Development

Record Inadequate to Determine Whether Planning Board Made Findings Necessary to Sustain Impact Fee

Matter of Sunken Pond Estates, Inc. v. Odea

NYLJ 10/12/04, AppDiv, Second Dept

(memorandum opinion)

In an article 78 proceeding to review a planning board determination conditioning approval of a condominium map upon payment of a sum of $228,000 to the town, the town appealed from the Supreme Court's denial of its summary judgment motion and grant of the petition. The Appellate Division modified, remanding to determine whether the Planning Board made the findings necessary to sustain imposition of the fee.

The planning board required that the landowner pay the disputed fee for park, playground, and other recreational purposes as a condition for obtaining approval of its condominium map. The landowner then brought this proceeding alleging that the Town Code did not contain a clear statement of intent to amend or supersede Town Law section 274-a, and that the planning board did not make specific findings required by Town Law section 274-a(6). The Supreme Court granted the petition and the town appealed.

In modifying, the Appellate Division first rejected the Supreme Court's contention that the town code did not contain the necessary clear statement of intent to supersede Town Law section 274-a. The court noted that section 274-a has, since 1993, included an explicit authorization for town to condition approval of a site plan upon payment of money in lieu of the dedication of land for recreational purposes. As a result, the town code was not required to include a statement of intent to supersede the Town Law. The court nevertheless held that the town was not entitled to dismissal of the petition. The court concluded that the record was inadequate to determine whether the planning board had made the findings required before conditioning approval upon payment of the fee. As a result, the court remitted to the Supreme Court for a new determination.

COMMENT

Town Law section 274-a(6)c authorizes a planning board to require that a developer deposit money into a trust fund, to be used by the town, exclusively for parks or other recreational purposes. (See also Town Law ' 277(4)c and Village Law section 7-725-a(6)c which contain virtually identical provisions). In order to trigger section 274-a(6)c, the planning board must make a fact based finding that a proposed site plan requires a park, but that an adequate park cannot be located on the site. The municipality may either permit the planning board to make an individualized assessment or impose a flat fee based on the number of units developed on the site plan, which reflects the approximate costs necessary to create the required recreational space

If the planning board makes an individualized assessment then it must substantiate its determination with a finding of fact that is supported by the record. In the Matter of Sepco Ventures, Ltd. v. Planning Bd. of the Town of Woodbury, 230 A.D.2d 913, 914, the court ruled that a town acted in an arbitrary and capricious manner because it never made findings that additional recreational space was needed, and that a suitable park could not be located within the development.

Twin Lakes Development v. Town of Monroe, 1 N.Y.3d 98, establishes that a town may forgo individualized assessments and impose a flat fee instead. In Twin Lakes, the town made explicit findings regarding the costs of providing adequate parks. Id. at 105. In upholding the resulting fee, the Court of Appeals did not demand a mathematical calculation, but held rather that the town had only to demonstrate that the fees were roughly proportional to the development's effect upon the community. Id. at 104-105 (citing Dolan v. City of Tigard, 512 U.S. 374, 391). The burden then shifted to the developer to show the fees were disproportionate to the development's impact.

New York statutes do not authorize municipalities to impose other charges as a condition of development, and the courts have limited the power of planning boards to impose development conditions that would require the developer to expend money to pay for general municipal services improvements. Although a planning board cannot insist that a developer make off-site improvements, the planning board may consider off-site impacts and condition approval upon a modification of the site plan to alleviate those impacts. See Janiak v. Planning Bd. of Town of Greenville, 159 A.D2d 574 (holding that a planning board may condition approval of a site plan creating a private hunting preserve upon a limitation to the use of only shotguns, to alleviate the off-site impacts of stray rifle bullets). However, the planning board's power is tempered by the fact that site plan modifications must be reasonably designed to mitigate any demonstrable off-site effects. See Black v. Summers, 151 A.D.2d 863 (holding that a condition was improper because there was no finding of fact that the condition was reasonably designed to mitigate any demonstrable off-site impact).

Record Inadequate to Determine Whether Planning Board Made Findings Necessary to Sustain Impact Fee

Matter of Sunken Pond Estates, Inc. v. Odea

NYLJ 10/12/04, AppDiv, Second Dept

(memorandum opinion)

In an article 78 proceeding to review a planning board determination conditioning approval of a condominium map upon payment of a sum of $228,000 to the town, the town appealed from the Supreme Court's denial of its summary judgment motion and grant of the petition. The Appellate Division modified, remanding to determine whether the Planning Board made the findings necessary to sustain imposition of the fee.

The planning board required that the landowner pay the disputed fee for park, playground, and other recreational purposes as a condition for obtaining approval of its condominium map. The landowner then brought this proceeding alleging that the Town Code did not contain a clear statement of intent to amend or supersede Town Law section 274-a, and that the planning board did not make specific findings required by Town Law section 274-a(6). The Supreme Court granted the petition and the town appealed.

In modifying, the Appellate Division first rejected the Supreme Court's contention that the town code did not contain the necessary clear statement of intent to supersede Town Law section 274-a. The court noted that section 274-a has, since 1993, included an explicit authorization for town to condition approval of a site plan upon payment of money in lieu of the dedication of land for recreational purposes. As a result, the town code was not required to include a statement of intent to supersede the Town Law. The court nevertheless held that the town was not entitled to dismissal of the petition. The court concluded that the record was inadequate to determine whether the planning board had made the findings required before conditioning approval upon payment of the fee. As a result, the court remitted to the Supreme Court for a new determination.

COMMENT

Town Law section 274-a(6)c authorizes a planning board to require that a developer deposit money into a trust fund, to be used by the town, exclusively for parks or other recreational purposes. (See also Town Law ' 277(4)c and Village Law section 7-725-a(6)c which contain virtually identical provisions). In order to trigger section 274-a(6)c, the planning board must make a fact based finding that a proposed site plan requires a park, but that an adequate park cannot be located on the site. The municipality may either permit the planning board to make an individualized assessment or impose a flat fee based on the number of units developed on the site plan, which reflects the approximate costs necessary to create the required recreational space

If the planning board makes an individualized assessment then it must substantiate its determination with a finding of fact that is supported by the record. In the Matter of Sepco Ventures, Ltd. v. Planning Bd. of the Town of Woodbury, 230 A.D.2d 913, 914, the court ruled that a town acted in an arbitrary and capricious manner because it never made findings that additional recreational space was needed, and that a suitable park could not be located within the development.

Twin Lakes Development v. Town of Monroe, 1 N.Y.3d 98, establishes that a town may forgo individualized assessments and impose a flat fee instead. In Twin Lakes, the town made explicit findings regarding the costs of providing adequate parks. Id. at 105. In upholding the resulting fee, the Court of Appeals did not demand a mathematical calculation, but held rather that the town had only to demonstrate that the fees were roughly proportional to the development's effect upon the community. Id. at 104-105 (citing Dolan v. City of Tigard, 512 U.S. 374, 391). The burden then shifted to the developer to show the fees were disproportionate to the development's impact.

New York statutes do not authorize municipalities to impose other charges as a condition of development, and the courts have limited the power of planning boards to impose development conditions that would require the developer to expend money to pay for general municipal services improvements. Although a planning board cannot insist that a developer make off-site improvements, the planning board may consider off-site impacts and condition approval upon a modification of the site plan to alleviate those impacts. See Janiak v. Planning Bd. of Town of Greenville, 159 A.D2d 574 (holding that a planning board may condition approval of a site plan creating a private hunting preserve upon a limitation to the use of only shotguns, to alleviate the off-site impacts of stray rifle bullets). However, the planning board's power is tempered by the fact that site plan modifications must be reasonably designed to mitigate any demonstrable off-site effects. See Black v. Summers, 151 A.D.2d 863 (holding that a condition was improper because there was no finding of fact that the condition was reasonably designed to mitigate any demonstrable off-site impact).