Kamhi v. Planning Bd. of Town of Yorktown

• Decision Date: 12 October 1982
• Citation: 454 N.Y.S.2d 875,89 A.D.2d 111
• Parties: In the Matter of Carl KAMHI, Respondent, v. The PLANNING BOARD OF the TOWN OF YORKTOWN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 875

454 N.Y.S.2d 875

89 A.D.2d 111

In the Matter of Carl KAMHI, Respondent, v. The PLANNING BOARD OF the TOWN OF YORKTOWN, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 12, 1982.

Arthur J. Selkin, Town Atty., Yorktown Heights, for appellant.

Cuddy & Feder, White Plains (Ruth E. Roth, White Plains, of counsel), for respondent.

Before MOLLEN, P.J., and TITONE, WEINSTEIN and RUBIN, JJ.

RUBIN, Justice.

This case squarely presents the issue of how far a town planning board may go in imposing conditions on approval of cluster subdivision plats pursuant to section 281 of the Town Law ¹. Specifically, the question presented is whether a town planning board has the legal authority under section 281 to condition approval of a subdivision plat on the mandated dedication of open space to the town. Though Special Term answered this in the negative, we find ample authority under section 281 of the Town Law for such condition.

THE FACTS

The subject property, owned by petitioner, consists of approximately 11 acres of heavily wooded land within an R-1-40 zoned district (one family residential, 40,000 square feet minimum lot size). A brook running north to south traverses the property and the land adjacent to it qualifies under the Yorktown Drainage Law as a wetland. The Soil Conservation Service and the Town Conservation Board have established a hundred-year flood plain which includes the 4.5 acres of open space at issue in this case. During prolonged heavy rainfall and high intensity storms, overflows from this brook have inundated the land.

In July, 1976, petitioner applied to the Department of Planning to develop the 11 acres. Although it was his intent to build in a cluster, he submitted two maps, one showing a conventional subdivision and the other showing a cluster scheme. Section 281 of the Town Law states that clustering techniques cannot be utilized until a lot count is ascertained from a conventional plan. This is to insure that utilization of clustering does not result in more dwelling units than would be permitted if the land were subdivided into lots conforming to minimum lot size requirements (Town Law, § 281, subd. ).

Initially, the Department of Planning found only four acceptable lots. Thereafter, alternate layouts were designed to arrive at a higher count. Several detailed discussions surrounding the count ensued at subsequent Planning Board meetings and on February 11, 1980, upon submission of a revised scheme, the Planning Board requested the Town Board to grant it authority to employ clustering for this new proposal of eight half-acre lots. This authority, to modify applicable provisions of the town zoning ordinance, simultaneously with its approval of a subdivision plat, was granted to the Planning Board on February 19, 1980. ²

On April 14, 1980, petitioner submitted a draft environmental impact statement (DEIS) pursuant to article 8 of the Environmental Conservation Law, commonly known as the State Environmental Quality Review Act. After giving legal notice, a public hearing was held on the preliminary plat approval application for eight half-acre, single-family residential lots and 4.5 acres of "open space", and on petitioner's application for a wetlands permit pursuant to the Wetlands and Drainage Law of the Town of Yorktown. Petitioner alleges that at the hearing he presented evidence that (1) the proposed development would be in conformity with town land development regulations and sections 276, 277 and 281 of the Town Law; (2) the proposed development would be less dense than the maximum permitted by the zoning ordinance; (3) all drainage problems affecting the site would be resolved; (4) he would preserve as many trees on the property as possible; (5) he would reserve 10% of the property as "open space" for recreational purposes or in lieu thereof pay a sum of money to the Planning Board for such purposes; and (6) such open space would remain in its natural state. To assure the latter, said land would be deeded to a homeowner's association with restrictive covenants limiting its use; or dedicated to the Town of Yorktown, but not available to the public; or created as part of a park district limited in its use to prospective residents of the proposed subdivision.

The Town Conservation Board recommended approval of the site plan and wetlands permit subject to the mitigating provisions of the DEIS and any requirements imposed by the Town Engineer. Before the Planning Board reached a decision, petitioner submitted a petition signed by 34 area residents opposing dedication to the town of the "open space" area of 4.5 acres on the ground that said area was then a gathering place for teenagers engaged in activities disruptive of the surrounding neighborhood and such activities would be perpetuated by dedication to the town of the "open space" for public purposes. ³

By resolution dated July 21, 1980, the board granted preliminary approval to petitioner's proposed plat, subject to the condition that 4.5 acres designated "open space" be deeded to the town. The resolution also determined that the petitioner's DEIS was complete and accurate and granted petitioner a wetlands permit. The condition read:

"Modify said layout to show the following:

"A) The total open space shown on the map shall be indicated as a Conservation Area to be deeded to the Town of Yorktown for purposes of conservation, flood plain control and open green space preservation and a note shall be added to the map as follows:

' "The natural resources of the area within the CONSERVATION AREA shall remain undisturbed. Except as may be required for conservation purposes, upon the approval of the Planning Board, the contours thereof shall not be altered; no top soil or underlying soil shall be excavated therefrom; nothing shall be permitted to occur on this area which would contribute to the erosion of the land; and no trees shall be cut or removed and no other plant or vegetation shall be destroyed or removed." ' "

In the article 78 proceeding, petitioner alleged that this condition was arbitrary, capricious, illegal, confiscatory and in excess of the Planning Board's powers under the enabling statute because it prohibited him from developing 40% of his parcel and compelled him to dedicate to the town that private land area for public use. Petitioner also alleged that the condition was an unlawful taking without compensation.

Special Term stated that the issue presented was not whether the condition of dedication was arbitrarily imposed, but whether the Planning Board acted in excess of the authority granted it by statute. ⁴ It held that no provisions of the Yorktown Code or any other local law or regulation required a dedication to the town of open space as a condition of granting subdivision approval. Further, the court found no provision of the enabling statutes which would permit the imposition of such a condition. It declined to review the board's finding that the entire 4.5-acre parcel was subject to flooding, and in dicta noted that such finding had a rational basis and that a valid quid pro quo for allowing cluster development is the preservation of open space. The court expressly limited its decision to a holding that "the preservation of open space may not be accomplished by a required dedication or deeding of the land to the Town."

THE ENABLING ACTS

A town planning board may only act within the parameters of the enabling statutes (see Nemeroff Realty Corp. v. Kerr, 38 A.D.2d 437, 330 N.Y.S.2d 632, affd. 32 N.Y.2d 873, 346 N.Y.S.2d 532, 299 N.E.2d 897). Petitioner cites three enabling statutes, sections 277 ⁵, 278 ⁶ and 281 ⁷ of the Town Law, contending none authorizes the condition here imposed.

By a comparison of these related sections, our understanding of section 281, the statute under review, will be aided and perspective will be gained. Section 277 of the Town Law does not, by its terms, provide that a municipality may condition approval of a subdivision plat on the dedication of park land to the municipality. The municipality may require a plat to show a reservation of such land or may condition plat approval on payment to the municipality of a sum of money to be used for park purposes. The appellant Planning Board contends that the provision of section 277 allowing this condition of payment necessarily implies the power to compel the direct dedication of park land. Petitioner contends, however, that section 278, insofar as it relates to section 277, clearly indicates that the landowner is given the option of dedication, but cannot be compelled to do so; and, that if section 277 impliedly allowed the town to exact a condition of mandatory dedication, section 278 would be rendered superfluous and a nullity.

In Jenad, Inc. v. Village of Scarsdale, 18 N.Y.2d 78, 271 N.Y.S.2d 955, 218 N.E.2d 673, the Court of Appeals upheld statutory provisions similar to those of section 277 of the Town Law which empowered the local planning board to impose as a condition for subdivision plat approval that the developer either (1) allot some land within the subdivision for park purposes or (2) pay the locality a monetary fee in lieu of such allotment. That case, however, does not aid in the analysis of whether a condition that parkland actually be dedicated, rather than merely set aside, falls within the grant of authority of section 277 to planning boards.

In East Neck Estates v. Luchsinger, 61 Misc.2d 619, 305 N.Y.S.2d 922, the respondent planning board conditioned approval of the petitioner's shorefront subdivision plat on its dedicating a strip 80 feet wide across the entire ocean frontage. The strip, plus the 340 feet lying directly south of it, was unsuitable for home construction. Special Term held that section 277 (subd. 1) does not give a town planning board the power to require a subdivider to dedicate land for park purposes (see, also, Matter of Lake Secor Dev. Co. v. Ruge, 141...