Opn. No. ( 1994 )

Requestor: William J. McClusky, Esq., Town Attorney Town of Adams P.O. Box 97 Adams, N Y 13605

Written by: James D. Cole, Assistant Attorney General in Charge of Opinions

You have asked whether a subdivision under section 17-1501 of the Environmental Conservation Law is created under specified circumstances.

You have indicated that the owner has a piece of land with eight separate cottage units that have been used in the past as rental units.¹ Three cottages were sold, each as a residential lot in the first year. During the second year, a cottage was sold for residential purposes. The parcel, however, does not comply with town law so it cannot legally be used as a residential lot. The purchaser intends to apply for a zoning variance to be able to use the parcel as a residential lot. You have asked, if a fifth lot is offered for sale within the next year, whether the tract becomes a subdivision subject to the requirements of Title 15 of the Environmental Conservation Law.

Under section 17-1505, no subdivision may be sold, offered for sale, leased or rented by any person until a plan or map of the subdivision is filed showing methods for obtaining and furnishing adequate and satisfactory sewerage facilities to serve the subdivision. "Subdivision" means any tract of land divided into five or more parcels along existing or proposed streets for sale or for rent as residential lots. Id., § 17-1501(1). A tract of land constitutes a subdivision upon the sale, rental, or offer for sale or lease of the fifth residential lot within any consecutive three-year period. Ibid. A residential lot is any parcel of land of five acres or less. Id., § 17-1501(3).

In our view, upon the sale of the fifth lot within three years of the first lot, a subdivision has been created within the meaning of section 17-1501. The fourth lot, even though it did not at the time comply with local town regulations, was offered for sale and sold for residential purposes and, therefore, constitutes a residential lot within the meaning of the statute. If this were not the case, delays for local approvals might remove the need for filing of plans under Title 15. We believe this would be contrary to the legislative intent of ensuring that adequate sewerage disposal facilities are provided.

We conclude that the offer for sale of a fifth residential lot within a three-year period requires compliance with Title 15 of the Environmental Conservation Law, requiring submittal of a plan for provision of sewerage 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.

¹ You have not asked, nor do we opine whether rental of the units constituted a subdivision at any point in the past.