Can a New York town require a planned retirement community developer to provide off-site transportation to shopping and medical facilities as a condition of site plan approval?

Plain-English summary

The Town of Brookhaven worried that a growing number of Planned Retirement Communities ("PRCs") would overwhelm its Brookhaven Jitney, the town-run service that took elderly residents to medical appointments. The Town Attorney asked whether Brookhaven could either (a) amend its zoning law to make off-site shopping and medical transportation a "required site plan element" for PRC approval or (b) impose that obligation on a developer as a condition of site plan approval.

The AG's office said no on both. Town Law § 274-a governs site plan review and lists what towns can require as site plan elements: things related to "parking, means of access, screening, signs, landscaping, architectural features, location and dimensions of buildings, adjacent land uses and physical features meant to protect adjacent land uses," plus any additional elements specified by the town board. The 1993 "additional elements" language has been read by commentators (citing Hill v Planning Board of Amherst) as limited to the layout, design, and related on-site aspects of the development. Off-site transportation services do not fit. They are an operational requirement directed at how the developer treats residents after the development is built.

The same problem disposed of the "condition of approval" theory. Town Law § 274-a(4) allows the planning board to attach reasonable conditions that are "directly related to and incidental to a proposed site plan." The opinion cites St. Onge and the older Valmont Homes and Peckham Industries cases for limits on conditions. An obligation to ferry PRC residents to off-site stores and doctors is an off-site condition unrelated to the proposed use of the property.

Currency note

This opinion was issued in 1998. 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

Q: What is a Planned Retirement Community for site plan purposes? A: Brookhaven Code §§ 85-94 and 85-106 required site plan review and approval for PRCs. The opinion focused on whether the town could require transportation to off-site shopping or medical facilities at that stage.

Q: What can a town include as a "required site plan element"? A: Town Law § 274-a(2)(a) enumerates the specific categories: parking, access, screening, signs, landscaping, architectural features, building location and dimensions, and physical features to protect adjacent land uses, plus "any additional elements specified by the town board." The "additional elements" language is generally read as limited to layout, design, and related aspects of the proposed development; it does not authorize operational requirements like off-site service guarantees.

Q: Can a planning board impose anything off-site as a condition? A: Generally no. Town Law § 274-a(4) lets the board impose conditions "directly related to and incidental to a proposed site plan." The case law (St. Onge, Valmont Homes, Peckham Industries) limits these to on-site issues. Off-site improvements as conditions go beyond the planning board's authority.

Q: Did the opinion decide whether a town may require off-site services for other kinds of development? A: No. It answered Brookhaven's question about transportation for residents of Planned Retirement Communities. Its discussion of Town Law § 274-a and off-site improvements explains that conclusion, but the opinion does not decide every other development scenario.

Background and statutory framework

Town Law § 274-a is the state-law foundation for site plan review by towns. It authorizes the town board to require site plan approval for specified land uses and to list the required elements of submitted plans. The elements have to relate to the physical attributes of the site itself, with the 1993 "additional elements" amendment understood as expanding the categories incrementally rather than opening site plan review to operational conditions on the developer.

Conditions of approval are governed by § 274-a(4). The Court of Appeals decision in St. Onge v Donovan, 71 N.Y.2d 507 (1988), sets the limit: conditions must "relate only to the proposed use of the property." Cases applying that rule (Holmes v Planning Board, Pearson v Shoemaker) list examples of acceptable conditions: fences, safety devices, landscaping, screening, access roads, hours of use, outdoor lighting, noise control, building enclosure, and emission of dust or odors. The common thread is that all of these are on-site matters tied to the operation of the site.

Off-site improvement conditions sit on the other side of that line. Valmont Homes, Inc. v Town of Huntington and Peckham Industries v Ross hold that a planning board may not condition site plan or development approval on off-site improvements unrelated to the site itself. Off-site transportation services to shopping centers and medical facilities fall squarely into the off-site category.

Citations and references

Statutes:

• N.Y. Town Law § 274-a (site plan review)

Cases:

• St. Onge v Donovan, 71 N.Y.2d 507, 516 (1988) (conditions of approval must relate to proposed use)
• Hill v Planning Board of the Town of Amherst, 140 A.D.2d 967, 968 (4th Dept 1988) (board's site plan authority limited to layout, design, and related aspects)
• Holmes v Planning Board of the Town of New Castle, 78 A.D.2d 1, 14 (2d Dept 1980) (conditions as a major planning tool, with limits)
• Valmont Homes, Inc. v Town of Huntington, 89 Misc. 2d 702, 704 (Sup. Ct. Suffolk County 1977) (no off-site improvement conditions)
• Peckham Industries v Ross, 61 Misc. 2d 616 (Sup. Ct. Orange County), aff'd, 34 A.D.2d 826 (2d Dept), lv denied, 27 N.Y.2d 485 (1970) (same)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-15_pw.pdf

Original opinion text

TOWN LAW § 274-a; BROOKHAVEN CODE §§ 85-94, 85-106 The Town of Brookhaven may not amend its zoning law to require transportation of residents of Planned Retirement Communities to off-site shopping and/or medical facilities and may not condition site plane approval upon the provision of such transportation. April 9, 1998 Emily Pines, Esq. Town Attorney Town of Brookhaven 3233 Route 112 Medford, NY 11763

Informal Opinion
No. 98-15

Dear Ms. Pines:
You have requested an opinion regarding whether the Town of Brookhaven may require a developer/sponsor of a Planned Retirement Community ("PRC") to provide transportation for PRC residents to off-site shopping and/or medical facilities. In a telephone conversation, you narrowed your opinion request to whether the town may require the developer to include this transportation in its site plan for the development. Thus, your question relates to the permissible scope of land use regulations. You have informed us that the Town of Brookhaven currently operates a Brookhaven Jitney service to provide transportation for the elderly to medical appointments within the town limits. However, you are concerned that an influx of PRCs within the town may put a strain on that service and prevent Brookhaven from providing all of the needed transportation. Accordingly, you have inquired whether the Town of Brookhaven may amend its zoning law to include transportation for PRC residents to off-site shopping and/or medical facilities as one of the "required site plan elements" for site plan approval or whether site plan approval may be conditioned upon the provision of such transportation. The Town of Brookhaven requires site plan review and approval for all PRCs. Brookhaven Code §§ 85-94, 85-106. Site plan review is governed by Town Law § 274-a. Section 274-a provides, in pertinent part, as follows: Site plans shall show the arrangement, layout and design of the proposed use of the land on said plan. The ordinance or local law shall specify the land uses that require site plan

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approval and the elements to be included on plans submitted for approval. The required site plan elements which are included in the zoning ordinance or local law may include, where appropriate, those related to parking, means of access, screening, signs, landscaping, architectural features, location and dimensions of buildings, adjacent land uses and physical features meant to protect adjacent land uses as well as any additional elements specified by the town board in such zoning ordinance or local law. Town Law
§ 274-a(2)(a).
Transportation is not a specifically enumerated site plan element. The only possible category that might encompass transportation is "any additional elements specified by the town board." This language, added to Town Law § 274-a(2)(a) in 1993, has yet to be interpreted by the courts. However, "it is likely that the revised language will be construed in a manner such that a board's 'authority is limited to a consideration of the layout, design and related aspects of the proposed development'." Rice, Practice Commentaries, Town Law § 274-a (quoting, Hill v Planning Board of the Town of Amherst, 140 AD2d 967, 968 [4th Dept 1988]). Transportation of PRC residents to off-site shopping and/or medical facilities is unrelated to the layout, design and related aspects of the site. Therefore, there does not appear to be statutory authority which would enable the Town of Brookhaven to amend its zoning law to include transportation as one of the "required site plan elements." In addition to the "required site plan elements," a town planning board may also "impose such reasonable conditions and restrictions as are directly related to and incidental to a proposed site plan." Town Law § 274-a(4). "Conditions imposed as an incident of approval in a development permit control system are a major weapon in a planner's arsenal. Conditions allow flexibility and fairness in land use and development control decisions, and provide the ability to deal with problems . . . barely contemplated under zoning schemes." Holmes v Planning Board of the Town of New Castle, 78 AD2d 1, 14 (2d Dept 1980). However, although a town planning board may attach conditions to its approval of a site plan, its power to do so is limited. Any condition so imposed must be reasonable and must relate only to the proposed use of the property. See, St. Onge v Donovan, 71 NY2d 507, 516 (1988). "Such conditions might properly relate 'to fences, safety devices, landscaping,

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screening and access roads relating to period of use, screening, outdoor lighting and noises, and enclosure of buildings and relating to emission of odors, dust, smoke, refuse matter, vibration noise and other factors incidental to comfort, peace, enjoyment, health or safety of the surrounding area'." St. Onge v Donovan, 71 NY2d at 516 (quoting, Matter of Pearson v Shoemaker, 25 Misc 2d 591, 592 [Sup Ct, Rockland County 1960]). But, a town planning board may not require an off-site improvement as a condition of approval. See, Valmont Homes, Inc. v Town of Huntington, 89 Misc 2d 702, 704 (Sup Ct, Suffolk County 1977); Peckham Industries v Ross, 61 Misc 2d 616 (Sup Ct, Orange County), affd, 34 AD2d 826 (2d Dept), lv denied, 27 NY2d 485 (1970). The provision of transportation for PRC residents to off-site shopping and/or medical facilities is an off-site condition unrelated to the proposed use of the property. Therefore, the Town of Brookhaven may not condition site plan approval upon the provision of such transportation. We conclude that the Town of Brookhaven is not authorized to amend its zoning law to require transportation of PRC residents to off-site shopping and/or medical facilities and may not condition site plan approval upon the provision of such transportation. 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. Very truly yours,

YVONNE M. HOVE
Assistant Attorney General