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Q: New York City Watershed Regulations - ( Answered 4 out of 5 stars,   0 Comments )
Question  
Subject: New York City Watershed Regulations -
Category: Reference, Education and News > General Reference
Asked by: markahern-ga
List Price: $50.00
Posted: 22 Oct 2003 10:46 PDT
Expires: 21 Nov 2003 09:46 PST
Question ID: 268619
The New York City Department of Environmental Protection issued Final
Watershed Rules and Regulations (Chapter 18) effective May l, 1997.  
These Rules list activities which are prohibited, or require Permit
approval from DEP, or which are exempt from the Rules.

The website which contains the Rules is:
	www/ci.nyc.ny.us/html/dep/html/ruleregs/finalrandr.html

Section 18-39 (b)(3)(ii) requires DEP review/permit of stormwater
pollution prevention plans during "construction of a subdivision."

A "Subdivision" from Section 18-16 Definitions

Section 18-16 (102)  Subdivision means any tract of land which is
divided into five or more parcels of five acres or less, along an
existing or proposed street, highway, easement or right-of-way, for
sale or for rent as residential lots.  A tract of land shall
constitute a subdivision upon the sale, rental or offer for sale or
lease of the fifth residential lot therefrom within any consecutive
three year period.

I am subdividing one 5 acre parcel into 5 one acre parcels.  According
to this test, my action would qualify as a 'subdivision.'  However, I
have stipulated that I will not sell, rent or offer for sale or lease
the fifth residential lot within any consecutive three year period. 
By this test, I am not a subdivision.

My lawyer says the Legal Department at DEP claims to be unable to
clarify whether the action described in the preceding paragraph is a
Subdivision or not under their rules.

Have there been any Office of Administrative Trials and Hearings
(OATH) or NYS Judicial rulings in which this matter has been
clarified?

Request for Question Clarification by pafalafa-ga on 22 Oct 2003 12:30 PDT
Hello Markahern-ga,

I have searched the OATH case records, NYC Environmental Control Board
records, other NYC administrative cases, and New York court case law
for any information relevant to your situation.  There does not appear
to be any case history that comes even close to this particular
matter. So a literal answer to your question is "No".  But somehow, I
suspect that's not what you offered up your fifty dollars to hear.

Turns out, there is an Atty General's opinion that is highly relevant,
as it deals directly with the question of when the process of
subdividing actually crosses the threshold of becoming the "fifth
residential lot".

The case (which involves complex multiple ownerships) may or may not
help clarify your situation -- that will be for you, your lawyer and
the DEP to decide.

However, the existence of the case itself does offer another
opportunity for clarification --  having the Attorney General offer an
opinion on the matter at hand in your case.  I can let you know how to
proceed on this, if it would be of interest to you.

So...let me know if I should post the case, and the AG-opinions
information, as an answer to your question.

Clarification of Question by markahern-ga on 23 Oct 2003 06:51 PDT
There were two aspects to the 'subdivision' definition:
	-number of lots: 5 or more
	-sale or disposition: 5th lot within 3 consecutive years

Are you confident that you thoroughly explored each of these
standards?  From what you wrote the '5 lots' has come up in an AG
ruling.  How about the 3 year issue?  Is there any basis for
understanding how that became part of the definition and if it has
been tested or ruled on.

If you can give the sources where you researched, some assurance that
there's nothing regarding the three year test, and the AG ruling on
the 5 lot issue, I will be satisfied.  Any idea how long it takes to
get a ruling from AG on a matter like this?

Thanks - Mark

Request for Question Clarification by pafalafa-ga on 25 Oct 2003 14:15 PDT
Hello again, Mark,

I've been mulling over your question and follow-up comment for a while
now, wondering how to respond, since it's always difficult to
convincingly demonstrate a negative.

You asked for assurance that the cases you are seeking do not, in
fact, exist.

Best I can say is that I'm an awfully good researcher with a lot of
experience doing legal research, and have looked in depth at several
sources, and have not found any cases directly relevant to your
situation.  I hesitate to post this as part of an answer to your
question, however, since it may not constitute the level of assurance
you are seeking.

My research did uncover an obscure document from the Attorney
General's office, though, which does bear on your situation.  The
document very strongly suggests that, in the opinion of the Attorney
General of NY, it is the act of *offering for sale or lease* the fifth
parcel within three years that creates an obligation under the law --
the mere act of subdividing the land is not, by itself, a sufficient
condition.

In particular, the AG's opinion -- which involves an owner subdividing
and selling four plots of land to his relatives, and then the
relatives making a sale themselves within three years -- says:


"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."

Note that two laws are referenced here...the "five plots/three year"
language appears more than once in NYS law.

By my reading of the situation, it is the "offering" of a plot for
sale or lease that becomes the test as to whether a subdivision is
covered under the rules you cited.  I would think your proposed
stipulations not to make such an offering should get you off the hook.

However, that's simply my layman's opinion.  

Again, I am posting a comment here rather than an answer since I
cannot really meet your request of providing "assurance" that there
are no such cases as you are looking for.

If you decide you would like to have me post the information I have
uncovered just the same, let me know, and I'll be happy to do so.

pafalafa-ga

Clarification of Question by markahern-ga on 27 Oct 2003 12:16 PST
Dear Pafalafa - If you can post the AG rulings which you found
regarding subdivision, ie:  the five lot ruling and the three year
rulings; I will be more than satisfied. Sincerely, Mark
Answer  
Subject: Re: New York City Watershed Regulations -
Answered By: pafalafa-ga on 27 Oct 2003 12:50 PST
Rated:4 out of 5 stars
 
Mark,

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
that option.


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.

pafalafa-ga


=================



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

SYLLABUS:
 [*1] 

ENVIRONMENTAL CONSERVATION LAW  17-1501; PUBLIC HEALTH LAW  1115,
1116.

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.

REQUEST BY:
JAMES D. COLE, Assistant Attorney General in Charge of Opinions

OPINION:

Alan O. Minsker, Esq.
County Attorney
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
subdivision.

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
goals.

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:

http://www.findlaw.com/11stategov/ny/laws.html

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
Administrative Decisions":

http://www.citylaw.org/decisions/index.phtml

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:

http://www.lexis.com/

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:

http://www.oag.state.ny.us/lawyers/opinions/opinion.html

[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
AG's office:

"...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.
markahern-ga rated this answer:4 out of 5 stars
good job on very difficult question -

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