Developing land on Long Island can present a number of challenges that all developers should be aware of. From complex zoning ordinances to state environmental regulations, there is no shortage of obstacles that may delay a development project. One of the most significant – and sometimes overlooked – obstacles is Town Law Section 280-a. This law plays a crucial role in determining whether a building permit can be issued. Failure to comply may even lead to a denial or a delayed decision.
Town Law § 280-a provides, "No permit for the erection of any building shall be issued unless a street or highway giving access to such proposed structure has been duly placed on the official map or plan, or if there be no official map or plan, unless such street or highway is (a) an existing state, county or town highway, or (b) a street shown upon a plat approved by the planning board...as in effect at the time such plat was approved, or (c) a street on a plat duly filed and recorded in the office of the county clerk or register prior to the appointment of such planning board and the grant to such board of the power to approve plats."
This provision essentially prohibits the issuance of a building permit for the erection of a structure unless the lot has access to a public street or highway. The purpose of the law is to ensure that emergency services, utilities, and future residents have legal and physical access to the property.
"The state has a legitimate and real interest in requiring that the means of access to the new construction be properly improved and sufficient for the purpose." Brous v. Smith, 304 N.Y. 164, 170, 106 N.E.2d 503, 506 (1952).
Understanding Town Law § 280-a is of particular importance for development projects located on a private road as a building permit may not be issued unless the road is improved to town standards and accepted or approved under certain conditions. If a parcel doesn't abut a public road or has only paper road access (roads that exist on a map but not in reality), § 280-a can block development unless access is established. Developers seeking to subdivide property must also ensure that any new streets proposed as part of the subdivision are either accepted by the town or bonded for improvement before building permits can be issued.
Town Law § 280-a also plays a role in the zoning approval process as courts have upheld zoning denials based on failure to comply with this provision. In Morando v. Town of Carmel Zoning Bd. of Appeals, the court found, "the ZBA's conclusion that the petitioner failed to submit evidence showing that he had the lawful right to build an access road serving the proposed site, and its denial of the variance applications on that basis, were not arbitrary or irrational. Morando v. Town of Carmel Zoning Bd. of Appeals, 81 A.D.3d 959, 960–61, 917 N.Y.S.2d 672, 674 (2d Dep't. 2011).
The law also provides a process for requesting relief from the strict application of § 280-a. The town board can create what is known as "open development areas" where building permits may be issued for structures accessed by right-of-way or easement. See Town Law § 280-a(4). This alternative approach is subject to conditions set by the planning board (if one exists) or by the town board. If a planning board exists, the town board must first seek its advice and give it time to respond before proceeding.
Town Law § 280-a may seem like a technical legal provision, but it has a direct and powerful impact on one's ability to develop land and obtain building permits. Whether building a home or subdividing land, understanding the implications of this provision can help developers avoid costly surprises.
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