Agenda - Planning Commission - 01/03/2008

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/?-. (j '\ I(j/ (I \ 'J December 25, 2007 I Volume 1 I No. 24 ing right of way, easement, any and all existing restrictions, condi- tions and covenants of record." In 2002, O'Mara retained a licensed land surveyor to prepare a survey of parcels Band E. The surveyor examined the 1963 plat, ap- parently observing the open space notation but ignoring it. No open space notation was included on the survey he submitted to the build- ing department. The town issued a building permit and a temporary certificate of occupancy for the first home that was to be built on the property, and it approved an interim survey and site plan for the lot on which the house was to be built. In July 2003, the son of one of the original d€velopers of the land approached a town representative and expressed his belief that the development violated the 1963 plat. In November, the building in- spector issued a stop work order based on the open space restriction noted on the plat recorded in 1963. O'Mara protested the order, arguing that he was not aware of the open space restrictions until after the town issued the order-three years after he had purchased the property. O'Mara filed an action in court asking for a judgment declaring that he owned parcels Band E "free and clear" of the open space restriction. The trial court found in O'Mara's favor, deciding that O'Mara had a legitimate claim of entitlement to a certificate of oc- cupancy and the town's hasis for withholding the certificate was ille- gaL Additionally, the court found that the open space restriction was unenforceable against O'Mara, who was a "bona fide purchaser for value without notice" of the restriction. The town appealed to the 2nd U.S. Circuit Court of Appeals, which reversed the decision in part. However, the 2nd Circuit found that "[w]hile ... the process of approving and filing the 1963 Plat complied with both [town law and a relevant state property law], neither section addresse[d] whether a subdivision plat [was] enforce- able against a subsequent purchaser." Because of the lack of clarity on this important issue, the 2nd Circuit certified the question to the Court of Appeals of New York. Decision: Certified question answered in the affirmative. The appeals court found that an open space restriction placed on a final plat pursuant to all of the relevant laws was enforceable against a subsequent purchaser. Here, the laws and relevant sections in question were the Real Property Law, section 334, and the New York Town Law, section 276. The laws applicable to the filing of the 1963 Plat (which remained applicable at the time O'Mara purchased the property), provided that: "no real property subdivided into separate lots [could] be of- fered for sale to the public without the filing of a map in the Office 3 77