When a Suffolk County, New York, landowner files a certificate to abandon a paper street, does the town assessor have to rubber-stamp it, or can the assessor refuse?

Plain-English summary

The Town of Huntington's assistant town attorney asked about the abandonment process for paper streets (mapped but never opened streets) on filed subdivision maps in Suffolk County. Real Property Law § 335(3) sets out a specific procedure, including a requirement that the town or village assessor endorse approval on the certificate of abandonment before it can be recorded with the county clerk. The question was whether the assessor's endorsement is just a rubber stamp or whether the assessor actually has discretion to refuse.

The AG said discretion. "Approval" implies knowledge and an exercise of judgment based on that knowledge. The Legislature did not intend for the party seeking abandonment to be the final arbiter of whether the statutory conditions have been met. It placed that responsibility with the assessor. Courts will not interfere unless the assessor's decision is arbitrary, capricious, unreasonable, or illegal.

The opinion grounds that reading in Sesto v Mielke, 28 Misc 2d 228 (Sup Ct Suffolk Co 1961), where a village assessor refused to consent to a proposed abandonment after twenty years had passed since the map was filed. The statute would have allowed abandonment without consent from other owners once twenty years had passed, provided certain conditions were met, including that the streets were not "necessary for the use of owners, occupants or any other persons having an interest in any part of the subdivision." The assessor found the streets were still necessary (large numbers of village residents lived inside the maps' boundaries, and the village had drainage and grade plans incorporating the proposed street). The court upheld the assessor's discretionary refusal because the petitioners did not show abuse of discretion.

On the fee question, the AG noted that the State sets a $10 fee for recording, payable to the county clerk. No fee is authorized for town officials. So a town cannot impose its own fee schedule on top of the statutory recording fee. The Highway Law § 205 question the attorney asked about was deferred to enclosed prior opinions (94-15, 93-17, 86-71, 1980 Op Atty Gen (Inf) 102, 1960 Op Atty Gen (Inf) 112, 1945 Op Atty Gen (Inf) 31).

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is a "paper street"?
A paper street is a street that appears on a filed subdivision map but has never been opened or improved. Someone subdivides land into lots for sale and files a map showing the lots and connecting streets, but some of those streets are never physically built. They exist only on paper. Real Property Law § 335 governs the abandonment of such mapped subdivisions, including the paper streets within them, in Suffolk County.

Why is Suffolk County treated specifically?
Real Property Law § 335 is a Suffolk-specific statute. It deals with the filing of maps and the abandonment of subdivisions in Suffolk County only. Other counties have their own statutes or apply general municipal law. The AG opinion is limited to the Suffolk Article framework, including the requirement that an owner file a map of the subdivision and the specific procedures for abandonment.

What does "approval is an exercise of discretion" mean for the assessor?
The assessor cannot just sign whatever paper comes in. The assessor has to look at whether the statutory conditions are met (twenty years passed, streets not opened or public highways, streets not used by the public, streets not necessary for owners or occupants of the subdivision, and so on). If the conditions are not met, the assessor can refuse to endorse approval, and the certificate of abandonment cannot be recorded. Courts will defer to that judgment unless it is arbitrary or capricious.

What did Sesto v Mielke tell us about the standard?
Sesto upheld a village assessor's refusal to approve a paper-street abandonment after twenty years on the ground that the street was still "necessary for the use of owners, occupants, or any other persons having an interest in any part of the subdivision." The assessor pointed to the number of village residents who lived within the maps' boundaries and to the village's drainage and grade planning incorporating the proposed street. The court rejected the petitioner's claim that the assessor had to approve as a ministerial matter and found no abuse of discretion.

Can a town charge its own fee for the assessor's review?
No. The AG explicitly addressed this: § 335 sets a $10 fee payable to the county clerk for filing and indexing each certificate and abstract. No fee is authorized for town officials. So a town that wants to charge a separate fee for the assessor's discretionary review does not have statutory authority to do so under § 335. (Whether a separate statutory authority would allow such a fee is a different question.)

What if the streets are inside a single owner's property and don't affect anyone else?
Real Property Law § 335(3) at the time provided exceptions to the consent requirement when the street being abandoned was entirely within the bounds of the property being abandoned, or when the street terminated in a dead-end within those bounds. In those situations, consent of other lot owners was not required. But the assessor's discretionary approval was still required.

Does Highway Law § 205 (abandonment by non-use) interact with this process?
Highway Law § 205 governs abandonment of town highways by non-use. The AG opinion did not directly answer the Huntington attorney's question on § 205 but referred him to a series of enclosed prior opinions on the subject. The two abandonment frameworks (Real Property Law § 335 for Suffolk subdivisions and Highway Law § 205 for town highways generally) can both be in play depending on the specific street's history.

Background and statutory framework

The specifics of Real Property Law § 335 as the AG read them in 1996:

§ 335(1) required an owner in Suffolk County who subdivided real property for the purpose of sale to file a map of the subdivision in the county clerk's office.

§ 335(3) allowed an owner to abandon a mapped subdivision once at least two years had passed since filing. Abandonment was effected by recording a written certificate of abandonment in the county clerk's office. The certificate had to be duly executed and acknowledged, describe the property to be abandoned, contain the complete title or name of the map, and list the file date and file number.

Consent of other owners was required to abandon opened or proposed streets in the subdivision, with two exceptions: (1) the street was entirely within the bounds of the property being abandoned, or (2) the street terminated in a dead-end within those bounds.

Even without consent of other owners, an owner could abandon streets or portions of streets if at least twenty years had passed since the map was filed and the streets were not opened or public highways, used by the public, or necessary for the use of owners, occupants, or any other persons having an interest in the subdivision.

The certificate had to be filed with the town and village assessor or board of assessors of each town and village where any portion of the property was situated, and the endorsement of approval by each assessor had to be on the original certificate presented to the county clerk for recording. An abstract of title covering at least the last twenty years, and a certificate of the Suffolk County treasurer that there were no unpaid tax liens, also had to be submitted.

A special urban-renewal exception applied: if the assessor's endorsement included a recitation that the municipality had adopted an urban renewal plan under Article 15 of the General Municipal Law providing for adequate street access within and adjacent to the planning area, and that the property was subject to and required to be abandoned by the plan, the county clerk would accept the certificate of abandonment regardless of area and even without consents that would otherwise be required.

The Suffolk County Board of Supervisors was exempt from these requirements for subdivisions or portions acquired through tax-lien sales: the board could abandon by simply executing and filing a certificate.

The AG's reading of "approval" as an exercise of discretion is supported by Sesto v Mielke (1961) and is consistent with the broader principle that a statutory grant of approval power to a public officer carries discretion. Judicial review is for abuse of discretion only.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-25_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Opn. No. 96-25
HIGHWAY LAW § 207; REAL PROPERTY LAW § 335.

Under section 335(3) of the Real Property Law, the town and village assessor or board of assessors in every town and village wherein any property to be abandoned is situated must approve a certificate of abandonment filed with the county clerk. Approval is an exercise of discretion as to whether the standards and conditions for abandonment under Real Property Law § 335(3) have been met. It is not a mere ministerial act.

August 6, 1996

Andrew J. Levitt, Esq.
Assistant Town Attorney
Town of Huntington
100 Main Street
Huntington, New York 11743-6991

Informal Opinion No. 96-25

Dear Mr. Levitt:

You have requested our opinion regarding the appropriate procedure for abandoning a paper street on a filed map. During a telephone conference and in a subsequent letter, you further defined your inquiry. You inquire as to what standards and conditions apply to abandon a paper street under section 335(3) of the Real Property Law and request that we define the role of any town officials involved in approval of the abandonment under that section. Further, you ask whether your town may enforce a fee schedule for such abandonments, and under what conditions section 205 of the Highway Law will apply.

Section 335 of the Real Property Law governs the filing of maps and the abandonment of subdivisions in Suffolk County. It requires that an owner in that county of real property which is subdivided for the purpose of sale file a map of the subdivision in the county clerk's office. Real Property Law § 335(1). Section 335(3) allows an owner to abandon a mapped subdivision once a minimum of two years has passed since the filing date. Id., § 335(3). To do so, the owner must record a written certificate of abandonment in the office of the county clerk. Id. This certificate must (1) be duly executed and acknowledged; (2) contain a description of the property to be abandoned; (3) contain the complete title or name of the map; and (4) list the subdivision's file date and file number. Id.

No opened or proposed street or any portion thereof may be abandoned unless each owner of a lot or interest in the subdivision consents to the abandonment through a duly executed instrument. These instruments must be recorded along with the certificate of abandonment. However, consent is not required if (1) the opened or proposed street to be abandoned is entirely within the bounds of the property to be abandoned, or (2) the opened or proposed street terminates in a dead-end within the bounds of the property to be abandoned. Id.

Section 335(3) also permits an owner to abandon any streets or portions thereof without the consent of each person or corporation owning a lot or interest in the subdivision if: a minimum of twenty years has elapsed since the filing of the map and the streets are not opened or public highways, used by the public, or necessary for the use of owners, occupants, or any other persons having an interest in any part of the subdivision. Id.

This process must be repeated for each filed map, if more than one exists. Id. Note also that the Suffolk County Board of Supervisors is expressly exempted from the above requirements. Id. The county may abandon any subdivision or portion thereof owned or acquired through the sale of tax liens. To do so, the county board must simply execute and file a certificate of abandonment with the county clerk's office. Id.

With regard to the role of town officials, section 335(3) states, in pertinent part:

A copy of each certificate of abandonment must be filed with the assessor and/or board of assessors of each town and village wherein any portion of the property to be abandoned is situated, and the endorsement of approval by each such assessor and/or board of assessors must be endorsed on the original of each certificate presented to the county clerk for recording. An abstract of title to the property to be abandoned covering a period of at least twenty years last past, and a certificate of the county treasurer of Suffolk county to the effect that there are no unpaid tax liens against such property, must be submitted to the county clerk and be approved by him at the time the certificate of abandonment and cancellation is offered for recording. Said certificates and abstracts shall be filed in the county clerk's office, a suitable index shall be kept of the same, and notice thereof shall be endorsed by the recording officer upon the map therein referred to at the time of recording the certificate of abandonment. Where the endorsement of approval of the town or village assessor above referred to includes a recitation to the effect that the municipality has duly adopted an urban renewal plan pursuant to article fifteen of the general municipal law which plan provides for adequate street access to all properties within and adjacent to the planning area, and further that the property to be abandoned is subject to said plan, and its abandonment is required thereunder, the clerk shall accept and record the certificate of abandonment tendered therefor regardless of the area thereof, and notwithstanding that the property to be abandoned is a portion of an opened or proposed street for which the consent to the abandonment thereof required in this subdivision has not been obtained.

Id., § 335(3). Emphasis added.

Under section 335(3), the certificate of abandonment must reflect the endorsement of approval of each town and village assessor or board of assessors in any town and village where any portion of the property to be abandoned is located. In our view, the endorsement of approval is not a mere ministerial act. "Approval" implies knowledge and exercise of discretion based upon that knowledge. Sesto v Mielke, 28 Misc 2d 228, 230 (Sup Ct Suffolk Co 1961). The Legislature did not intend that the party seeking abandonment be the final arbiter as to whether statutory conditions have been met. Id. "To the contrary, it placed that responsibility with the assessor". Id. The courts will not interfere with the exercise of discretion conferred upon a public officer by law unless it is arbitrary, capricious, unreasonable, or illegal.

In Sesto, supra, 28 Misc 2d 228, the village assessor exercised discretion and refused to consent to a proposed abandonment. Twenty years had passed since the filing of the map and, therefore, under the statute the owners could abandon streets or any parts thereof without consent of the other owners of lots or interests in the subdivision provided that, among other conditions, the streets were not "necessary for the use of owners, occupants or any other persons having an interest in any part of the subdivision". The village assessor exercised discretion, finding that the proposed street was necessary for use by owners and others having an interest in the subdivision. Id. The village assessor found that a large proportion of village residents resided within the boundaries of the two subdivision maps and that the village had included the proposed street in its drainage and grade planning. Id. The petitioners did not prove that the assessor's refusal to approve the proposed abandonment was in any way an abuse of discretion. Id. Therefore, the court upheld an exercise of discretion by the village assessor, refusing to invalidate the assessor's finding that statutory conditions were not met. In answer to your question, the town and village assessors may exercise their judgment as to whether or not the statutory conditions for an abandonment under section 335(3) have been met.

Regarding your question about fees, section 335 states that "[t]he fee of the county clerk for such filing and indexing each certificate and abstract therewith shall be ten dollars and shall be paid by the party presenting them for filing". Therefore, the fee for abandonment is set by State law and is payable to the county clerk. No fee is authorized for town officials.

With regard to your question concerning the applicability of Highway Law § 205, please see the opinions we have enclosed. Op Atty Gen (Inf) Nos. 94-15, 93-17, 86-71; 1980 Op Atty Gen (Inf) 102; 1960 Op Atty Gen (Inf) 112; 1945 Op Atty Gen (Inf) 31.

We conclude that under section 335(3) of the Real Property Law, the town and village assessor or board of assessors in each town and village wherein any property to be abandoned is situated must approve a certificate of abandonment filed with the county clerk. Approval is an exercise of discretion as to whether the standards and conditions for abandonment under Real Property Law § 335(3) have been met. It is not a mere ministerial act.

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.

Sincerely,
JOSEPH CONWAY
Assistant Attorney General