The Subdivision of Land Part 2

2 The Requirement for internal Improvements If A sells property to B, is there any basis for A to conclude that she can built a home on that property?If A sells property to B, is there any basis for A to conclude that she can built a home on that property? Basically no! Basically no! What then can A do to get some assurance?What then can A do to get some assurance? Buy property that has some “certification” of suitability for a specified development.Buy property that has some “certification” of suitability for a specified development.

3 Subdivision had become a process of certification of such suitability.Subdivision had become a process of certification of such suitability. That a placement of a specified structure at the designated site is consistent with health, safety and welfare as they are defined in that community.That a placement of a specified structure at the designated site is consistent with health, safety and welfare as they are defined in that community. –Could this vary from community to community? –Absolutely!

4 What are the limits on what a community can require in the interest of health, safety or welfare?What are the limits on what a community can require in the interest of health, safety or welfare? All conditions or requirements must be REASONABLE.All conditions or requirements must be REASONABLE. Additionally, they must be grounded in the police powers with substantial relation thereto.Additionally, they must be grounded in the police powers with substantial relation thereto.

5 So... What makes it reasonable to require paved pubic streets?What makes it reasonable to require paved pubic streets? –Must have them in order to get emergency equipment to the site. What makes is reasonable to require 20’ wide streets with 4” of pavement?What makes is reasonable to require 20’ wide streets with 4” of pavement? –Emergency equipment is heavy and you have to be able to turn it around. Why have buildings separated by 20’?Why have buildings separated by 20’? –To get the emergency equipment between the buildings

6 Then... What do we do with a subdivision application that doesn’t have all those things?What do we do with a subdivision application that doesn’t have all those things? 1.Deny the application, or 2.Condition the approval on them being there before the structures are occupied.

7 Brous v Smith, 103 NE.2d 503 (NY 1952) The requirement for on-site improvements. Plat filed in 1872 – many of the lots along “paper streets” i.e., not there, meaning unpaved.Plat filed in 1872 – many of the lots along “paper streets” i.e., not there, meaning unpaved. Brous acquired 850 such lots in 1951.Brous acquired 850 such lots in After 1872 Islip changed its requirements.After 1872 Islip changed its requirements.

8 Islip Town Law 280-a, enacted in 1938.Islip Town Law 280-a, enacted in –Requirement for the issuance of a building permit. –“Before such [building] permit shall be issued, such [access] street shall have been suitably improved to the satisfaction of the Town Board,... in respect to public health, safety and general welfare....”

9 Brous wanted to build on 6 lots along a “paper street” – read as unpaved.Brous wanted to build on 6 lots along a “paper street” – read as unpaved. –Applied for six building permits. Smith (the Islip Building Official) refused to issue permits unless Brous would...Smith (the Islip Building Official) refused to issue permits unless Brous would... –Construct (pave) streets giving access, or –Post a bond to insure installation of the streets after construction.

10 Brous sued;Brous sued; –Alleging that the requirement was unconsti- tutional (a taking or an unauthorized tax) and –Asking the court to order Smith to issue the permits Trial CourtTrial Court –Held the Town Law (Section 280-a) constitutional and dismissed the compliant Brous appealed to Court of Appeals (New York’s highest court)Brous appealed to Court of Appeals (New York’s highest court)

11 “It is petitioner who wishes to construct dwellings on his property,“It is petitioner who wishes to construct dwellings on his property, and the Town merely conditions its approval of such construction upon his compliance with reasonable conditions designed for the protection of both the ultimate purchasers of the homes and the public.” [remember this for later] and the Town merely conditions its approval of such construction upon his compliance with reasonable conditions designed for the protection of both the ultimate purchasers of the homes and the public.” [remember this for later] “That the state may empower the town to do this is clear.”“That the state may empower the town to do this is clear.” “... the subjection to the police power of all property gives the state the right to forbid the use of property in the way desired, save under reasonable conditions.”“... the subjection to the police power of all property gives the state the right to forbid the use of property in the way desired, save under reasonable conditions.”

12 “In short, [the town] may regulate any business or the use of any property in the interest of the public health, safety or welfare, provided that it is done reasonably.”“In short, [the town] may regulate any business or the use of any property in the interest of the public health, safety or welfare, provided that it is done reasonably.” “To that extent, the public interest is supreme and the private interest must yield.”“To that extent, the public interest is supreme and the private interest must yield.”

13 Should this reasoning extend toShould this reasoning extend to –Telephone? –Cable TV? –High Speed Access? Where does “reasonable” end?Where does “reasonable” end? –20 years ago requiring cable would have been unreasonable and DSL was not known. –“Reasonable” is a moving target.

14 The real issue is... Money!

15 Who should pay for the streets? 1.The streets are for the public and will be dedicated to the public, therefore the public should pay. 2.The streets exist to make the property both useful and valuable, therefore the person(s) receiving the value (benefit) should pay.

16 The public, through referenda and through their representatives,The public, through referenda and through their representatives, opted to assess benefitors.opted to assess benefitors. The courts went along with this reasoning.The courts went along with this reasoning. What if they would have gone with the former? That subdivision streets, being public, should be provided by – paid for by – the public.What if they would have gone with the former? That subdivision streets, being public, should be provided by – paid for by – the public.

17 When someone filed a subdivision plat, they would elect to be paid for the streets or not.When someone filed a subdivision plat, they would elect to be paid for the streets or not. If they elected to be paid, the local government would establish a special taxing district and assesses the improvement costs to the benefited properties, plus costs.If they elected to be paid, the local government would establish a special taxing district and assesses the improvement costs to the benefited properties, plus costs. Which would you prefer?Which would you prefer?

18 This happens much more commonly than you might think.This happens much more commonly than you might think. Especially when the payment of the assessment can be delayed until after the property is sold –Especially when the payment of the assessment can be delayed until after the property is sold – –e.g. establish an assessment district at the time of development approval, which has the obligation of assessing the property owners to repay the developer for streets, etc., after the property has been sold.

19 What happens when developments don’t have paved streets? Day 1 – buyers move in.Day 1 – buyers move in. Day 2 – buyers demand that the city (county, township) pave the streets.Day 2 – buyers demand that the city (county, township) pave the streets.

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