Subdivision Lessons from New York State's highest court:
1. Denial of final plat automatically extinguishes preliminary plat approval.
2. Planning board "took action," notwithstanding its failure to muster supermajority to override county planning authority's recommendation.
The Court of Appeals case, In the Matter of Gil Aloya, et al., v. Planning Board of the Town of Stony Point, 93 N.Y.2d 334 (1999), was a consolidated action which dealt with two distinct subdivision issues.
The first issue was whether an approved preliminary subdivision plat remains valid after disapproval of the final plat.
The Aloyas obtained approval of their preliminary subdivision plat; however, their final subdivision plat was turned down. When they presented a revised final plat, the planning board refused to consider it.
In an Article 78 proceeding, the Aloyas argued that an approved preliminary subdivision plat survives beyond a disapproval of the final plat unless the planning board specifically takes action to revoke the preliminary plat. They claimed that a party should be able to reapply for final subdivision plat approval without having to go through the preliminary plat process.
The Court of Appeals disagreed and held that once the final subdivision plat is denied, preliminary plat approval is automatically rescinded. The Court of Appeals stated that "by operation of law denial of petitioners' final plat application itself rescinded the preliminary approval." 93 N.Y.2d 334, 341.
The second issue decided by the Court of Appeals was whether a majority vote by the planning board to override a county planning authority's recommendation constitutes an action. Analysis of the issue primarily involved three statutes: General Construction Law §41, Town Law §276(8) and General Municipal Law (GML) §239-n.
General Construction Law §41 mandates that a majority of the whole number of the board must vote in order to take effective action. The failure to muster a simple majority on a vote in favor or opposition to a motion is considered by the courts to be a "nonaction" (Squicciarini v. Planning Board of the Town of Chester, 48 AD2d 867 (2d Dept. 1975) aff'd 38 NY2d 958; D.E.P. Resources., Inc. v. Planning Board of the Village of Monroe, 131 AD2d 757 (2nd Dept. 1987)).1
The second statute, Town Law §276(6), provides that if a planning board does not take action on a subdivision plat (by approving, conditionally approving, or disapproving) within the statutorily prescribed time periods for holding hearings or making decisions on a plat, it "shall be deemed granted approval." Town Law §276(8) further states that the town clerk shall, upon demand of the applicant, issue a default approval certificate.
The third statute, General Municipal Law §239-n, provides that when a county legislative body authorizes the county or regional planning authority to review proposed subdivision plats, planning boards must refer such applications to them when the property is located within 500 feet of a municipal boundary, state or county park, recreation area, building site or road, county stream or drainage channel, or boundary of a farm operation located in a state agricultural district as defined by article twenty-five-AA of the Agriculture and Markets Law. If the county recommends disapproval or modification of the subdivision plat application, the planning board may only act contrary to such recommendation by a supermajority vote, which is a "majority plus one" of the whole number of members. Either of these recommendations therefore changes the voting requirement for subdivision approval from a simple majority (General Construction Law §41) to a supermajority.
In the Aloya case, the town planning board, pursuant to General Municipal Law §239-n, referred the final subdivision plat application to the Rockland County Planning Department, which recommended disapproval. The seven-member town planning board thus needed five votes to override the recommendation. Four votes were cast in favor of the planning board's motion to approve the final plat application. Although there was a simple majority, the motion for approval failed because the "majority plus one" requirement was not satisfied.
The Aloyas argued that the planning board did not take action on their application for subdivision approval because the board did not have the five votes needed to override the county planning authority's recommendation. The Aloyas claimed that the failure to override the recommendation for disapproval was "nonaction," entitling them to default approval of the final plat pursuant to Town Law §276(8).
The Court of Appeals disagreed and reasoned the planning board "took action" because a majority of the board voted in favor of the motion. Thus, the Aloyas were not entitled to default approval of the subdivision plat. The planning board's action in voting by simple majority, however, did not satisfy the GML §239-n obligation of a supermajority to override the county recommendation of disapproval. The Court held that the application for final subdivision approval was therefore denied.
1 By Chapter 662 of the Laws of 2002, the Legislature amended the various county planning board, city, town and village planning and zoning board enabling laws to all require for passage of a motion “concurring majority of all members of the board…” See General City Law §27 and §81-a; Town Law §271 and §267-a; Village Law §7-712-a and §7-718; and General Municipal Law §239-h.