REALTY SUBDIVISIONS: Frequently Asked Questions (FAQ)

This FAQ was developed based upon the Public Health Law (PHL), Environmental Conservation Law (ECL), Part 74 "Approval of Realty Subdivisions", historical court decisions and documented Department of Health interpretations. This is intended for general reference only. Specific situations may need a case-by-case determination.


1. What constitutes a Realty Subdivision?

  • The sale, rental or offer for sale or lease of any tract of land, under one ownership or common scheme, which has been subdivided into five (5) or more residential lots, designated by metes and bounds, each comprising of five (5) acres or less within any three (3) year period. The common phrase used is the "5, 5, 3 rule. Residential lots also include temporary, seasonal and permanent use. The realty subdivision laws are generally intended to regulate the division of a tract of land for transfer of "ownership". According to the PHL, lands that are leased without designation by metes and bounds are not "subdivided" therefore do not meet this definition.

2. What are "contiguous" tracts of land?

  • Contiguous tracts are physically adjoining tracts of land (i.e., share a common boundary or point). The purchase of contiguous tracts of land by one owner will create one new tract of land. The purchase of non-contiguous tracts by one owner remain "separate" tracts regardless of distance between borders and if developed as realty subdivisions they will be separate realty subdivisions. Residential lots with boundaries within 0.5 miles in the same tract will be in one realty subdivision. When a public road crosses through a tract of land, the tract is still contiguous.

3. When is a lot "divided" into two or more separate lots?

  • If a lot has a public road, right of way, easement or other features running through it that restricts or prohibits access or use to other acreage on the lot, then separate lot(s) will be created.

4. Can a developer designate land or lots as "not available for residential purposes"?

  • Acreage or subdivided lots on a tract of land can be designated by the developer/owner as "not for residential purposes" or lands can be legally restricted from residential building through local zoning laws, utility easements, local right-of-ways or deed restrictions. Some examples would be: designated commercial lots, commonly owned lands (Homeowners Association), reserved parkland, utility easements, public roadways and storm water management areas. To designate land or lots as "not available for residential purposes", the designation must be clearly depicted and labeled on the plans.

5. What land is excluded from determining a lot's total size?

  • Public roadways, utility easements, deed restrictions and local right-of-ways that legally restrict the development of such property are excluded from lot size determination. Property designated by metes and bounds under water (e.g., ponds, streams, wetlands, etc.) are considered in the lot size determination.

6. What is the intent of the 5-year approval expiration in the DOH "Conditions of Approval"?

  • The intent of the 5-year limited approval is to avoid having "indefinite" Realty Subdivision plan approvals. A limited time frame gives DOH the ability to halt and/or re-evaluate further construction on remaining lots if a history of problems has been reported or witnessed during construction of the subdivision. After 5 years, if construction is not complete or all the lots are not sold, the developer/owner must apply for an approval extension. A site inspection is recommended and concerns of the municipality or other interested parties, if any, should be addressed before approving the extension. If there are no proposed changes, the extension process may be as simple as a letter to the owner and filing the letter with the approved plans through the County Clerk.

7. Can historically approved subdivisions not meeting current standards still be developed?

  • Subdivisions approved by DOH without a 5-year expiration condition may be offered for sale and developed in accordance with the approved plans for an indefinite period of time (i.e., there is no automatic expiration of the approval under PHL). However, if lot lines, site conditions or proposed construction are modified from the original approved plans, the approval should be rescinded and amended plans are required to be submitted. Also, municipalities have the authority through the building codes to require new plans be submitted to meet current building code standards. Counties should work with municipalities to ensure acceptable sanitary facilities are provided and may also modify their own sanitary code to address these situations.

8. How is the "4 lots every 3 years" scenario applied?

  • The initial period of consideration begins when the first residential lot is "offered" for sale. If a fifth residential lot is offered for sale within three years of the initial lot offering, all previously sold residential lots within that same tract are also subject to Realty Subdivision law. Once the fifth lot is sold any additional residential lots within that same tract will be subject to Realty Subdivision law, regardless of the time frame for future offerings. If a landowner never offers for sale more than 4 residential lots within a 3-year period, the lots and tract will not be subject to Realty Subdivision law. To defend against illegal Realty Subdivision formation educate and coordinate with the County Clerk's Office to alert the jurisdictional DOH office staff when owners attempt to file property plats where suspected violations of the intent of the Realty Subdivision Laws may be an issue. Training local developers and consultants may also be helpful.

9. What is required to be filed with the County Clerk?

  • PHL and ECL requires only the sections of the plans which show the methods of obtaining and furnishing an adequate water supply and sewerage facilities, to be stamped and filed. A plat plan, showing metes and bounds, stamped by a Licensed Land Surveyor (LLS) must also be filed with the water supply and sewerage plans. If the County Clerk is agreeable, a full set of plans may be filed for reference. Only plans that have been stamped (i.e., approved) by the DOH office having jurisdiction can be accepted by the County Clerk. The LHD should also keep a complete copy of the stamped plans.

10. Can community water and/or sewers be required for subdivisions of less than 50 lots?

  • Yes, if there is good reason such as: public services are available, poor groundwater quality or quantity (wells) and/or unacceptable site conditions for onsite wastewater treatment systems (OWTS).

11. Can a developer alter approved plans?

  • The owner of an approved Realty Subdivision may need or want to change the plans for reasons such as: slow sales, tax savings, changing lot sizes, etc. In such cases, the owner must re-submit new stamped plans for approval that clearly illustrate the new proposal and illustrate any existing construction already performed in the Subdivision. The new plans, when approved, shall be filed with the County Clerk and clearly marked to supersede the original plans. A new Certificate of Approval should also be issued.

12. Can "alternative" OWTS be used in Realty Subdivisions?

  • Since Part 74 requires public sewers when at least of 2-feet of useable soil above limiting conditions is not available or the soil percolation rate is slower than 60 min/inch, the use of Appendix 75-A "alternative" OWTSs are restricted. Alternative systems may be used on non-jurisdictional lots (greater than 5 acres) within an approved subdivision. A few counties have established sanitary codes, approved by DOH, that address alternative systems in realty subdivisions. For other counties and DOH district offices, a variance from Part 74, issued by the DOH Regional Office is required for use of alternative systems within a subdivision.

13. Are lots, which are "gifted" or "willed" to family members subject to the Realty Subdivision law?

  • Lots which are given as a gift or left in a will to family members are not subject to Realty Subdivision law because there was no sale or offer for sale of the lots. However, the "gift" of lots as a common scheme or plan [PHL 1115(2)] with the intent to avoid the realty subdivision law is prohibited.

14. How is the State Environmental Quality Review Act (SEQRA) applied to Realty Subdivisions?

  • 10 NYCRR Part 97 is the NYSDOH regulation implementing SEQRA (Article 8 of the ECL). Section 97.14(b)(2)(ii) requires that a realty subdivision be classified as a Type I action and requires the completion of either a full environmental assessment form (FEAF) or a draft environmental impact statement (EIS). A short form EAF cannot be used for a Type I action. Applications for Realty Subdivisions should be accompanied by a FEAF or a draft EIS. The municipality (e.g., Town Board/Planning Board) typically acts as the Lead Agency. The FEAF is a decision-making "tool" for municipalities to review all environmental consequences associated with the proposed subdivision and to identify all agencies involved with the project. The lead agency, based in part upon the FEAF, will determine if the initial plan is acceptable by issuing a negative declaration. The original proposal reviewed by the lead agency may change based upon DOH (or other agency) requirements (e.g., site conditions for OWTSs, test well(s) results, etc.). Communication with the municipality is needed to assure SEQRA requirements are met.
Contact the Local Health Department for questions concerning this FAQ or other questions concerning subdivisions; they may have established their own regulations and procedures for addressing subdivisions