Delaware Midland Corp. v. Incorporated Village of Westhampton Beach

• Decision Date: 19 September 1974
• Citation: 359 N.Y.S.2d 944,79 Misc.2d 438
• Parties: DELAWARE MIDLAND CORP., Plaintiff, v. The INCORPORATED VILLAGE OF WESTHAMPTON BEACH et al., Defendants.
• Court: New York Supreme Court

Page 944

359 N.Y.S.2d 944

79 Misc.2d 438

DELAWARE MIDLAND CORP., Plaintiff, v. The INCORPORATED VILLAGE OF WESTHAMPTON BEACH et al., Defendants.

Supreme Court, Special Term, Suffolk County, Part I.

Sept. 19, 1974.

Fink, Weinberger, Meyer & Charney, P.C., New York City, for plaintiff.

Smith, Tasker & Finkelstein, Riverhead, for defendants.

MEMORANDUM

LEON D. LAZER, Justice.

The incessant controversy over the number of lots necessary to constitute a subdivision of land (see E. Yokley, The Law of Subdivisions (1963) at 3) is continued in this declaratory judgment action initiated by the owner of a parcel of property in the Village of Westhampton Beach (the 'Village'). The plaintiff, whose application for a building permit for a single family dwelling was denied due to failure to abide by local subdivision requirements, now moves for summary judgment declaring the invalidity of the pertinent provisions of the zoning ordinance and subdivision regulations of the village.

Article XI, Section 2(e) of the Westhampton Beach zoning ordinance provides that:

'Before any lot is formed from part of a lot, the owner thereof shall submit the proposed separation or subdivision plan to the Planning Board in duplicate for its approval and determination whether same constitutes a subdivision. Such proposed plan shall show the location of property lines, buildings and other existing features, locations of the lot with reference to existing streets, easements or rights of way, the location, area and dimensions of each of the proposed new lots, and other adjoining lands, if any, to which the owner, directly or indirectly now has or previously had an interest.

'No building Permit, Certificate of Occupancy or Certificate of Existing Use shall be issued where a new lot proposed to be formed will cause or create a violation of any provision of this ordinance, rule or decision of the Planning Board, or any other statute, law, code or ordinance applicable to such premises or any existing or new improvement associated therewith.'

Section 100 of the Village subdivision regulations defines a subdivision as

'. . . the division of any parcel of land into two (2) or more parcels, lots or sites . . .'

Relying principally upon section 1115 of the Public Health Law, plaintiff maintains that the Village lacks either constitutional or statutory authority to formulate its own definition of the word 'subdivision' to include the division of property into 'two (2) or more parcels.' The Public Law definition describes a 'subdivision' as a 'tract . . . divided into five or more parcels . . .' Section 7--728 of the Village Law upon which the Village predicates its authority for adoption of the challenged regulatory provisions contains no definition of the word 'subdivision,' nor do the parallel enabling acts (Town Law § 276 and General City Law § 32). All three of these statutes specify simply that the planning board may be empowered (by the local legislative body) 'to approve plats showing lots, blocks or sites, with or without streets or highways.'

The absence of a 'subdivision' definition in planning and zoning legislation is not unique. Fewer than half of the state enabling statutes contain such a definition and most of those which do refer merely to the 'division of a lot into two or more lots' or 'three or more lots' (3 Rathkopf, The Law of Zoning and Planning, p. 71--20). The enactments which omit a definition have been construed to authorize each municipality to define the term (3 Anderson, American Law of Zoning § 19.02), thus reserving to each locality the right to determine one 'who subdivides' or what constitutes a subdivision (Board of Supervisors v. Georgetown Land Co., 204 Va. 380, 131 S.E.2d 290). Whether a similar construction is warranted here depends upon interpretation of the meaning and rationale not only of the enabling acts but of related legislation.

Governmental regulation of the land development process has increased appreciably in the last twenty-five years in response to environmental problems and heightened expectations (A.L.I., A Model Land Development Code (Tent. Draft No. 1, 1968) Commentary on Art. 3, p. 177). It represents a legislative judgment that community development be accompanied by the furnishing of adequate public facilities to meet present and future needs while providing for the housing, distribution, comfort and convenience of local residents (see Golden v. Planning Bd. of Town of Ramapo, 30 N.Y.2d 359, 334 N.Y.S.2d 138, 285 N.E.2d 291, app. dism. 409 U.S. 1003, 93 S.Ct. 440, 34 L.Ed.2d 294 and 409 U.S. 1003, 93 S.Ct. 436, 34 L.Ed.2d 294; Brous v. Smith, 304 N.Y. 164, 106 N.E.2d 503; Village of Lynbrook v. Cadoo, 252 N.Y. 308, 169 N.E. 394). The emergence of regulatory power over land subdivision as a principal tool of urban planning results from the fact that modern dwelling construction has long since departed the concept of individual buildings, constructed singly and gradually, and sufficiently controlled by zoning ordinances and local health, building, plumbing and electrical codes alone (3 Rathkopf, supra, pp. 71--2, 71--6). Subdivision control is designed to complement other land use restrictions which, taken together, seek to implement a broader comprehensive plan for community development (Golden v. Planning Bd. of Town of Ramapo, supra). It is born of necessity, for 'the baneful consequences of haphazard development are everywhere apparent' (Mansfield & Swett v. Town of West Orange, 120 N.J.L. 145, 198 A. 225).

Although the delegation by the state of subdivision control authority is not co-terminus with the broadly stated police power objectives in the enabling legislation, the exercise of the zoning power must find its constitutional predicate in such laws (Golden v. Town of Ramapo, supra). In Golden, the Court of Appeals determined that the disputed exercise of the zoning power was valid even though it was not specifically included in the recital of purposes in Town Law § 261. Golden is a logical (albeit far-reaching) extension of the well settled principle that a municipality is empowered to fashion an overall plan suitable to its particular location and needs as a matter of purely local legislative discretion (Nehbras v. Incorporated Village of Lloyd Harbor, Sup., 147 N.Y.S.2d 738, mod. on other grds, 1 A.D.2d 1034, 152 N.Y.S.2d 28, aff'd 2 N.Y.2d 190, 159 N.Y.S.2d 145, 140 N.E.2d 241; Fox Meadows Estates v. Culley, 233 App.Div. 250, 252 N.Y.S. 178, aff'd 261 N.Y. 506, 185 N.E. 714).

Where subdivision control has failed it has largely been due to narrow statutes, inadequate implementation and overly strict interpretation (Note, Land Subdivision Controls, 65 Harv.L.Rev. 1226, 1237 (1952)). The dynamic character of the police power in connection with zoning has the potential, the progressive capacity and the flexibility to meet and solve new problems in the light of the latest and most advanced knowledge (8 McQuillin, Municipal Corporations § 25.05). Although the Goden court alluded to to the notion of absolute local control as 'largely antiquated' (30 N.Y.2d at 374, 334 N.Y.S.2d at 148, 285 N.E.2d at 299), it strongly counseled a policy of 'judicial self-restraint' and ultimately sustained a regulatory scheme under which an owner's exercise of the right to develop property in undeveloped areas could be deferred by the Town of Ramapo for periods extending up to eighteen years. This tolerant judicial approach to a significant expansion of the local power to restrict land use is consonant with progressive legislative policy toward the increase of specifically delegated prerogatives in the area of subdivision control. The original power to review plats showing new streets or highways (Village Law § 179--k, L.1926, c. 719; Town Law § 276, L.1932, c. 634; General City Law § 32, L.1926, c. 690) has been augmented to cover those 'with or without streets or highways' (L.1959, c. 296, amending Village Law § 179--k (now § 7--728); L.1958, c. 761, amending Town Law § 276; L.1962, c. 782, amending General City Law § 32); municipalities have been empowered to authorize planning board approval of resubdivision of previously filed maps (Village Law § 179--k as amended by L.1958, c. 471; Town Law § 276 as amended by L.1956, c. 797) and, to encourage the 'cluster' concept, they have been empowered to permit the modification of zoning regulations in the course of acquiring requisite public facilities or preserving environmental as a condition of subdivision approval (Village Law § 179--p as amended by L.1965, c. 104, renumbered § 7--738 by L.1972, c. 892; Town Law § 281, as amended by L.1963, c. 963, formerly § 149--r, reenacted under present number L.1932, c. 634 (see Rouse v. O'Connell, 78 Misc.2d 82, 353 N.Y.S.2d 124); General City Law § 37).

Enabling enactments provide local planning boards with discretion in dealing with subdivisions provided they act within the bounds of regulations approved by the local governing body (Villa-Laken Corp. v. Planning Board, Sup., 138 N.Y.S.2d 362) and the delegation to local governments vests in them the fullest and most complete powers possible concerning the subject matter of municipal planning (Yokley, supra, at 23). The imposition of subdivision controls is an exercise of the police power which has consistently been upheld (J. Johnston, Constitutionality of Subdivision Control Exactions: The Quest for a Rationale, 52 Cornell L.Q. 871 (1966--1967)). While the construction espoused by plaintiff would limit municipal capacity to implement long term comprehensive plans, its immediate consequences are more apparent. The 'checkerboard' device would be immeasurably enhanced (see Incorporated Village of Nissequogue v. Meixsell, 55 Misc.2d 1069, 287 N.Y.S.2d 555, aff'd 32 A.D.2d 1029, 303 N.Y.S.2d 488; see also Adams v. Incorporated Vill. of Westhampton Beach, 71 Misc.2d 579, 336 N.Y.S.2d 662); developers of less than five lots would escape the statutes which...