Friends of Pine Bush v. Planning Board
86 A.D.2d 246, 1982 N.Y. App. Div. LEXIS 15395, 450 N.Y.S.2d 966 (1982)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Section 33 of the General City Law mandates that a subdivision owner must either install required improvements or post a performance bond to cover their full cost as a condition for plat approval by a city planning board, and this statutory requirement cannot be waived by the board.
Facts:
- The City of Albany Planning Board held public hearings on proposed subdivision plats for the Dunes and Pinehurst areas in the Pine Bush on June 22 and July 5, 1978.
- On July 17, 1978, the City of Albany Planning Board approved the Dunes and Pinehurst subdivision plats.
- As part of the plat approval, the board waived the condition requiring the developers to install improvements or post a performance bond to cover their costs.
- The board's waiver was intended to enable the developers to petition the Common Council of the City of Albany to have the city install the necessary improvements, with costs to be specially assessed back to the benefited property owners.
Procedural Posture:
- On July 20, 1978, Citizens to Save the Pine Bush, Inc. and others (petitioners) commenced a CPLR Article 78 proceeding against the City of Albany and its Planning Board in Special Term (a trial court), challenging the board's plat approvals.
- Special Term initially dismissed the petition (96 Misc 2d 320).
- The New York Supreme Court, Appellate Division, Third Department, modified Special Term's judgment, holding that individual petitioners had standing to bring the proceeding, and remanded the matter for consideration on its merits (71 AD2d 780).
- After remand, Special Term again dismissed the petition on its merits (105 Misc 2d 168).
- Petitioners applied to the New York Supreme Court, Appellate Division, Third Department, for an extension of an automatic stay, which was denied on December 8, 1978.
- Petitioners appealed Special Term's judgment of October 23, 1980, to the New York Supreme Court, Appellate Division, Third Department.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does Section 33 of the General City Law permit a city planning board to waive the requirement that subdivision owners install improvements or post a performance bond, thereby allowing the city to install improvements and assess costs against property owners at a later time?
Opinions:
Majority - Mahoney, P.J.
No, Section 33 of the General City Law does not permit a city planning board to waive the requirement that subdivision owners install improvements or post a performance bond, nor does it allow for the city to install improvements with costs assessed back to property owners as an alternative to the owner's explicit obligation. The court found that the procedure followed by the board clearly violated General City Law § 33. The statute's plain language dictates that the owner of the land must install improvements or, alternatively, furnish a performance bond sufficient to cover the full costs. This interpretation aligns with the legislative intent behind the 1938 amendment to Section 33, which aimed to ensure soundly developed subdivisions and prevent economic losses by placing the burden on the owner. The court clarified that the waiver provision in Section 33 applies only to the necessity of certain improvements (i.e., whether they are 'requisite in the interests of the public health, safety and general welfare'), not to the fundamental methodology of ensuring their installation or securing their cost via a bond. To allow such a waiver would undermine the statutory purpose of controlling property development. Furthermore, the court rejected the argument that Chapter 523 of the Laws of 1929, relating to general public improvements and assessments in Albany, provided an inconsistent course of action, as that law pertains to existing public improvements and not the creation of new subdivisions. Despite the mootness of the specific subdivision approvals due to subsequent construction, the court converted the Article 78 proceeding into an action for declaratory judgment due to the recurring nature and substantial public importance of the legal question.
Analysis:
This case significantly clarifies the mandatory nature of developer responsibilities under General City Law § 33, limiting the discretionary power of city planning boards. By strictly interpreting the statute, the court reinforced the principle that planning boards cannot create alternative schemes for financing subdivision improvements that deviate from the explicit requirement for developer installation or bonding. This ruling protects municipalities from potential financial burdens and ensures that developers bear the primary responsibility for infrastructure in new subdivisions, promoting sound development practices and safeguarding the public interest. The decision also highlights the appellate court's willingness to address issues of public importance that are likely to recur, even if the immediate factual dispute has become moot, by utilizing a declaratory judgment.
