Thanks for getting back to me on this.
I've included below a few things relevant to our discussions:
1. The AG ruling on subdivisions which bears on both the 5-plots and
3-years issues; there is only this one ruling that I found.
2. Links to NYC administrative cases from OATH, the Environmental
Control Board, and a number of other agencies, in case you want to do
some in-depth searching of your own.
3. Additional information about having the Attorney General weigh in
with an opinion on your case, in the event that you want to explore
If anything here is unclear -- or if you simply need additional
information -- just post a Request for Clarification to let me know,
and I'll be happy to assist you further.
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF NEW YORK
Informal Opinion No. 93-15
January 15, 1993
CORE TERMS: parcel, developer, sewage disposal, water, acres, real
property, water supply, subdivide, residential lot, tract of land,
common scheme, three-year, furnishing, submittal, lease, tract, map
ENVIRONMENTAL CONSERVATION LAW § 17-1501; PUBLIC HEALTH LAW §§ 1115,
A proposal to subdivide real property which constitutes a
"subdivision" within the meaning of the Public Health Law and the
Environmental Conservation Law requires the submittal and approval of
plans for providing water and sewage disposal facilities.
JAMES D. COLE, Assistant Attorney General in Charge of Opinions
Alan O. Minsker, Esq.
County of Cattaraugus
303 Court Street
Little Valley, NY 14755
You have asked that we construe provisions of the Public Health Law
and the Environmental Conservation Law requiring the filing of plans
by developers for the provision of water and sewage disposal in the
You have explained that a developer who owns real property has
proposed to sell portions of this property to various buyers. He has
proposed to sell four parcels, each of which is less than five acres
in size and other parcels in acreage blocks varying in size from 5 1/2
to 8 acres. You have explained that some of the grantees of the larger
parcels are family members who intend to subdivide their respective
parcels into units of not more than five lots, some of which will be
[*2] five acres or less in size. The developer will hold a mortgage
interest in the parcels conveyed to family members.
Under section 1116(1) of the Public Health Law, no subdivision may be
sold, offered for sale, leased or rented and no permanent building may
be erected thereon until a water supply plan or map for the
subdivision is filed with and approved by the State Department of
Health or city, county, or part-county department of health having
jurisdiction. The plan or map must show methods for obtaining and
furnishing an adequate and satisfactory water supply to the
subdivision. Id., § 1116(2). For purposes of this provision,
"subdivision", in relevant part, means a tract of land divided into
five or more parcels for sale or for rent as residential lots. Id., §
1115(1). A "residential lot" is a parcel of land of five acres or
less. Id., § 1115(3). A tract of land constitutes a subdivision for
purposes of these provisions upon the sale, rental or offer for sale
or lease of the fifth residential lot or residential building plot
within any consecutive three-year period. Id., § 1115(1). The word
"tract" as used in the definition of "subdivision" means "any [*3]
body of land, including contiguous parcels of land, under one
ownership or under common control of any group of persons acting in
concert as part of a common scheme or plan". Id., § 1115(2).
The provisions of Title 15, Article 17 of the Environmental
Conservation Law requiring plans by subdivision developers for the
furnishing of adequate sewage facilities are substantively the same as
the above provisions governing water supply.
From the facts that you have provided, it appears that any "lots"
offered for sale or lease by relatives within the three-year period
would constitute a subdivision when added to the developer's four
lots, requiring compliance with section 1115(2) of the Public Health
Law and section 17-1501(2) of the Environmental Conservation Law. The
developer and his relatives would be in common control of the parcels
to be sold to the relatives and they would be acting in concert as
part of a common scheme or plan. In total, there would be five or more
parcels of five acres or less in size. This construction fulfills the
apparent statutory purpose to ensure provision of adequate water and
sewage disposal to residents of subdivisions. The definition of
"tract" [*4] encompasses the subject proposal to achieve these
I have also enclosed a copy of Informal Opinion No. 89-41 which
concludes that a local government may have more stringent local
provisions requiring the submission and approval of plans for
provision of water and sewage disposal facilities for subdivisions.
We conclude that a proposal to subdivide real property which
constitutes a "subdivision" within the meaning of the Public Health
Law and Environmental Conservation Law requires the submittal and
approval of plans for providing water and sewage disposal facilities.
The Attorney General renders formal opinions only to officers and
departments of State government. This perforce is an informal and
unofficial expression of the views of this office.
At this link from FindLaw.com:
you will find an extensive list of links to sites that cover laws and
legal cases in New York State and New York City.
Of particular interest here is the link to "New York City
At this site, you can conduct extensive searches for decisions
pertaining to subdivisions.
My own search strategy focused on many combinations of the terms
[subdivision, "tract of land", "five or more parcels", "offer for sale
or lease"] and other terms as well. As I said, there appear to be no
cases directly relevant your particular set of circumstances.
I also conducted a similar search at Lexis-Nexis:
which, again, did not uncover any relevant cases, but did yield the AG
opinion that I posted above.
There is also a page on the NYS Office of the Attorney General's
website, where you can conduct searches of AG opinions:
[Note: The opinion I posted above does not appear on the website, as
it is too old].
The site explains the nature of formal and informal opinions from the
"...opinions fall into two broad categories, formal and informal
opinions. Formal opinions are those issued to State agencies. They are
denominated "formal" because the Attorney General signs them as chief
legal officer of the State. Informal opinions are issued to local
government attorneys. In contrast with the formal opinions, the local
government attorney is the chief legal officer of the local
government. They are denominated "informal" because it is ultimately
the responsibility of the local government attorney to provide advice
to the local government."
Here, then, is the opportunity for you to solicit an opinion from the
AG's office on the matter at hand. You can request that the DEP in
NYC, as a local government agency (and one that, apparently, is having
a hard time understanding your particular issue), request an informal
opinion from the AG's office on this matter.
Certainly, check with your lawyer before going ahead with this option,
but I think he or she would likely agree it is a good move, regardless
of whether the DEP agrees to ask for the opinion or not.
There is no indication as to the timing on these requests, in terms of
receiving a response from the AG's office.
I hope this information serves you well, and I wish you the best of
luck in your efforts.
And again, if you need any additional clarification, just let me know,
and I'm at your service.