Land Use Training Program
for Local Officials

Tutorial Component III - Subdivision Approval

New York Municipal Insurance Reciprocal

Land Use Law Center - Pace University School of Law

New York Planning Federation

Why regulate subdivisions? "Subdivision" refers to the legal division of parcels into smaller parcels that can be sold. A subdivision plat is a drawing or sketch showing the placement of roads, buildings, and infrastructure on the property proposed to be divided. By requiring local approval and requiring that certain standards be met, local governments can ensure thoughtful, well-balanced development.

Villages, towns, and cities in New York are authorized by state statutes to adopt and implement subdivision regulations. The adoption of subdivision regulations is permitted, not required, by state law. These statutes authorize localities to impose conditions on subdivision approval, waive requirements where they are not needed to protect the public, require the reservation of parkland on a residential site, or require the payment of a sum of money in lieu thereof, require the posting of a performance bond to secure the development of improvements on the site, approve the clustering of permitted density on portions of the parcel to preserve open space, and require the compliance with environmental review provisions when approving site plans.

Regulating and approving subdivision plats is an important element of land use regulation in a community. Subdivision controls ensure that adequate services and facilities exist to support potential development by reviewing the design and layout of divided properties. About 70% of the municipalities in the state have adopted subdivision regulations: 90% of cities, 69% of towns and sixty-five percent of villages. Although subdivision and site plan regulations have been used in New York for most of the century, most communities did not adopt their subdivision regulations until the 1960s and 1970s.

Subdivision regulations may be enacted as their own chapter of the municipal code or as their own article within the zoning chapter of the code.  Under a typical set of subdivision regulations, the landowner must submit a plat of the proposed subdivision that shows the layout and approximate dimensions of lots and roads, the topography and drainage, and all proposed facilities at an appropriate scale. A plat is a map, drawing, or rendering of the subdivision which can contain narrative elements.

Local regulations can require that the subdivision plat show all streets at sufficient width and suitable grade, sanitary sewers and storm drains, water mains and systems, landscaping, sidewalks, curbs and gutters, fire alarm signal devices, street lighting, signs, and trees. Additional features may be required such as the location of floodplains, wetlands, building footprints, large trees, archeological sites, and utility easements and lines. Further, the statutes authorize the planning board, under certain circumstances, to require the applicant to reserve land for a park, playground, or other recreational purposes or to require the payment of a sum of money in lieu of such a reservation.

The local legislature has the authority to adopt subdivision regulations, to decide what standards to include, to determine what types of private land subdivisions are subject to approval, and to appoint the planning board as the local reviewing body.

The local legislature, in adopting subdivision regulations, can exempt lot line alterations or small subdivisions from the approval process, specify whether minor and major subdivisions, as defined locally, are to be treated differently, state whether lot line alterations are controlled by the subdivision regulations, and indicate whether subdivision applicants must go through a preliminary and final approval process or only a final approval process. For example, in the definition given in the Town of Clinton's regulations quoted above, the division of land into parcels of more than ten acres, not involving any new street or easement of access, is not subject to subdivision regulation. The locality can also specify how detailed subdivision applications must be and how many elements or factors the submitted subdivision map must contain.

Reviewing Board

State law authorizes the local legislature to adopt subdivision regulations and delegate subdivision review and approval authority to the local planning board.

A board reviewing a subdivision application has the power to decide whether the application is to be approved, approved upon conditions, or disapproved. Decisions of the reviewing board must be based on the standards contained in the subdivision or site plan laws and regulations. The applicant must demonstrate that it has met all standards contained in the regulations to be entitled to an approval. Generalized complaints by local residents are insufficient to justify the denial of an application. Similarly, approval cannot be withheld based solely on conclusory allegations that the subdivision or site plan is not consistent with the character of the neighborhood if the plans meet all the applicable requirements. Where a subdivision application meets the standards contained in the regulations, it must be approved. Where it does not, the planning board may impose conditions to insure that it meets the specifications or it can be rejected.

When the planning board approves a subdivision application, state statutes do not require that the record contain, or that the planning board's decision be based on, evidence supporting its approval. These are decisions based on whether the proposal meets the regulations - no "interpretation" is required. The statutes do require that decisions to modify or disapprove applications be based on evidence found in the record. Keeping a detailed record containing such evidence in all cases, however, insures that board decisions are not arbitrary, capricious, or an abuse of discretion. Such records provide the type of information parties need when deciding whether to appeal board decisions and create the type of record that is necessary for a court to determine the validity of the board's decisions to approve subdivisions.

Within 30 days of the filing of the reviewing board's decision with the municipal clerk, any aggrieved person may apply to the Supreme Court to review the decision under Article 78 of the Civil Practice Law and Rules. The Supreme Court will consider the record of the local reviewing board, and, if necessary, take additional evidence, directly or through a referee, for the proper resolution of the matter.

By adopting and applying subdivision regulations, the community seeks to insure that new development is cost effective, properly designed, and has a favorable, rather than negative, impact on the neighborhood.

Statutes delegating subdivision authority indicate that it is to be used "[f]or the purpose of providing for the future growth and development of the [municipality] and affording adequate facilities for the housing, transportation, distribution, comfort, convenience, safety, health and welfare of the population." Localities adopt subdivision regulations to assure that land proposed for development "can be used safely for building purposes without danger to health or peril from fire, flood, drainage or other menace to neighboring properties or the public health, safety or welfare." The Court of Appeals wrote that the adoption of subdivision regulations "reflects, in essence, a legislative judgment that the development of unimproved areas be accompanied by provision of essential facilities."

The regulation of land subdivision is a key element of community planning. When used by communities that have not adopted zoning provisions, subdivision control is the principal method by which the locality ensures that land is developed in a beneficial way. When used in conjunction with zoning, the community has an excellent method of insuring that land is developed in accordance with the provisions of the zoning law and goes further to facilitate the proper layout, design, and development of the community.

Subdivision standards complement zoning regulations and help protect neighborhoods from flooding and erosion, traffic congestion and accidents, unsightly design, noise pollution, and the erosion of neighborhood character.

Procedures for subdivision approval may vary from locality to locality. Many communities require the developer of a major subdivision of land to submit both a preliminary plat of the proposed subdivision and then a final plat, both of which are subject to review and approval. Having a preliminary plat submission promotes efficiency and communication because the reviewing board can be involved early in the process. At the same time, there is flexibility in such a two-step process because the final plat may be adjusted to provide for the best subdivision design.

Within six months after an approval of a preliminary subdivision plat, the applicant must submit his final map for review. This time may be extended upon mutual agreement. If he fails to do so, the preliminary approval may be revoked. If the plat is submitted within the six-month period and meets the requirements of the subdivision regulations, the plat must be approved. An additional public hearing is be required if the final plat is substantially different than the preliminary plat, or when no preliminary plat is required to be submitted. If the plat is in substantial agreement with the approved preliminary plat, a hearing may not be necessary.

The failure of the planning board to take action within the established time periods is deemed an approval by default (see discussion above). The approval of the planning board expires sixty-two days after the date of approval, or the date certified, if such approved final plat is not filed by the property owner in the office of the county clerk or register.

Local authorities may decide not to require a preliminary plat submission and approval process for some or all subdivisions. In such a case, a public hearing, subject to notice, must be held regarding the submission of the final plat. A public hearing, on notice, may also be required when the submitted final plat is not in substantial agreement with the approved preliminary plat. In these instances, the final plat submission is subject to the environmental review process as well.

Conditions may be placed on the approval of subdivision applications, including the set aside of recreational land, installing infrastructure, and other design modifications. Site improvements required on approved plats are to be provided directly by the subdivider. The provision of required infrastructure can be guaranteed by requiring a performance bond or sum of money to be posted by the subdivider.

State statutes limit the reviewing board to imposing conditions on subdivision applications that are "directly related and incidental to the proposed" plan. The applicant must show that these conditions have been met before the local building inspector can issue a building permit or certificate of occupancy. Conditions imposed on subdivision approvals must bear a reasonable relationship with the impact on the community of the subdivision itself and be imposed to meet standards contained in local subdivision regulations.

The state statutes authorize planning boards to ensure that the recreational needs of the occupants of residential subdivisions be met by requiring land to be set aside for recreation. Such a condition may be imposed where a municipal study shows that there is an unmet need for recreational facilities in the municipality. The planning board may only require a financial contribution in lieu of a land reservation where it specifically determines that, in a particular case, a suitable park or parks of adequate size to meet identified needs cannot be properly located on such a plat.

The statutes that allow for the reservation of parkland, or money in lieu thereof, were adopted to meet the need for recreational facilities of the residents of the subdivision and their guests, not to provide recreational facilities for the public at large. This was clarified by the Court of Appeals when it set aside a local requirement that the reserved recreational area be dedicated to the town for park purposes.

The courts and legislature have made it clear that the authority to require land reservation for recreation, or the payment of money in lieu thereof, must be exercised on a case-by-case basis and may not be administered under fixed formulas applicable to all development. In each situation, a two step process must be followed. First, the planning board must make a determination that the subdivision under review will add to the recreational needs of the community. This finding must be based on an evaluation of the present and anticipated future recreational needs of the municipality as determined by estimates of the projected population growth to which the particular subdivision will contribute. Second, based on a review of the particular plat before it, the planning board must determine whether it contains adequate and suitable space for recreational facilities. Only if it finds that such space does not exist, may the planning board require the subdivider to make a cash contribution. All such contributions must be deposited into a trust fund to be used by the municipality exclusively for recreational purposes.

Before approving an owner's application for a permit to develop land, local agencies are authorized to impose conditions that are "directly related to and incidental to the proposed" use of the property. Most applications for local land use approvals are discretionary in nature and conditions can be attached to any development permit to harmonize the proposed land use with surrounding properties and the community. State law specifically authorizes planning boards to conditionally approve final subdivision plats. The local agency uses the permit condition to balance the benefit to the owner of the approval against the potential adverse impact of that development on the surrounding area.

Once a condition is imposed on a local land use approval, it must be complied with before a building permit is issued by the local building inspector or department. If the condition is one that is to be met during construction, then its terms must be complied with before the construction is complete and before a certificate of occupancy can be granted by local authorities.

Among the types of conditions that have been sustained by the courts in the proper circumstances are fences, safety devices, landscaping, screening, access roads, soil erosion prevention, drainage facilities, outdoor lighting, the enclosure of buildings, restrictive covenants preventing development of land in a floodplain, archeological site or viewshed, and a variety of measures to contain the emission of odors, dust, smoke, noise, and vibrations.

The purpose of imposing conditions on an owner's application for a land use permit is to balance the owner's interest in developing the land and the community's interest in being protected from any adverse impacts of development. Conditions are imposed to minimize any adverse impact of the proposed use on the neighborhood or community. Conditions on land use approvals add an element of flexibility in decision-making for the purpose of responding to the concerns of applicants as well as those affected by the decisions of local land use agencies.

When the agency fears that a project or proposal will negatively impact the community, it may deny the application or approve it subject to reasonable conditions that lessen or contain the negative impacts of that development.

Before granting its approval of the application, the reviewing board must insure that the standards contained in the law or other regulations are complied with by the proposed development. Frequently, approval is conditioned on the developer agreeing to modify the design of the development or to the addition of site features to meet the underlying standards adopted by the legislature. Local subdivision regulations may contain detailed standards and govern more specifically matters such as how and for what purposes conditions may be imposed.

Although the imposition of conditions is clearly within the authority of local governments, the conditions must comply with several standards or they can be declared invalid. Courts invalidate a condition when there is no rational basis in the record for its imposition, when the condition is unreasonable, or when it is not related to the impacts of the proposed development.

Conditions must be:

1. Reasonable;
2. Directly related to the proposed use of the property;
3. Consistent with the local zoning ordinance and other local laws; and
4. Imposed for the purpose of minimizing the impact on the surrounding community.

The provisions of the State Environmental Quality Review Act (SEQRA) which require public agencies to consider the impacts of their land use decisions on the environment must be complied with by a planning board that receives a subdivision application. Where the approval of a subdivision may have a significant adverse impact on the environment, the extensive procedural requirements and the extended timetable of SEQRA must be followed and coordinated with other requirements for subdivision approval.

Regulations adopted under the State Environmental Quality Review Act (SEQRA) make it clear that subdivision applications are "actions" by a local agency that are subject to environmental review. The statutes governing subdivision approval attempt to coordinate the procedures required for the review of the subdivision with those required by SEQRA.

The law states that a subdivision plat submission is not deemed complete until the planning board has determined that the subdivision will not have a negative impact on the environment or, if it may have such an impact, until a draft environmental impact statement has been prepared. The time periods contained in the subdivision statutes do not begin to run until one of these two events has occurred. Further procedural adjustments may be required to comply with SEQRA depending on how the environmental review process is handled and whether the planning board is the lead agency responsible for that process.

The subdivision statutes require a planning board, if lead agency for SEQRA purposes, to hold a single public hearing on the subdivision application in compliance with the hearing provisions under both SEQRA and subdivision regulations. Where the public hearing is held to comply with SEQRA's requirements, 14 days advance notice of the public hearing is required. SEQRA hearings are optional, not mandatory.

Subdivision approval time periods must be coordinated with those required by the State Environmental Quality Review Act regarding the environmental review of projects which may have a significant adverse impact on the environment. When a subdivision applicant is required to submit a draft environmental impact statement, the extensive process and extended timetable contained in the regulations of the Commissioner of the Department of Environmental Conservation must be followed. Any public hearing held during the environmental review process can be used to satisfy any public hearing requirement for the subdivision itself.

Where a proposed subdivision contains one or more lots that do not conform to the zoning requirements, an area variance can be requested from the zoning board of appeals without first obtaining a determination of the need for a variance from the official charged with the enforcement of the zoning regulations. The request must be accompanied by a written recommendation of the planning board regarding the proposed variance. (See tutorial entitled "Variances" for more information.)

In certain instances, subdivision plats must be submitted by the planning board to a county or regional planning agency. General Municipal Law § 239-m requires certain applications for subdivision review be submitted to the county or regional planning agency for review and comment.

If there is no county agency, referral is made the regional or metropolitan agency. Actions must be referred when they affect property within 500 feet of (a) a city, town, or village boundary; (b) the boundary of an existing or proposed county or state park or recreation area; (c) the right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway; (d) the right-of-way of any stream or drainage owned by the county; (e) boundary of any county or state owned land on which a public building or institution is situated; or (f) the boundary of a farm operating under an agricultural zoning district governed by the Agriculture and Markets Law. Actions requiring referral include authorization issued under the provisions of any zoning ordinance or local law, which would include subdivision approvals.

The county board must make a recommendation within 30 days of receipt of the referral. If the board recommends modification or disapproval, the planning board may accept and implement the recommendation, or it may vote to override the county board. In order to override the county recommendation, the planning board must vote by a majority plus one, or an "extraordinary vote," to do so.

The subdivision approval process is begun when a property owner applies to divide a piece of property into multiple parcels. The process is often a two-stage process which can involve preliminary and final subdivision plat review.

• The preliminary plat is submitted to the planning board.
• A public hearing must be held within sixty-two days of preliminary plat submission.
• Hearing may be open for up to 120 days and the planning board has sixty-two days from the close of the public hearing to make a decision on the preliminary plat. Failure to decide within sixty-two days results in default approval.
• The planning board's decision must be filed with the clerk within five days.

• Applicant has six months after a determination on the preliminary plat to submit a final subdivision plat for review by the planning board.
• The planning board has sixty-two days to make a decision on the final subdivision plat, assuming that the final plat is in substantial agreement with the preliminary plat. If they are not in agreement, the time may be extended by additional public hearings or environmental review under SEQRA. Failure to decide within sixty-two days results in default approval.
• The planning board's decision must be filed with the clerk within five days.
• Following approval, the applicant must file the final plat with the county within sixty-two days.

All these time periods may be extended as needed to comply with state statutory requirements regarding environmental review and county or regional board review.

1. John R. Nolon, Well Grounded, Shaping the Destiny of the Empire State, Local Land Use Law and Practice, Chapter -- www.law.pace.edu/landuse.
2. Herbert H. Smith, The Citizen's Guide to Zoning, (1983), The American Planning Association, pp. 144-58.
3. Herbert H. Smith, The Citizen's Guide to Planning, (1993), The American Planning Association, pp. 129-40.