
    In the Matter of Carl Kamhi, Appellant, v Planning Board of the Town of Yorktown, Respondent.
    Argued June 7, 1983;
    decided July 7, 1983
    
      POINTS OF COUNSEL
    
      Stuart R. Shamberg, Robert F. Davis, Ruth E. Roth and Thomas R. Beirne for appellant.
    I. The planning board’s action constitutes a taking of petitioner’s property without due process of law and without just compensation. (Matter of Peckham Inds. v Ross, 61 Misc 2d 616, 34 AD2d 826; East Neck Estates v Luchsinger, 61 Misc 2d 619; Jenad, Inc. v Village of Scarsdale, 18 NY2d 78; Riegert Apts. Corp. v Planning Bd. of Town of Clarkstown, 57 NY2d 206; Town of Putnam Val. v Slutzky, 283 NY 334; Matter of Guardian Life Ins. Co. of Amer. v Chapman, 302 NY 226; Baldine v Gomulka, 61 AD2d 419, 45 NY2d 818; Cracco v Cox, 66 AD2d 447; Matthews v Matthews, 240 NY 28.) II. The planning board’s attempt to mandate a donation of petitioner’s property as a condition of subdivision approval is completely unauthorized by the land development regulations of the town code. (Peckham Inds. v Ross, 61 Misc 2d 616; Matter of D. M. K. Realty Corp. v Gabel, 40 Misc 2d 89; Matter of Gruner v Haefeli, 12 AD2d 838; Matter of Mahopac Isle v Agar, 39 Misc 2d 1; French Investing Co. v City of New York, 39 NY2d 587; Kaiser Aetna v United States, 444 US 164.) III. The court below erred in failing to consider the June, 1982 amendment to subdivision (a) of section 281 of the Town Law which enables the town planning board to mandate cluster development without prior application by a developer. (Carmel Assoc. v Turner Constr. Co., 35 AD2d 157; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 33 AD2d 635, 26 NY2d 493; Matter of Hart, 59 AD2d 992; McCandless v McCandless, 38 AD2d 171; De Cordova v Bennett, 32 AD2d 959.) IV. Section 281 of the Town Law must be strictly construed in favor of the property owner. (Matter of American Friends of Soc. of St. Pius v Schwab, 
      68 AD2d 646; Pacific Blvd. Assoc. v City of Long Beach, 48 AD2d 857, 38 NY2d 766; Matter of Brous v Smith, 304 NY 164; People v Trowbridge, 305 NY 471; Penoyar v Kelsey, 150 NY 77; Parker v Hoefer, 2 NY2d 612, 355 US 833; Hechter v New York Life Ins. Co., 46 NY2d 34; Matter of Pansa v Damiano, 14 NY2d 356; Merritt v Village of Portchester, 71 NY 309; Gibbs v Arras Bros., 222 NY 332.) V. The language of section 281 of the Town Law should be construed in accordance with the ordinary meaning of its words. (Paterson v University of State of N. Y., 14 NY2d 432; Matter of Malpica-Orsini, 36 NY2d 568, appeal dsmd sub nom. Orsini v Blasi, 423 US 1042; Matter of Palmer v Spaulding, 299 NY 368; Noel Assoc. v Merrill, 184 Misc 646; People ex rel. Harris v Horowitz, 138 Misc 794; Matter of Albano v Kirby, 36 NY2d 526; Waterloo Woolen Mfg. Co. v Shanahan, 128 NY 345; Republic of Honduras v Soto, 112 NY 310; People v Botazzi, 68 Misc 2d 106; Matter of Blyn v Bartlett, 50 AD2d 442, 39 NY2d 349.) VI. The interpretation of the court below of subdivision (d) of section 281 renders said statute unconstitutionally confiscatory and violative of petitioner’s due process rights. (Matter of Seitz v Drogheo, 21 NY2d 181; People v Finkelstein, 9 NY2d 342; People ex rel. Guggenheim v Mucci, 32 NY2d 307; I. L. F. Y. Co. v City Rent & Rehabilitation Admin., 11 NY2d 480; Courtesy Sandwich Shop v Port of N. Y. Auth., 12 NY2d 379, 375 US 78, 960; Matthews v Matthews, 240 NY 28; Matter of Sugden v Partridge, 174 NY 87; Judd v Board of Educ., 278 NY 200, 712; People v Windsor Madison Corp., 12 Misc 2d 446; Matter of Mount Sinai Hosp., 250 NY 103.)
    
      Arthur J. Selkin, Town Attorney, for respondent.
    L The intent and language of the enabling statutes authorize the condition being challenged. (Jenad, Inc. v Village of Scarsdale, 18 NY2d 78.) II. Case law supports the planning board’s condition. (Riegert Apts. Corp. v Planning Bd. of Town of Clarkstown, 57 NY2d 206; Holmes v Planning Bd. of Town of New Castle, 78 AD2d 1.) III. The mandatory dedication of open space has received favorable judicial approval. (Agins v Tiburon, 447 US 255.) IV. Petitioner’s confiscation and due process claims are without merit. (Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221; Matter of Levine v New York State Liq. Auth., 23 NY2d 863; Matter of 
      
      Darswan v Capellini, 69 AD2d 835; Atlantic Beach Prop. Owner’s Assn. v Town of Hempstead, 3 NY2d 434; Horizon Adirondack Corp. v State of New York, 88 Misc 2d 619; Spears v Berle, 48 NY2d 254.)
   OPINION OF THE COURT

Simons, J.

Petitioner is the owner of residential land in the Town of Yorktown which he wishes to subdivide and develop. The respondent planning board has approved his proposal but it requires as a condition of approval that he convey approximately 40% of the land to the town for park purposes. Petitioner brings this proceeding to annul that condition. Special Term granted his petition and remitted the matter to the planning board to “affix reasonable conditions to insure the preservation of the open spaces” short of an uncompensated grant. The Appellate Division reversed and dismissed the petition. The issue is whether subdivision (d) of section 281 of the Town Law grants respondent power to compel conveyance of the land for park purposes without compensation. We hold that it does not.

Petitioner’s property consists of 11.1 acres of wooded land bisected by a brook approximately 20 feet wide. In 1976 he sought planning board approval to develop the land. It was apparent that because of the brook and because part of the land near the brook is low and subject to flooding, conventional application of the residential zoning regulations was not feasible. The planning board therefore considered a cluster development pursuant to section 281 of the Town Law. After some negotiations, the parties agreed generally upon a subdivision plan for eight residences but respondent conditioned approval on petitioner’s conveyance to the town of 4.5 acres of land along the brook for development as a public park. Petitioner offered to develop the land for a park, but he was unwilling to open the land to the public or convey it to the town without compensation. He, therefore, instituted this proceeding challenging the town’s power to compel conveyance of the land.

Towns and other municipal authorities have no inherent power to enact or enforce zoning or land use regulations. They exercise such authority solely by legislative grant and in the absence of legislative delegation of power their actions are ultra vires and void (Riegert Apts. Corp. v Planning Bd. of Town of Clarkstown, 57 NY2d 206, 209; Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359, 369-370; Nemeroff Realty Corp. v Kerr, 38 AD2d 437, 441, affd 32 NY2d 873). The authorization to exercise zoning and planning powers is found in article 16 of the Town Law (§§ 261-284). The statute grants a wide variety of powers to zone the town into districts to regulate its growth and development, to establish procedures for adoption and modification of local zoning regulations, to review and enforce zoning decisions and to establish an official map (Town Law, §§ 261-270). Sections 270-284 deal principally with planning functions. Those sections authorize creation and appointment of a planning board and staff to investigate and approve planning decisions and to implement and modify, as necessary, a master plan for growth and development of the community. Sections 276, 277 and 281 deal generally with the power of the planning board to review and approve subdivision plats. Section 277 sets forth the details of subdivision development which may be required. It permits the board to require plats of undeveloped lands to show, among other things, “in proper cases and when required by the planning board, a park or parks suitably located for playground or other recreational purposes.” If the board determines that a suitable park cannot be located because the land is not of adequate size or because for other reasons a park is not practical, the board may condition approval of the plat on payment of an amount of money to a trust fund to be used by the town board for development of a neighborhood park or playground. Section 277 also authorizes the board to determine the size and location of streets and areas required for utilities and drainage and to require bonding of these improvements. Section 278 provides that after approval and filing of the subdivision plat, the streets, highways and parks shall become a part of the official map or plan of the community and the streets, highways and park lands shown thereon may be dedicated to the public when accepted by the town board unless the owner indicates on the map that no offer of dedication is intended (§278, subd 1). Subdivision 3 provides that streets shall be private unless dedicated and accepted and that the town, if necessary, may condemn land for public streets (§ 278).

Section 281 also applies to subdivision plats but it applies only to “cluster” development. The section provides that a planning board when considering residential plats may allow some deviation from the area, yard and frontage restrictions for lots found in the zoning ordinance. The board may not permit any deviation from density requirements nor may it waive or amend use restrictions. This limited relief is permitted to allow more efficient use of land containing unusual features, the development of which might otherwise be inhibited by the literal application of the area and yard requirements of existing zoning laws. Economy, flexibility and scenic beauty are all appropriate reasons for permitting cluster zoning (Town Law, §281; and see, generally, 1 Anderson, New York Zoning Law and Practice [2d ed], §§ 8.32, 15.10). Section 281 contains no provisions such as those found in sections 277 and 278 authorizing the dedication of lands for streets or utilities, for bonding improvements, or for payments into the trust fund for park or recreational purposes. Except for subdivision (d), it contains no reference to setting aside lands for park or recreational purposes.

Respondent contends, however, that the broader power to compel conveyance of park land may be implied from the language of subdivision (d) of section 281 which authorizes the planning board to establish as a condition of approval “conditions on the ownership, use, and maintenance” of lands available for park or recreation uses if the cluster development procedure results in lands available for municipal purposes. Our task in interpreting the statute is to give effect to the intent of the Legislature, construing words by giving them their natural and ordinary meaning and construing the various parts of the statute in a manner seeking to harmonize the whole and avoid rendering any part surplusage (Riegert Apts. Corp. v Planning Bd. of Town of Clarkstown, 57 NY2d 206, supra; Zaldin v Concord Hotel, 48 NY2d 107, 113; Matter of Albano v Kirby, 36 NY2d 526, 529-531). Doing so, we interpret the power to condition ownership and use contained in this statute as a delegation of power only to limit the transfer, development or subdivision of park property, not as a grant of power to compel conveyance to the town without cost to it.

This interpretation is confirmed by analyzing article 16 as a whole. The various sections were enacted at different times and originally found in different statutes. In 1932, however, the sections were amended and codified as article 16 of the Town Law (see L 1932, ch 634). The only planning sections which expressly refer to the transfer of a part of platted lands of a subdivision to the town are sections 277 and 278. They authorize the planning board to accept dedication of land for street purposes and dedication of park land to the town or payments in lieu of dedication (see Town Law, §§ 277, 278; and see Jenad, Inc. v Village of Scarsdale, 18 NY2d 78). Neither section, as the Appellate Division recognized, authorizes the town to compel uncompensated grants from the developer (see, also, 1 Anderson, New York Zoning Law and Practice, § 15.18, citing East Neck Estates v Luchsinger, 61 Misc 2d 619, 620-621). By contrast, the language of section 281 does not contain any similar words permitting dedication or requiring payments in lieu of dedication. Indeed, the most notable feature of section 281 is the absence of such language when compared to the language of similar planning statutes (cf. Town Law, § 278; General City Law, § 34; Village Law, § 7-732).

Section 281 is a statute enacted for the limited purpose of authorizing the use of a particular technique, cluster development. Such zones do not have unique problems with streets or utilities and manifestly, the Legislature intended other provisions found in article 16 to apply also to subdivisions approved for cluster development. Thus, the procedures for submission, approval and filing of plats for cluster developments are those required for subdivisions generally (see section 281, subds [e], [f]). Indeed, respondent, in approving the streets and drainage plans on petitioner’s subdivision, exercised the powers granted it by the provisions of section 277.

In short, article 16 sets forth a legislative scheme for control and approval of residential subdivisions. Sections 277 and 278 which provide for the dedication or condemnation of land do not contain language from which may be implied a legislative grant of power to compel conveyance of land for streets or park purposes without compensation and section 281 adds nothing to them in that respect. Indeed, there is less reason to imply the power to require the uncompensated transfer of land for park or recreational purposes than there is for streets because the amount of land required for parks is much greater and the need is less vital (see 4 Anderson, American Law of Zoning [2d ed], § 23.39, p 141).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Special Term reinstated.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer concur.

Order reversed, with costs, and the judgment of Supreme Court, Westchester County, reinstated. 
      
      . Subdivision (d) of section 281 of the Town Law provides: “In the event that the application of this procedure [cluster zoning] results in a plat showing lands available for park, recreation, open space, or other municipal purposes directly related to the plat, then the planning board as a condition of plat approval may establish such conditions on the ownership, use, and maintenance of such lands as it deems necessary to assure the preservation of such lands for their intended purposes.”
     
      
      . Petitioner also contends that the respondent exceeded the powers granted to it by the town board (see Nemeroff Realty Corp. v Kerr, 38 AD2d 437, affd 32 NY2d 873). In view of our decision, we need not consider the point.
     
      
      . The statute was permissive at the time of these proceedings. As a result of a 1982 amendment, however, the planning board may require cluster zoning of a subdivision (see L 1982, ch 412).
     