Planning Board member from Southold
Tom Doherty, Fishers Island Utility Company
Mr. Calhoun, President? Fishers Island Development Co.
Victor Lessard, Principal Building Inspector
Valerie Scopaz, Town Planner
At this meeting, Mr. Arnoff spoke of a court decision from
December 1990, which is attached. In his opinion, this decision
protected FIDCO's remaining undeveloped and unsold lots from
the 1989 upzoning. The lots in question are less than three
acres in area, which is the minimum lot area required by the
1989 upzoning.
However, he remains concerned about the lack of a filed
subdivision map. According to the records that have been found
and researched, a subdivision map was never filed with the
County Clerk's office. Consequently, the FIDCO subdivision
map is not a recognized legal document. Harvey felt that this
state of affairs precluded the Planning Board and the Zoning
Board from taking any actions on any applications. He
recommended the filing of the map by FIDCO.
This led to a detailed technical and legal discussion about how
the map could be signed and filed. The gist of this discussion
was that the matter may end up before a judge for resolution.
At the close of the meeting it was decided that Messeurs
Doherty and Calhoun were going to do some research. First
they were going to speak with Dick Lark, Esq, former attorney
CX/it'ljt'/ C
.
.
for FIDCD, to see if he might have a signed copy of the
subdivision map in his possession, if a copy of the map had
indeed been signed. The Planning Board's records show that the
Planning Board passed resolutions approving revisions to the
subdivision map. However, there is no record of any of the maps
being signed and filed with the County Clerk's office. If there
is no signed map in existence, they would then proceed to have a
set of mylar and paper maps drawn up in accordance with the
filing requirements of the County Clerk's office. The attorney
for FIDCD and Harvey would then take whatever legal steps
would be necessary to prepare the maps first, for the Planning
Board Chairman's signature; and second, for filing with the
County Clerk's office.
Tom Doherty will keep Ken Edwards and I informed as to
what they find out after speaking with Dick Lark.
Submitted by Valerie Scopaz
April 12, 1991 - 11:15 a.m.
,'. 3LL1NGTON CONST. v. ZONING BD. OF APPEALS
i~: CIte.. 564 N.Y.s.2d 1001 (CLApp. 1990)
, less formidable when a charla:. .1orcvd for the law that he was willing to Law's three-year exemption period from
?~nofs~. who is not an uoffice. WJII'PI!tuate a 16-year ~raud on both his zoning amendment increasing lot area or
:t and IS not accountable lD '" '; "",,"'yers and the publIc. dimension requirements permitted develop-
J.ry authority, has been ~ Ji:~;, 'iJI.'t demean the process as a whole when er to secure right to complete subdivision
:i.-and Jury room. .-, ~ .. hOld, in essen~e. that the Grand Jury in accordance with existing zoning require-
iinal analysis, I cannot rona,r io, .. ~ln~ was not fatally tainted by either ments by manifesting commitment to exe-
c would permit the State to '""'" "''''''''isky's lack of admission to the Bar or cution of subdivision plan through complet-
:he basis of an indictment obtaiooc j;l: ... mmlnally fraudulent conduct. Accord. ing improvements and incurring expendi-
J.erson because, in my view, Ad, Mlttty, I would hold that the indictment un. tures in connection therewith, during ex.
,promises the integrity of llle po. ..... which defendant was prosecuted was emption period, sufficient to constitute
, thereby undermines the pabbr. __ *!<<t1ve and should have been dismissed. vesting under common-law rules, and (2)
I invest its confidence in that: P'" CJh substantial improvements and expenditures
1 theory, the Grand Jury is tIo """ ,..WACHTLER. C.J.. and SIMONS, made by developer during three-year ex-
in our legal system againat.. fi;, LirE ,ad BELLACOSA, JJ., concur emption period were sufficient to confer
.md abusive conduct by the po.- -...11 HANCOCK, J. vested right to obtain building permits in
;nn of government (see, PeoplI. ~. , accordance with provisions of former zon.
lnc., 49 N.Y.2d 389, 395-396, a .,- nTo~,E, J., dissents and votes to ing ordinance.
238, 402 N.E.2d 1140; Peoph I C ""me ill a seoarate opinion in which Supreme Court, Appellate Division, af-
.15 N.Y.2d 589, 594, 412 N.Y.s.:. ~ .u.;:.'(A~DER, J., concurs. firmed.
N .E.2d 656). In modem practn ~. In each case: Order affirmed.
it has come to be regarded, an b< ~".
a mere "investigative agent!~ ~...'.:_'
'cutor." (Matter of Additiou fi.
I Grand Jury v. Doe, 50 N.Y:: io'
_'1 N.Y.S.2d 950, 405 N.E.2d I" ~
" J., concurring].) As one co':" t
""'ed, the Grand Jury freque1l~' .
iJ' . . as a rubber stamp ....' ~..
affirm[ing] what the prosecullr. ;,.
n it to affIrm . . . [and]" ..;;
,r fail[ing] to indict as the pl'OlP . .:'.,
'mits' that it should." (PeopU'
'6 Misc.2d 729, 734, 383 N.Y.SJ/
en the central importance at ~ ,.
r's role in the Grand Jury s~ .
helieve that we can, or sh0UJ4
a proper predicate for a criInfIIt
n the work product of a G~ .
e "legal adviser" was a pertcI
aniel Penofsky-who was nertI
i competent by the State Boott
aminers, was never approved II!
Ittee on Character and FitDd
limself had such little perso'"
. .."")
.peel and dismiss is not a suffi~
'nsurinF: the regularity of the unddb'
". since many of the activities of ~
listric! Anomey handlinK the ~
"otation, including witness p~
lection of the counts to be subrni~
off the record and. consequ~
vade judicial .scrutiny (see also, fr'
.'. 296 N.Y. 315. 322. 73 N.E.2d SZ'l
!i:
1'. 2d SERIES
'IV
~ ~ HY "U~8U! ~vmM
77 N.Y.2d 114
...l.i.uIn the Matter of ELLINGTON
CONSTRUCTION CORP.,
Respondent,
v.
ZO)/ING BOARD OF APPEALS OF
TilE INCORPORATED VILLAGE
OF NEW HElIIPSTEAD, Appellant.
Court of Appeals of N ew York.
Dec. 20, 1990.
Developer commenced proceeding to
.....te decision of village zoning board of
'PPOols confirming denial by village build-
lllg Inspector of application for building
trmlt. The Supreme Court, Rockland
~ <unty, Rosato, J., entered judgment for
. ,",veloper, and board appealed. The Suo
~"'me Court, Appellate Division, 152
r dD.2d 3GS, 549 N.Y.S.2d 405, modified
L' !;1nent and affirmed. Board appealed
y Permission granted. The Court of Ap-
Peals, Haneock, J., held that: (1) Village
1. Statutes *'214
In construing statute, Court of Ap-'
peals need look no further than statute
itself if statute is unambiguous and its
meaning evident from language.
2, Zoning and Planning *'325
When more restrictive zoning ordi-
nance is enacted, owner will be permitted
to complete structure or development
which amendment has rendered noncon.
forming only where owner has undertaken
substantial construction and made substan-
tial expenditures prior to effective date of
amendment.
3. Zoning and Planning *'376
Rule of construction that zoning legis-
lation which is in derogation of common
law must be strictly construed against mu.
nicipality which seeks to enforce it would
be contravened by interpreting statutory
exemption provisions. which provide ex-
emption period after filing of subdivision
plat during which amendment increasing
lot area or dimension requirements shall
not be applicable to or in any way affect
any of the lots shown and delineated on
such subdivision plat, as applying to a lot
only when developer has actually complet-
ed lot or obtained building permit for it
during exemption period. McKinney's Vii.
1001
1002
564 /Io"EW YORK SUPPLEMENT, 2d SERIES
lage Law 9 7-708, subd. 2; McKinney's
Town Law 9 265-a; McKinney's General
City Law 9 83-a, subd. 2.
4, Zoning and Planning ~376
Provision of Village Law, which estab-
lishes exemption period of three years after
filing of subdivision plat during which zon-
ing amendment increasing lot area or di-
mension requirements shall not be applica-
ble to or in any way affect any of the lots
shown and delineated on such subdivision
plat, was intended to permit developer to
secure the right to complete subdivision in
accordance with existing zoning require-
ments by manifesting a commitment to ex-
ecution of subdivision plan through com-
pleting improvements and incurring ex-
penditures in connection therewith, during
exemption period, sufficient to constitute
vesting under common-law rules. McKin-
ney's Village Law 9 7-708, subd. 2.
5, Zoning and Planning ~376
Subdivision owner is exempt under Vil-
lage Law from compliance with new, more
stringent area and dimension requirements
upon applying for building permits for its
remaining lots, where owner takes suffi-
cient steps toward completion of proposed
subdivision, and thus acquires common-law
vested rights, before expiration of Law's
three-year exemption period from new zon-
ing requirements. McKinney's Village
Law 9 7-708, subd. 2,
6, Statutes ~212.3
Court of Appeals must presume that
Legislature could not have intended inter-
pretation of statute which produces unrea-
sonable and potentially unjust conse-
quences.
1. Insofar as is pertinent, Village Law ~ 7-708
provides:
"2. (a) Notwithstanding any inconsistent
provision of Ihis chapter or of any general,
special or local Jaw, the pro\isions of a zonin!:
law hereafter adopted. and Ihe provisions of a
change or amendment hereafter adopled 10 a
zoning law which provisions establish or in.
crease 101 areas, lot dimensions which are great.
er 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 resi.
dCnlial use and which said subdivision plat also
shows and delineates one or more new streets.
roads or highways in addition to lot lines and
7, Zoning and Planning =376
Developer made substantial improve-
ments and expenditures during exemption
period provided by Village Law, which eso.
tablishes three-year exemption period after
filing of subdivision plat during which
amendment increasing lot area or dimen-
sion requirement shall not be applicable to
or in any way affect any of the lots. shown
and delineated on such subdivision plat,
and thus developer had vested right to
obtain building- permits in accordance with
provisions of former zoning ordinances for
proposed lots in subdivision; prior to vil-
lage's amendment of its zoning ordinance,
developer had installed drainage facilities,
water and sewer lines, fire hydrants, curbs
and curb cuts, and underground telephone
and electric service, and developer subse.-
quently, with village's knowledge, had in-
stalled paved road. McKinney's Village
Law ~ 7-708, subd. 2.
..l.t15DoriS F. Ulman, Village Atty. (Frank
I. Brown, Spring Valley, of counsel), for
appellant.
..l.tl,John S. Edwards, New York City, for
respondent.
..l.t17Barbara J. Samel, Schenectady, for
the New York State Conference of Mayors
and Other Mun. Officials, amicus curiae.
OPINION OF THE COURT
HANCOCK, Judge.
For a village having both a Planning
Board and a.J..!.ISZoning Board of Appeals,
Village Law 9 7-708(2) I establishes an ex.
dimensions of the lots thereon delineated and
which said subdivision plat has been duly op-
pro~'ed by Ihe planning board. if :1ny, of the
vilbge in which the bnd shown on said plat is
situale. or approved by such other board or
officer, if any, of such village. vested with aU-
thority to approve subdivision plats, and which
said subdivision plat or Ihe first section thereol
has been duly filed in the office of the recording
officer of the county in which the land shoWO
on said subdivision plat is situate, or whicb
provisions establish or increase side. rear of
front yard or set.back requirements in excess cJ.
those applicable to building plats under the pro-
vJsion of the zoning law, if any, in force and
<J
.1
~d SERIES
o:nd Planning <>=>376
oer made substantial improv~
expenditures during exemption
::dcd by Village Law, whicb ClI-
. ree-year exemption period after
ubdivision plat during which
'. increasin~ lot area or dimen-
'ment shall not be applicable to
."7\)' aiiect any of the lots shown
lLed on such subdivision plat,
:evelooer had vested right to
:ing- permits in accordance with
't former zoning ordinances for
.~s in subdivision; prior to viI--
~tlment of its zoning ordinance.
'.;~d inst:llled drainage facilities,
t:wer lines, fire hydrants. curbs
.: ts, and underground telephone
. sen.'ice, and developer subse-
:h village's knowledge, had in-
~d rO:ld. ~.rcKinney's Village
:';, subd. 2.
? Ulman, Village Atty. (Frank
'pring Valley, of counsel), for
.,. Edwards, New York City, for
,ra J. Samel, Schenectady, for
. "rk State Conference of Mayo,"
:~Iun. Officials, amicus curiae-
.,
1:-;10:>1 OF TilE COURT
':K, Judge.
':llage having both a Planning
"l.t"Zoning Board of Appeals,
.v 9 7-708(2) I establishes an e1-
1'; or the lots thereon delineated and
.l subdi~'ision plat has been duly op-
. rhe planninl: board. if any. of t~
...-nich the land s.hown on said pial 15
. approved by such other board of
,lny. of such village. vested with aU"
nprovc subdiVision pioUS. and WhlCb
.l'iion plat or the first section thertol
:uly filed in the office of the recordinl
I he county in which the land shoWJ1
c;hdi...ision p13( is situate. or which I
' establish or increase side. rear uf
. .lr set.back. requiremems in exceSS oi ..;
.c.lble to buildinR plalS under the prO'
:i1e zOning law. if any, in force ~
t
1
1
I
i
j
t
i
t
2LLl:>1GTON CONST. v. ZONING BD. OF APPEALS
Clte..:S64 N.Y.5.2d tOOl (CtApp. 1990)
1003
'r'
d:
Ht
';"'!i
n
~ !'..~
1:.,
:(<'
~:lf
!:~'
:+~
emption period of three years after the
filing or a subdivision plat during which an
amendment increasing- lot area or dimen-
sion rea.uirements shall not "be applicable
to or lTI any way affect any of the lots
shown and. delineated on such subdivision
plat" (s 7-708[2][a]). Prior to an increase
in the applicable area and dimension re-
quirements, the owner of an approved sub-
division failed to complete it or to apply for
build;n" permits on all of the proposed lots.
It did, !lOWeVer, take sufficient steps to-
ward compietion or the proposed subdivi-
SlOn betore the exemption period expired to
acquire common.law vested rights. The
<\uestion presented by the appeal or respon-
dent Zonmg Board is whether the petition-
er ()w.ner, oy virtue of these vested rights,
:.s ex~rr.pt_ ir.omcompiiance with the new,
more stringent area and dimension require-
ments _ when it applies ror building pennits
for its remaining lots. Supreme Court and
the Appellate Division, 152 A.D.2d 365, 549
>;,y.S.2d .05, both held that the owner is
Protected under the exemption in Village
Law ~J.:.197-708(2)(b), and we agree. There
shOUld, accordingly, be an affirmance.
,
"
.j
t
I
On April 29, 1975, the Town of Ramapo
Planning Board accepted for filing petition-
er's "average density" subdivision plat (see,
Town Law ~ 281). As a condition of its
"avera~e density" approval, the town re-
quired that 12.105 acres of the 33.522 acres
in the subdivision be irrevocably dedicated
to it for parkland purposes. The subdivi-
sion was approved for development in two
sections, the first to consist of 9 lots and
the second of 22 lots.
On July 3, 1975, petitioner's predecessor
dedicated the parkland and thereafter, on
c~fect .11 the time of the filing of the said subdi.
Vl'ilon pbt or tirst section thereof, shall nOI, for
r"~ pen"od of time prescn"bcd in para!:raph (b) of
rhrs 5IIbdivi~ion, be applicable to or in any way
af/eet any of tire lots slrown and delineated on
SLlch subdivision plat.
,"(b) If at the time of the filing of the subdivi.
$IOn plat or first section thereof referred to in
par::i,graph (a) of this subdivision Ihere was in
the villa!;e both a zoning board and a planning
board vested wilh authority to approve subdivi.
I
..&.
September 24, 1975, the subdivision plat
was filed. On June 29, 1982, the town
approved a revised subdivision plat. This
plat, filed on October 14, 1982. did not in
any way modify the oriP,'inal layout of the
lots, streets and other improvements.2
Between 1980 and early 1984, petitioner
built seven homes on section one of the
subdivision. No homes were constructed in
section two which had been laid out for lots
having widths of between 108 and 120 feet
and areas complying with the 22,500
square-foot minimum requirement of the
Town of Ramapo or:dinance.
In 1984, when the Village of New Hemp-
stead was incorporated, the territory of the
town which encompassed petitioner's subdi-
vision became part of the Village. On Jan-
uary 2, 1986, the Village amended the ap-
plicable zoning ordinance to increase the
minimum area requirement for average
density lots to 35,000 square feet and the
minimum width requirement for such lots
to 150 feet. Prior to this time, petitioner
had installed various improvements on the
subdivision including, on section two, drain.
age facilities, water and sewer lines, fire
hydrants, curbs and curb cuts, and under-
ground telephone and electric service. Af-
ter the amendment to the ordinance-and
with the Village's knowledge-petitioner
installed a paved road on section two.
In June 1986, petitioner applied for a
building permit to construct a house on lot
D-lO in section two. The Village building
inspector denied the permit because peti-
tioner f::liled.Jl.~oto make certain public im-
provements to a county road adjoining the
subdivision, and because the lot did not
meet the amended, more restrictive Village
-<i,,,
'1<'
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ffii' .
..
1'"'-",,
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:f r;;~
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;';::':;
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sian plots, then the exemption provided for in
such paragraph shall apply for a pen'ad of three
years afler the filing of the subdivision plat or
first section thereof." (Emphasis added.)
Provisions vinually identical to those in Vil.
lage Law ~ 7-708(2) are contained in Town Law
~ 265-."1 and General Cily Law ~ 83-a.
"; "
.;';
:"J'
j11J ~
;,,:1-;
..
2. It is not disputed that the three.year exemp-
lion period at issue began to run on the dale the
revised plat was filed (Oct. 14, 1982).
j:
i..;.
1004
564 NEW YORK SuPPLEMENT, 2d SERIES
zoninlS requirements.3 With respect to this
second reason, the inSpector ruled that the
exemption in Village Law ~ 7-708 did not
apply inasmuch as petitioner had not
sou<;ht a bUilding pennit during the three-
year exemption period. Petitioner then
commenced its first article 78 proceeding to
review the denial of its permit. Supreme
Court dismissed this proceeding for peti-
tioner's failure to exhaust administrative
remedies since it had not sought relief in
an appeal to the Zoning Board of Appeals.
Accordingly, petitioner appealed the build-
ing inspector's denial to the Zoning Board
of Appeals and, as alternative relief, re-
quested a variance.
When respondent Zoning Board of Ap-
peals denied petitioner's application in all
respects, it commenced the present article
78 proceeding. Supreme Court annulled
respondent's detertnination and directed
the Village inspector to issue the building
permit for lot D-I0 and the other lots in
the subdivision "if, as, and when petitioner
makes an appHcation for same". The Ap-
pellate Division agreed with Supreme
Court's conclusion that petitioner had ac~
quired vested rights to compiete the subdi-
vision under the originally applicable area
and dimension requirements, but modified
by requiring petitioner to fulfill certain con-
ditions in order to obtain the building per-
mit.4
1I
[lJ This appeal turns on a question of
statutory interpretation: the intended ef-
fect of the language in Village Law
~ 7-708(2) creating the exemption. Re-
spondent Zoning Board of Appeals con-
tends that the statute affords protection
only for those lot.. in a filed subdivision
which an owner has completed Or for which
it has actually obt.,ined a building- permit
during the exemption period. Petitioner
arg-ues that the statute protects suhdivision
3. The other rC;:J$on g-iven for the denial of the
permit_i.e., that petitioner failed to P.1Y an in.
spection fce-is not al issue on this appeal.
4. Dath Supreme Coun and the Appellate Divi.
sion o1Jso concluded that-if the new, more reo
strictive zOlJlOR requirements were held to be
applicable despite the exemption period in Vil-~-
lots in which an owner has acquired "
mon.law~lvested rights dUring the per
In construing section 7-708(2), as with ,
legislation, we first "look to the parlier
words for their meaning, both as they:
used in the section and in their context
part of the entire statute." (Price v. Pri
69 N.Y.2d 8, 13, 511 N.Y.S.2d 219, E
N.E.2d 684.) For if the statute is unamb'
uous and its meaning evident from t.:
language. as respondent contends, we De'
look no further (see. Sega v. State of Ne
York, 60 N.Y.2d 183, 19lH91, 469 N.Y.S.:
51, 456 N.E.2d 1174).,
From the lan[Uage of section 7-708!Z
as it applies to the Village of New Hem,
stead, there is no question: (1) that it
purpose is to create an exemption from ti'.:
operation of amendments imposing striew
area and dimension requirements; and (2:
that the period of the exemption is th....
years commencing on the date of the filinz
of the subdivision plat. But the stature
contains no language which prescribes the.
conditions which must be satisfied for ..
owner to receive the benefit of the exemP""
tion. It does not specify whether as 0;;
prerequisite for claiming the exemption for.."
a particular lot, the owner must, during the,
exemption period, have completed construe-,
tion on the lot or obtained a building penniL
for such construction-<:>r whether it is suf-_
ficient if the owner has taken sufficient~
steps toward completion of the subdivision
under the existing, more liberal zoning r&';;.
quirements to have acquired vested rights
in the remaining undeveloped lots. The '
only statutory mandate is that the stricter ~
requirements of the amended ordinance.
"shall not. . . be applicable to Or in any :
way aJJect any of the lots shown and deiin-: ,
ealed on such subdivision plat" (Village"!
Law ~ 7-708[2][a] [emphasis added]). Ex- "
aclly what the lots are protected from-i.e.,'~
what is meant by the phrases "be applics- .
hie to" and II in any way affect"-is. not.
;1':
loge Law ~ 7-70B(2)-the Zoning Board of A~ ,~
peals lacked a rational basis for the denial r:I ~
petitioner's request for a variance. In the ligbl ~.
of our conclusion that petitioner Was entitled to
the benefit of the exemption provision, we do
not reach the variance iSSue. . ':<1'.
...:~-
.
I
,
'lhich an owner has acquired com-l
.~,vest<!d rights during the period. ,.
:rumg section 7-708(2), as with any
:on, we first "look to the particul~ I
:Jr their meaning, both as they are I
:he section and in their context as i
:he entire statute," (Price v. Price, I
'.~d 8, 13, 511 N.Y.S.2d 219, 503
..84.) For ii the statut<! is unambig. ,
. :ld its meaning evident from the ~
:e, as respondent contends, we need
. iurther (see, Seqa v. State of New
.) N.Y.2d 183, 190-191,469 N.Y.S.2d
~'-E.2d 1174).
,he hnguage oi section 7-708(2),
""eS to the Village of New Hem!>,
:ere is no question: (1) that its 1
!:i to cre3te an exemption from the
.1 of amendments imposing stricter
"'.1 dimension requirements; and (2)
~ period of the exemption is three
mmencing on the dat<! of the filing
,ubdivision plat. But the stature
, no I~ng'uage which prescribes the
:15 which must be satisfied for an
1 receive the benefit of the exemJr
: ~ does not specify whether as a .
: lsite for claiming the exemption for i
::.Jlar lot, the owner must, during the ,
:00 period, have completed construe-
,he lot or obtained a building permit
: construction-<lr whether it is suf- I
;{ the owner has taken sufficient I
.l\vard completion of the subdivision
. he existing, more liberal zoning re- i
nts to have acquired vested right! f
,emaining undeveloped lots. The
,tutory mandate is that the stricrer I
ments of the amended ordinance
-'Jt. . . be applicable to or in any
';'ct any of the lots shown and delin-
.:1 such subdi....ision plat" (Village
.-708[2][a] [emphasis added]). Ex-
~;'\t the lots are protected from-i.e.,
meant by the phrases "be applica-
:-.nd "in any wav affect"-is. not
. r. 2d SERIES
..... ~ 7-70S(2)-lhe Zonin~ Board of AI"
..:ked a r:ltlOnal basis for the 1..It:nial of
cr's request for a variance. In Ihe light
r.>ncluslon th::lt pctilioner was entitled 10
. '-'ut oj the c~emplion provision, \,,'C J.o
...n the variance issue. .
:::LLINGTO:>l CO:>lST. v. ZONING BD. OF APPEALS
CHe as 564 N.Y.S.2d 1001 (Ct.App. 1990)
1005
clear. It is necessary, therefore, to look
beyond the words of the st.c1.tute at the
circumstances surrounding its adoption and
to consider the policy reasons for enacting
Je~islation in an area where common.law
rules have lonlS controlled (see, Price v.
Price, supra, 69 N.Y.2d at 13-14, 511 N.Y.
S.2d 219, 503 N.E.2d 684), being mindful, of
course. that the "'legislative intent is the
great and controlling principle' " (id., at 14,
511 :-l.Y.S.2d 219, 503 :-l.E.2d 684; Peopte
v. Ryan, 274 N.Y. 149, 152, 8 N.E.2d 313).
Village ww 9 7-708(2) and its counter-
~)Jrt. Tmvn Law 9 265-a, were enacted in
lcoO (L.l~60, cns. 1060, 1061). The L€gis-
lJ.r.ure auopLed a simiiar measure for cities
in 1961 (General City Law Ii 83-a, L.1961,
\;n. 2'i5). Prior to these enactments, ques-
tions concerning the rights of owners of
approved subdivisions to complete their
.subdivisions in accordance with the regula.-
tions existing- at the time or their approval
were go~nedl22 exclusively by the com-
mon ia',v pertaining to vested rights.
[2J The New York rule, both before and
:lot'ter the exemption statutes, has been that
v....here a more restrictive zoning ordinance
is enacted, an owner will be permitted to
complete a structure or a development
which an a~endment has rendered noncon-
forming only where the owner has under-
tlken substantial construction and made
substantial expenditures prior to the effec-
ti\"(~ dare or the amendment (see, People 1'.
.:Iitler, 30'1 N.Y. 105, 107-109, 106 N.E.2d
3.t; Jlatter of Putnam Armonk v. Town of
SJlltlleast, 52 A.D.2d 10, 14-15, 382 N.Y.
S.:!J 538; .1 Rathkopf, Zoning and Planning"
Ii 50:08[3J, at 50-25-50-28 [4th ed.]; 1
Anderson, New York Zoning Law and Prac-
tice !i 0.18, at 229-234 [3d ed.]). The doc-
trine or vested rights has generally been
ue~cribeti as an application of the constitu-
tiunaJiy oaseu common-law rule protecting-
nonconiorming uses (see, People v. Afiller,
'''pra. ;;01 N.Y. at 107, 106 N.E.2d 3.1; 4
Rathkopf, 01'. cit.. at 50-13, n. 2). But the
doctrine is also said to have been g-roundeu
on principles of equit.abl~ estoppel (.:;ce,
.llotter 0/ Pokoik t'. Silsdorf, .10 N.Y.~d
7li9, 77:1, ami at 774, 390 N.Y.S.2d 49. :358
~.E.2d H74 [Breitel, Ch. J., diosentin~l; 7
.l
Rohan, Zoning and wnd Use Controls
S 52.08[4], at 52-78-52-80; 4 Rathkopi,
01'. cit., S 50.04, at 50-41-50-42). Wheth-
er rooted in equity or the common law, the
operation and effect oi the vested rights
doctrine is the same and it has been applied
alike to a single building or a subdivision
(see, Matter of Putnam Armonk v. Town
of Southeas~ 52 A.D.2d 10, 382 N.Y.S.2d
538, supra; Elsinore Prop. Owners Assn.
v. Morwand Homes, 286 App.Div. 1105,
1106-1107, 146 N.Y.S.2d 78; Ward v. City
of New Rochelte, 20 Misc.2d 122, 197 N.Y.
S.2d 64, affd. 9 A.D.2d 911, 197 N.Y.S.2d
128, aljd. 8 N.Y.2d 895, 204 N.Y.S.2d 144,
168 N.E.2d 821; 4 Rathkopf, op. ciL,
S 50.03[3][d], at 50-39-50-41).
Under the vested rights doctrine as it
applied to subdivisions (prior to the exemp-
tion statutes), nothing cut oif the period
during which a developer could acquire
\"ested rights aiter initial approval. On the
other hand, nothing prevented a municipali-
ty irom subjecting the undeveloped lots in
an approved subdivision to more stringent
restrictions at any time after the plat was
filed so long as vesting had not occurred.
Protecting the owner depended entirely on
the date oi vesting relative to the effective
date of the amended ordinance. If vesting
occurred first, the owner was protected. It
mattered not when the events occurred
with respect to the initial date of plat ap-
proval, but only which came first.
The enactment of the statutory exemp-
tion provisions (Vi'!age'23 Law 9 7-708(2];
Town Law 9 26~2]; General City Law
S 83-a[2]) obviously supplied something
which the decisional law of vested rights
lacked: a specific period during which the
developer could secure the right to com.
plete the uniinished lots iree from the re-
quirements of the new, more restrictive
ordinance and beyond which such right
could not be secured. But the statut<!s did
not define precisely what the developer
must do during th~ period to obtain the
protection of the exemption.
[3J Respondent Zonin~ Board oi Ap-
peals cont~nds that, under the statute, in
order to achieve freedom irom the amend.
ed- ordinance for any um;ompleted lot. a
!
'(
I
I
1D06
564 NEW YORK Sr;PPLE:IIENT. cd SERIES
,
developer must have actually completed the
lot or obtained a buildinR permit for it.
Under this construction, a developer which
had done more than enough during the
exemption period to acquire comrnon~jaw
vested rights for the remaining undevel-
oped lots in the subdivision, would be re-
q uired. nevertheless. to comply with the
amended ordinance for these lots. Such
construction, if adopted would produce an
extensive change in the law, and would
deprive the developer of what. but for the
effect of the statute. would be its right to
achieve vesting during the exemption peri-
od under the common-law rule. It would,
thus. contravene the established rule of
construction that zoning legislation of the
type in question which is <lin derogation of
the common law . . . must be strictly
construed against the municipality which
. . . seeks to enforce [it]" (Matter of AL-
len v. Adami. 39 N.Y.2d 275, 277. 383
N. Y.S.2d 565. 347 N.E.2d 890; see. Matter
of440 E. 102nd St. Corp. v. ,l-Iurdock. 285
N. Y. 298. 304-305. 34 N.E.2d 329; I
Anderson. New York Zoning Law and Prac-
tice 9 17.01. at 740-743 [3d ed.]; see gener-
ally, ~lcKinney's Cons. Laws of N.Y., Book
I, Statutes 9 153, at 331-332 ["(t)he courts
will not construe a statute as abolishing a
common-law right in the absence of a clear
intent on the part of the Legislature"]).
[-1-7] Contrary to respondent Zoning
Board's position, a commonsense analysis
of the legislative purpose of Village Law
9 7-708 and Town Law 9 26[;-a in the light
of the circumstances surrounding their
original enactment (L.1960, chs. 1060, 1061)
does not suggest that the legislation was
intended to deprive a subdivision developer
of its capacity to acquire vested rights in a
subdivision during the exemption period.
The legislative history shows that the en-
actment was the culmination of a success-
ful legislative cOmpromise between the
views of the developers and the differing
views of the municipalities and that repre-
sentatives of both groups urged its adop-
tion (see,..l1::IMem. of \Vestchester County
Village Officials Assn.. Bill Jacket, L.1960.
chs. 1060. 1061; Mem.of Offioe for Local
Government. id.; Mem. of New York State
Home Builder's Ass'n, id.: Mem. of Amen-
can Institute of Planners, id.; :\lem. in -,
support of A 3834. id.). Indeed. Governor _j
Rockefeller in his memorandum approving 1'!
the legislation stated that the "purpose of ~;
these bills is to reconcile the interests of -i I
home builders and developers who have ~!
made financial commitments relying on ex- -4:
isting zoning ordinances. and the interests .f II
of towns and villages in not being' unduly .t I
restrained from upgrading zoning require- 4:,
ments" (1960 McKinney's Session Laws of ~ t
N.Y., .Messages of Governor, at 2064). ." f
t'
Petitioner's interpretation of the stat. ..
ute-that it \vas intencied to permit a devel- q
oper to gain vested rights during the ex- ~
emption period-seems fully consistent ,Il
with this leg-islative purpose of effecting- a .Ij ij
compromise in a statute which would fairly ij
balance the conflicting interests of the de-
velopers and municipalities. Under peti-
tioner's construction, each group gains
something and gives up something. The
"..,""" ,.. <0. ..-. "' . ,."".: I
period during which they can protect their
subdivisions by securing vesting; they give
up the possibility of protection under the
statute after that period. The municipali-
ties gain the authority to enforce an uJr
grading of their zoning requirements at
any time after the exemption period and
the assurance that the new requirements
will bind any developer which has not by
then achieved vesting; the municipalities
give up their former unrestricted power to
subject a subdivision to new requirements
at any time before the owner has acquired
vesting rights.
The view of the statute espoused by re-
spondent Zoning Board. on the other
hand-that a developer can derive no pro-
tection for the balance of its subdivision by
achieving vesting during the exemption pe-
riod-permits undeniably harsh results.
Obviously, where a developer has complet-
ed a subst.antial portion of a subdivision. it
could be faced with larg-e lossBs and unan-
ticipated additional cost if compelled to re-
structure its plans and dismantle and re.
construct subdivision improvements in or-
der to complete the remaining lots. As has
been observed. a rule of such stringency
applying to subdivisions imposes a fonnid-
.J SERIES
." of Planners, id.; :llem. in
.. 3834, id.). Indeed, Governor
'n his memorandum approving
.n stated that the "purpose of
to reconcile the interests of
rs and developers who have
::.11 commitments relying on ex-
. ordinances. and the interests
1 villages in not being' unduly
""1m up~adin~ zoning- require-
J ~fcKinney's Session Laws of
~es of Governor, at 2064).
~ interpreution of the stat-
":as intencied to permit a devei-
: H'sted rights during- the ex.
::od-:,eems iully consistent
,!siative purpose of effecting- a
: a stmute which would fairiy
".1ntlicting- interests of the de-
l municipalities. Under peti-
.;tmclinn, each group gains
':d gives up something. The
.....:0 the assurance of a definite
, which they can protect their
;IY securing vesting; they give
.:lility or protection under the
" that period. The municipali-
.l authority to enforce an up-
'.heir zoning requirements at
. :er the exemption period and
:~ that the new requirements
:: developer which has not by
,.,j vesting-; the municipalities
" former unrestricted power to
:Hlivision to new requirements
"cfore the owner has acquired
.~.
-"Ii the statute espoused by r~
. ~ning Board, on the other
; de....eloper can derive no pro-
" halance of its subdi\'ision by
"ring dt.:ring- the exemption peo
; undeniably harsh results.
~Iere a developer has complet-
;al portion of a subrlivision. it
with brg-e h:,>ses and unan-
\nal cost if compelled to re-
ms and dismantle and re-
::1ion improvement...., in or-
e remaining lots. As has
rule or" such stringency
'\ions imposes a formiJ-
:;YS :,lEDICAL TIU:-iSPOHTERS v. PERALES
Cite a5:;{)4 N.Y.s.2d 1007 (Ct.,\pp. 1990)
,.:.e ~<~rr\er ::0 deveiopment (4 Hathkopf,
"!, '::::~j.O;)i3J. at ;')0-7:;) and actually
":~)eues r:>.tiOnai j:md use olanninlf (id., at
,-:c;), -.':-:{!er e~t:1Dlished rules, we must
- '~"..~ ,,~~t ~;]~ Le~islature eould not
,';10' i,.~'c":~uell r':'~pondent's interpretation
.;- ~;:e ~_,,-l.Lute wnicrUJ;~:.;produces such un-
~'1:-iunduie and potentiaily unjust conse-
;:t:1H,'<::,::> (see. Ferres v. City of ,New Ro-
'lie, ;.;2 :-LY.2d 4.J6. 4.5.1, 510 N.Y.S.2d 57.
'..: \,~:.":J Ji:;; .~If1tteT of Petterson 1'.
:'I,\ur;nl Curn.. 17 ~~.Y.~d 32, 33, 268
':_.~.:':'i 1. ::::5 ~:.E.:::j 220; ~\IcKinr.ey"s,
::,~.L.::;:;:' ,..:' ::;.i"., Book 1. Statutes
.-,1. ;';:j. :-';0. <.:.t :::::0-234, 236-290, 297-
.
,
,
~-
!
t
.,
,.
,
,
.
,
,
1
~
.., ,. :,:.~I~orGin:!iy agree with the courts
.,...\-. ::~,2t ~'i:_::":2'e Law 9 7-'703(2) was in-
':':-:'1 ~) ....;8rmH. a developer to secure the
:~,t to efJmOlete a suotiivision in accord-
.:;l'(' Wjr!l r.nc existing zonin~ requirements
.:; l.1<ln!:L2:itln:; a commitment to the execu-
';<,n fJf tne sllbdivision pian through com-
>..Ln:- :::1prlJvements and incurring ex-
. ':!:l1i[~;_res l:l coanection therewith, during
. :',;: <'::emption period, sufficient to consti-
",te ':.:::sting under common-law rules.
~,loreo'..er, our review of the record con-
cern:ng the work performed and expendi-
~ures made by petitioner confirms the con~
elusion or the .\ppellate Division that, as
:Gund by the Supreme Court, the substan-
~lal improvements and expenditures made
,jurinz the three-year exemption period
. ..::rmlf;rreci a vested right to obtain building
~t'rrnit~, l~ ;1ccordance with the provisions
"f l:-:~ :forrner zoning ordin:\nce." (152
.\.D.:.?.-i :];~5, :;-;7, S-i9 ~.Y.S.2d 405.)
T~ji; '~rder at' the Appellate Division
:ihould be aff:rmed,5 with costs.
i
t
,
<
i
I
~
.
V/:\CHTLErr. C.J., ;md SelO~S.
K,\ n:. ,\LGXA~DER, TITONE and
d~LLACOSA. JJ., concur.
Order airirmed, with costs.
.... "rt
(0 ~n1~~"91~\Y\r!~
,\T
5. "';I! ha\'c considered respondcnt's r(,!n;lining
J.r['1Jmcnts and conciudc that Ihcy pro\'ule no
..l
1007
77 N.Y.2d 126
I "In the .'Iatter of NEW YORK STATE
cH:D!C\L TRANSPORTERS ASSOCI.
ATION. INC" ct ai.. Appellants.
v.
Cesar A. PERALES. as Commissioner of
the Department of Social Services of
the State of New York. Respondent.
Court of Appeals of New York.
Dec. 20, 1990.
Providers of transportation services
filed Article 78 proceeding to require De-
partment of Social Services to process ret-
roactive request for approval of nonemer-
gency transportation service for Medicaid
patients. The Supreme Court, Nassau
County, Lockman, J., directed commission.
er to process request for retroactive ap-
proval. Commissioner appealed. The Su-
preme Court, Appellate Division, 553 N.Y.
S.2d 790, held that Department had not
ratified agent's adoption of policy that
would allow "retroactive prior approval,"
and reversed. Providers appealed. The
Court of Appeals, Kaye, J., held that: (1)
Department was not estopped from adopt-
ing policy that required prior approval; (2)
record did not support providers' claim that
Department ratified actions of agents; and
(3) even if record supported claim that De-
partment allowed and condoned actions of
agent allowing- retroactive prior approval,
Department could not ratify agent's act.
Affirmed.
Alexander. J., dissented and issued an
opinion in which Simons, J., concurred.
1. Estoppel <.>tj2.1
Estoppel cannot be invoked against
g-ovcrnmcntal agency to prevent it from
discharg-ing its statutory duties.
basis for disturbing the Appellate Division's or-
der.- -
:f{
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~ 100-~1
~ 100-32
ZONING
~.
(b) Adequate supervised parking facilities shall be
provided_
(c) No signs. except one (1) one-premises sign not larger
than six (6) square feet in size displayed for a period
of not long-er than one (1) week immediately prior to
the day of such sale. shall be permitted.
(d) A permit is obtaincd therefor from the Building
Inspector upon the payment of a fee of fifteen dollars
($15.).
.
~ 100-32. Bulk, area and parking regulations.
No building or premises shall be used and no building or part
thereof shall be erected or altered in the Agricultural-Conservation
District and in the Low-Density Residential R-80 District unless the
same conforms to the Bulk Schedule and Parking Schedule'
incorporated into this chapter \vith the same force and effect as if such
regulations were set forth herein in full. as well as to the following
bulk and parking requirements: .
A. In the case of a lot held in single and separate ownership prior
to Novembcr 23. 1971. and thereafter. \vith an area of less than
forty thousand (40.000) square feet. a single-family dwelling
may be constructed thereon. providcd that the requiremcnts of
Column vii of the Bulk Schcdule and the Parking Schedule
incorporated in this chapter are complied with.
E. Thc bulk and parking requirements for single-family
dwellings as set forth in Column ii of the Bulk Schedule and
the Parking Sebedule incorporated into this chapter shall
apply to thc following lots:
(1) All lots shown on major and minor subdivision maps
which were granted final approval by the Planning
Board prior to May 20. 1983.
(2) All lots shown on major subdivision maps upon which the
Planning- Board has held a hearing for prcliminary map
approval prior to May 20. 1983.
7 Editor'! Noh': The Bulk &hedull' i!l indudl'tl nt the t'nd or this chapter, and the Parking
Schedule is in ~ 100-191A.
10019
6 - 1.90
6'l!/bff r
-~
,-
".,..
"....
..~
~~~
.
.
.;
9 100-32
(
SOUTHOLD CODE
9 100-33
,{3) All lots shown on minor subdivision maps that have been
granted sketeh plan approval by the Planning Board
prior to May 20, 1983.
(4) All lots set off or created by approval of the Planning
Board subsequent to November 23, 1971, and prior to
May 20, 1983.
C. The bulk and parking requirements for single-family
dwellings set forth in Columns i and iii of the Bulk Schedule
and Parking Schedule incorporated into this chapter shall
apply to the following lots:
(1) All lots shown on minor subdivision maps which have
been granted sketch plan approval by the Planning
Board on or after May 20, 1983.
r
'-
(2) All lots shown on major subdivision maps upon which the
Planning Board has held a hearing for preliminary map
approval on or after May 20, 1983.
(3) All lots set off or created by approval of the Planning
Board on or after May 20, 1983.
t
D. The bulk and parking requirements for two-family dwellings
set forth in Column xii of the Bulk Schedule and Parking
Schedule incorporated into this chapter shall apply to the
following lots:
(
(1) All lots shown on minor subdivision maps which have
been granted sketch plan approval by the Planning
Board on or after May 20, 1983.
(2) All lots shown on major subdivision maps upon which the
Planning Board has held a hearing for preliminm'y
approval on or after May 20. 1983.
(3) All lots set off or ereated by approval of the Planning C
Board on or after May 20, 1983.
9 100-:13. Accessory buildin!.",. [Amended .1-10-1990 by I~L. No.
6-1990]
In the Agricultural-Conservation District and Low.Density
Residential R.SO, R-120, R-200 and R-400 Districts, accessory
10050
6 - I - 90
l
~ 265-a. Exemption of lots shown on approved subdivision plats
1. Notwithstanding any inconsistent provision of this chapter or of any
general, special or local law, the provisions of a zoning ordinance hereafter
adopted, and the provisions of a change or amendment hereafter adopted
to a zoning ordinance, which provisions establish 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
delineates one or more new streets, roads or highways in addition to lot
lines and dimensions of the lots thereon delineated and which said subdivi-
sion plat has been duly approved 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 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 plots under the
259
:1 v.
4R6
TOWN LAW
Art. 16
has exercised .his rights thereunder and
J.fter the town board has changed the
building ordinance under which the per-
mit \\'as issued. 17 Op.State Compt. 121,
t961.
ZONING AND PLANNING
Art. 16
forming gas station use was not rezoned
but was left in residential district. Le-
vine v. Town of Oyster Bay, 1966, 26
A.D.2d 583, 272 N.Y.S.2d 171.
Notwithstanding fact that town board
rezoned only property adjacent to that of
plaintiff so as to include it within a pro-
posed planned industrial park district af-
ter conducting hearings at which consid-
eration was given to rezoning all of
property in area, rezoning of tract, con-
sidering its size and location, did not
constitute "spot zoning," absent evidence
that rezoning of property was prompted
bv an intent to benefit owner thereof or
that it was initiated at his instance.
Oaum v. Meade, 1971, 65 Misc.2d 572,
318 N.Y.S.2d 199.
,)[vcd
men!
uture
that
town
nina-
e ad-
}osed
lange
:hcn-
wei-
and
and
7.28
24. Promotion of general welfare
See, also, Notes of Decisions set out
under section 263.
Generally, when change of zone, vari-
ance or special permit is sought, there is
specific project sponsored by particular
developer which is subject of applica.
tion; however, error occurs where zon.
ing legislation is enacted to grant single
owner a discriminatory benefit at ex-
pense and detriment of his neighbors,
without any public advantage or justifi-
cation. rather than pursuant to compre-
hensive plan for welfare of community.
Kravetz v. Plenge, 1982, 84 A.0.2d 422,
446 N.Y.S.2d 807.
In determining validity of amendment
to zoning law, rclevant inquiry is wheth-
er amendment was enacted for benefit
of individual owner rather than for gen-
eral welfare of community. Albright v.
Town of Manlius. 1970, 34 A.0.2d 419,
312 N.Y.S.2d 13, modified on other
grounds 28 N.Y.2d 108, 320 N.Y.S.2d 50,
268 N.E.2d 785.
Amendment to building zone ordi-
nance which in effect reinstated zoning
of realty after having downgraded it was
valid and constitutional despite public
meetings and picketing designed to in-
Ouencc upgrading, where town board
adopted amendment upon its own judg.
ment that it was in best interests of gen-
eral welfare of community in zoning
sense. Gates of Woodbury Co. v. Town
of Oyster Bay, t 968, 29 A.D.2d 943, 289
N.Y.S.2d 379.
26. Vested property rights
See, also, Notes of Decisions set out
under section 261.
Fact that property has been in particu-
lar zone for long periods of time does
not render it inviolate to change in zon.
ing. Glen Head-Glenwood Landing Civ-
ic Council v. Town of Oyster Bay, 1981,
109 Misc.2d 376, 438 N.Y.s.2d 715, af-
firmed 88 A.D.2d 484, 453 N.Y.S.2d 732.
27. Entry In minutes of board
See, also, annotations under note num.
ber 13 of section 264.
Changes in zoning ordinances made
by town board must be entered in ordi.
lning
yster
.S.2d
ordi-
of a
busi-
posi-
cting
than
mess
:lent.
D.2d
cd 9
med
t68
con-
g of
j ex-
mu-
dete
ning
that
Jnge
cen-
148
25. Spot zoning
See. also, Notes of Decisions set out
under section 263.
Amendment of building zone ordi-
nance changing approximately 14 acres
of land from residential "0" district to
industrial "H" district with condition
that grade be reduced to that of road on
which it fronted was void as constituting
spot or contract zoning, where precise
change and conditions were proposed by
applicants for town zoning and were
adopted in toto, rezoned parcel was first
industrial intrusion in area and noncon-
may
pro-
and
:npt.
"the
0.00
::ant
258
G"XM-6-T G,
... ..
~ 265'-a
nance book. 6 Op.State Com pt. 245,
1950.
28. Maps, ftUng of
A zoning map must be filed with a
zoning local law only when the local
law, in express terms, adopts the map or
incorporates it therein, but there is no
legal requirement that the map (or a
portion thereof) be filed with a local law
effecting a zoning change by metes and
bounds description. Op.State Com pt.
8t-24.
29. Reconsideration of amendment by
board
Town board had authority to "recon-
sider" its prior resolution granting zon.
ing change, so long as the requisite statu-
tory procedures for changing present
zoning regulations were followed. Vizzi
v. Town of Islip, t972, 71 Misc.2d 483,
336 N.Y.S.2d 520.
30. Fees and expenses
It is doubtful that a town board may
charge a person who petitions for a zon.
ing change an application fee and the
cost of puplication of the amendment.
Op.State Comp!. 80-60.
A town may not charge the cost of
publication of a zoning change to the
applicants who request such change. 25
Op.State Comp!. 265, 1969.
_a.~-
~.
~ 265-a
.
~ONING AND PLANNING
Art. 16
mcnts for three-year period following
original final plat approval, propertv
owners, having failed to avail themselve-s
of statutory grace period, would not be
heard to complain of hardship resulting
from subsequent rezoning of the proper-
ty. Freundlich v. Town Ed. of South-
ampton. 1979, 73 A.D.2d 684, 422 N.Y.
S.2d 215, affirmed 52 N.Y.2d 921, 437
N.Y.S.2d 664, 419 N.E.2d 342.
2. Validity of particular exemptions
Where village was created out of land
lying in town and was incorporated on
February 3, 1967, and town's zoning or.
?~nance, to be approved by town author-
ItIes, was in effect until at least June 1
1968, which was the earliest date whe~
viII<;tge ordinance could supersede town
ordInance, and prior to this date town's
planning board found that lots on peti.
tioner's subdivision plat satisfied mini-
mum area requirements of town's zon-
ing ordinance and granted approval
TOWN LAW
Art. 16
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 appiica-
ble to or in any way affect any of the lots shown and delineated on such
subdivision plat.
2. 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 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 subdivi-
sion 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 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 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 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 subdivision shall apply for a period of one year after
the filing of said subdivision 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 approved plat, it shall be extended for that section for a
period of one year from the date of the filing of such section.
(Added L.1960, c. 1060; amended L.1963, c. 978, ~ 1.)
~ 266. Zoning commIssion
In order to avail itself of the powers
board shall appoint a commission to l::
to recommend the boundaries of the va
ate regulations to be enforced thereir
preliminary report and hold public he;
final report and such town board shall
action until it has received the final rc
planning board already exists it may t
sian.
(L.1932, c. 634; amended L.1963, c. 759.)
Historical Note
Effective Date. Section effective Apr.
30. 1960, pursuant to L.1960, c. 1060,
~ 2.
Historical
Derivation. Town Law of 1909, c. 63, ~
~ 141-c, subd. 18-0 and ~ 349-1. Said 7
subd. 18-0 was added L.1926, c. 715.
Library References
Zoning and Planning <$=44, 63, 321 et
seq.
C.J .5. Zoning and Land Planning
~~ 25; 38 to 49, 154 to 159.
Cross Refer
Village zoning commission, see Village Law
Notes of Decisions
Failure to use exemption t Validity of particular exemptions 2
Library Refl'
Zoning and Planning '3=351.
C.J.S. Zoning and Land Planning
~~ 97, 177 to 185.
t. Failure to use exemption
Where property was exempted pursu-
ant to this section, from zoning amend-
260
261
TOWN LAW
Art. 16
~, if any. in force and effect at the time of
Jlat Of first section thereof, shall not, for
lbdivision t\\'O of this section, be applica.
f the lots shown and delineated on such
ZONING AND PLANNING
Art. 16
mcnts for three-year period following
original final plat approval. property
owners, having failed to avail themselves
of statutory grace period, would not be
heard to complain of hardship resulting
from subsequent rezoning of the proper-
ty. Freundlich v. Town Bd. of South-
ampton. 1979. 73 A.D.2d 684. 422 N.Y.
S.2d 215. affirmed 52 N.Y.2d 921. 437
N.Y.S.2d 664. 419 N.E.2d 342.
2. Validity of particular exemptions
Where village was created out of land
lying in town and was incorporated on
February 3. 1967, and town's zoning or-
dinance, to be approved by town author-
ities, was in effect until at least June I,
1968, which was the earliest date when
village ordinance could supersede town
ordinance, and prior to this date town's
planning board found that lots on peti-
tioner's subdivision plat satisfied mini-
mum area requirements of town's zon-
ing ordinance and granted approval
of the subdivision plat or first section
one of this section there was in the town
)Ianning board vested with authority to
: exemption provided for in such subdivi.
ee years after the filing of the subdivision
~ the time of the filing of the subdivision
red to in subdivision one of this section
;1 effect in the town but there was no
~d with authority to approve subdivision
j for in such subdivision shall apply for a
19 of the subdivision plat or first section
"lg of the subdivision plat or first section
one of this section there was no zoning
as a planning board vested with authority
~n the exemption provided for in such
.ind of two years after the filing of the
tereof. If at the time of the filing of the
lereof referred to subdivision one of this
lance in the town and no planning board
.; subdivision plats, then the exemption
;hall apply for a period of one year after
Dr first section thereof. If such period of
.ne year from the date of the filing of a
;hall be extended for that section for a
of the filing of such section.
163. c. 978. ~ 1.)
~266
thereto, petitioner's plat became exempt
from operation of newly enacted village
ordinance, and village could not consti.
tutionally take away this exemption by
enactment of village ordinance that was
more restrictive than the predecessor
town code. Wesley Chapel, Inc. v. Van
Den Hende, 1969, 32 A.D.2d 565, 300
N.Y.s.2d 803.
Town zoning ordinance amendment
establishing minimum width of 40 feet
on street line, but exempting from such
requirement lots which had been desig-
nated on a plat previously or subse-
quently filed in the office of county
clerk, was not invalid on ground that
there was an unlawful delegation to
county planning commission of power
to enact zoning legislation for the town
with respect to plats subsequently filed.
Application of De-Jo Const. Corp., 1962,
36 Misc.2d 288. 232 N.Y.S.2d 908.
~ 266. Zoning commission
In order to avail ilself of the powers conferred by this article, such town
board shall appoint a commission to be known as the zoning commission
to recommend the boundaries of the various original districts and appropri-
ate regulations to be enforced therein. Such commission shall make a
preliminary report and hold public hearings thereon before submitting its
final report and such town board shall nol hold its public hearing or lake
action until it has received the final report of such commission. Where a
planning board already exists it may be appointed as the zoning commis-
sion.
(L.1932, c. 634; amended L.1963. c. 759.)
HIstorical Note
torlcal Note
Jr.
i(Y,
Derivation. Town Law of 1909, c. 63,
~ 141-<. subd. 18-c and ~ 349-t. Said
subd. 1S.-e was added L.1926. c. 715.
Said section 349-t was added L.1926, c.
714, ~ 1.
ct
Cross References
ry References
C.J .S. Zoning and Land Planning
~~ 25; 38 to 49. 154 to t59.
Village zoning commission, see Village Law ~ 7-710.
Library References
; of Decisions
Validity of particular exemptions 2
Zoning and Planning e=>351.
C.J.S. Zoning and Land Planning
~~ 97. 177 to 185.
I. Failure to use exemption
Where property was exempted pursu-
ant to this section. from zoning amend-
260
j
261
. S 265
.
TOWN LAW
Notes of Decisions
9. Protest against proposed change- angetown, 1986, 125 A.D.2d 4G5, 509
Generally N.Y.S.2d 394.
A single joint tenant's signature is
sufficient to constitute a vote on behalf
of the jointly owned property for pur-
poses of a protest petition under Town
Law ~ 265. Op.Atty.Gen. (lnf.) 89-17.
10. - Necessity of three.fourths
vote
Town board's three-to-two vote ap-
proving application for change in zoning
was not sufficient to pass amendment,
where landowner who submitted written
objection owned slightly more than 20'}~,
of land area immediately adjacent to
property for which zoning change was in
question, if area lying in street were
excluded, under Town Law requiring ap-
proval of at least three-fourths of mem-
bers of town board of land regulation
chang-e if change is objected to by own-
ers of 2070 or more of immediately adja-
cent land. Biedermann v. Town of Or-
15. Disapproval of change by plan-
ning board
Webster Associates v. Town of Web-
ster, 447 N.Y.S.2d 401 [main volume]
affirmed 85 A.D.2d 882, 446 N.Y.S.2d
955, reversed 58 N.Y.2d 220, 464 N.Y.
S.2d 431, 451 N.E.2d 189.
22. Conditional chanKes
Town zoning- board could not impose
condition on grant of variance permit-
ting use of ag-ricultural-residential prop-
erty for automobile body repair shop,
requiring phasing out of operation on
another parcel of property not subject to
variance, notwithstanding contention
that condition was justified by close rela-
tionship between properties and by in-
terrelated nature of land in the commu-
nity. St. Dnge v. Donovan, 1988, 71
N.Y.2d 507, 527 N.Y.S.2d 721, 522
N.E.2d 1019.
.x ~ 26~a. Exemption of lots shown on subdivision plats
Notes of Decisions
Commercial subdivisions ;):
Local laws 4
~ 2. Validity of particular exemptions
Sections of Town Law and Village
Law which provide exemption from
amendment to zoning ordinance increas-
ing req uired lot size made within three
years after approval and filing of subdi-
vision plat or first section of plat were
not intended to abrogate vested rights
acquired before or during exemption pe-
riod by virtue of substantial improve-
ments. Ellington Const. Corp. v. Zoning
Bd. of Appeals of Inc. Village of New
Hempstead, 1989, 152 A.D.2d 365, 549
N.Y.S.2d 405.
3. Commercial subdivisions
Statute providing for exemption of ap-
proved subdivision plats from increased
lot area and lot coverage requirements
of zoning ordinances adopted or amend-
ed subsequent to subdivision plat ap-
proval applied to commercial subdivi-
sions as wen as residential subdivisions.
Ramapo 287 Ltd. Partnership v. Village
of Montebello, 1990, _ Misc..2d
550 N.Y.S.2d 102l.
4. Local laws "*"
This section does not exempt a devel-
oper who has filed a subdivision plat
from the requirements of a subsequent-
Iy-enacted local law governing wetlands
preservation. Op.Atty.Gen. I 90-10.
~ 266. Zoning commission [Eff. until July 1, 1991. See, also, ~ 266
post.]
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 commission to
recommend the boundaries of the various original districts and appropriate
regulations to be enforced therein. Such commission shall make a prelimi-
nary report and hold public hearings thereon before submitting its final
report and such town board shall not hold its public hearing or take action
until it has received the final report of such commission. Where a planning
board already exists it may be appointed as the zoning commission.
(1..1932, c. 634; amended 1..1963, e. 759.)
22
TOWN LAW.
Historical and Statutory Notes
For applicable historical and statutory notes.
Notes of Decisi01l1i, see ~ 266, as amended by L.l:
~ 266. Adoption of first zoning ordinance [Eff. July
by L.1990, c. 515. See, also, ~ 266 ante.]
1. In order to avail itself of the powers conferred
town board shall appoint a commission to be known as
sion to recommend the boundaries of the various 0-
appropriate regulations to be enforced therein.
2: Where.a planning board already exists it may
zonmg commISSIon.
3. Such commission shall make a preliminary rep<
more public heanngs thereon as deemed appropriate
before submitting its final report.
4. The town board shall not hold its public hearing 0
has receIved the fmal report of such commission.
5. Upon adoption of a resolution by the town board
report, such commission shall cease to exist as a separ
(1..1932, e. 634; amended 1..1963, e. 759; 1..1990, e. 515, ~ 1.)
Historical and Statutory Notes
1990 Amendment. L.1990, c. 515, ~ I, ing the number of
eff. July 1, 1991, in catchline substituted held as one or mor
~ference to adoption of firs~ zoning ~r' ate by commission
dmance for reference to zomng commlS- d . . h
sion, designated existing provisions as e. proVISion aut
8ubds. 1, 3, and 4 and, as so designated, nmg ?o~rd to bf>
in subd. 3 inserted provisions authoriz~ commiSSion, and a
~ 267. Board of appeals
West's McKinney's Forms
The following forms appear in Local Government Forms un
Order to show cause (with restraining order) in article 78
determination of board of appeals-denying special use p
as automobile repair shop, see Form UA.
Petition in article 78 proceeding to review determination of bo
,ing specia.1 use permit ~ use prop~rty as aU,tomobile repai;
Notice of motion by use vanance applicants to mtervene in ar
review determination of board of appeals granting' variant
preprimary and elementary school for profit, see Form 21
Affirmation in support of motion by use variance applicants to
proceeding to review determination of board of appeals
operate a private preprimary and elementary school for
Order permitting use variance applicants to intervene in art
revie'Y' determination of board of appeals g-ranting variant
prepnmary and elementary school for profit, see Fonn 2c
Notes of Decisions
landowners 93a Declaratory
209a
Consent of adjoining
Rehearing 212a
Ripeness for judicial review, scope of
Judicial review 2178
Scope of judicial review
Ripeness for judicial review 217a
Timeliness of petition
Generally 208
28. Practical dim
Evidence establis
ty and, thus, justifi
23
,
. ~ '.
.
.
MEMORANDUM TO FILE - Fishers Island Development Corporation
April 12, 1991
A meeting was held this morning from 9:00 a.m. to about 9:30 a.m.
Harvey Arnoff called the meeting to discuss the status of the
FIDCO subdivision map. This meeting was related to the Lieb
and Danforth application that was made by Steve Ham on behalf
of his clients. (See previous correspondence in the file from
Steve Ham, and proposed correspondence from the Town, which was
never sent for the background.)
Also present at this meeting were:
Ken Edwards, Planning Board member from Fishers Island.
Mark McDonald, Planning Board member from Southold
Tom Doherty, Fishers Island Utility Company
Mr. Calhoun, President? Fishers Island Development Co.
Victor Lessard, Principal Building Inspector
Valerie Scopaz, Town Planner
At this meeting, Mr. Arnoff spoke of a court decision from
December 1990, which is attached. In his opinion, this decision
protected FIDCO's remaining undeveloped and unsold lots from
the 1989 upzoning. The lots in question are less than three
acres in area, which is the minimum lot area required by the
1989 upzoning.
However, he remains concerned about the lack of a filed
subdivision map. According to the records that have been found
and researched, a subdivision map was never filed with the
County Clerk's office. Consequently, the FIDCO subdivision
map is not a recognized legal document. Harvey felt that this
state of affairs precluded the Planning Board and the Zoning
Board from taking any actions on any applications. He
recommended the filing of the map by FIDCO.
This led to a detailed technical and legal discussion about how
the map could be signed and filed. The gist of this discussion
was that the matter may end up before a judge for resolution.
At the close of the meeting it was decided that Messeurs
Doherty and Calhoun were going to do some research. First
they were going to speak with Dick Lark, Esq, former attorney
.
.
for FIDCO, to see if he might have a signed copy of the
subdivision map in his possession, if a copy of the map had
indeed been signed. The Planning Board's records show that the
Planning Board passed resolutions approving revisions to the
subdivision map. However, there is no record of any of the maps
being signed and filed with the County Clerk's office. If there
is no signed map in existence, they would then proceed to have a
set of mylar and paper maps drawn up in accordance with the
filing requirements of the County Clerk's office. The attorney
for FIDCO and Harvey would then take whatever legal steps
would be necessary to prepare the maps first, for the Planning
Board Chairman's signature; and second, for filing with the
County Clerk's office.
Tom Doherty will keep Ken Edwards and I informed as to
what they find out after speaking with Dick Lark.
Submitted by Valerie Scopaz
April 12, 1991 - 11:15 a.m.
ft
te'
T, 2d SERlES~" :::LLINGTON CONST. v. ZONING RD. OF APPEALS
... ale.. 564 N.Y.B.2cII 1001 (Ct.App. 1990)
o less formidable when a chIriwo. pll(lld for the law that he was willing to Law's three-year exemption period from
Penofsky, who is not an "ot&. c I2p1P<tuate a 16-year fraud on both his zoning amendment increasing lot area or
:rt" and is not accountable lD _ yers and the public. dimension requirements permitted develop-
'ary authority, has been JlenDiI:oc,. .... demean the process as a whole when er to secure right to complete subdivision
]rand Jury room.<: ~.' .. hold, in essen~e, that the Grand Jury in accordance with existing zoning require-
, final analysis, I cannot co_i.. .' ~ml( was not fatally tainted by either me~ts by man,if~~ting commitment to ex...
ct woul~ permit .th~ State to,.. _.:'-"'(SkY'S lack of admission to the Bar or ~utiO,n of subdivISIon pla~ thro?gh comp)~
the basIS of an mdictment obloiIoI .... mminally fraudulent conduct. Accord. mg IIDprovements and mcurnng expendi-
'P"rso~ because, in m! vie.., .... "Ilrly, I would hold that the indictment un. tures, in co~eetion ~e~with, durin~ ex-
"promISes the mtegnty of the,.. _.. which defendant was prosecuted was emption penod, sufficIent to constitute
d thereby undermines the pailIi(. _.toctive and should have been dismissed. vesting under common-law roles, and (2)
o invest its confidence in that "'" .. substantial improvements and expenditures
n theory, the Grand Jury is ..... ,..,WACHTLER, C,J" and SIMONS, made by developer during thr....year ex-
in our legal system against. .. U,E and BELLACOSA, JJ., concur emption period were sufficient to confer
and abusive conduct by the pr.- .......ll HANCOCK, J. vested right to obtain building permits in
arm of government (see, p"",,*, tf;. . . accordance with provisions of former ZOD-
Ine., 49 N.Y.2d 389, 395-896, GI "C TIrOSE, J., d.ssents ~d v~tes to ing ordinance.
; 238 402 N E 2d 1140' pf""""I.. ""'." .....,e III a separate opmlon m whIch S CurtA llate D' ., _.
., . . ,~u".. ~- I' ~.\" '"\oTDER 'J upreme 0 ,ppe IVlSIOn. ...-
'. 45 N.Y.2d 589, 594, 412 N.Y.5..:t F' ~"''' ' , ., concurs. finned.
N.E.2d 656). In modem pradloo Ii-- In each case: Order affinned.
, it has come to be regarded, aD '" ......
; a mere "investigative agent (~ .."
ecutor." (Matter of Addiw. J
9 Grand Jury v. Doe, 50 N.Y~ ,.'
en N.Y.S.2d 950, 405 N.E.2d I" ~
r, J., concurring].) As one roC' f
rved, the Grand Jury frequa.-
s] . . . as a rubber stamp ..~.:
affirm[ing] what the proseClW'
lD it to affirm . . . [and] It
or fail[ing] to indict as the pIGlt
Jmits' that it should." (Peop/I'
86 Misc.2d 729, 734, 383 N.Y,SJI
ren the central importance at" .,
,r's role in the Grand Jury sysI2Il
believe that we can, or shollll
a proper predicate for a eriJIliIt
m the work product of a GrPI
se "legal adviser" was a peIII'
>aniel Penofsky-who was DflfII
.s competent by the State ~
;aminers, was never approved .,
littee on Character and Fiblt"
himself had such little pe""""
. .,t~
Sped and dismiss is not a ~~
ensuring the regularity of the UJlPP~
;5, since many of the activities ol dl!
District Attorney handling the (jtJII
entation. including witness preJ'l'!
dection of the counts to be submi~
: off the record and. cOnseQ.uend1
'~vade judicial scrutiny (see al5o, PtI
", 296 N.Y. 315, 322, 73 N.E.2d Sl!!
{i K(Ylfllfl48Elt ~YmM
, T
77 N.Y.2d 114
.lJ.uIn the Matter of ELLINGTON
CONSTRUCTION CORP.,
Respondent,
"
v.
ZONING BOARD OF APPEALS OF
THE INCORPORATED VILLAGE
OF NEW HEMPSTEAD, Appellant.
Court of Appeals of New York.
Dec. 20, 1990.
Developer commenced proceeding to
9I<ate decision of village zoning board of
'PIle'ls confirming denial by village build.
RIg inspector of application for building
~nnit. The Supreme Court, Rockland
de unty, Rosato, J., entered judgment for
, veloper, and board appealed. The Su-
~rne Court, Appellate Division, 152
A,D,2d 365, 549 N.Y.S.2d 405, modified
tdgrnent and affirmed. Board appealed
y Pennission granted. The Court of Ap-
Peals, Hancock, J., held that: (1) Village
1. Statutes =214
In construjng statute, Court of Ap-'
peals need look no further than statute
itself if statute is unambiguous and its
meaning evident from language.
2. Zoning and Planning 4=>325
When more restrictive zoning ordi-
nance is enacted, owner will be permitted
to complete structure or development
which amendment has rendered noncon-
forming only where owner has undertaken
substantial construction and made substan-
tial expenditures prior to effective date of
amendment.
3. Zoning and Planning 4=>376
Rule of construction that zoning legis.
lation which is in derogation of common
law must be strictly construed against mu-
nicipality which seeks to enforce it would
be contravened by interpreting statutory
exemption provisions, which provide ex.
emption period after filing of subdivision
plat during which amendment increasing
lot area or dimension requirements shall
not be applicable to or in any way affect
any of the lots shown and delineated on
such subdivision plat, as applying to a lot
only when developer has actually complet.
ed lot or obtained building permit for it
during exemption period. McKinney's ViI-
1001
1002
564 NEW YORK SUPPLEMENT, 2d SERIES
lage Law ~ 7-708, subd. 2; McKinney's
Town Law ~ 265-a; McKinney's General
City Law ~ 83-8, subd. 2.
4. Zoning and Planning <3=>376
Provision of Village Law, which estab-
lishes exemption period of three years after
filing of subdivision plat during which zon-
ing amendment increasing lot area or di-
mension requirements shall not be applica-
ble to or in any way affect any of the lots
shown and delineated on such subdivision
plat, was intended to permit developer to
secure the right to complete subdivision in
accordance with existing zoning require-
ments by manifesting a commitment to ex-
ecution of subdivision plan through com-
pleting improvements and incurring ex-
penditures in connection therewith, during
exemption period, sufficient to constitute
vesting under common-law rules. McKin-
ney's Village Law ~ 7-708, subd. 2.
5_ Zoning and Planning <3=>376
Subdivision owner is exempt under Vil-
lage Law from compliance with new, more
stringent area and dimension requirements
upon applying for building permits for its
remaining lots, where owner takes suffi-
cient steps toward completion of proposed
subdivision, and thus acquires common.law
vested rights, before expiration of Law's
three-year exemption period from new zon-
ing requirements. McKinney's Village
Law ~ 7-708, subd. 2.
6. Statutes <3=>212.3
Court of Appeals must presume that
Legislature could not have intended inter-
pretation of statute which produces unrea-
sonable and potentially unjust conse-
quences.
I. Insofar as is pertinent, Village Law ~ 7-708
provides:
"2. (a) Notwithstanding any inconsistent
provision of this chapter or of any general.
special or local law. the provisions of a zoning
law hereafter adopted, and the provisions of a
change or amendment hereafter adopted to a
zoning law which provisions establish or in-
crease lot arMS, lot dimensions which are great.
er 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 resi-
dential use and which said subdivision plat also
shows and delineates one or more new streets
roads or highways in addition to lot lines and
7. Zoning and Planning <3=>376
Developer made substantial improve-
ments and expenditures during exemption
period provided by Village Law, which es-
tablishes three-year exemption period after
filing of subdivision plat during which
amendment increasing lot area or dimen-
sion requirement shall not be applicable to
or. in any way affect any of the lots- shown
and delineated on such subdivision plat,
and thus developer had vested right to
obtain building permits in accordance with
provisions of former zoning ordinances for
proposed lots in subdivision; prior to vil-
lage's amendment of its zoning ordinance,
developer had installed drainage facilities,
water and sewer lines, fire hydrants, curbs
and curb cuts, and underground telephone
and electric service, and developer subs&
quently, with village's knowledge, had in-
stalled paved road. McKinney's Village
Law ~ 7-708, subd. 2.
..ll15DoriS F. IDman, Village Atty. (Frank
I. Brown, Spring Valley, of counsel), for
appellant.
..lllllJohn S. Edwards, New York City, for
respondent.
..ll17Barbara J. Samel, Schenectady, for
the New York State Conference of Mayors
and Other M un. Officials, amicus curiae.
OPINION OF THE COURT
HANCOCK, Judge.
For a village having both a Planning
Board and a..ll18Zoning Board of Appeals,
Village Law ~ 7-708(2) I establishes an ex-
(
I:
s
S
II
dimensions of the lots thereon delineated and
which said subdivision plat has been duly ap-
proved 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 aU-
thority to approve subdivision plats, and which
said subdivision plat or the first section thereof
has been duly filed in the office of the recordil1l
officer of the county in which the land shoWO
on said subdivision plat is situate, or which
provisions establish or increase side, rear ot
front yard or set-back requirements in eXCCS5 of.
those applicable to building plats under the pro-
vJsion of the zoning law, if any. in force 3Dd
d
"~.L
~d SERIES
und Planning *"376 .
Jper made substantial improve-
: expenditures during exemption
":ided by Village Law, which eo-
:lree-year exemption period after
.. ubdivision plat during which
't increasing lot area or dimf!Do'
cement shall not be applicable to
""y affect any of the lots shown
lled on such subdivision plat,
developer had vested right to
:ding pennits in accordance with
of former zoning ordinances for
.uts in subdivision; prior to vi}..
'!1dment of its zoning ordinance.
nad installed drainage facilities,
"::iewer lines, fire hydrants, curbs
\lts, and underground telephone
;c service, and developer subs&
ith village's knowledge, had in-
",ed road, McKinney's Village
::)8, subd. 2.
, F, Ulman, Village Atty. (Frank
Spring Valley, of counsel), for
3. Edwards, New York City, for
t,
,<fa J. Samel, Schenectady, for
,ork State Conference of Mayon
, Mun. Officials, amicus curiae-
'I>
'INION OF THE COURT
iCK, Judge.
':illage having both a Planning
! a..lll,Zoning Board of Appeals,
,w ~ 7-708(2) I establishes an eX'
ns of the lots thereon delineated and
d subdivision pIal has been duly Dp'"
'I the planning board, if any. of t~
.,vhich the land shown on said plat 15
r approved by such other board ($
.my, of such village, vested with aU-
;\pprove subdivision plats. and which
Ivision plat or the first section thereof
july filed in tbe office of the recordipj:
the county in whi.ch the land shoWl'
;ubdivision plat is situate, or which
'i establish or increase side. reat at
1 or set.back requirements in excess cJ ..!
licable to building plats under the p~
the zoning law, if any, in force aP'"
ELLINGTON CONST. v. ZONING BD. OF APPEALS
Clte..564 N.y.s.u 1001 (CLApp. 1990)
I
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emption period of three years after the
filing oi a subdivision plat during which an
amendment increasing lot area or dimen-
sion reouirements shall not ''be applicable
u> or in any way affect any of the lots
shown and delineated on such subdivision
plat" (~ 7-708[2][a]). Prior to an increase
in the applicable area and dimension re-
quirements, the owner of an approved sub-
division failed to complete it or to apply for
building permits on all of the proposed lots.
It did, however, take sufficient steps to-
ward completion of the proposed subdivi-
sion betore the exemption period expired to
acquire common-iaw vested rights. The
question ?resented by the appeal of respon-
dent Zoning Board is whether the petition-
er owner. bv vlrtue of these vested riihts.
.;s exempt irom compliance with the new.
more strinq'p-nt area and dimension require-
_ ments when it applies for buildinll permIts
for its TllonHl.ining lnt/;l. Supreme CQurt..JIDd
the Aopeilate Division 152 A D 2d 365.5.49
~,Y,S.2d 405 hnth hp-ld thAt thp. ownllor is-
protected under the exemption in VJl!age .
Law ~ ! 1197 708(2)(b), and we agree. There
,nould, accordingly, . be'ai} "affliillance.
I
On April 29, 1975, the Town of Ramapo
Planning Board accepted for filing petition-
er's "average density" subdivision plat (see,
Town Law ~ 281). As a condition of its
"average density" approval, the town re.-
quired that 12.105 acres of the 33.522 acres
in the subdivision be irrevocably dedicated
to it for parkland purposes. The subdivi-
sion was approved for development in two
sections, the first to consist of 9 lots and
the second of 22 lots.
On July 3, 1975, petitioner's predecessor
dedicated the parkland and thereafter, on
effect at the time of the filing of the said subdi-
vision plat or first section thereof, shall not, for
th: period of time prescribed in paragraph (b) of
thrs subdivi'iion, be applicable to or in any way
aflcct any of tire lots shoWn and delineated on
such subdivision plat.
. "(b) If at the time of tbe filing of the subdivi-
SIOn plat or first section thereof referred to in
paragraph (a) of this subdivision there was in
the village both a zoning board and a planning
board vested with authority to approve subdivi-
,
.....
1003
September 24, 1975, the subdivision plat
was filed. On June 29, 1982, the town
approved a revised subdivision plat. This
plat, filed on October 14, 1982, did not in
any way modify the original layout of the
lots, streets and other improvements. Z
Between 1980 and early 1984, petitioner
built seven homes on section one of the
subdivision. No homes were constructed in
section two which had been laid out for lots
having widths of between 108 and 120 feet
and areas complying with the 22,500
square-foot minimum requirement of the
Town of Ramapo ordinance.
In 1984, when the Village of New Hemp-
stead was incorporated, the territory of the
town which encompassed petitioner's subdi-
vision became part of the Village. On Jan-
, uary 2, 1986, the Village amended the ap-
plicable zoning ordinance to increase the
minimum area requirement for average
density lots to 35,000 square feet and the
minimum width requirement for such lots
to 150 feet. Prior to this time, petitioner
had installed various improvements on the
subdivision including, on section two, drain-
age facilities, water and sewer lines, fire
hydranta, curbs and curb cuts, and unde....
ground telephone and electric service. M-
ter the amendment to the ordinance-and
with the Village's knowledge-petitioner
installed a paved road on section two.
In June 1986, petitioner applied for a
building permit to construct a house on lot
D-lO in section two. The Village building
inspector denied the permit because peti-
tioner failed..woto make certain public im-
provements to a county road adjoining the
subdivision, and because the lot did not
meet the amended, more restrictive Village
sian plats, then the exemption provided for in
such paragraph shall apply for a pen"od of thru
yetJrs after the filing 01 the subdivision plat or
first section thereof." (Emphasis added.)
Provisions virtually identical to those in Vii.
!age Law S 7-708(2) are contained in Town Law
S 265-8 and General City Law S 83-a.
2. It is not disputed that the three-year exemp-
tion period at issue began to' run on the date the
revised plat was filed (Oct. 14, 1982).
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1004 564 NEW YORK SUPPLEMENT, 2d SERIES J'
zoning requirements.' With re.Peet to this lots in which an owner has acquired
.econd reason, the in.pector ruled that the mon-la'!.Wlve.ted rights during the
exemption in Village Law t 7-708 did not In con.truing .ection 7-708(2), as with
apply inasmuch a. petitioner had not legislation, we first "look to the parti
.ought a building permit dUring the three- words for their meaning, both as they
year exemption period. Petitioner then u.ed in the .ection and in their context'
commenced its first article 78 proceeding to part of the entire .tatute." (Price v.
review the denial of its permit. Supreme 69 N. Y.2d 8, 13, 511 N. Y.S.2d 219,
Court dismi..ed this proceeding for peti- N.E.2d 684.) For if the .tatute i. unamb"
tioner'. failure to exhau.t administrative uou. and its meaning evident from
remedies since it had not sought relief in language, as re.pondent contends, we
an appeal to the Zoning Board of Appeal.. look no further (see, Sega v. State of M ,
Accordingly, petitioner appealed the build. York, 60 N.Y.2d 183, 19(}...191, 469 N.Y.S.21
ing in.pector'. denial to the Zoning Board 51, 456 N.E.2d 1174). .r"
of Appeals and, as alternative relief, re- From the language of section 7-708(Z/1;
que.ted a variance. a. it applie. to the Village of New HemJif;
When respondent Zoning Board of Ap- .tead, there i. no que.tion: (1) that.~
peal. denied petitioner'. application in all purpo.e i. to create an exemption from tbt
re.pects, it commenced the pre.ent article operation of amendments impo.ing strieta
78 proceeding. Supreme Court annulled area and dimen.ion requirements; and llt
re.pondent'. deterlnination and directed that the period of the exemption i. threol
the Village in.pector to i..ue the building years commencing on the date of the fiJinO
permit for lot D-1O and the other lots in of the .ubdivi.ion plat. But the statu~
the .ubdivision "if, a., and when petitioner contain. no language which prescribe. lhi
make. an application for same". The Ap- conditions which must be satisfied for 815
pellate Division agreed with Supreme owner to receive the benefit of the exemPi
Court's conclu.ion that petitioner had ac- tion. It does not specify whether as"
quired veswd rights to complete the subdi- prerequisiw for claiming the exemption fOlJ
vi.ion under the originally applicable area a particular lot, the owner must, during the~
and dimension requirements, but modified exemption period, have completed con.tru....
by requiring petitioner to fulfill certain Con- tion on the lot or obtained a building permit;
dition. in order to obtain the building per- for such construction-<>r whether it is suf-;i
mit.' ficient if the owner has taken sufficient;
.tep. toward completion of the subdivision
under the existing, more liberal zoning l'&'i
quirements to have acquired vested righll'
in the remaining undeveloped lots. The ~
only statutory mandate is that the stricter
requirements of the amended ordinance"
"shall not" .. .. be applicable to or in an,:
way affect any of the lots shown and deiin-;
eated on such subdivision plat" (Villsge"
Law t 7-708(2](a] (empha.is added]). Ex-
actly what the lots are proteeted from-i.e.,"
what is meant by the phrase. "be applies- ,
ble to" and "in any way affect"-is. not:
.~
lage Law ~ 7-708(2)-the Zoning Board of Ap')
peals lacked a ralional basis for the denial oIj
petitioner's request for a variance. In the light .
of OUf conclusion that petitioner was entitled to
the benefit of the exemption Provision, we do
not reach the variance issue. . ;~
II
[1] Thi. appeal turns on a question of
statutory interpretation: the intended ef.
feet of the language in Village Law
t 7-708(2) creating the exemption. Re-
spondent Zoning Board of Appeal. 'con-
wnd. that the statute afford. protection
only for those lots in a filed subdivision
which an owner has completed or for which
it has actually obtained a building permit
dUring the exemption period. Petitioner
argues that the statuw protects .ubdivision
3. The other n~ason given for the denial of the
permit_i.e., [hat petitioner failed to pay an in-
spection fee-is not at issue on this appeal.
4. Both Supreme Court and the Appellate Divi_
sion also concluded that_if the new, more re-
strictive zoning requirements Were held to be
applicable despite the exemption period in ViI-~-
i
i6.L
;T, 2d SERIES
N hich an owner has acquired com-
''::JJ;21vested rights during the period.
,truing section 7-708(2), as with any
::on, we first "look to the particular
:or their meaning, both as they are
! the section and in their context 88
the entire ststute," (Price v. Priu, I
c.2d 8, 13, 511 N,Y.S.2d 219, 503
. 684.) For if the statute is unambig-
.nd its meaning evident from the
~e, as respondent contends, we need I
, further (see, Sega v. State of New i
oj N. Y.2d 183, 19li-191, 469 N.Y.S.2d
: N.E.2d 1174).
\ the language of section 7-708(2), I
,'plies to the Village of New Hemp- i
.here is no question: (1) that its i
, is to create an exemption from the ~
,In of amendments imposing stricter i
,d dimension requirements; and (2) I
., period of the exemption is three i
Jmmencing on the date of the filing !'
subdivision plat. But the stature
s no language which prescribes tbe
'Os which must be satisfied for an i
o receive the benefit of the exemp- ,
,t does not specify whether as a
.1isite for claiming the exemption for
,ular lot, the owner must, during the
.ion period, have completed construe-
tbe lot or obtained a building permit
h construction~r whether it is suf.
if the owner has taken sufficient
0ward completion of the subdivision
i.he existing, more liberal zoning reo
'nts to have acquired vested rights
remaining undeveloped lots. The
"tutory mandate is that the stricrer
'ments of the amended ordinance
lot. . . be applicable to or in any
icct any of the lots shown and delin'
.n such subdivision plat" (Village
7-708[2][a] [emphasis added]). Ex'
Llat the lots are protected from-i.e"
. meant by the phrases "be applica-
and "in any way affect" -is. not
,.iW ~ 7-708(2)-the Zoning Board of Ap-
: .lcked a rational basis for the denial of
:\er's request for a variance. In the light
conclusion that petitioner was entitled to
-::cHt of the exemption provision. we d.o
.:ch the variance issue. .
ELLINGTON CONST. v. ZONING BD. OF APPEALS
Cite as 564 N.Y.S.2d 1001 (ClApp. 1990)
1005
clear. It is necessary, therefore, to look
beyond the words of the statute at the
circumstances surrounding its adoption and
t.o consider the policy reasons for enacting
legislation in an area where common-law
rules have long controlled (see, Price v.
Price, supra, 69 N.Y.2d at 13-14, 511 N.Y.
S.2d 219, 503 N.E.2d 684), being mindful, of
course. that the "'legislative intent is the
great and controlling principle' JI (id., at 14,
511 N.Y.S.2d 219, 503 N.E.2d 684; People
v. Ryan, 274 N.Y. 149, 152, 8 N.E.2d 313).
Village Law S 7-708(2) and its counter-
part, Town Law 9 265-a, were enacted in
1960 (L.1a60, chs. 1060, 1061). The Legis-
lature adopted a similar measure for cities
in 1961 (General City Law S 83-a, L.1961,
ch. 275). Prior to these enactments, ques-
tions concerning the rights of owners of
approved subdivisions to complete their
subdivisions in accordance with the regula-
tions existing at the time of their approval
were go.:.!!ned122 exclusively by the com.
man iaw pertaining to vested rights.
[2] The New York rule, both before and
aftcr the exemption statutes, has been that
where a more restrictive zoning ordinance
is enacted, an owner will be permitted to
complete a structure or a development
which an amendment has rendered noncon-
forming only where the owner has under-
taken substantial construction and made
substantial expenditures prior to the effec~
live date of the amendment (see, People v.
Jfiller. 304 N.Y. 105, 107-109, 106 N.E.2d
34; Matter of Putnam Armonk v. Town of
Southeast, 52 A.D.2d 10, 14-15, 382 N.Y.
8.20 538: .j Rathkopf, Zoning and Planning
S 50:03[3], at 51}-2;;.-5li-28 [4th ed.]; 1
Anderson, New York Zoning Law and Prac-
tice 9 6.18, at 229-234 [3d ed.]). The doc-
trine of vested rights has generally been
described as an application of the constitu-
tiunally based common-law rule protecting
nonconforming uses (see, People v. Miller,
Supra, 304 N.Y. at 107. 106 N.E.2d 34; .j
Rathkopf, 01'. cit., at 50-13, n. 2). But the
doctrine is also said to have been grounded
on principles of equitable estoppel (see,
,!latter of Pokoik v. Sllsdorf, 40 N.Y.2d
709, 7n, and at 774, 3aO N. Y .S.2d 49, 358
N.E.2d 874 [Breitel, Ch. J., disscnting]; 7
...
Rohan, Zoning and Land Use Controls
S 52.08[4], at 52-78-52-80; 4 Rathkopf,
op. cit., S 50.04, at 5li-41-5li-42). Wheth-
er rooted in equity or the common law, the
operation and effect of the vested rights
doctrine is the same and it has been applied
alike to a single building or a subdivision
(see, Matter of Putnam Armonk v. Town
of Southeas~ 52 A.D.2d 10, 382 N.Y.S.2d
538, supra; Elsinore Prop. Owners Assn.
v. Morwand Homes, 286 App.Div. 1105,
1106-1107, 146 N.Y.S.2d 78; Ward v. City
of New Rochelle, 20 Misc.2d 122, 197 N.Y.
S.2d 64, affd. 9 A.D.2d 911, 197 N .Y.S.2d
128, affd. 8 N.Y.2d 895, 204 N.Y.S.2d 144,
168 N.E.2d 821; 4 Rathkopf, op. ciL,
S 50.03[3][ d], at 5li-39-5li-41).
Under the vested rights doctrine as it
applied to subdivisions (prior to the exemp-
tion statutes), nothing cut off the period
during which a developer could acquire
vested rights after initial approval. On the
other hand, nothing prevented a municipali.
ty from subjecting the undeveloped lots in
an approved subdivision to more stringent
restrictions at any time after the plat was
filed so long as vesting had not occurred.
Protecting the owner depended entirely on
the date of vesting relative to the effective
date of the amended ordinance. If vesting
occurred first, the owner was protected. It
mattered not when the events occurred
with respect to the initial date of plat ap-
proval, but only which came first.
The enactment of the statutory exemp-
tion provisions (V~gel23 Law S 7-708[2];
Town Law S 265-a[2]; General City Law
S 83-a[2]) obviously supplied something
which the decisional law of vested rights
lacked: a specific period during which the
developer could secure the right to com-
plete the unfinished lots free from the re-
quirements of the new, more restrictive
ordinance and beyond which such right
could not be secured. But the statutes did
not define precisely what the developer
must do during the period to obtain the
protection of the exemption.
[3] Respondent Zoning Board of Ap-
peals contends that, under the statute, in
order to achieve freedom from the amend.
ed- ordinance for any uncompleted lot, a
,
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can Institute of Planners, id.; Mem. in i
support of A 3834, id.). Indeed, Governor 1
Rockefeller in his memorandum approving .tf
the legislation stated that the "purpose of ..
these bills is to reconcile the interests of '"
home builders and developers who have t
made financial commitments relying on ex. ..
isting zoning ordinances, and the interests t
of towns and villages in not being unduly t.
restrained from upgrading zoning require- ..
ments" (1960 McKinney's Session Laws of.
N.Y., Messages of Governor, at 2064). ...
Petitioner's interpretation of the stat-
ute-that it was intended to permit a devel-
oper to gain vested rights during the ex-
emption period-seems fully consistent .
with this legislative purpose of effecting a ,
compromise in a statute which would fairly
balance the conflicting interests of the de-
velopers and municipalities. Under peti-
tioner's construction, each group gains
something and gives up something. The
developers gain the assurance of a definite
period during which they can protect their
subdivisions by securing vesting; they give
up the possibility of protection under the
statute after that period. The municipali- ,
ties gain the authority to enforce an up-
grading of their zoning requirements at
any time after the exemption period and
the assurance that the new requirements
will bind any developer which has not by
then achieved vesting; the municipalities
give up their former unrestricted power to
subject a subdivision to new requirements
at any time before the Owner has acquired'
vesting rights.
The view of the statute espoused by re-
spondent Zoning Board, on the other
hand-that a developer can derive no pro-
tection for the balance of its subdivision by
achieving vesting during the exemption pe-
riod-permits undeniably harsh results.
Obviously, where a developer has complet-
ed a substantial portion of a subdivision, it
could be faced with large losses and unan-
ticipated additional cost if compelled to re-
structure its plans and dismantle and re-
construct subdivision improvements in or~
der to complete the remaining lots. As has
been observed, a rule of such stringency
applying to subdivisions imposes a formid-
564 NEW YORK SUPPLEMENT, 2d SERIES
developer must have actually completed the
lot or obtained a building permit for it.
Under this construction, a developer which
had done more than enough during the
exemption period to acquire common-law
vested rights for the remaining undevel-
oped lots in the subdivision, would be re-
quired, nevertheless, to comply with the
amended ordinance for these lots. Such
construction, if adopted would produce an
extensive change in the law, and would
deprive the developer of what, but for the
effect of the statute, would be its right to
achieve vesting during the exemption peri-
od under the common-law rule. It would,
thus, contravene the established rule of
construction that zoning legislation of the
type in question which is Olin derogation of
the common law .. . .. must be strictly
construed against the municipality which
. . . seeks to enforce [it]" (Matter 0/ Al-
len v. Adami, 39 N.Y.2d 275, 277, 383
N.Y.S.2d 565, 347 N.E.2d 890; see, !'latter
0/440 E. 102nd & Corp. v. Murdock, 285
N.Y. 298, 304-305, 34 N.E.2d 329; 1
Anderson, New York Zoning Law and Prac-
tice 9 17.01, at 740-743 [3d ed.]; see gener-
ally, McKinney's Cons.Laws of N.Y., Book
1, Statutes 9 153, at 331-332 ["(t)he courts
will not construe a statute as abolishing a
common-law right in the absence of a clear
intent on the part of the Legislature"]).
[4-7J Contrary to respondent Zoning
Board's position, a commonsense analysis
of the legislative purpose of Village Law
9 7-708 and Town Law 9 265-a in the light
of the circumstances surrounding their
original enactment (L.1960, chs. 1060, 1061)
does not suggest that the legislation was
intended to deprive a subdivision developer
of its capacity to acquire vested rights in a
subdivision during the exemption period.
The legislative history shows that the en-
actment was the culmination of a success.
ful legislative compromise between the
views of the developers and the differing
views of the municipalities and that repre-
sentatives of both .groups urged its adop-
tion (see'..ll"Mem. of Westchester County
Village Officials Assn., Bill Jacket, L.1960,
chs. 1060, 1061; Mem. of Office for Local
Government, id.; Mem. of N ew York State
Home Builder's Ass'n, id.; Mem. of Ameri-
j
j
J._
:d SERIES
. tc of Planners, id.; Mem. in
.\ 3834, id.). Indeed, Governor
in his memorandum approving
en stated that the "purpose of
is to reconcile the interests of
;~rs and developers who have
'lal commitments relying on ex-
:1' ordinances, and the interests
,d villages in not being unduly
rom upgrading zoning require-
:u :rlcKinney's Session Laws of
,~es of Governor, at 2064).
., interpretation of the stat-
".'as intended to permit a clevel-
" vested rights during the ex.
.rioci-seems fully consistent
.::islative purpose of effecting a
.n a statute which would fairly
O'ontlicting interests of the de-
j municipalities. Under peti-
,struction, each group gains
nd gives up something. The
-~in the assurance of a definite
0: which they can protect their
'Oy securing vesting; they give
wility of protection under the
e that period. The municipali-
.c authority to enforce an Up"
their zoning requirements at
.'ter the exemption period and
ce that the new requirements
:y developer which has not by
ed vesting; the municipalities
:r former unrestricted power to
lhdivision to new requirements
before the owner has acquired
itS.
of the statute espoused by re-
::ming Board, on the other
';' developer can derive no ptfr'
;le balance of its subdivision by
,~ting dl&ring the exemption pe-
:,; undeniably harsh results.
':here a developer has complet.
'ltial portion of a subdivision, it
,'d with large losses and unan.
iltional cost if compelled to re-
; plans and dismantle and re-
,ildivlsion improvements in or-
de the remaining lots. As has
ed, a rule of such stringency
'=ubdivisions imposes a formid-
::YS }IEDICAL TRANSPORTERS v. PERALES
Cite as 564 N.Y.S.2d 1007 (Ct.App. 1990)
,:'ie uarrler w development (4 Rathkopf,
p. m., 00.05[3], at 50-73) and actually
~'nJeoes r?tional land use planning (id., at
.'i-72)' ;,'::der established rules, we must
: ..~:;ur:1e ,:~J.t Ihe Legislature could not
'~\'e lllU:-~lUeo. re.:5pondenfs interpretation
.j' "he ::~j,;..ute \\'hich.l1.25produces such un.
;-..~:.;onaoie and potentially unjust conse.
iJt.:nLes \.'iee, Ferres v. City of New Ro-
., lie. co N.Y.2d 446,454,510 N.Y.S.2d 57,
'''; \ ,~:.~J ~ji2: ,Vatter of Petterson v.
,'!JSuom CorD.. 17 ~.Y.2d 32, 38, 268
'; .i....~.~J 1. :2:5 ~';.E.2d 329; ~lcKinney's,
::S.L:"':",'iS [II' .:-LY" Book 1, Statutes
.: 1;[. "3. l~o. at 280-284, 286-290, 297-
.
.
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:,,~ ::; (~coraimdy 31lree with the courts
';nw t;,at \iilIa~e Law 9 7-708(2) was in-
::,!(:a tQ DerroIt a deveioper to secure the
:-r1t tD comoiete a subdivision in accord.
::;('e Wlm the existing zoning requirements
. :: manlIesting a commitment to the execu-
',L.n of the subdivision plan through com-
:.:t:ng ::nprovements and incurring ex-
; ':n(!it~lres in connection therewith, during
',,'~ e~:emption period, sufficient to consti-
. W~ ':2sting under common-law rules.
.\[oreoyer, our review of the record con-
cemm.g the \\-.ork performed and expendi-
~ures made by petitioner confirms the con-
clusion of the Appellate Division that, as
found by the Supreme Court, the subs tan.
~iai improvements and expenditures made
during the three-year exemption period
"conferred a vested right to obtain building
;;ermlts in accordance with the provisions
,-;f the; former zoning ordinance," (152
AD.2d 3:,5, 377, 549 N.Y.S.2d 405.)
T~18 "rder or the Appellate Division
"hould be affirmed,S with costs.
,
i
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\VACHTLER, C.J., and SGilONS,
KA YE. ,\LSXANDER, TITONE and
hi::LLACOSA, JJ., concur.
Order affirmed, with costs.
"7\
o ~KEr"UM8!RSYSIH4
T
~. "Ve have considered respondent's remaining
.:lrguments and conclude that they provide no
.....
1007
77 N.Y.2d 126
..Ll.26ln the Matter of NEW YORK STATE
~IEDICAL TRANSPORTERS ASSOCI-
ATION, INC., et al., Appellants,
v.
Cesar A. PERALES, as Commissioner of
the Department of Social Services of
the State of New York, Respondent.
Court of Appeals of New York.
Dec. 20, 1990.
Providers of transportation services
filed Article 78 proceeding to require De-
partment of Social Services to process ret-
roactive request for approval of nonemer-
gency transportation service for Medicaid
patients. The Supreme Court, Nassau
County, Lockman, J., directed commission.
er to process request for retroactive ap-
proval. Commissioner appealed. The Su-
preme Court, Appellate Division, 553 N.Y.
S.2d 790, held that Department had not
ratified agent's adoption of poliey that
would allow llretroactive prior approval/'
and reversed. Providers appealed. The
Court of Appeals, Kaye, J., held that: (1)
Department was not estopped from adopt-
ing policy that required prior approval; (2)
record did not support providers' claim that
Department ratified actions of agents; and
(3) even if record supported claim that De-
partment allowed and condoned actions of
agent allowing retroactive prior approval,
Department could not ratify agent's act.
Affirmed.
Alexander, J., dissented and issued an
opinion in which Simons, J., concurred.
1. Estoppel ""62.1
Estoppel cannot be invoked against
governmental agency to prevent it from
discharging its statutory duties.
basis for disturbing the Appellate Division's or-
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I. .II(#"" ~5 Main Road
/.U" P.O. Box 1179
Southold, New York 11971
PLANNING BOARD MEMBERS
Bennett Orlowski, Jr.. Chairman
George Ritchie Latham, Jr.
Richard G. Ward
Mark S. McDonald
Kenneth L. Edwards
Telephone (516) 765-1938
PLANNING BOARD OFFICE
TOWN OF SOUTHOLD
Fax (516) 765-1823
March 1, 1991
Stephen L. Ham, III
Matthews & Ham
45 Hampton Road
Southampton, New York 11968
Re: Lot 3, Chocomount,
Map of Fishers Island
Development Corporation
SCTM # 1000-04-5-5.9
Dear Mr. Ham:
In your memorandum of January 23, 1991, you asked for
clarification about how to proceed with your client's
application. It is hoped that the attached synopsis and
documentation will provide that clarification.
To wit: through the years, the owner of the east end of
Fishers Island, the Fishers Island Development Corporation
(FIDCO), sold the lots in accordance with a development map that
had been drawn in 1928.
In 1958, the Town adopted this particular development map
as an open development area or subdivision, pursuant to Section
280-A.4. of New York State Town Law. (Town Board resolution:
Exhibit A). This section of the State law requires the Planning
Board to approve the creation of each lot. A copy of that
section of the law is attached herein. (Exhibit B).
According to the Planning Board's records, there was a
period of time during which FIDCO was creating (and selling)
lots without Planning Board knowledge or approval. This practice
was stopped in June of 1982, when the Planning Board adopted a
set of maps for the east end of Fishers Island, which included
the new lots that had been created without benefit of Planning
Board approval prior to that date. (Exhibit C.)
While the Planning Board's resolution did not specify which
map it was adopting, the two maps in the file that were drawn
just before and after the June resolution show the Chocomount
area as being subdivided into three lots. Lot 3 carries the
.
.
notation "2 lots", but does not show an actual subdivision line.
(Exhibit D.) It seems safe to say that Lot 3 was destined to be
two lots.
However, the zoning in this area was changed by the Town
Board in 1989. And under current requirements, neither of the
proposed lots will meet the minimum area requirements of the
R-120 or three acre zone. Unless case law related to Section
280-A suggests otherwise, it seems that the Planning Board
cannot approve the proposed subdivision without a variance from
the Zoning Board of Appeals.
~
~I
Given the above-noted information, I would like to respond
to your five questions in the order in which you posed them:
1. The FIDCO map is a subdivision map. However, it differs
from a standard subdivision map in that it depicts an "Open ;z7ru-.c-
Development Area" pursuant to Section 280-A. 4. of New York
State Town Law. As each of the dividable lots are divided in
fact, the subdivision map of the open area has to be amended by
the Planning Board. .
2. If there is no subdivision on record (filed in the ~
County Clerk I s office) then, yes, a merger occurs when two ;Vor-.- .":
formerly conforming lots that both adjoin one another and ~_ F.~
are held in common ownership, are rendered nonconforming by
upzoning.
3. The property owner must obtain an area variance, not
interpretation, from the Zoning Board of Appeals.
an S
~
4. Planning Board action is required for the creation of
every division line or building lot within an open
development area.
5. The Planning Board's current policy is that set-off
applications are those which involve the "setting off" of
one building lot from a large parcel which may be further
subdivided. The proposed subdivision involves the
splitting of one lot into two, with no possibility of
further subdivision of either parcel.
In answer to the subsequent, unnumbered questions on pages
four and five of the memorandum, the map of the Fishers Island
Open Development Area shows only lots which have been recognized
as building lots by the Planning Board. Clearly, if any two of
these recognized, adjoining lots were to come into the ownership
of the same person, they would not be considered merged in the
usual sense. This last statement assumes that Section 100-32. B.
of the current Zoning Code extends the provisions of Section
265-a of New York State Town Law, which provides a three year
extension for those subdivisions that were approved under less
restrictive zoning requirements. Section 100-32 B. of the Zoning
.
.
Code exempts certain subdivisions from the zoning shown on the
zoning map.
Copies of the above-noted sections of the Town Zoning Code
and the State law are attached for your convenience. (Exhibits
E. and F.l
If you have questions or comments about any of the material
or statements herein, please contact Valerie Scopaz of this
office.
Very truly yours,
~ ~'<'fZ-/~
Bennett Orlowski, Jr.
Chairman
Encls.
VS:vs
cc: Harvey A. Arnoff, Town Attorney
Victor Lessard, Principal Building Insepctor
Gerard P. Goehringer, Chairman, Zoning Board of Appeals
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Moved by Councilman Demarest; secodned by Justice Edwards:
~~EREAS, FISHERS ISLA~D ESTATES has made application to the Town Board
for the establishment of an OPEN DEVELOPMENT AREA pursuant to the provi-
sions of Section 280-A of the Town Law, and
\,'lEREIliS, the To'.'ll Board has heretofore referred the ma tter to the
Planning Board for its advice, and
WHSREAS, the Planning Board has recommended that the application of
FISH:1:RS ISLA;ID ESTATES be granted,
NGW, THZREFORE, BE IT RESOLVED: That the Town Board of the Town of
Southold does hereby establish an OPEN DEVELOP~ffiNT AREA over the premises
of FISHERS ISLAND ESTATES as shown forth on the map attached to the
application, and it is recommended that 50 feet be reserved for highwayi
. 'purposes wherever it is possible.
Vote of Town Board: Ayes-Supervisor Klipp; Councilmen Albertson and
Demarest; Justices l'uthill ,ahd', EdwaI:ds:'ci~!"t'd:;.
Noes-Henry A. Clark. ~.
Moved by Councilman Demarest; seconded by Justice Clark;
~mE?EAS, at a meeting of this Board, held on Eebruary 25, 1958, a resol-
ution was duly adopted referring to the Planning Board of the Town of
~outhold, proposals to amend the Building Zone Ordinance of the Town
of Southold, Suffolk County, New York for its recommendation and report,
a~ .
WH~REAS, the Planning Board did th~reafter file with the Town Board its
written .recommend'ltion and report on said proposals, Now,~,therefore, be it
RSSOLVED: that this Board hold a public hearing be held at the Supervisor's
Office, 16 South Street, Greenport, N.Y. on the 8th day of April, 1958,
at 2:30 P.M. o'clock in th afternoon of that day, and it is further
RESOLVED: That the Town Clerk cause a no~ice of said proposed hearing,
containing a copy of the proposed amendments, to be published once in
the Ha tti tuck ~Ia tch::an-Long Isla nd Traveler, the official Town newspa per
at least 10 days prior to the time of said hearing.
Vote of Town Bo~rd: Ayes-Supervisor Klipp;Councilmen Albertson and
Demarest; Justices Tuthill, Clark and Ed"lards.
Moved by Justice Ralph Tuthill; seconded by Councilman Lester Albertson
It.'HSREAS, the TOlm Superintendent of Highways did, on the 25th day of . :-_ Jill.
February, 1958, duly recommend the purchase of certain machinery pursu-
ant to the provisions of Section 142 of the Highway Law,
NOW, THEREFO;E, BE IT R3S0LVED that pursuant to Section 142 of the High-
way Law the Town Superintendent of Highways is hereby authorized to ~
purchase, in accordance with the provisions of Article 5-a of the General ~
Municipal Law, with the approval of the County Superintendent of Highways, r.
the following: ~
One i'iodel A. S. B. S. ~lalter Snow Fipht",,.. 4-"n1nt nn..1t.1v.. tI,.i.... .
-
TOWN LAW
Art. 16
ZONING AND PLANNING
Art. 16
"'where section 52 of the Highway Law
only required permit from state for
work in or upon state highway, and par-
ty seeking building permit Was entitled
to it without obtaining permit from
state, where proposed work did not even
require curb cuts along highway. Corra-
do v. Wolf. 1962, 37 Misc.2d 89, 235
N.Y.S.2d 336.
~ 280-a
If..... ..... ._
1 street or highway is not yielding a fair
or, the board of appeals,' or other similar
'5tablished such a board having power 10
zoning regulations. shall hc.ve power in a
jority of its members to grant a permit for
ghway which wi'l as Iitlle as practicable
ch street or highway, or tend to cause a
plan. and such board may impose reason.
n of granting such permit, which require-
t of the town. Before taking any action
ard of appeals or similar board shall give a
'5t and others shall have an opportunity to
ice of the time and place of such hearing
r of general circulation in such town. Any
review in the same manner and pursuant
:als from the decisions of such board upon
3. Denial of permit
A particular use of land may be en-
joined as in violation of a restrictive
covenant, although the use is permissible
under zoning ordinance, and the is-
suance of a permit for a use allowed by
a zoning ordinance may not be denied
because the proposed use would be in
violation of a restrictive covenant.
Friends of Shawangunks, Inc. v. Knowl-
ton, 1985, 64 N.Y.2d 387, 487 N.Y.S.2d
543, 476 N.E.2d 988.
In absence of statute allowing bal-
ancing of public and private rights in-
volved, propeny owners were entitled to
compel building inspector to issue build-
ing permit which had been denied on
basis that town was in process of con-
demning property for SWimming pool.
Winepol v. Town of Hempstead, 1969, 59
Misc.2d 768, 300 N.Y.S.2d 197.
648, ~ 14; L.1962, c. 310, ~ 457.)
~ 280. Municipal Improvements In streets
No public municipal street utility or improvement shall be constructed by
the town in any street or highway within that pan of the town outside 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
utility or improvement operated for revenue by t,be 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.
(L.1932, c. 634; amended L.1938, c. 264, ~ 5; L.1939, c. 590, ~ 2; L.1949. c. 750 ~ 1.)
I
~
stortcal Note
.63,
tfcKtnney's Forms
al Government Forms under Town Law, ~ 279:
.nting Permit for Building in Bed of Mapped
'oceeding to Compel Board of Appeals to Grant
apped Street, sce Form 2.
CompcJ Board of Appeals to Grant Permit for
:t, see Form 3.
Impelling Board of Appeals to Grant Permit for
.t, see Form 4.
Historical Note
Derivation. Town Law of 1909, c. 63,
~ t49-q, as added L.1927, c. 175.
try References
C.J.S. Zoning and Land Planning
~~ 25, 192, 233.
Library References
Zoning and Planning <P87, 382.2.
C.J.S. Zoning and Land Planning
~~ 25, 197, 233,
60.
Notcs of Decisions
i of Decisions
permit is constitutional. Winepol v.
Town of Hempstcad, 1969, 59 Misc.2d
768, 300 N. Y.S.2d 197.
I. Lighting
Until the streets in a subdivision have
bcen dedicated and accepted, a town
may not aSSume responsibility for the
costs of energy and maintenance of a
street lighting system. Op. State Compt.
83-47.
A town may not install subsurface
street lights along a street which has not
been dedicated to the town and which
has not become a public street by pre-
scription. Op.State Compt. 81-127.
2. State highway rights-of-way
Municipality's requirement that pany
nd seeking building permit obtain permit
lie from state for construction of building
ng alongside state highway was arbitrary
376
~ 2BO-a. Permits for buJldlng. not on Improved mapped streets
l. 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.
377
D#/&r {3
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~
TOWN LAW
Art. J 6
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 planning board
as provided in sections two hundred seventy-six and two 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 office of the county clerk or
register prior to the appointment of such planning board and the grant to
such board of the power to approve plats.
2. Before such permit shall be issued such street or highway shall 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 the discretion of such board, a performance bond
sufficient to cover the full cost of such improvement as estimated by such
board shall be furnished 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 kticle.
3. Where the enforcement of the provisions of this section would entail
practical difficulty or unnecessary hardship, or where the circumstances 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 any town which has
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 zoning
regulations. The board may in passing on such appeal make any reason-
able 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 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.
,
4. The town board may, by resolution, establish an open development
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 plan'ning board, if one exists, or of the
town board if a planning board does not exist. If a planning board exists
in such town, the town board, before establishing any such open develop-
ment area or areas, shall refer the matter to such planning board for its
advice and shall allow such planning board a reasonable time to report.
378
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TOWN LAW
Art. 16
ay is~) an existing s.,late. county or--town
.~
1 upon a plat approved b)t the planning board
undred seventy-six and two hundred seventy-
:t at the time such plat was approved, or (c) a
recorded in the office of the county clerk or
:ent of such planning board and the grant to
'prove plats.
I be issued such street or highway shall have
: satisfaction of the town board or planning
wn board in accordance with standards and
~ town board, as adequate in respect to the
ral welfare for the special circumstances of
,yo
:cretion of such board, a performance bond
of such improvement as estimated by such
le town by the Owner. Such performance
ng or surety company approved by the town
"ity acceptable to the town board, and shall
:'oard as to form, sufficiency and manner of
,f modification and method of enforcement
:ed by the appropriate board in substantial
ndTed seventy-seven of this article.
. the provisions of this section would entail
ry hardship, or where the circumstances of
Clure to be related to existing or proposed
nt for such a permit may appeal from the
neer having charge of the issue of permits
::r similar board. in any town which has
Ner to make variances or exceptions in
le provisions 3re hereby applied to such
'e provided in cases of appeals on zoning
passing On such appeal make any reason.
mit subject to conditions that will protect
,ut. Any such decision shall be suhject to
out of a special term of the supreme court
:nt to the same provisions as in appeals
upon zoning regulations.
,solution, establish an open development
wh~rein permits may be issued for the
'ess is given by right of way or easement,
[0 such limitations as may be prescribed
planning board, if one exists, or of the
)es not exist. If a planning board exists
ore establishing any such open develop-
, matter to such planning board for its
I ing board a reasonable time to report.
378
ZONING AND PLANNING
Art. 16
~ 280-a
Note 1
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 ahuts on
such street or highway and has sufficient frontage thereon to allow the
ingress and egresf of fire trucks, ambulances, police cars and other emer.
gency vehicles, and, a frontage of fifteen feet shall presumptively be
sufficient for that purpose.
(Formerly ~ 280 in part. L.1932, c. 634; amended L.1938. c. 264. ~ 5; L.t939, c. 590.
~ 2; L.1942, c, 497, ~ I; L.1945. c. 741. ~ I; renumbered ~ 280-a and amended
L.1949, c. 750, ~ t; amended L.1954, c. 750. ~ I; L.1958. c. 334. ~ I.)
-
HJstorfcal Note
Derivation. Town Law of 1909, c. 63.
~ 149-r, as added L.1927. c. 175.
West's McKJnney's Fonns
The fOllowing forms appear in Local Government Forms under Town Law,
~ 280-a:
Complaint for Declaratory Judgment as to Legality of Requirements of Planning
Board as a Condition to Issuance of Building Permit, see Fonn 1.
Notice of Petition in Article 78 Proceeding to Review Determination of Board of
Appeals Denying Permit and Variance, see Form 2._
Petition in Article 78 Proceeding to Review Determination of Board of Appeals {
Denying Permit and Variance. see Form 3. " ....
Judgment in Article 78 Proceeding Annulling Determination of Board of Appeals
Denying Permit and Variance, see Form 4.
LJbrary References
Zoning and Planning <P86. 372.4.
C.J.S. Zoning and Land Planning
~~ 25, 191. 192.
Notes of Decisions
SubdJvlslon plat Improvements 12
Access roads
Generally 6
Emergency vehicle Jngress and
egress 7
Frontage requirements 8
Improvements 9
ConstltutlonalJty J
Construction 2
Emergency vehicle Ingress and egress,
access roads 7
Fronrage requirements, access roads 8
Improvements
Access roads 9
Subdivision plats 12
Mandatory nature of section 4
MIscellaneous considerations 10
Official map 5
Performance bonds 1 J
Purpose 3
RevJew 13
I. ConstltutJonaUty
Provision of this section reqUiring that
road giVing access to proposed structure
be suitably improved before building
permit may be issued, merely conditions
approvaJ of construction upon compli.
ance with reasonable conditions de.
signed for protection both of ultimate
purchasers of home and public. is within
police power, and is not objectionable as
compelling construction of roads on
land at owner's expense without com-
pensation from town. Brous v. Smith,
1952.304 N.Y. 164. 106 N.E.2d 503.
Subdivision 2 of this section requiring
that street giving aCCess to proposed
379
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~ 280-a
Nole 1
structure be suitably improved before a
building permit -may be issued is consti-
tutional. Bayer v. Pugsley, 1958, 13
Misc.2d 610, 176 N.Y.S.2d 848, affirmed
7 A.D.2d 828, 181 N.Y.s.2d 781.
2. Construction
Under this section provision that no
building permit shall issue until roads
shown on plat have been improved to
satisfaction of town board and that if
applicant feels he has exceptional case,
he may go to zoning board of appeals
which may make exception or direct is-
suance of conditional permit, must be
strictly construed. in view of facts that
provision is derogatory of common law
and that town is municipal corporation
of limited powers. Luomor Homes, Inc.
v. Johnson, 1953, 122 N.Y.S.2d 149.
,.
3. Purpose
Provision of this section requiring that
road giving access to proposed structure
be suitably improved before building
permit may be issued, is concerned with
problem of community planning and is
designed to secure uniform and harmo-
nious development of growth. Brous v.
Smith, 1952, 304 N.Y. 164, 106 N.E.2d
503.
Purpose of this section requiring that
road giving access to proposed structure
be suitably improved before building
permit may be issued is not only to pro-
tect health, safety and general welfare of
community, but also to protect residents
of proposed structure. Robinson v. Jag-
ger, 1968, 57 Misc.2d 507, 293 N.Y.S.2d
258.
Purpose of this section providing that
building permits shall not be issued ex-
cept for parcels fronting on, among oth-
er things, a street shown on a map ap.
proved by planning board and that no
building permit shall issue until roads
have been improved to satisfaction of
town board, is to guarantee that before
buildings on streets shown on filed map
or other streets shall be occupied and
streets used. streets shall meet certain
requirements for protection of health,
safety and general welfare. Lunmor
Homes, Inc. v. Johnson, 1953, 122 N.Y.
S.2d 149.
..'.... -
TOWN lAW
Art. 16
town not on an improved mapped street
until there has been compliance with
this section. 15 Op.State Compt. 261,
1959. See, also, 11 Op.State COIDpL 181,
1955.
5. Official map
Town was without an "official maD"
by reason of failure of town clerk to file
certificate of its establishment with
county clerk as required by this section
and that defect was jurisdictional. and
zoning board of appeals could not prop-
erly deny building permit aD ground
that dirt road on which parcel had. front-
age and over which it had easement did
not appear on official map. \Vhite v.
Town of Pound Ridge Zonlng Bd. of
Appeals, 1973, 42 A.D.2d 904, 347 N.Y.
S.2d 725.
This section prohibiting issuance of
building permit unless street or highway
giving access to proposed struc~ is on
map or plan or street or highway exists
or is shown on approved plat did not
require owners and contract vendee of
three lots fronting on town highway to
file subdivision map to oitain building
permit. Jack Homes, Inc. v. Baldwin,
1963,39 Misc.2d 693, 241 N.Y.5.2d 487.
6. Access roads-Generally
Where contract required that road,
which vendors were to construct. be of-
fered for dedication to town UpoIl com-
pletion, road was prerequisite to obtain-
ing a building permit. nnd vendors ulti-
mately constructed coad at their own
expense, vendors had obligation to con.
struct road acceptable for dedication
within specified time. C. & C. Blashka
Inc. v. Frazer, 1969, 32 A.D.2d 774, 302
N.Y.s.2d 443, affirmed 30 N.Y.2d 645,
331 N.Y.S.2d 669, 282 N.E.2d 623.
One-acre plot resulting from subdivi-
sion of two.acre tract would have suffi-
cient access to improved public road
over strip of land 17 feet wide aod 396
feet long as would warrant issWUICC of
area variance. Mastromonaco v. Bar-
tels, 1962, 16 A.D.2d 676, 227 N.Y.s.2d
74.
J'his section does not require, as condi-
tion of issuance of permit for erection of
building on lot abutting on an iinpmved
county highway, any form of physical
4. Mandatory nature of section access, but merely any reasoaable
A building permit may not be lawfully means. Annandale. Inc. v. Brienza,
issued for the erection of a bUilding in a 1956, 1 A.D.2d 785, 148 N.Y.S.2d 17.
380
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Southold, N.Y. 11971
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IIESRY E. R..\ Y!\OR, Jr.. Ow;rnum
J.\.\IES WALL
It!:>-'~ETT ORLOWSKI. Jr.
GEORGE RITCIIJE LI'THAM, Jr.
Wlll!'I.'1 F. ~IUll[N. Jr.
TElEPHONE
765.1938
A meeting of the Southold Town Planning Board was called to order
June 15, 1982, 11:10 a.m. at the Fishers Island Firehouse, Fishers
Island, New York. Present were:
Chairman Henry E. Raynor, Jr.
Member G. Ritchie Latham, Jr.
Member William F. Mullen, Jr.
Member Bennett Orlowski, Jr.
Member James Wall
BUilding Administrator Victor Lassard
Allerton Cushman - The Planning Board inspected this property prior
~. to the meeting noting the applicant's request to split the property
~ into two sites. The board requested James Wall to supply them with
a letter from the applicant stating no further subdivisions will be
made on this property before taking any action.
On motion made by Mr. Orlowski, seconded by Mr. Mullen, it was
RESOLVED that the Southold Town Planning Board ~E! those maps of
the east end of Fishers Island with a condition that the areas that
are undesignated will fall under the present subdivision regulations;
Vote of the Board: Ayes: Raynor, Latham, MUllen, Orlowski, Wall
~
Annette Zabohonski - The Planning Board inspected this property prior
to the meeting. James Wall was asked to supply the board with stipu-
lations as to the improvements of the right-of-way and width.
On motion made by Mr. Mullen, seconded by Mr. Latham, it was
RESOLVED that the Southold Town Planning Board deClare itself lead
aqcncy in regard to the state Environmental Quality Review Act in
the matter of the minor subdivision of Annette ZabOhonski, located at
Fishers Island. An initial determination ot nonsign~ticance has been
made.
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Vote of the Board:
Ayes: Raynor, Latham, MUllen, Orlowski
Abstained James Wall (interested party)
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ZONING
~ 100-32
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(b) Adequate supervised parking facilities shall be
provided.
(c) No signs, except one (1) one-premises sign not larger
than six (6) square feet in size displayed for a period
of not longer than one (1) week immediately prior to
the day of such sale, shall be permitted.
(d) A permit is obtained therefor from the Building
Inspector upon the payment of a fee of fifteen dollars
($15.).
~
~ 100-32. Bulk, area and parking regulations.
No building or premises shall be used and no building or part
thereof shall be erected or altered in the Agricultural-Conservation
District and in the Low-Density Residential R-80 District unless the
same conforms to the Bulk Schedule and Parking Schedule"
incorporated into this chapter with the same force and effect as if such
regulations were set forth herein in full, as well as to the following
bulk and parking requirements: t
A. In the case of a lot held in single and separate ownership prior
to November 23, 1971, and thereafter, with an area of less than
forty thousand (40,000) square feet, a single-family dwelling
may be constructed thereon, provided that the requirements of
Column vii of the Bulk Schedule and the Parking Schedule
incorporated in this chapter are complied with.
E. The bulk and parking requirements for single-family
dwellings as set forth in Column ii of the Bulk Schedule and
the Parking Schedule incorporated into this chapter shall
apply to the following lots:
(1) All lots shown on major and minor subdivision maps
which were granted final approval by the Planning
Board prior to May 20, 1983.
(2) All lots shown on major subdivision maps upon which the
Planning Board has held a hearing for preliminary map
approval prior to May 20, 1983.
7 Editor's Note: The Bulk Schedule is ineJudl.'d at the t'nd of this chapter. and the Parking
Sehedule is in i lOO-191A.
10049
6. I - 90
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SOUTH OLD CODE
~ 100-33
,(3) All lots shown on minor subdivision maps that have been
granted sketch plan approval by the Planning Board
prior to May 20. 1983.
(4) All lots set off or created by approval of the Planning
Board subsequent to November 23. 1971. and prior to
May 20. 1983.
C. The bulk and parking requirements for single-family
dwellings set forth in Columns i and iii of the Bulk Schedule (
and Parking Schedule incorporated into this chapter shall
apply to the following lots:
(1) All lots shown on minor subdivision maps which have
been granted sketch plan approval by the Planning
Board on or after May 20. 1983.
(2) All lots shown on major subdivision maps upon which the
Planning Board has held a hearing for preliminary map
approval on or after May 20. 1983.
(3) All lots set off or created by approval of the Planning
Board on or after May 20, 1983. .
D. The bulk and parking requirements for two-family dwellings (
set forth in Column xii of the Bulk Schedule and Parking
Schedule incorporated into this chapter shall apply to the
following lots:
(1) All lots shown on minor subdivision maps which have
been granted sketch plan approval by the Planning
Board on or after May 20. 1983.
(2) All lots shown on major subdivision maps upon which the
Planning Board has held a hearing for preliminary
approval on or after May 20. 1983.
(3) All lots set off or creatcd by approval of the Planning C
Board on or after May 20. 1983.
~ 100-33. Accessory buildings. [Amended 4-10-1990 by 1..1.. No.
6-1990]
In the Agricultural-Conservation District and Low-Density
Residential R-80. R-120. R-200 and R-400 Districts. accessory
10050
6-1.90
~
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PLANNING BOARD MEMBERS
Bennett Orlowski, Jr.. Chairman
George Ritchie Latham. Jr.
Richard G. Ward
Mark S. McDonald
Kenneth L. Edwards
scon L. HARRIS
Supervisor
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Town Hall. 53095 Main Road
P.O. Box 1179
Southold. New York 11971
Telephone (516) 765-1938
PLANNING BOARD OFFICE
TOWN OF SOUTHOLD
Fax (516) 765-1823
September 10, 1991
Robert B. Calhoun, President
Fishers Island Development Corporation
P.O. Drawer E
Fishers Island, New York 06390
RE: FIDCO map
Dear Mr. Calhoun:
The following resolution was adopted by the Southold Town
Planning Board at a meeting held on Monday, September 9, 1991.
BE IT RESOLVED that the Planning Board hereby authorizes
its Chairman to endorse the Open Development subdivision Plan
for the Fishers Island Development Corporation Showing East End
Lots; said plat drawn by Chandler, Palmer & King in August of
1981. This plat had been adopted by the Planning Board in
January of 1988 and previously approved by the Suffolk County
Department of Health Services' Board of Review on December 4,
1987. However, since this plat had not been filed with the
County Clerk's Office in Riverhead, this endorsement is to allow
for the filing of the map in accordance with the provisions of
New York State Town Law.
Enclosed please find a copy of the map which was endorsed
by the Chairman. The mylar maps, which were also endorsed by
the Chairman, must be picked up at this office and filed in the
office of the County Clerk. Any plat not so filed or recorded
within sixty (60) days of the date of final approval, shall
become null and void.
r
MEMORANDUM
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TO:
Harvey Arnoff, Town Attorney
FROM:
Bennett Orlowski, Jr., Chairman
~lls.
RE:
Richard F. Lark's May 8, 1991 letter regarding the
subdivision map of the Fishers Island Development
Corporation
DATE:
May 14, 1991
In response to Mr. Lark's letter, a copy of which is
attached for your review, I am prepared to sign the attached
maps.
If you have any objection, or feel this should be done by
resolution at a public meeting, please let me know.
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.
TELEPHONE 516 734-6807
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RICHARD F. LARK
ATTORNEY AT LAW
MAIN ROAD - P. Q. BOX 973
CUTCHOGUE, NEW YORK 11935
May 8, 1991
SouthDld TDwn Planning Board
Southold Town Hall
53095 Main Road - P. O. Box 1179
Southold, New York 11971
ATT: Holly Perrone, Clerk
RE: Fishers Island Development Corp.
Dear Mrs. Perrone:
Per our discussion on May 3, 1991 I am enclosing five
copies of the Plan Made for Fishers Island Development
Corp. Showing East End Lots, consisting of two sheets, which
was last amended with additions on August 7, 1987, and was
approved by the Suffolk County Health Department on December
4, 1987.
If you will recall from our conversation the Southold
Town Planning Board on January 11, 1988 passed a resolution
approving these maps. It is my understanding that the actual
maps for some reason were either lost or not signed by the
Chairman of the Planning Board. It is also my understanding
the Town Attorney's Office would like to have these maps
signed. Accordingly, would you kindly submit same to the
Planning Board Chairman and have him sign them nunc pro tunc
at his earliest convenience and forward me an original signed
set.
If you have any questions, do not hesitate to call.
RFL/bd
Enclosures
~~:;JJ{
Richard F. Lark
TELEPHONE 518 734-6e07
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RICHARD F. LARK
ATTORNEY AT LAW
MAIN ROAD - P. O. BOX 973
CUTCHOGUE, NEW YORK 11935
February 29, 1988
Office of the Town Clerk
Town of Southold
53095 Main Road - P. O. Box 1179
Southold, New York 11971
ATT: Judith T. Terry
Southold Town Clerk
RE: Fishers Island Development Corp.
Dear Mrs. Terry:
For your records I am enclosing the approved plan for
Fishers Island Development Corp. prepared by Chandler,
Palmer & King, last dated August 7, 1987, showing "East End
Lots" .
As I understand it this map is to be used as the
official guide for the future development of the "East End"
of Fishers Island. This map is the product of Mr. Lessard
of the Building Department as well as the Planning Board
and the Suffolk County Department of Health Services. It
initially received approval from the Planning Board .on June
15, 1982 and the Suffolk County Department of Health Serices
on December 4, 1987. It was reapproved by the Planning Board
on January 9,. 1988. You might want to discuss this.wi th the
Town Board to see if they want to include this map i~ the
Master Plan Update.
RFL/bd
Enclosure
Very truly yours,
)
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Rl.chard Ii,' Lark
cc. Southold Town Planning Board
ATT: Bennett Orlowski, Jr.
,/Southold Town Building Department
ATT: Victor Lessard
Southold Town Board of Appeals
ATT: Gerard P. Goehringer
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Planning Board
Page 2
1/11/88
Calvin Rasweiler _ Board to take action on this sketch map for24 lots on 55.9 acres
located at Laurel.
John Sepenoski - Board to authorize the Chairman to endorse this set
off located at County Route 48, Southold.
Brewer Yacht Yard- Board to approve the site plan for Brewer Yacht Yard
for re-configuration of the marina, construction of a building for
storage and work area, construction of an addition on an existing building,
and construction of a pool located at Greenport.
Tidemark _ Board to accept the Draft Environmental Impact Statement,
and start the public comment through February II, 1988 and set
Monday 1/25/88 as the time for a public hearing in the public
comment period. This proposal is for construction of a 75-unit motel
located at County Route 48, Greenport.
Mullen Motors - Board to take final action on this site plan for construction
of an addition on the existing building to be used for a showroom located
at Main Road, Southold.
FIDCO Maps _ Board to accept the surveys dated as amended August 7, 1987 (2 sheets)
which have received Article 6 approval with covenants as noted on the
surveys.
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17
PLANNING BOARD
Page 17
Januar 11 1988
(it
Brewer Yacht Yard
SCTM # 1000-43-3-2
Mr. Orlowski: Would like to review this. We have quite a few qUeo ions.
Ms. Scopaz: I have some comments and I think we'll have to ask the
applicant to bring in some more supporting documents. He don't have
any copies of the required permits from the NYSDEC or the Army Corps
of Engineers and we have not received a copy of the trustees determina-
tion so I have nothing to compare a decision with.
Mr. Orlowski: We'll hold this one until the next meeting.
On a motion made by Mr. Ward, seconded by Mr. Latham
RESOLVED that the Southold Town Planning Board set Monday, February 25,
1988 at 7:45 p.m. at the Southold Town Hall, as the time and place for
the public hearing on the proposal for the construction of a 75 unit
motel located at County Route 48, Greenport. Public comments through
February 11, 1988.
Vote of Board: Ayes; Orlowski, Ward, Latham, Edwards
.
On motion made by Mr. Hard, seconded by Mr. Latham
RESOLVED that the Southold Town Planning Board approve the site plan of
Mullen Motors to construct an addition on the existing building to be
used for a showroom located at Main Road, Southold, subject to sidewalk
and curbing and reviewed by the Town and the State.
Vote of Board: Ayes; Ward, Edwards, Latham, Orlowski
On motion made by Mr. Edwards, seconded by Mr. Hard
RESOLVED that the Southold Town Planning Board accept the FIDCO Hap surveys
dated as amended August 7, 1987 (2 sheets) which have received Article 6
approval with covenants as noted on the surveys.
Vote of Board: Ayes; Orlowski, Ward, Edwards, Latham
St~ve Sanders - North Road Associates
SCTH # 1000-18-4-1
Mr. Orlowski: ~[r. Sanders would like to come in and talk about the construc-
tion of an access road.
~
Mr. Bruer: As an opener on this I want to thank the board for hearing us
tonight, I know we were on for the work session last Friday to be scheduled
today. The snow storm cancelled the work session and unfortunately I was
unable to contact my client at the time to prevent him from coming out.
I understand further that the action we are talking about is actually a certain
resolution made by the board of last August dealing with the construction of
roads in minor subdivisions. I understand further that the board, at least
I've IIeard that the board will be discussing this resolution and the part~cular
proble~s of some ~inor subdivisions have existed prior to this rp.solution
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SCOTI L. HARRIS
Supervisor
HARVEY A, ARNOFF
Town Attorney
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Town Hall. 53095 Main Road
P,O. Box 1179
Southold. New York 11971
Fax (516) 765-1823
Telephone (516) 765-1800
MATIHEW G, KIERNAN
Assistant Town Attorney
OFFICE OF THE TOWN ATTORNEY
TOWN OF SOUTHOLD
INTER-OFFICE MEMORANDUM
FROM THE TOWN ATTORNEY'S OFFICE
TO:
FROM:
Bennett Orlowski. Jr., Chairman,
Harvey A. Arnoff,
DATE:
RE:
February 26, 1991
Lot 3, Chocomount, Map of Fishers Island Development Corporation
I read with interest, and believe it or not complete agreement, your memo of
February 12, 1991 reference the above matter. Please excuse my delay in getting
back to you but I have not had a moment to spare to direct the appropriate
attention to your memo that it deserved. May I suggest that you set forth in
letter form to Steve Ham that which you have done so succinctly to me. If you
would prefer I would be glad to send a letter to Steve Ham on your behalf
repeating, in large part verbatim, that which you have set forth in your memo to
me. I shall await your response.
.--
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MATTHEWS & HAM
ATTORNEYS AND COUNSELWRS AT LAw
45 HAMPTON ROAD
SOUTHAMPTON, N. Y. 11968
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PHIUP B. MATTHEWS
STEPHEN L. HAx. m
516-283-2400
TELECOPJER 516- 267-1076
January 23, 1991
MEMORANDUM TO:
Messrs. Harvey A. Arnoff, Town Attorney
Gerard P. Goehringer, Chairman,
Zoning Board of Appeals
victor Lessard, Principal Building
Inspector
~~~~~~t_qrlowsk~,__~F~, Chairman,
Planning Board
FROM:
stephen L. Ham, III
RE:
Lot 3 Chocomount, Map of Fishers
Island Development Corporation
(SCTM # 1000 - 4 - 5 - 5.91
In October I submitted an application for a minor
subdivision of the referenced premises (survey attached) on
behalf of Isabel Leib and Theodore Danforth. It was returned to
me recently under cover of a letter from Mr. Orlowski (copy
attached). I was advised to apply to the Zoning Board of Appeals
for an interpretation as to whether my clients owned one lot or
two.
As you are all aware, the notation "2 lots" appears on
the FIDCO Map depiction of the subject property (excerpt
attached) .
Last March, I spoke with Ken Edwards of the Planning
Board who advised me that, notwithstanding the upzoning to a
120,000 square feet minimum in this area, I could apply directly
to the Planning Board for subdivision approval even though each
1
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of the two lots to be created would be only 106,284 square feet
in area. It was his understanding, and apparently the
understanding of at least some other Town officials, that the
status of this property as two homesites was not affected by the
zoning change since it was shown as such on a map approved by the
Health Department and Planning Board.
After I applied for a minor subdivision in October
(having unsuccessfully argued that the proper application would
be for a setoff), the Planning Board, contrary to the advice I
received in March, advised me by letter of November 13 (copy
attached) that it could not proceed with its review because the
subdivision would result in the creation of two undersized lots.
The application was not finally returned until January because,
when I protested this decision to the Planning Board staff, it
sought the opinion of the Town Attorney. To the extent that Mr.
Orlowski's letter of January 11 represents the views of the Town
Attorney, the Town Attorney apparently believes an interpretation
should be sought from the Zoning Board.
Last week I discussed the application with Linda
Kowalski of the Zoning Board staff. I believe Ms. Kowalski also
consulted with Mr. Goehringer. The Zoning Board has taken the
position that it will not render an interpretation. However, it
would entertain an application for a variance provided I
submitted the necessary Notice of Disapproval from the Building
Inspector and otherwise complied with the requirements for giving
the Zoning Board jurisdiction to hear an appeal.
2
"
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.
On January 18, I met with Mr. Lessard who gave me a
brief history of the FIDCO Map and discussed the status of this
property with me. Mr. Lessard is of the opinion that I do not
need any variances to create two lots on this parcel since the
Planning Board and the Health Department have already approved it
as "2 lots". He said my clients have two lots and, when the time
comes, they can put their line down. I do not know whether he
meant that Planning Board action would not even be necessary but
he certainly meant that variances would not be required since he
told me he would not issue a Notice of Disapproval.
The purpose of this Memorandum is generally to let your
offices know that the Town is not speaking with a unified voice
on the issues involved in this application. These issues concern
some fundamental questions about land use that certainly apply to
other lots on the FIDCO Map and may apply to lots on filed maps
covering other areas of the Town. Specifically, I would like to
know if you can agree on a single answer to the following
questions:
1. Other than the fact that they must be described by
metes and bounds, does the Town consider lots shown on the FIDCO
Map as being any different from lots shown on major subdivision
maps?
2. Does the Town take the position that a merger
occurs when two formerly conforming lots, that adjoin one another
and are held in common ownership, are rendered nonconforming by a
rezoning to a greater minimum area requirement? Does it make
3
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.
,
>
any difference whether the two lots are in an approved major
subdivision?
3. Must the owners of the subject property take an
appeal to the Zoning Board or will it in fact render an
interpretation as to whether they have one or two lots?
4. Is Planning Board action even required or may the
owners simply draw their own division line?
5. If Planning Board action is required, should the
application not be for a setoff rather than a minor subdivision?
(Please compare the van Hengel and Emmet-West applications from
the mid-1980's which related to properties on the FIDCO Map and
were treated as setoffs.)
If the merger doctrine applies to the FIDCO Map, then
that Map no longer accurately depicts the remaining building
lots on the East End of Fishers Island.
That is clear from the
instant application.
Another example involves other clients of
this office who have entered into a contract with FIDCO to
exchange two lots they own near the golf course for Lots 13 and
14 in Block 44 (survey attached).
In a conference with Mr.
Lessard and Mr. Edwards in October, I was advised that a
separate building permit could be issued for each of the lots my
\
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J
clients will acquire (44-13 and 44-14).
However, if the merger
~-!
doctrine applies to the FIDCO Map, it could be argued that these
lots have merged since the total area of both, approximately
223,000 square feet, is insufficient to support two lots in the
R-120 Zone District. Moreover, since other lots owned by FIDCO,
4
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,
.
.
./
44-7, 44-8 and 44-12 (shown on the attached excerpt) adjoin Lots
44-13 and 44-14, further questions are raised: must FIDeO apply
for setoff or subdivision approval in order to convey two lots
where it owns adjoining property and must it obtain a variance to
convey a lot (44-14) that is only about 95,000 square feet in
area?
I understand that the issues I raise may not be the
most important on your respective agendas.
However, my clients
have waited two months while their application sat in a file
pending a determination by the Town Attorney that has raised
more questions than it has answered. I would therefore very much
appreciate it if, at your earliest convenience, you would
consider these questions and provide me with a response on which
you all can agree. If you decide to plan a meeting, I would also
appreciate being allowed to attend to present my views in greater
detail.
~L..t.t-
S.L.H., III
5
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Gerard P. Goehringer, Chairman
Charles Grigonis, Jr.
Serge Doyen, Jr.
James Dinizio. Jr.
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SeDTI L. HARRIS
Supervisor
APPEALS BOARD MEMBERS
Telephone (516) 765-1809
BOARD OF APPEALS
TOWN OF SOUTHOLD
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Fax (516) 765-1823
Telephone (516) 765-1800
INTER-OFFICE MEMORANDUM
TO: Harvey A. Arnoff, Town Attorney
Matthew G. Kiernan, Assistant Town Attorney
FROM: Board of Appeals
DATE: January 24, 1991
SUBJECT: Stephen L. Ham III's Letter of 1/23/91
Ref: 1000-004-05-005.009
We are in receipt of Stephen L. Ham's letter dated January 13,
1991.
Our office advised Mr. Ham, after reviewing the deed conveyed to
his clients (deed by description of the entire single tract -
copy attached), that since it appears that the Planning Board
does not recognize his client's tract of land as two separate
parcels in its approval of the FIDCO Map, then it is correctly
within the jurisdiction of the Board of Appeals to consider the
insufficient area for each proposed lot configuration by way of
an area variance. Apparently, Mr. Ham is not able to obtain a
Notice of Disapproval to start his appeal process.
It was also mentioned that since the conveyance of the land to
his clients was by "description for an entire single parcel," a
ZBA interpretation was out of the ordinary, and that it would be
appropriate for the Planning Board to decide the nature of their
approval under the FIDCO map before proceeding with an appeal.
If, however, there is recognition by the Planning Board from its
own FIDCD file that the lots are distinctly split, then there is
no need to appeal to the Board of Appeals.
We feel that it is imperative to bring this question before the
entire Planning Board to ascertain their approval of this FIDCO
map as it relates to this tract of land. If the Planning Board
recognizes it as two lots, then the PB should, without further
Page
To:
Re:
2 - January 25, 19'"
Town Attorneys
Stephen L. Ham III Letter
1000-004-05-005.009
.
of 1/23/91
hesitation, require and consider a map showing the configuration
of the lots.
Our office does not agree that a "meeting" of town departments
should be called as suggested by Mr. Ham since there are steps
which may be taken for the issuance of a Notice of Disapproval
to start the appeal process, or as may otherwise be resolved
within the Planning Board. (We have no objection to either of
two decisions the Planning Board will need to make and should
make at this time. If the Planninq Board does not qive a
favorable decision, then the Buildinq Inspector has no choice
but to issue a Notice of Disapproval to start the appeal
process. )
This was the purpose of referring Mr. Ham first to the Planning
Board to ascertain and clarify the PB's approval of the FIDCO
map, and secondly, to the Building Inspector for a Notice of
Disapproval. We left it to Mr. Ham to decide how he wished to
proceed.
GG:lk
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PLANNING BOARD MEMBERS
Bennett Orlowski, Jr.. Chairman
George Ritchie Latham. Jr.
Richard G. Ward
Mark S. MeDonald
Kenneth L. Edwards
SCOTf L. HARRIS
Supervisor
Telephone (516) 765-1938
PLANNING BOARD OFFICE
TOWN OF SOUTHOLD
Town Hall. 53095 Main Road
P.O. Box 1179
Southold. New York 11971
Fax (516) 765-1823
-
MEMORANDUM
.-
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TO: Harvey A. Arnoff, Town Attorney
Gerard P. Goehringer, Chairman, Zoning Board of
Appeals
Victor Lessard, Principal Building Inspector
Bennett Orlowski, Jr., Chairman~./~
Lot 3, Chocomount, Map of Fishers Island Development
Corporation
SCTM # 1000-04-5-5.9
FROM:
RE:
January 23, 1991 Memorandum of Stephen L. Ham, III.
DATE:
February 12, 1991
In his memorandum (a copy of which is enclosed), Steve Ham
asks for clarification about how he should proceed with~is
client's application, given the statements made by each of our
offices.
It is hoped that the attached synopsis and documentation
will provide that clarification.
To Wit:
Through the years, the owner of the east end of Fishers
Island, the Fishers Island Development Corporation (FIDCO),
sold the lots in accordance with a development plan that had
been drawn in the 1920s.
In 1958, the Town adopted this particular development plan
as an open development area or subdivision, pursuant to Section
280-A. 4. of New York State Town Law. (Exhibit A).
This provision of the State law requires that the creation
of each lot be approved by the Planning Board. A copy of that
section of the law is attached herein. (Exhibit B).
According to the Planning Board's records, there was a
period of time during which FIDCO was creating (and selling)
lots without Planning Board knowledge or approval. This practice
was stopped in June of 1982, when the Planning Board adopted a
set of maps for the east end of Fishers Island, which included
.
.
the new lots that had been created without benefit of Planning
Board approval prior to that date. (Exhibit C.)
While the Planning Board's resolution did not specify which
map it was adopting, the two maps in the file that were drawn
just before and after the June resolution show the Chocomount
area as being subdivided into three lots. Lot 3 carries the
notation "2 lots", but does not show. an a<::t~l subdivision line.
(Exhibit D.) It seems safe to say that Lot 3 was destined to be
two lots.
-- If so, the Planning Board has no quarrel with approving a
map snowing the"actual subdivision lines. However, the zoning
in this area was changed by the Town Board in 1989. And under
current requirements, neither of the proposed lots will meet the
minimum area requirements of the R-120 or three acre zone.
Unless case law related to Section 280-A suggests otherwise, it
seems that the planning Board cannot approve the proposed
subdivision without a variance from the Zoning Board of Appeals.
If there is agreement with the above-noted information, I
would like to respond to Mr. Ham's five questions in the order
he posed them, as follows:
1. The FIDCO map is a subdivision map. However, it differs
from a standard subdivision map in that it depicts an "Open
Development Area" pursuant to Section 280-A. 4. of New York
State Town Law. As each of the dividable lots are divided in
fact, the subdivision map of the open area has to be amended by
the Planning Board.
2. If there is no subdivision on record (filed in the
County Clerk's office) then, yes, a merger occurs when two
formerly conforming lots that both adjoin one another and are
held in common ownership, are rendered nonconforming by .
upzoning.
3. The property owner must obtain an area variance, not an
interpretation, from the Zoning Board of Appeals.
4. Planning Board action is required for the creation of
every division line or building lot within an open development
area.
5. The Planning Board's current policy is that set-off
applications are those which involve the "setting off" of one
building lot from a large parcel which may be further
subdivided. The proposed subdivision involves the splitting of
one lot into two, with no possibility of further subdivision of
either parcel.
In answer to the subsequent, unnumbered questions on pages
four and five of the memorandum, the map of the Fishers Island
Open Development Area shows only lots which have been recognized
as building lots by the Planning Board. Clearly, if any two of
these recognized, adjoining lots were to come into the ownership
of the same person, they would not be considered merged in the
usual sense. This last statement assumes that Section 100-32. B.
of the current Zoning Code extends the provisions of Section
265-a of New York State Town Law, which provides a three year
...
, .
.
.
extension for those subdivisions that were approved under less
restrictive zoning requirements. Section 100-32 B. of the Zoning
Code exempts certain subdivisions from the zoning shown on the
zoning map.
Copies of the above-noted sections of the Town Zoning Code
and the State law are attached for your convenience. (Exhibits
E. and F. in this memo.)
". ~
If you have questions or comments about any of the material
or statements herein, please let me know.
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MS {F,I'J
MATTHEWS & HAM
ATTORNEYS AND COUNSELLORS AT LAw
45 HAMPTON ROAD
SOUTHAMPTON, N. Y. 11968
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PHIUP B. MATTHEWS
STEPHEN L. H.AH:1 m
~
516-283-2400
TELECOPIER 516-287-1076
:
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January 23, 1991
~
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MEMORANDUM TO-:
Messrs. Harvey A. Arnoff, Town Attorney
Gerard P. Goehringer, Chairman,
zoning Board of Appeals
victor Lessard, principal Building
Inspector
Bennett Orlowski Jr., Chairman,
___.....__.____.. ,... . . .'__.n".
Planning Board
FROM:
stephen L. Ham, III
RE:
Lot 3 Chocomount, Map of Fishers
Island Development Corporation
(SCTM # 1000 - 4 - 5 - 5.9\
In October I submitted an application for a minor
subdivision of the referenced premises (survey attached) on
behalf of Isabel Leib and Theodore Danforth. It was returned to
.
me recently under cover of a letter from Mr. Orlowski (copy
attached). I was advised to apply to the zoning Board of Appeals
for an interpretation as to whether my clients owned one lot or
two.
As you are all aware, the notation "2 lots" appears on
the FIDCO Map depiction of the subject property (excerpt
attached) .
Last March, I spoke with Ken Edwards of the Planning
Board who advised me that, notwithstanding the upzoning to a
120,000 square feet minimum in this area, I could apply directly
to the planning Board for subdivision approval even though each
1
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of the two lots to be created would be only 106,284 square feet
in area.
It was his understanding, and apparently the
understanding of at least some other Town officials, that the
~ status of this property as two ~omesites w~s not affected by the
.- ~ -
zoning change since it was shown as such on a map approved by the
~
Health
".,
Department and Planning Board.
#-.. ~.
Aft~r I applied. f.or a minor
subdivision
in
October
(ha"ing unsuccessfully argued that the proper application would
be for a setoff), the Planning Board, contrary to the advice I
received in March, advised me by letter of November 13 (copy
attached) that it could not proceed with its review because the
subdivision would result in the creation of two undersized lots.
The application was not finally returned until January because,
when I protested this decision to the Planning Board staff, it
sought the opinion of the Town Attorney. To the extent that Mr.
Orlowski's letter of January 11 represents the views of the Town
Attorney, the Town Attorney apparently believes an intJrpretation
should be sought from the Zoning Board.
Last week I discussed the application with Linda
Kowalski of the Zoning Board staff. I believe Ms. Kowalski also
consulted with Mr. Goehringer.
The Zoning Board has taken the
position that it will not render an interpretation. However, it
would entertain an application for a variance provided I
submitted the necessary Notice of Disapproval from the Building
Inspector and otherwise complied with the requirements for giving
the Zoning Board jurisdiction to hear an appeal.
2
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On January 18, I met with Mr. Lessard who gave me a
brief history of the FIDCO Map and discussed the status of this
property with me.
Mr. Lessard is of the opinion that I do not
need;, any variances to create two ,lots on this parcel since the
.' ~ 0#
Planning Board and the Health Department have already approved it
as "2 lots". He said my clients have two lots and, when the time
comes,f: they eari''' put their 'line, down.
I do not know whether he
meant that Planning Board action would not even be necessary but
he certainly meant that variances would not be required since he
told me he would not issue a Notice of Disapproval.
The purpose of this Memorandum is generally to let your
offices know that the Town is not speaking with a unified voice
on the issues involved in this application. These issues concern
some fundamental questions about land use that certainly apply to
other lots on the FIDCO Map and may apply to lots on filed maps
covering other areas of the Town. Specifically, I would like to
know if you can agree on a single answer to the fullowing
questions:
1. Other than the fact that they must be described by
metes and bounds, does the Town consider lots shown on the FIDCO
Map as being any different from lots shown on major subdivision
maps?
2. Does the Town take the position that a merger
occurs when two formerly conforming lots, that adjoin one another
and are held in common ownership, are rendered nonconforming by a
rezoning to a greater minimum area requirement?
Does it make
3
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any difference whether the two lots are in an approved major
subdivision?
:
3. Must the owners of the subj ect property take an
app.eal to the Zoping Board or will it in fact render an
. .' '"
interpretation as to whether they have one or two lots?
--
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4. Is Planning Board action even required or may the
owners simply:draw their own division line?
~
5. If Planning Board action is required, should the
application not be for a setoff rather than a minor sUbdivision?
(Please compare the van Hengel and Emmet-West applications from
the mid-1980's which related to properties on the FIDCO Map and
were treated as setoffs.)
If the merger doctrine applies to the FIDCO Map, then
that Map no longer accurately depicts the remaining building
lots on the East End of Fishers Island.
That is clear from the
instant application.
Another example involves other clients of
this office who have entered into a contract with~ FIDCO to
exchange two lots they own near the golf course for Lots 13 and
14 in Block 44 (survey attached).
In a conference with Mr.
Lessard and Mr. Edwards in October, I was advised that a
separate building permit could be issued for each of the lots my
clients will acquire (44-13 and 44-14).
However, if the merger
doctrine applies to the FIDCO Map, it could be argued that these
lots have merged since the total area of both, approximately
223,000 square feet, is insufficient to support two lots in the
R-120 Zone District. Moreover, since other lots owned by FIDCO,
4
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,/
44-7, 44-8 and 44-12 (shown on the attached excerpt) adjoin Lots
44-13 and 44-14, further questions are raised: must FIDCO apply
for setoff or subdivision approval in order to convey two lots
wh~re it owns adjoining property and must it obtain a variance to
.". .
convey a lot
.: ~ .;-
that is only about 95,000 square feet
in
(44-14)
area?
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I understand tlfat the issues I raise may not be the
.:
most important on your respective agendas.
However, my clients
have waited two months .,hile their application sat in a file
pending a determination by the Town Attorney that has raised
more questions than it has answered. I would therefore very much
appreciate it if, at your earliest convenience, you would
consider these questions and provide me with a response on which
you all can agree. If you decide to plan a meeting, I would also
appreciate being allowed to attend to present my views in greater
detail.
<;;L-if-
S.L.H., III
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Moved by Councilm~n Dem~rest; secodned by Justice Edwards:
~~EREAS, FISHERS ISLAND ESTATES has made application to the Town Board
for the establishment of an OPEN DEVELOPMENT AREA pursuant to the provi-
sions of Section 280-A of the Town Law, and
\,~;::RECiiS, the To',m Board has heretofore referred the ma tter to the
Planning Board for its advice, and
WHSREAS, the Planning Board has recommended that the application of
FISIl~RS ISLA;m ESTATES be granted,
NOW, THZREFORE, BE IT RESOLVED: That the Town Board of the Town of
Southold does hereby establish an OPEN DEVELOP~ffiNT AREA over the premises
of FISHERS ISLAND ESTATES as shown forth on the map attached to the
application, and it is recommended that 50 feet be reserved for highwayJ
'purposes wherever it is possible.
Vote of Town Board: Ayes-Supervisor Klipp; Councilmen Albertson and
Demarest; Justices :J:uthill, afld'. EdwaJ:ds-:ci"<<rds .
Noes-Henry A. Clark. ~'
Moved by Councilman Demarest; seconded by Justice Clark;
vmE~EAS, at a meeting of this Board, held on Bebruary 25, 1958, a resol-
ution w~s duly adopted referring to the Planning Board of the Town of
Southold, proposals to amend the Building Zone Ordinance of the Town
of Southold, Suffolk County, New York for its recommend~tion and report,
and '
WH~REAS, the Planning Board did th'2reafter file with the TOl~n Board its
writtenrecommend"tion and report on said proposals, Now,~,therefore, be it
R:::SOLVED: that this Board hold a pUblic hearing be held at the Supervisor's
Office, 16 South Street, Greenport, N.Y. on the 8th day of April, 1958,
at 2:30 P.M. o'clock in th afternoon of that day, and it is further
RESOLVED: Th~t the Town Clerk cause a no~ice of said proposed hearing,
containing a copy of the proposed amendments, to be published once in
the Mattituck W~tch~an-Long Island Traveler, the official Town newspaper
at least 10 days prior to the time of said hearing.
Vote of Town Bo~rd: Ayes-Supervisor Klipp;Councilmen Albertson and
, ", Demarest; Justices Tuthill, Clark and Ed.lards.
Moved by Justice Ralph Tuthill; seconded by Councilman Lester Albertson
klJfSR:::AS, the T01m Superintendent of Highways did, on the 25th day of
February, 1958, duly recommend the purchase of certain machinery pursu-
ant to the provisions of Section 142 of the Highway Law,
NOW, THEREFO:E, BE IT RESOLVED that pursuant to Section 142 of the High-
way Law the Town Superintendent of Highways is hereby authorized to
purchase, in accordance with the provisions of Article 5-8 of the General
Municipal Law, with the approval of the County Superintendent of Highways,
the following:
One l-iodel A. S. B. S. vIalter Snow Fi"ht",,.. 4_nn1n1: nn..11:1v.. ....1,... '
]
~ 280. Municipal Improvements In s!reets
No public municipal street utility or improvement shall be constructed by
the town in any street or highway within that part of the town outside 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
utility or improvement operated for revenue by \olIe town or by a special
district may be constructed by the town in a private slreet, provided a
public easement satisfactory to the town board is Obtained for such utility
or improvement.
(1..1932, c. 634; amended 1..1938, c. 264, ~ 5; L.1939, c. 590, ~ 2; 1..1949, c. 750 ~ 1.)
TOWN LAW
Art. 16
ZONING AND PLANNING
Art. 16
.where, section 52 of the Highway Law
only required permit from state for
work in or upon state highway, and par-
ty seeking building permit was entitled
to it without obtaining permit from
state, where proposed work did not even
require curb cuts along highway. Corra-
do v. Wolf, 1962, 37 Misc.2d 89, 235
N.Y.S.2d 336.
-
. ,."
I street or highway is not yielding a fair
or, the board of appeals,' or other similar
ostablished such a board having power to
zoning regulations, shall have power in a
jority of its members to grant a permit for
ghway which wiIJ as little as practicable
ch street or highway, or tend to cause a
plan, and such board may impose reason.
n of granting such permit, which require-
t of the town. Before taking any action
ard of appeals or similar board shall give a
'5t and others shall have an opportunity to
ice of the time and place of such hearing
r of general circulation in such town. Any
review in the same manner and pursuant
,als from the decisions of such board upon
~-
3. Denial of permit
A particular use of land may be en-
joined as in violation of a restrictive
covenant. although the use is permissible
under zoning ordinance. and the i~
suance of a permit for a use allowed by
648, ~ 14; 1..1962, c. 310, ~ 457.)
storlcaJ Note
.63,
.t'c:Ktnney's Forms
al Government Forms under Town Law, ~ 279:
.nling Permit for Building in Bed of Mapped
~ 280-a
a zoning ordinance may not be denied
because the proposed use would be in
violation of a restrictive covenant.
Friends of Shawangunks, Inc. v. Knowl-
ton, 1985, 64 N.Y.2d 387, 487 N.Y.S.2d
543, 476 N.E.2d 988.
In absence of statute allowing bal.
ancing of public and private rights in-
volved, property owners were entitled to
compel building inspector to issue build-
ing permit which had been denied on
basis that town was in process of con-
demning property for swimming pool.
Winepol v. Town of Hempstead, 1969, 59
Misc.2d 768, 300 N.Y.S.2d 197.
f
Historical Note
Derivation. Town Law of 1909, c. 63,
~ 149-q, as added 1..1927, c. 175.
'oceeding to Compel Board of Appeals to Grant
apped Street, see Form 2.
Compel Board of Appeals to Grant Permit for
:t, see Form 3.
Impelling Board of Appeals to Grant Permit for
-t, see Form 4.
Ubrary References
Zoning and Planning cS;::::l87, 382.2.
C.J.S. Zoning and Land Planning
~~ 25, 197, 233.
try References
C.J.S. Zoning and Land Planning
~~ 25, 192, 233.
60.
Notes of Decisions
1. Lighting
Until the streets in a subdivision have
been dedicated and accepted, a town
may not assume responsibility for the
costs of energy and maintenance of a
street lighting system. Gp. State Compt.
83-47.
i of Decisions
permit is constitutional. Winepol v.
Town of Hempslead, 1969, 59 Misc.2d
768, 300 N.Y.S.2d 197.
2. State highway r1ghta-of.way
Municipality's requirement that party
nd seeking building permit obtain permit
Ite from state for construction of building
ng alongSide state highway was arbitrary
376
A town may not install subsurface
street lights along a street which has not
been dedicated to the town and which
has not become a public street by pre-
scription. Op.State Compt. 81-127.
~ 280-a. Permits for buildings not on Improved mapped streets
l. No permit for the erection of any building shaIl 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.
377
ex/T'/evr Ib
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Ii 280-a
TOWN LAW
Art. 16
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 planning board
as provided in sections two hundred seventy-six and two 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 office of the county clerk or
register prior to the appointment of such planning board and the grant to
such board of the power to approve plats.
2. Before such permit shall be issued such street or highway shall 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 the discretion of such board, a performance bond
sufficient to cover the full cost of such improvement as estimated by such
board shall be furnished 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 lrticle.
3. Where the enforcement of the provisions of this section would entail
practical difficulty or unnecessary hardship, or where the circumstances 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 any town which has
established a hoard 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 zoning
regulations. The board may in passing on such appeal make any reason-
able 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 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.
,
4. The town board may, by resolution, establish an open development
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 planning board exists
in such town, the town board, before establishing any such open develop-
ment area or areas, shall refer the matter to such planning board for its
advice and shall allow such planning board a reasonable time to report.
378
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TOWN LAW
Art. 16
ay is 'f>l) an existing sJate, county OI'-iown
.~
1 upon a plat approved b~ the planning board
undred seventy-six and two hundred seventy_
:t at the time such plat was approved, or (c) a
recorded in the office of the county clerk or
,ent of such planning board and the grant to
'prove plats.
I be issued such street or highway shall have
, satisfaction of the town board or planning
wn board in accordance with standards and
, town board, as adequate in respect to the
raI welfare for the special circumstances of
lY.
;cretion of such board, a performance bond
of such improvement as estimated by such
Ie town by the owner. Such performance
ng or surety Company approved by the town
,rity acceptable to the town board, and shall
board as to form. sufficiency and manner of
,f modification and method of enforcement
'ed by the appropriate board in substantial
,ndred seventy-seven of this article.
, the provisions of this section would entail
ry hardship, or where the circumstances of
cture to be related to existing or proposed
nt for such a permit may appeal from the
Ticer having charge of the issue of permits
~r similar board. in any town which has
wer to make variances or exceptions in
le provisions are hereby applied to such
"e provided in cases of appeals on zoning
passing on such appeal make any reason_
mit subject to conditions that will protect
>ul. Any such decision shall be subject to
out of a special term of the Supreme court
mt to the same provisions as in appeals
upon zoning regulations.
'solution, establi~h an open development
wh!,rein permits may be issued for the
:ess is given by right of way or easement,
to such limitations as may be prescribed
planning board. if one exists, or of the
'es not exisl. If a planning board exists
ore establishing any such open develop-
e malter to such planning board for its
dng board a reasonable time to report.
378
ZONING AND PLANNING
Art. 16
~ 280-a
Note 1
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 emer-
gency vehicles, and, a frontage of fifteen feet shall presumptively be
sufficient for that purpose.
(Formerly Ii 280 in part, L.1932, c. 634; amended L.1938, c. 264, Ii 5; L.1939, c. 590,
Ii 2; L.1942, c. 497, Ii I; L. 1 945, c. 741, Ii I; renumbered Ii 280-3 and amended
L.1949, c. 750, Ii I; amended L.1954, c. 750, Ii I; L.1958, c. 334, Ii I.)
.'
Historical Note
DerfvatJon. Town Law of 1909, c. 63,
Ii 149-r, as added L.1927, c. 175.
West's McKInney's Forms
The following forms appear in Local Government Forms under Town Law,
Ii 280-a:
Complaint for Declaratory Judgment as to Legality of Requirements of Planning
Board as a Condition to Issuance of Building Permit, see Fonn 1.
Notice of Petition in Article 78 Proceeding to Review Determination of Board of
AppeaJs Denying Permit and Variance, see Form 2..
Petition in Article 78 Proceeding to Review Determination of Board of Appeals (
Denying Permit and Variance, see Form 3. .. .
Judgment in Article 78 Proceeding Annulling Determination of Board of Appeals ~
Denying Permit and Variance, see Form 4.
Ubrary References
Zoning and Planning CS=86, 372.4.
C.J.S. Zoning and Land Planning
Iili 25, 191, 192.
Notes of Decisions
Subdivision plat Improvements 12
Access roads
GeneraJly 6
Emergency vehicle Ingress and
egress 7
Frontage requirements 8
Improvements 9
ConstltuUonalJty 1
Construction 2
Emergency vehicle Ingress and egress,
access roads 7
Frontage reqUirements, access roads 8
Improvements
Access roads 9
Subdivision plats 12
Mandatory nature of sectIon 4
MlsceJJaneous consfderatJons 10
Official map 5
Performance bonds II
Purpose 3
Review 13
I. Constitutionality
Provision of this section reqUiring that
road giving access to Proposed structure
be suitably improved before buiJding
permit may be issued, merely conditions
approval of construction upon compli_
ance with reasonable conditions de-
signed for protection both of ultimate
purchasers of home and public, is within
police power. and is not objectionable as
compelJing construction of roads on
land at owner's expense without com-
pensation from town. Brous v. Smith,
1952,304 N.Y. 164, 106 N.E.2d 503.
Subdivision 2 of this section requiring
that street giving access to proposed
379
I
.,..' .'
-
~ 280-a
Note 1
structure be suitably improved before a
building permit-may be issued is consti-
tutional. Bayer v. Pugsley, 1958, 13
Misc.2d 610, 176 N.Y.S.2d 848, affirmed
7 A.D.2d 828, 181 N.Y.S.2d 781.
2. Construction
Under this section provIsion that no
building permit shall issue until roads
shown on plat have been improved to
satisfaction of town board and that if
applicant feels he has exceptional case,
he may go to zoning board of appeals
which may make exception or direct is-
suance of conditional permit, must be
strictly construed, in view of facts that
provision is derogatory of common law
and that town is municipal corporation
of limited powers. Lunmor Homes, Inc.
v. Johnson, 1953, 122 N.Y.S.2d 149.
.""
3. I'urpooe
Provision of this section requiring that
road giving access to proposed structure
be suitably improved before building
permit may be issued, is concerned with
problem of community planning and is
designed to secure uniform and harma.
nious development of growth. Brous v.
Smith, 1952, 304 N.Y. 164, 106 N.E.2d
503.
Purpose of this section requiring that
road giving access to proposed structure
be suitably improved before building
permit may be issued is not only to pro-
tect health, safety and general welfare of
community, but also to protect residents
of proposed structure. Robinson v. Jag-
ger. 1968. 57 Misc.2d 507, 293 N.Y.s.2d
258.
Purpose of this section providing that
building permits shall not be issued ex-
cept for parcels fronting on, among oth.
er things, a street shown on a map ap-
proved by planning board and that no
building permit shall issue until roads
have been improved to satisfaction of
town board, is to guarantee that before
buildings on streets shown on filed map
or other streets shall be occupied and
streets used, streets shall meet certain
requirements for protection of health,
safety and general welfare. Lunmor
Homes, Inc. v. Johnson. 1953, 122 N.Y.
S.2d 149.
,.'". .,
TOWN LAW
Art. 16
town not on an improved mapped street
until there has been compliance with
this section. 15 Op.state Compt. 261.
1959. See, also, 11 Op.State CampI. 181,
1955.
5. Official map
Town was without an "official map
by reason of failure of town clerk to file
certificate of its establishment with
county clerk as required by this section
and that defect was jurisdictional, and
zoning board of appeals could not prop-
erly deny building permit on ground
that dirt road on which parcel had front-
age and over which it had easement did
not appear on official map. White v.
Town of Pound Ridge Zoning Bd. of
Appeals, 1973. 42 A.D.2d 904, 347 N.Y.
S.2d 725.
This section prohibiting issuance of
building permit unless street or highway
giving access to proposed structure is on
map or plan or street or highway exists
or is shown on approved plat did not
require owners and contract vendee of
three lots fronting on town highway to
file subdivision map to oitain building
permit. Jack Homes, Inc. v. Baldwin,
1963, 39 Misc.2d 693, 241 N.Y.S.2d 487.
6. Ac:cesa road~neral1y
Where contract required that road,
which vendors were to construct. be of.
fered for dedication to town upon com.
pletion, road was prerequisite to obtain-
ing a building permit, and vendors ulti.
mately constructed road at their own
expense, vendors had obligation to con-
struct road acceptable for dedication
within specified time. C. & C. Blashka
Inc. v. Frazer, 1969, 32 A.D.2d n4, 302
N.Y.S.2d 443, affirmed 30 N.Y.2d 645.
331 N.Y.s.2d 669, 282 N.E.2d 623.
One-acre plot resulting from subdivi.
sion of twa.acre tract would have suffi-
cient access to improved public road
over strip of land 17 feet wide and 396
feet long as would warrant issuance of
area variance. Mastromonaco v. Bar-
tels, 1962, 16 A.D.2d 676. 227 N.Y.s.2d
74.
l'his section does not require, as condi-
tion of issuance of permit for erection of
building on lot abutting on an improved
county highway. any form of physical
4. Mandatory nature of section access, but merely any reasonable
A building permit may not be lawfully means. Annandale, Inc. v. Brienza,
issued for the erection of a building in a 1956. 1 A.D.2d 785, 148 N.Y.s.2d 17.
380
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Southold, N.Y. 11971
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JlESRY E. RA Yr-.'OR, Jr.. Gwirman
)A.\IES WALL
,j1!>S~ETT ORLOWSKI. ir.
GEORGE RITClIIE L.I'fHAM.Ir.
WILUA.\1 F. ~fULLEN. Ir.
TELEPHONE
765-1938
A meeting of the Southold Town Planning Board was called to order
June 15, 1982, 11:10 a.m. at the Fishers Island Firehouse, Fishers
Island, New York. Present were:
Chairman Henry E. Raynor, Jr.
Member G. Ritchie Latham, Jr.
Member William F. MUllen, Jr.
Member Bennett Orlowski, Jr.
Member James Wall
BUilding Administrator Victor Lassard
l"
Allerton Cushman - The Planning Board inspected this property prior
to the meeting noting the applicant's request to split the property
into two sites. The board requested James Wall to supply them with
a letter from the applicant stating no further subdivisions will be
made on this property before taking any action.
On motion made by Mr. Orlowski, seconded by Mr. MUllen, it was
Vote of the Board:
Ayes:
j
Raynor, Latham, Mullen, Orlowski, Wall
RESOLVED that the Southold Town Planning Board ~E! those maps of
the east end of Fishers Island with a condition that the areas that
are undesignated will fall under the present subdivision regulations;
Annette Zabohonski - The Planning Board inspected this property prior
to the meeting. James Wall was asked to supply the board with stipu-
lations as to the improvements of the right-of-way and width.
On motion made by Mr. Mullen, seconded by Mr. Latham, it was
RESOLVED that the Southold Town Planning Board declare itself lead
aqency in regard to the state Environmental Quality Review Act in
the matter of the minor subdivision of Annette Zabohonski, located at
Fishers Island. An initial determination of nonsignificance has been
made.
i
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~
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Vote of the Board:
Ayes: Raynor, Latham, Mullen, Orlowski
Abstained James Wall (interested party)
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ZONING
~ 100-32
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(b) Adequate supervised parking facilities shall be
provided.
(c) No signs, except one (1) one-premises sign not larger
than six (6) square feet in size displayed for a period
of not longer than one (1) week immediately prior to
the day of such sale, shall be permitted.
(d) A permit is obtained therefor from the Building
Inspector upon the payment of a fee of fifteen dollars
($15.)_
..
~ 100-32. Bulk, area and parking regulations.
No building or premises shall be used and no building or part
thereof shall be erected or altered in the Agricultural-COnservation
District and in the Low-Density Residential R-80 District unless the
same conforms to the Bulk Schedule and Parking Schedule"
incorporated into this chapter with the same force and effect as if such
regulations were set forth herein in full, as well as to the following
bulk and parking requirements: .
A. In the case of a lot held in single and separate ownership prior
to November 23. 1971, and thereafter, with an area of less than
forty thousand (40,000) square feet, a single-family dwelling
may be constructed thereon, provided that the requirements of
Column vii of the Bulk Schedule and the Parking Schedule
incorporated in this chapter are complied with.
E. The bulk and parking requirements for single-family
dwellings as set forth in Column ii of the Bulk Schedule and
the Parking Schedule incorporated into this chapter shall
apply to the following lots:
(1) All lots shown on major and minor subdivision maps
which were granted final approval by the Planning
Board prior to May 20, 1983.
(2) All lots shown on major subdivision maps upon which the
Planning Board has held a hearing for preliminary map
approval prior to May 20, 1983_
7 Editor's Note: The Bulk Sehedule is included at the tnd of this chapter. and the Parking
Schedule is in S lOO-191A.
10049
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('
SOUTH OLD CODE
~ 100-33
.(3) All lots shown on minor subdivision maps that have been
granted sketch plan approval by the Planning Board
prior to May 20, 1983.
(4) All lots set off or created by approval of the Planning
Board subsequent to November 23, 1971, and prior to
May 20, 1983.
C. The bulk and parking requirements for single-family
dwellings set forth in Columns i and iii of the Bulk Schedule (
and Parking Schedule incorporated into this chapter shall
apply to the following lots:
(1) All lots shown on minor subdivision maps which have
been granted sketch plan approval by the Planning
Board on or after May 20, 1983.
(2) All lots shown on major subdivision maps upon which the
Planning Board has held a hearing for preliminary map
approval on or after May 20, 1983.
(3) All lots set off or created by approval of the Planning
Board on or after May 20, 1983.
t
D. Tbe bulk and parking requirements for tw<>-family dwellings
set forth in Column xii of the Bulk Schedule and Parking
Schedule incorporated into this chapter shall apply to the
following lots:
(
(1) All lots shown on minor subdivision maps which have
been granted sketch plan approval by the Planning
Board on or after May 20, 1983.
(2) All lots shown on major subdivision maps upon which the
Planning Board has held a hearing for preliminary
approval on or after May 20, 1983.
(3) All lots set off or created by approval of the Planning C
Board on or after May 20, 1983.
~ 100-33. Accessory buildings. [Amended 4-10-1990 by 1..1.. No.
6-1990]
In the Agricultural-Conservation District and Low-Density
Residential R-80, R-120, R-200 and R-400 Districts, accessory
10050
6 - I - 90
l
~ 265
e/H'//61 r ~,
Notes of Decisions
TOWN LAW
9. Protest against proposed change-
Generally
A single joint tenant's signature is
sufficient to constitute a vote on behalf
of the jointly owned property for pur-
poses of a protest petition under Town
Law ~ 26l;. Op.Atty.Gen. (Inf.) 89-17.
10. - Nef:e8sity of three.fourths
vote
Town board's three-to-two vote ap-
proving application for change in zoning
was not sufficient to pass amendment,
where landowner who submitted written
objection owned slightly more than 20%
of land area immediately adjacent to
property for which zoning change was in
question, if area lying in street were
excluded, under Town Law requiring ap-
proval of at least three-fourths of mem-
bers of town board of land regulation
change if change is objected to by own-
ers of 20% or more of immediately adja-
cent land. Biedermann v. Town of Or-
angetown, 1986, 125 A.D.2d 465, 509
N.Y.S.2d 394.
15. Di.approval of .hange by plu-
ning boad
Web.ter Ae.ociala v. Town of Web-
ster, 447 N.Y.S.2d .01 [main volume)
aff'll'IIled 85 A.D.2d 882, 446 N.Y.S.2d .
955, reversed 58 N.Y.2d 220, 464 N.Y.
S.2d 431, 451 N.E.2d 189.
22. Conditional chanres
Town zoning board could not impose
condition on graut of variance permit-
ting use of agrieulbara1-residential prop-
erty for automobile body repair shop,
requiring phasing out of operation on
another parcel of property not subject to
variance, notwithstanding contention
that condition was justified by close rela-
tionship between properties and by in-
terrelated nature of land in the camm.
nity. St. Onge v. Donovan, 1988, 71
N.Y.2d 507, 527 N.Y.s.2d 721, 522
N.E.2d 1019.
~ 265-a. Exemption of lot. shown on subdivision plata
Notes of Decisions
Commercial subdivisions 3
Local laws 4
2. Validity of particular exemptions
Sections of Town Law and Village
Law which provide exemption from
amendment to zoning ordinance increas-
ing required Jot size made within three
years after approval and filing of subdi-
vision plat or first section of plat were
not intended to abrogate vested rights
acquired before or during exemption pe-
riod by virtue of substantial improve-
ments. Ellington Canst. Corp. v. Zoning
Bd. of Appeals of Inc. Village of New
Hemp.tead, 1989, 152 A.D .2d 365, 549
N.Y.S.2d 405.
3. Commercial ..Wid,ions
Statute providing for exemption of .
proved subdivision plats from increased
lot area and lot coverage requirements
of zoning ordinances adopted or amend-.
ed subsequent to subdivision plat a~
proval applied to commercial subdi~
sions as well as r-MAnthl.J subdivisions.
Ramapo 287 Ltd. Partnership v. Village
of MontebeIlo, 1990, _ Mi....2d ~
550 N.Y.S.2d 1021.
4. Loeallaw8
This section does not exempt a devel-
oper who has filed a subdivision plat
from the requirements of a subsequent-
ly-enacted local law governing wetlands
preservation. Op.Atty.Gen. I 90-10.
~ 266. Zoning commISSIOn [Eff. until July I, 1991. See, also, ~ 266
post.]
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 commission to
recommend the boundaries of the various original districts and appropriate
regulations to be enforced therein. Such commission shall make a prelimi-
nary report and hold public hearings thereon before submitting its final
report and such town board shall not hold its public hearing or take action
until it has received the final report of such commission. Where a planning
board already exists it may be appointed as the zoning commission.
(L.1932, .. 634; amended L.1963, c. 759.)
22
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13i
Southold, N.Y. 11971
IIESRY E. RAYNOR, Jr.. Chairman
HilES WALL
UE~~ETT ORLOWSKI. Jr.
GEORGE RlTCHIE LATHAM,Jr.
WILLlA.\1 F. MULLEN, Jr.
TELEPHONE
765.1938
A meeting of the Southold Town Planning Board was called to order
June 15, 1982, 11:10 a.m. at the Fishers Island Firehouse, Fishers
Island, New York. Present were:
Chairman Henry E. Raynor, Jr.
Member G. Ritchie Latham, Jr.
Member William F. Mullen, Jr.
Member Bennett Orlowski, Jr.
Member James Wall
BUilding Administrator Victor Lassard
Allerton Cushman - The Planning Board inspected this property prior
to the meeting noting the applicant's request to split the property
into two sites. The board requested James Wall to supply them with
a letter from the applicant stating no further subdivisions will be
made on this property before taking any action.
On motion made by Mr. Orlowski, seconded by Mr. Mullen, it was
RESOLVED that the Southold Town Planning Board accept those maps of
the east end of Fishers Island with a condition that the areas that
are undesignated will fall under the present subdivision regulations;
Vote of the Board: Ayes: Raynor, Latham, Mullen, Orlowski, Wall
Annette Zabohonski - The Planning Board inspected this property prior
to the meeting. James Wall was asked to supply the board with stipu-
lations as to the improvements of the right-of-way and width.
On motion made by Mr. Mullen, seconded by Mr. Latham, it was
RESOLVED that the Southold Town Planning Board declare itself lead
agency in regard to the State Environmental Quality Review Act in
the matter of the minor subdivision of Annette Zabohonski, located at
Fishers Island. An initial determination of nonsignificance has been
made.
Vote of the Board: Ayes: Raynor, Latham, Mullen, Orlowski
Abstained James Wall (interested party)
;.-.,
. ,
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pg. (7)
.
4/12/82
77
..
in the marsh area. Also noted was the recharge area being more than
half marsh area. The possibility of cash in lieu of Park and Playground
was discussed. The board advised Mr. Cron that this area was an ex-
cellent piece to cluster. No action was taken on this sketch: the maps
would have to be revised.
* * * * * * * *
Ernest Wilsburq Jr. - Mr. Richard Cron, Esq. stated this proposal has
been submitted to the Zoning Board of Appeals as a variance is required.
Mr. Cron stated that prior to this two lot subdivision, the applicant's
tried to obtain Health Department approval, but was denied, on the
three lot proposal. His client would like the one lot approved enabling
the bUilding of a house. The board will review this proposal before
taking any action.
,I
* * * * * * * *
'((\(
FIDCO maps - Because of the reluctance from Stephen O'Neil to sign
a Conservation Scenic Easement, as stated in his letter of March 8, 1982,
it was the concensus of the board that the current zoning requirements
be enforced on all remaining open space areas on Fishers Island. A
letter stating such will be sent to the proper parties. The board will
await any comments regarding this letter before taking any action on the
revised FIDCO maps.
* * * * * * * *
Cluster Zoninq - Mr. Raynor read correspondence from the Town Attorney,
dated March 16, 1982, concerning cluster zoning concept. It was the
concensus of the board to go on record as supporting the adoption of
Local Law superseding the provisions of Section 281 of the Town Law, and
authorize the Planning Board to mandate cluster zoning. The board was
in agreement that this support be go on record in Albany. A letter will
~ be drafted to the Town Attorney to be referred to the Town Board for
their approval.
* * * * * * * *
On motion made by Mr. Latham, seconded by Mr. MUllen, it was
RESOLVED to set 7:30 p.m. May 10, 1982 and May 24, 1982 at the SouthOld
Town Hall, Main Road, Southold, New York, as the time and place for
the regular meetings of the SouthOld Town Planning Board.
Vote of the Board: Ayes: Raynor, Latham, MUllen, Orlowski, Wall
* * *.-* * * * *
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fEB 111987
ML:hllel A. loGrilll<le
e\..',7f1C-LK C:jUt'.l'YY EK,tC...1ttVE
ClE!"A"TMttNT 01' NE:A..TH StAYICl:S
OA\.'II) HMt~I$, M,O.. ....IoP.H.
.cOlr/l)oU.'I:'JNtM'
February 10, 1987
Honorable f,'ene! s J. Murph,)'
Superdsor, io\tr'l 1)1' $outhold
53095 /1/11 r. Road
Southold, New York 11971
Re: Subdivision of Fishers Island Devalopment Corporatton
Deat' Supervi sor MUI'ph)';
A Board of ilevlDW heal'ing has been scheduled for Fd.ruary 20, 3987, at 3: 30 p.m.. tn the
Suffolk C()\Jr,ty D~p;ll'.mei1t .(',f .Health S~Y'VlcDS Conference Room, County Center, Room H-204,
III vQt'h~ad, for thJ; ollrpcses of review! fig the abo'le referel',ced IMp fo:' iltcept:'lflce. 1 n l1.:!u
Of a regula,' Su"jh"j.l()'1 map PUf'Su3nt to Article! 6 of the Suffolk Count.f Sanitary Code.
Any aCCI;t!"ce of the map may Involve setting of cond1tlons .hl~h could affD~l some or ~11
af the 1015 On the ~ap.
YOll and lnterested P^~tit'!S are I'l?qiJestlid to eplJe"r, "lith or wH;hov,t eN!;,:;,!'l. or.:J you may
produce lon)! InFcl'in,~ t i ')r< 'Or e'll dence cOnc,"'rn'i n9 tn,' ;:'"c,,\; n:fuenced pt'OP!)I'tj'.
Very truly yours,
V,...
Robert A. Vi1la. r.E.
Cha; rc,an
Board Of Review
RAV:cah
cc: ~. Jal;1f~S l. Corbin
t.-% h:;l ,1. Pont\Jfo, P.L
'-1ir. lky R. Reynolds, P,E.
e--ffr. SlJ, ,en A. Costa, P.E:.
Mr, Richard F. Lark, Esq.
'-"Mr. !ltc/JIII'O S. Baker
'-"'fr. Victor l.essard
Mrs. Virginia Campbell
Mr. & Mrs. James New,nan
Hr. Ch~r1e$ G. Lind " I 1,$
vTown (of $c'uthold Planning 8(),~rd"/<. ,1'(.t1a,of'a"
eOU!...h ctNU'w
AiVUtl"lf:AO.,..'f. fl$;,)1
(bltl 548-3312
E)ft. 12
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(;:OUNTY OF SUFf"OLK
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C'*f'lISfi:IONftA
Michlel A. LoGrilnde
&V,Y"'C!~jO( COUNty r.IC.t_CUl"JVE
.!~:;"1, I ,~
Ot",.,R'1"MENT 01' HEAL. TH SERVICI'S
~
'. ,t, 3'
~,,' ',!
"
TO:
MI'. Robert A. V111a, P.L
Mr. Stephen A. Costa, P.E.)0-/
Mal'ch 3. 1987
FROM:
DATE:
SUBJECT:
fishe"s Island Oevelcpment CorporaUon, (loard of r~eview Hearing
Subsequent to u'e Boar'd "f Review hearing, YOu asked our Sect ton to prepar'e
a I1st of cr>ndltions under which llPPl'oval of the F10CO maf' could be acc<'pted as
an equivalent to a l"e9ul~r subdivision map. 6e1ow is a list of COnaitlOnS that
W~ recommend should be placed upen the de,,\,\opm~nt In your decHhm, The ~,ondi-
tiO"5 are su~narlzud frem discussions which took pllce at the hesring:
1 )
Lots 'listed b$ musuem propcnY, trust ~I'eas or conse"vatli)" ~":,a:;"rf' !'lot
to be considered as building lots.
2)
Lots cortainlnc or desigriat(!::l a:, c:ay pHs are not to be cOrl!;idel'cd as
blInding lots. v
Unnumbered lots Ire not to ~e considered as building lots.
4)
H3t!':t'~d! Shaded or othel' f;\lITIbereo lots. ~Ihlch al'e cOllsidered building lots.
may not te& further- subdivided without filin!) of pr\lper std)divi$iu. or devel-
opment appl1catfons with the Oepa,'tment.
Public watel'~te--.iN""'tl1S'''' tVI~n~ble to a'!l bunding lot.s. FiDCOis to
provide the U"phrtmH"~ >>It!; layovts of all ~}istin9 we-tel' mains. /'
S)
6\
An l\)tsadjllc'~nt to B&r10w Pond or Mld<Jle Farms Pond at(, tc (onsider'ed as
Type 1 ~ctlons pursuant to SECiRt, Upor IHi.)i &.ilplic.atioil to;, ';()nstruc.t 01"
sv!Jdtvide, an envlrcnmel1ttl asse;;;;nC!1l. ,,1:0.;10 be completed. Coordinated
revl~w '"Iill (Dm~,'ence and 'I:" Eny'h'onnH.mta' Impact Stiltemer.~ may be
necesta ry.
SAC:cah
ce: ! M~JUPf:,~!!f;;'!~p~IHO,\q.f?\~:11~;Ji K~I~ij',P&'F:t. .", i
COuNT... Cl.NtlR
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PO~
RICHARD F L.A"I\:
ATfQRW!'t' A': L.A',',
M~I!'~ !-i'OAO. ;', O. ''lrJX.''
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I
TF.Lri~tfQl.~ etO '1j;4...H"~1
March 3], I 1987
Richard
Fishers
f'ishel's
s~ Baker, PrcsidGnt
Island \~ate"' W","',:s C<"rporatioll
Island, New York 06390
RE:
FIDCO S'Jffo1-j.~ C(.Hr,1ty He.alt.ll r)ep~r.-tment
Approval j\~b.p :>':1")1" Eant E:1d LotB - If\'\]ork M~'tr;fl
._~_"~..._~.._.___~, . '__'~....-v,_____,,_.,."__"'_"__''''~'_'_''_''__'''''_''~'. .~..._
Dear Dick:
;
,
After ro'VjL<~'I..:ih';:r the !naps yot'! ~,(~nt. !n~ I t met: ~.d th Ste\lt) Costa,
Roy Reynolds of the Suffolk County Health Department and Victor
LeSfJ<i!:d of t,h,e S..rl1t.hold l".r()~..'r! Build.infj D(:r'[-i,rtn;Br-,t. Ge:'leral!y, they
were very sa t 1.S f Iec1 wi ':1: thp, i,..Joxk you ht.::12tCCOfnp) 1. Sll(lcj on the mapg I
hO~AVert tl)e~' did h~ve a few concerns. To exp.t&in them to you 1
\o.Ii11 start or, the eastern Lip of the ):sTand rind wot~k to thG W0St.
~'hey cCilore\'~ ih y,;?11c)\\' the land around NtH3 Pon,d and 1'.1oney [lond
adja~ent to lot J-4A as well as the small parcel adjacent tc lot
8-12. They \,\T~~ri1.~ 1'.0 co101:' .l.,n yellCl\Y' the lDnd o\<}ned by th~~ ~L:lture
ConS(~(,vLH~CY ... jot, J.~)-1,~, pc>.rtions of lotl; 1::.-6~ 1~)-7 D.nd 15-12
and the trlrHl':l,J.ltH- por'tion or lot 1 S - 6, Th;;,y co) or'eel i,n yollov-'
the two sn~all is.1:..nds off let 12-4B i't:~d. warl" t\'J col-or in lot 1.6.'~7A.
Tl:ey also l.rJ,:~n-r.: 1:0 l(nDw the sti.'\tus:)f lot J.i:.2J1.. an(~ portion :ot
20-,8. . (~",'P~"")""NS 1-14/<'(:..t i ,,-r;) y(.II"",
t.~>-
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__ ox.
'Ilhev colc:-.:r'ed ye.lJo',,J p,~rc-e: denotej MUS'.,,"H:~~1' L,:-tnd ?l'llSt South
t~(". ... ' of lot 2t)-) OR; lOt. 22-4 .;u~d let l't()t~:.d C()ns(.~r\'atlon .1l:bsoment to
.. ~r-',.:. IHent'j' L" ferl]us,)n f-1UiM.tUro ne}:t f;O :tot 2~.-.~ and lei1=. PC>l'tJon 34-16,
'~~r~~lot 40-]9 and the parcel nGxt to lot 44-17, TII0 lotR around
. 'fl" " -. I 1 ..' , "F .,. ~ ' " , l' I f l'
- L-,.~'~].~.;;:()1-4 arle :,If,ilO(J..i.C at"InS -"on-:..s" tuey In:.nSt 4.0 p ,&(,:Lng t;;le '0 J..O\O)-
'ing '.-.!ording- atidn rEd, astorlsk on ea,(:h of ti)(::s(} lot~, wher.t~ ir~dicatec1,
"tots dcn(tted wi th .~ 'l'ih i.ch al'''e a(:j~ce:jt to B()r:!.C~J\~ Pond and Middle b.~
F,;!t:'f:"~ Pond a:r'f~ corn:;idf~t':~d' tYF'e 1 act J.()ns F':.;:r.-5~jB.nt. to SBQR/\. II _.-
Al,l in all, I did not thi;~}: the m~nti.n9 with these officials
~:e:""lt too ba~ly ,---~(;'l1sid.et.'ing tJle 5J.OW pl>:'iJ::-'~SB thClt !l<'~S been mbdp tc
date.. p.r{~Ccd'i.11:e wise, if ttf.tl;~t' you review the eh/:tl'tqr;:S '::H1 the ~r:""
elosed muV wi t~ your. nnte$ !u\ke ar1Y t1l?:12,tio;)$ 0.1::' o:1(hl,i tions th,.~t are
tv~cer.:::sary anc.return to 1fl.E~~ I int,urrl '"lt1.1 prese~,,;.t this \rJork map t.o
Mr. Costa'.'bo \~J J 1 yO over it: '>lith tl1':, PO!';l'd of Peviel'l. If they
[H'tre(3' ta i.t, thr:; \,)ork mat:. l..o:'~i:, 1 ue t:~:-t'.:x'ned to me Hnd '.ve c"n h,:Hr€, it
p!'int...':(~ by t.be S!..lt"'Jf=YOl'.' 3\f':.:E:,r thi.r;; 1:::::. (:(;mlpJeted, it vli.l1 be form-
ally p):'es,~nt",d to t.he hO,'lrc1 of ReVH:", ,~nd hopefully this rr.i;tter will
bt.~ settlE>c1 once ;.:tnJ fe.l ~-t114 j\v:ait.inq YOI~l.' reply, ~ am
~
:!~. I:U>>' {..Q,,>>rs,
~~ -c..../l .
~
, 'chat F, Lark
RFI./dmc
enc.
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1(1.. t, "'\ ,.f,:A~<"A';f;;,h to-
";"'~i......t.''':'<,,,,,,,.~.,;~~.''' ....oOillo" "~W,;", ~."..;t,"~ ~<;~iL;l;.it:'~..l:tJjl ..~...~~':r,;;;C;",~& <'.d!,,",~~
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Fe':;I'.~';'~;:. ;~"~: :. ..:/": PC!2
CO r; 7"> l); t.I< ), n,..."',
'\\"1 <to?
COUNTY OF SUFFOLK
MICHAEL A. LoGRANOE
LOiJf\,1"r E)i.f_CUTIVL.
Dt:PART~I!NT- OF HE:.ALTH Si;RVICElt~
Marcn 30, 1987
t:'4,;;ltl t--rARR'S. M.D.. M"P.~.
cO....j\.'I~..'i.'(H...tR
Mr. Richard S. Baker
Fishers Island Development Corp.
Fishers Island. New York 06390 and
Town of Southold
53095 Main Road
Southold, New York 11971
Subject: Board of Review Hearing - fehruary 27, 1987
P~oposed Subdivision of fishers Island Development
Corporation
Dear Mr. Bater and Gfntlemen:
At the he3rlng held Dn February 20, 1907. you had an opportunity
to present your appeal Of the department's ruling on the subject
application.
In accordance with tne prOVISIOnS of Articl~ ? Sectlnn 220, of
tn! Suffolk County Sanitftry (ode~ the jeter~lnltion of the Board of
Review Is ~s f~llows.
Rased on the InfDrmatio~ Submitted, thA Baard will grant a wa'v~r
to accept the FIOeO map as prepared by Chandler. Palmer & King as the
official map of the easte~n two-thIrds of the Island subject to the
following conditions:
1. Lots listed as museum propertj, trust areas or cDns~rvatlon
areas are not to he con~4der~d a~ blltld1ng lots.
\,
,
,
,
2. Lots containing or dlsignated as clay pits are not be considered
as building lots.
3" nnowtb€Jted iots ar.(~ not to b(~ (u:1siderp.o ,~':) t'uil,jiog lots.
4. Hatched, shaded Dr other numbe-pd lots, ~hi(h ~re considered
building lots, may not be 'urt~er subdivided w~thDut flll09 of
proper subdivision or cevelopman\ Ippllcatlons with the
dlopartment.
-
,
225 '~_A:ot>,,;vt tAS1
H.u"~UCf, N;y, I . '&6
II!!.' .1-S....."'17
II Lti $
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Fish0r5 :s11n~ n2v01o:
Pag€' Twu
March. 3D, l')g;
f'-nt .i;,'(l(p.:H'ct1or~1 'inc.
" - "'t
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~ .
Pub -J,: ~'! .i t ': (' -:'~
F~rcC ~-s to Pi'"'i);
watf'f m3ins.
_j_r.t:0~'1iede d'faflnb1~ to ~;! b:dlding 10:5.
,'" "'.' depHtmed \'11th \'l.Yi)~; " of a11 \exfsting
6~ All )ots 2(ii~C?~ tD Bar"low RQ)~ Jt Middle far-j!1S Pn~d ar~ to be
((: s1dQr~~ .~s ~ji>? r act1cns p~i's~hrlt to Sf ORA. Upon any
a:_.;:;ica'ti:)n to c'~.~n~itr'uct or $J"bc:ivide. en l;:irlv1f''JriUl<!nta1
ass~ssment snould be corrpleted.. Co()rriintitec~ reiicw will
CJi,'mpn(>? (tnd Hf'i E;)v1 rtlmif~!it~l ImpHct Stat€'ment m~.y bE' .-leces~drY'..
- )
.,
The grant\ng of this w~lver does not Imply that y~ur 8ppli(~tion
~Ii~' be allto:~a~'1cal1y approverl. It is Y(IUr r~sp()rIS1hjl'lty to ~n~0re
':l~~...Y..QJ!!~.o>~..E.EL~,_~...~~~:_.~.:);\..-!$ com~~~e.~€; ()th@.r\~l~'f!~ jo~,r (3ppr(iv~l wi11 b~
~ur,Ject to unnl'<:e,sarY"i'1'l'.'r8J.
).1/'.' I'
(1'V .
,
Very truly yDurs,
,'/'~)n r') 1/)0
(i"-JL'n~ U j:.JLY",
Robe~t A. Villa, P.E.
Chairman, Board Df Revipw
RAV/piI
~c: Mr. W. Lindley
Mr. C. Lind
~.Il ,:,.
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lil ).,.'-' 11.;..~a'iLUlj:....a;. ~4iil-d;~~>;~'_'tr'-i:,;.";;.L'"~i,,,2,i: ~~-::.'"-
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