The issue before the Court in O’Mara v Town of Wappinger is whether an open space restriction imposed as a condition for subdivision approval under Town Law § 276 is enforceable against a subsequent purchaser. The issue was certified to the Court of Appeals by the Second Circuit Court of Appeals on May 2, 2007 noting that this is a case of first impression.
The following background is excerpted from information provided by the Court’s Public Information Office:
In 1962, developers purchased property in the Town of Wappinger for a condominium project. The Town Planning Board tentatively approved a preliminary layout for the project in December 1962, on condition the developers create a “permanent open space on the plat.” In January 1963, the Planning Board approved a plat of the development that divided the property into seven parcels, two of which (Parcels B and E) were designated as open space. The approval was subject to the condition that “no building permits will be issued for Parcels B and E, as indicated on the [1963] Plat.” The plat and Planning Board minutes were filed with the Town, and the plat was also filed with the Dutchess County Clerk’s Office. The Condos were built and Parcels B and E remained undeveloped for more than 37 years.
In October 2000, Absolute Property Management, Inc., owned by Donald and Patrick O’Mara, acquired Parcels B and E for $29,500 in an in rem tax sale with plans to build ten single-family houses. The O’Maras began work on Parcel E in 2002, and the Town issued them a building permit in June 2003. A month later, Town officials were notified that the construction appeared to violate the open space restriction. In November 2003, the Town building inspector issued a stop work order, but the Town allowed O’Mara to continue working on the house while they discussed the open space issue. Finally, in December 2003, the Town proposed a settlement, offering to grant a certificate of occupancy for the new house if the rest of Parcels B and E were deeded to the Town.
The O’Maras responded by filing this action against the Town in U.S. District Court seeking, among other things, a declaratory judgment that they owned Parcels B and E free and clear of any open space restriction. After a non-jury trial, District Court ruled in favor of the O’Maras, concluding the open space restriction was unenforceable because it had not been recorded with Dutchess County and the O’Maras were purchasers for value who had neither actual nor constructive notice of the restriction.
On appeal, the U.S. Court of Appeals for the Second Circuit found there were no New York statutes or cases governing the enforceability of a zoning regulation imposed during a subdivision process against a subsequent purchaser. “While it is clear that the process of approving and filing the 1963 Plat complied with both of the relevant statutory sections [Town Law § 276 and Real Property Law § 334],” it said, “neither section addresses whether a subdivision plat is enforceable against subsequentpurchasers.” The court also found that “any decision in this area could have significant practical consequences for how New York’s cities, towns, and villages manage growth.” In a certified question, it is asking the New York Court of Appeals to resolve the issue.
