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O'Mara v. Wappinger, Town of

ELR Citation: 37 ELR 20296
Nos. No. USCOA-2 141, (N.Y., 11/15/2007)

On certification from the U.S. Court of Appeals for the Second Circuit, the New York Court of Appeals held that an open space restriction imposed by a subdivision plat under New York Town Law §276 and filed in the Office of the county clerk pursuant to Real Property Law §334 is enforceable against subsequent purchasers. In 1963, the subject property was subdivided with two parcels being reserved as open space. This restriction was noted on the plat, which was filed with the County Clerk. Forty years later, plaintiffs purchased the property without notice of the restrictions from the seller, received building permits from the town, and constructed at least one home. When the town discovered the open space restrictions, a stop work order was issued. Plaintiffs’ contention that the town’s imposition of an open space restriction gave the town an interest in the property pursuant to General Law §247 that should have been recorded is without merit. The town did not acquire the property within the meaning of General Law §247, nor was the property conveyed to the town under Real Property Law §290(3). Thus, there is no requirement to record the plat. Further, towns have broad authority over land use in New York, and that authority would be meaningless without the ability to enforce those provisions, including against subsequent purchasers.