Posted by: Patricia Salkin | November 19, 2007

New York Court of Appeals Upholds Open Space Restriction on Subdivision Plat Against Subsequent Purchasers

Following a certified question to the State Court of Appeals from the federal Second Circuit Court of Appeals, the Court of Appeals held that an open space restriction placed on a final subdivision plat pursuant to N.Y. Town Law §276 (which regulates subdivision review), when filed in the Office of the County Clerk (pursuant to Real Property Law §334), is enforceable against a subsequent purchaser.  The Court also noted that Town Law grants to towns the authority to regulate land within their borders (see, Town Law §261), that this grant of authority includes the right to impose reasonable conditions on subdivision approvals, and that “The ability to impose such conditions on the use of land through the zoning process is meaningless without the ability to enforce those conditions…” including against subsequent purchasers.            

The case arose from a 1963 final subdivision plat approval that was conditioned upon the designation of two of the seven parcels as open space.  Such designation was contained in the filed minutes of the planning board meeting and hand-written on the final plats that were filed with the County Clerk’s Office. These parcels had remained undeveloped for nearly forty years, when they were purchased by the O’Maras in an in rem tax sale.  The O’Maras intended to construct single family houses on the property. It seems as though the professionals that the O’Maras hired to do background work on the property failed miserably. The title report (and insurance) that they purchased prior to closing did not make any reference to the open space restriction. A licensed land surveyor who was hired to prepare the survey for the two purchased parcels did see the open space restriction on the filed 1963 plat but he ignored it, never included reference to it on the survey submitted to the Town Building Department. The Town staff issues a building permit, a temporary certificate of occupancy and approval for the interim survey for the construction of a single family house on one of the parcels. Following the commencement of construction, the son of the original subdivision developer from 1963, approached the Town to express concern that the new construction violated the conditions placed on the 1963 plat, which led the then newly-appointed building inspector to issue a stop work order based on the 1963 plat notations. The O’Maras attempted to resolve the issue with the Town, arguing that hey were not aware of any open space restriction until three years after they purchased the property.  Although the Town Attorney made a written settlement proposal to the O’Maras in which the Town offered to grant a certificate of occupancy for the house in exchange for a dedication of the rest of that parcel and the other designated open space parcel to the Town, the O’Maras filed an action in federal court, ultimately leading to the question certified before the Court of Appeals in this proceeding.            

The Southern District of New York dimissed the O’Maras fraud and negligence claims, but determined that the open space restriction was unenforceable against them since they were bon fide purchasers without notice. The Second Circuit, however, reversed in part, dismissing the O’Maras §1983  claim, but asked the New York Court of Appeals to determine whether under State law, an open space restriction noted on a subdivision plat is enforceable against a subsequent purchaser and under what circumstances.            

The lessons from the holding in this case: the imposition of conditions on subdivision plat approvals that are properly filed provide sufficient notice to subsequent purchasers and such conditions should be easily found in the chain of title by professionals who conduct title searches and land surveys.   

O’Mara v. Town of Wappinger, 2007 WL 3375579 (11/15/2007). 

The opinion can also be accessed at: ttp://www.nycourts.gov/ctapps/decisions/nov07/nov07.htm (click on decision 141)


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