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." Citing St. Onge v Donovan and the older Valmont Homes and Peckham Industries cases, the opinion said conditions are limited to things tied to the on-site use (fencing, safety devices, screening, lighting, noise, dust, hours of operation). An obligation to ferry residents to off-site stores and doctors is an off-site improvement unrelated to the proposed use of the property, and a planning board may not impose off-site obligations as conditions.

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: Under Brookhaven Code §§ 85-94 and 85-106, PRCs were a defined development category subject to site plan review and approval. The opinion did not catalog every requirement of the local code; it focused on whether on-site transportation obligations could be imposed at the site plan 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: Could the town address its capacity problem some other way?
A: The opinion did not prescribe alternatives, but the obvious paths would be: increase funding for the Brookhaven Jitney, negotiate cooperative service agreements with PRCs that are willing to participate voluntarily, or seek state legislative authority for additional zoning conditions if the town concludes the underlying issue justifies it.

Q: Does this opinion limit PRCs only?
A: No. The reasoning applies to any site plan review under Town Law § 274-a. Towns cannot use the site plan process to require off-site services or improvements regardless of the development type.

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,

3
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