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Declaratory Ruling 24-15: Shumway Group, Inc.

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Petition of

Shumway Group, Inc.
for a Declaratory Ruling

Declaratory Ruling DEC #24-15

Shumway Group, Inc. ("Petitioner"), by its attorneys, Wapner, Koplovitz & Futerfas, has petitioned for a declaratory ruling, pursuant to §204 of the State Administrative Procedure Act and 6 NYCRR Part 619, to determine whether the provisions of the Freshwater Wetlands Act ("the Act"), Article 24 of the Environmental Conservation Law ("ECL"), are Applicable to certain property which is referred to as the "Knolls Subdivision"(1) in the Petition and which is located in the Village of Saugerties, ulster County.

The instant Petition(2) seeks to ascertain whether "a certain portion of the Knolls Subdivision (more particularly lots 14-23 inclusive)" is exempt from the act by virtue of the "grandfathering" provision contained in ECL §24-1305.

I. Facts

For the purpose of this Ruling, the pertinent facts as submitted by Petitioner are assumed to be correct and are as follows. the Department's final freshwater wetlands map for Ulster County shows that portions of wetland S-2 are located on the parcel now owned by Petitioner.

On March 1, 1956, Elberton T. and Clare G. Connaway ("the Connaways") purchased real property located in the Village of saugerties from Morris Rosenblum and Daniel N. Lamb.

On April 16, 1956, the Village Board of Trustees enacted a zoning ordinance for the Village of Saugerties.

On November 9, 1956, a map showing the real property divided into 49 individual parcels was filed on the Ulster County clerk's Office as Map No. 1839 ("the Map") and Entitled the "Map of the Knolls". The filed Map bears the signature of Harry Edinger, P.E., the former Director of Environmental Sanitation of the Ulster County Health Department. His approval was issued pursuant to Public Health Law §§1116 and 1117. See Letter from Dean Palen to Marc Gerstman, dated July 6, 1992.

On November 23, 1956, the Connaways filed a declaration of Covenants, Easements and Restrictions which, inter alia, specified that none of the lots shall be used except for Residential purposes. Petition Exhibit E-1.

On February 20, 1957, the Village of Saugerties entered in an agreement with the Connaways with respect to the installation of water, sanitary and storm sewer pipes to the parcel of land owned by the Connaways. The agreement expired by its terms on February 20, 1962. The Minutes of the August 5, 1957, meeting the Village Board of Trustees indicate that the Village would provide a sewer connection to property owned by Elberon T. Connaway upon execution by Mr. Connaway of a performance bond with a guarantee to build 15 houses on such property within 30 months. The Petition indicates that 14 out of the 49 lots were conveyed to purchasers for the Construction of residential dwellings between 1956 and 1975 and that homes were constructed on these lots.(3) Petition, page 4 and Exhibit M.

In 1972 U-Co Land Company, Ltd. acquired title to the remaining undeveloped lots of the subdivision, including lots 14-23 inclusive. In July 1975, U-Co Land Company conveyed to the Village of Saugerties for highway sewer and water purposes certain lands which adjoin the previously sold 14 lots. Petition Exhibit B.

On January 30, 1986, U-Co Land Company conveyed the undeveloped lots (including lots 14-23 inclusive) to Chris LaVigne. Thereafter, on May 1, 1991, Chris LaVigne sold the undeveloped lots (including lots 14-23 inclusive) to the Shumway Group, Inc. To date, these lots remain vacant.

The Petitioner proposes to construct single-family dwellings on Lots 14-23 inclusive which border on or are within the boundary of freshwater wetland #S-2 or are within the 100-foot adjacent area thereof. The Petition indicates that the construction of the single-family residences will not occur within Wetland S-2 as depicted in Exhibit A of the Petition and will only occur within the adjacent area of Freshwater Wetland S-2. Petition at p. 4.

II. Discussion

Section 24-1305 of ECL Article 24 is entitled "Applicability" and states as follows:

The provisions of this article shall not apply to any land use, improvement or development for which final approval shall have been obtained prior to the effective date of this article from the local governmental authority or authorities having jurisdiction over such land use.

It must be determined whether "final approval" was obtained for the Knolls Subdivision prior to September 1, 1975, the effective date of the Freshwater Wetlands Act.

A. ECL 24-1305(a)

Petitioner contends that ECL §24-1305(a) is applicable by virtue of the Map which was filed in the Ulster County Clerk's office in November 1956, the Ulster County Health Department's approval pursuant to Public Health Law §§ 1116 and 1117 and the 1957 agreement by the Village of Saugerties. ECL 24-1305(a) provides that "final approval" is

in the case of the subdivision of land, conditional approval of a final plat as the term is defined in section two hundred seventy-six of the town law, and approval as used in section 7-728 of the village law and section thirty-two of the general cities law....

Since the property is situated in the Village of Saugerties, it must be determined whether Section 7-728 of the Village Law applies to this case.

Section 7-728 of the Village Law, entitled "Approval os slats; development of filed plats", sets forth the process for Review and approval of residential subdivisions of land. This section provides that a Village Board of Trustees may authorize and Empower a Planning Board or Commission to approve the development of plats entirely or partially developed which have been filed in the County Clerk's Office. Village Law §7-728. Absent this authorization, the Planning Board or Commission cannot authorize the approval of the layout of proposed subdivisions as contemplated by Village Law §7-728.

The Petition and the Village Zoning Ordinance indicate that prior to September 1, 1975, the Village of Saugerties Board of trustees had not authorized or empowered the Planning Commission (the Planning Board) to approve plats or the development of plats as set forth in and contemplated by Village Law §7-728. Consequently, no such approval could have been granted prior to September 1, 1975, for the parcel constituting the filed 1956 map or the individual lots contained thereon, and the approval process outlined in Village Law §7-728(4) did not occur with respect to the Knolls subdivision. Consequently, ECL 24-1305(a) is not applicable in this case(4).

Although there was no final approval as contemplated by Village law §7-728, Petitioner requests that the Department consider that ECL §24-1305(a) is otherwise applicable because the functional equivalent of such approval was granted by either (1) the County Health Department's 1956 approval or (2) the Village Trustee's 1956 agreement to provide road improvements in the subdivision.

This argument fails because it ignores the required statutory construction to be applied to ECL §24-1305. ECL §24-1305 requires that its subsections be applied in sequential order. Thus, one first must determine whether subsection (a) of section 24-1305 is the situation which applies. If it does not, the later sections of ECL §24-1305 must be consulted. In the Matter of dwight Enterprises, Inc. DEC 24-03 (September 1, 1979). Subsection (c) of that Section addresses those situations which are not covered by subsections (a) or (b).

The "functional equivalency" argument also fails because the local health department approval is provided pursuant to the State Public Health Law and is not a substitute for or equivalent to a local government's authorization to commence the construction of residential dwellings. Rather, County Health Department approval is given to ensure that adequate water and sewer will be provided before lots are sold to the general public.

For the same reasons, the Village Trustee Agreement is not A substitute for the required local Planning Commission approval. Petition, p. 9.

Under these circumstances and for the foregoing reasons, I conclude that lots 14-23 are not exempt from the Department's regulatory jurisdiction under ECL Article 24 by virtue of ECL §24-1305(a).

B. ECL §24-1305(b)

As conceded by Petitioner, subsection b of §24-1305 is not relevant to the matter at hand since it pertains to "site plans not involving the subdivision of land." emphasis added. Petition p. 7.

C. ECL §24-1305(c)

Because it was determined that neither subsection (b) nor (c) is applicable, it must be determined whether "grandfathering" status is granted by operation of subsection (c) of ECL §24-1305.

Subdivision (c) provides that "final approval" is:

in those cases not covered by subdivision (a) or (b) above, the issuance of a building permit or other authorization for the commencement of the use, improvement or Development for which such permit or authorization was issued or in those local governments which do not require such permits or authorizations, the actual commencement of the use, improvement, or Development of the land.

The Petitioner urges that lots 14-23 inclusive are exempt under §24-1305(c) from the permit and regulatory restrictions because 16 lots in the Knolls Subdivision were sold prior to 1975 for residential dwellings. This is irrelevant because of the village of Saugerties development regulations in effect prior to 1975.

The Village of Saugerties zoning ordinance, in effect at the time the Knolls Subdivision map was filed in 1956 and prior to the effective date of the Freshwater Wetlands Act, indicates that the village was divided into Districts or Zones which were created to establish the type of permissible and allowable land uses in the village.(5) Lot and building sizes were specified for each Zoning District. The filing of A subdivision map did not authorize or otherwise affect the allowable uses on a lot. The Village ordinance, for certain purposes, Recognized subdivisions which were filed prior to April 1956. These provisions, however, are inapplicable to the Knolls subdivision as the map was filed in November 1956.

The zoning ordinance specified minimum requirements for any buildings to be constructed. Furthermore, Section 13 of the Village ordinance provided that no structure designed for human habitation could be erected or altered unless water and sewer lines are installed therein and connected to the Village water and sewer lines. No other type of authorization was required for the Construction of a conforming use in a particular District. Section 5 of the Village Ordinance made it unlawful to use or permit the use of any buildings or premises until a Certificate of Occupancy was issued. Presumably this was the mechanism employed by the village to ensure that buildings and land uses conformed with the zoning scheme in the Village.

Since no building permits authorizing construction were required, the proper inquiry under ECL §24-1305 is whether "actual commencement" of the construction of the residential dwellings on the lots occurred prior to September 1, 1975. In this case, it is not necessary to determine whether the village Ordinance in and of itself was the local authorization allowing the construction to occur on the remaining undeveloped lots. By the terms of the Village Ordinance, sewer and water connections were required to be installed prior to erection of any structures. No sewer and water connections were installed for the lots in question prior to September 1, 1975.

Because structures could not be erected on the remaining lots without sewer and water connections, the residential dwellings could not have lawfully been constructed prior to September 1, 1975.(6) Moreover, there is no evidence of "actual commencement" of construction as of that date that would meet the standard of ECL §24-1305(c), and No authorization under the Village Zoning Ordinance was applicable prior to September 1, 1975. Thus, the lots in question are not "grandfathered" under ECL §24-1305 but are subject to its regulatory requirements.

This conclusion is consistent with previous Rulings interpreting eCL §24-1305. Petitioner, however, urges that prior rulings in Earl Hoot (DEC 24-03), Dwight Enterprises, inc., (DEC 24-08) and HO Construction corp. (DEC 24-09) require that the Department grandfather the remaining undeveloped lots in the Knolls. These prior declaratory rulings are reconcilable with the instant declaratory ruling request as the underlying facts are clearly distinguishable.

First, the request is made more that 17 years after enactment of the Freshwater Wetlands Act and more than 36 years after the subdivision was filed in the Ulster County Clerk's office. During that time, the only government approval which was received for the remaining undeveloped lots was a 1956 County Health Department approval, and the water and sanitary sewer connections which were approved by the County Health Department in 1956 have not been made to the remaining lots. Essentially, the mapped lots remain paper lots.

By contrast, the Petitioner in Dwight enterprises received review by the local government planning board concerning the scope of the project and had fulfilled many of the conditions which were required by the local government including the installation of water and sewer connections. Similarly, in HQ Construction Corp., the local planning body had granted approval to the proposed subdivision and had offered conditions to that approval. These facts differ with underlying facts of the instant application. Finally, the Declaratory Ruling in Earl Oot is not relevant to these facts as it considered whether ECL §24-1305(b) was applicable. Petitioner has conceded that ECL §24-1305(b) is not applicable to the Knolls subdivision.

III. Conclusion

Having reviewed the facts and pertinent provisions of law as set forth herein, it is my conclusion that lots 14-23, inclusive, do Not meet the criteria for the grandfathering exemption. Accordingly, no construction-related activities may be undertaken in the Knolls Subdivision lying within Freshwater Wetland #S-2 or its adjacent area, unless and until the necessary permits are granted by the Department. At that time, the scope and location of the project will be taken into appropriate consideration.

Dated: Albany, New York
January 27, 1993

Marc S. Gerstman
Marc S. Gerstman
Deputy Commissioner and General Counsel

1 Any reference to the parcel in this Declaratory Ruling as the "Knolls Subdivision" is not intended to confer any legal status for the purpose of ECL §24-1305 on the area depicted on Map #1839 which was filed on November 9, 1956, in the Ulster County Clerk's Office.

2 The Petition consists of May 7, 1992, and July 9, 1992, submissions. In addition, I am taking official notice of the prior correspondence which was provided to the Department concerning the applicability of ECL Article 24 to the Knolls subdivision.

3 Exhibit A of the Petition contains a revised version of the 1956 filed Map from which it appears that lots 1-9 inclusive, lots 32-36 inclusive and lots 48 and 49 were sold prior to August 6, 1973, (the date the map was last revised) and that sewer and water connections have been provided to only these lots.

4 It should be noted that the Village of Saugerties Zoning Law which is currently in effect does not authorize the Planning Commission to grant subdivision Plat approvals. See Section 8.1 of the Village of Saugerties Zoning ordinance effective August 1985.

5 The Petition provides no information concerning the District which covers the Knolls Subdivision. For the purposes of this Ruling, it will be assumed that the U-1 district is applicable.

6 See Letter from Village Clerk, Village of Saugerties to Richard Praetorius, October 20, 1989; and Letter from Thomas Conrad to NYSDEC Region 3, January 29, 1991.

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