Opn. No.
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Requestor: Alan O. Minsker, Esq., County Attorney County of Cattaraugus 303 Court Street Little Valley, N Y 14755

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

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 51/2 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 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 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" 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.