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EAST NECK ESTATES v. JOHN F. LUCHSINGER ET AL. (11/03/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, SUFFOLK COUNTY 1969.NY.43417 <http://www.versuslaw.com>; 305 N.Y.S.2d 922; 61 Misc. 2d 619 November 3, 1969 EAST NECK ESTATES, LTD., PETITIONER,v.JOHN F. LUCHSINGER ET AL., CONSTITUTING THE PLANNING BOARD OF THE TOWN OF BROOKHAVEN, RESPONDENTS Gordon & Kotler for petitioner. Martin Bradley Ashare for respondents. Gainsburg, Gottlieb, Levitan & Cole for Edwin J. Hoffritz, amicus curiae. George F. X. McInerney, J. Author: Mcinerney


George F. X. McInerney, J.

Author: Mcinerney

 This is an article 78 proceeding challenging the power of the Planning Board to require the dedication of a certain strip of shore front to the town as a condition for the approval of a proposed residential subdivision.

Edward J. Hoffritz, by Gainsburg, Gottlieb, Levitan & Cole, Esqs., appeared with the permission of the court amicus curiae.

The subdivision in issue is a rectangular tract of about 23 acres, being approximately 557 feet on Long Island Sound and running southerly about 2,000 feet. Thirty building plots are contemplated.

The elevation of the tract is over a hundred feet except for the most northerly 420 feet which extend from the high-water line to the north face of the terminal moraine and are barely above sea level. This strip is unsuitable for home construction.

The Planning Board, properly concerned with the rapidly diminishing availability of public shore front and littoral, and being aware of the unique suitability of a beach front for recreational purposes, requires that the petitioner dedicate to the town a strip of land 80 feet wide from the high-water line across the entire frontage.

Petitioner declines on several grounds, only two of which have to be resolved herein. First, petitioner maintains that the land to be set aside in a subdivision is to be selected by the subdivider and if the selection is deemed unsuitable by the Planning Board, the board then has the option to either waive the land requirement or impose a recreational fee in its place.

Second, petitioner claims that in any event the taking of the beach front on this subdivision would be confiscatory because of the disproportionate value of the strip in relation to the balance of the tract.

The relevant power of a Planning Board is found in subdivision 1 of section 277 of the Town Law and reads in pertinent part: "Before the approval by the planning board of a plat showing lots, blocks or sites, with or without streets or highways, or the approval of a plat already filed in the office of the clerk of the county wherein such plat is situated if such plat is entirely or partially undeveloped, such plat shall also show in proper cases and when required by the planning board, a park or parks suitably located for playground or other recreational purposes."

It should be noted that this statute does not explicitly require dedication of the park area to the town, and in fact subdivision 1 of section 278 provides: "After such plat is approved and filed, subject, however, to review by court as hereinafter provided, the streets, highways and parks shown on such plat shall be and become a part of the official map or plan of the town. The owner of the land, or his agent who files the plat, may add as part of the plat a notation, if he so desires, to the effect that no offer of dedication of such streets, highways or parks, or any of them, is made to the public. If the owner of the land or his agent who files the plat does not add as part of the plat a notation to the effect that no offer of dedication of such street, highways or parks, or any of them, is made to the public, the filing of the plat in the office of the county clerk or register shall constitute a continuing offer of dedication of the streets, highways or parks, or any of them, to the public and said offer of dedication may be accepted by the Town Board at any time prior to revocation of said offer by the owner of the land or his agent."

These two statutes read together envision a plan by which suitable open spaces are to be provided on subdivisions and become part of the official map to insure that they do not become built upon. (Town Law, § 280-a; Anderson, Zoning Law and Practice in New York State, §§ 14.01, 14.08.)

If suitable open space is unavailable an alternative is given to the town by subdivision 1 of section 277 of the Town Law (L. 1967, ch. 348, § 1): "If the planning board determines that a suitable park or parks of adequate size can not be properly located in any such plat or is otherwise not practical, the board may require as a condition to approval of any such plat a payment to the town of a sum to be determined by the town board, which sum shall constitute a trust fund to be used by the town exclusively for neighborhood park, playground or recreation purposes including the acquisition of property."

This was an amendment to the original authority given by chapter 846 of the Laws of 1959 which had been held unconstitutional in Gulest Assoc. v. Town of Newburgh (25 Misc. 2d 1004, affd. 15 A.D.2d 815) and perhaps was the reason for the 1967 amendment. If so, it proved unnecessary since Gulest was overruled in Jenad, Inc. v. Village of Scarsdale (18 N.Y.2d 78). No direct issue has arisen herein as to the power of ...


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