Parkland Reservation: The 'Findings' Requirement

Courts in New York take the “findings” requirement seriously. For example, in Matter of Sunken Pond Estates, Inc. v. O'Dea,11 A.D.3d 471 (2d Dept. 2004), the planning board in the Long Island town of Riverhead conditioned approval of a condominium map on the payment of $228,000 to the town for park, playground, and other recreational purposes, and the applicant challenged it in court.

The Second Department ruled that the town was not entitled to have the petition dismissed because the record was insufficient to determine whether it had made the specific findings required by the Town Law prior to conditioning approval of the condominium map on the payment of the money.

More recently, in Matter of Pulte Homes of New York, LLC v. Town of Carmel Planning Board, 84 A.D.3d 819 (2d Dept. 2011), the planning board for the town of Carmel directed an applicant to pay a recreation fee as a condition of site plan approval for a senior citizen housing development. The Second Department reversed Supreme Court's denial of the petition and annulled the planning board's imposition of the recreation fee. In its decision, it explained that the planning board had the authority to impose a recreation fee as a condition to site plan approval, but only as long as certain findings had been made prior to the imposition of the fee. It then found that the planning board had made no “individualized consideration” prior to imposing the recreation fee and had made no specific findings as to the recreational needs created by the applicant's proposed improvements.

Even the New York Court of Appeals has opined on this.

In Matter of Bayswater Realty & Capital Corp. v. Planning Board of the Town of Lewisboro, 76 N.Y.2d 460 (1990), the owner of a 227-acre parcel in the upstate town of Lewisboro sought approval from the town planning board of a proposed conventional subdivision. The planning board conditioned its approval on the owner providing for the perpetual reservation of 60.2 acres of open space and paying a “recreation fee” in accordance with the town's land development regulations. The Court of Appeals ruled that the condition imposing the recreation fee had to be annulled because the planning board had not made the findings necessary to trigger its authority to require a payment in lieu of setting aside park or recreation lands under the Town Law.

In declaring the obligation to make findings “mandatory,” the court specifically rejected the argument that the planning board's action imposing the payment requirement signified “its intent to so find,” thereby making such findings unnecessary. In remanding to the planning board, the court then explained that before a planning board may exercise its authority to impose a payment requirement in lieu of setting aside lands under the Town Law, it must first determine whether there was a “proper case” for requiring the developer to show parklands “suitably located for playground or other recreational purposes” within the boundaries of the subdivision. The court noted that this determination required an evaluation of the present and anticipated future needs for park and recreational facilities in the town based on projected population growth.

Once a planning board determined that the town needed additional park and recreation space, it had to decide whether to make the developer provide such space within the proposed development (thus reducing the number of permitted lots in the subdivision) or pay money as a substitute. This determination, the court pointed out, entailed an assessment of the size and suitability of any areas within the subdivision that could be possible locations for park and recreation facilities as well as the consideration of practical factors including whether there was a need for additional facilities in the immediate neighborhood.

The Fifth Amendment

Now, in addition to the “findings” requirement under New York statutory law, and, indeed, under New York case law (see, e.g. Kamhi v. Town of Yorktown, 74 N.Y.2d 423 (1989)), these kinds of conditions or fees are subject to analysis under the federal constitution's takings clause.

The U.S. Supreme Court has developed a standard for evaluating takings claims arising in the context of “exactions,” or land use decisions conditioning approval of development on the dedication of property to public use. Under what has become known as the Nollan-Dolan test, a reviewing court must assess whether an “essential nexus” exists between the governmental interest advanced as the justification for the restriction and the condition imposed on the property owner. Where a sufficient nexus is present, the degree of the exactions demanded must have a “rough proportionality” to the projected impact of the applicant's proposed development. The Koontz decision makes clear that “monetary exactions” must satisfy the requirements of Nollan-Dolan.

Fortunately, local governments that seek to shift the costs of providing park and recreational facilities from taxpayers to residential developers by conditioning subdivision and site plan approvals on payments in lieu of parkland should be able to steer clear of a judicial challenge.If a board evaluates the municipality's present and future needs for park and recreational facilities and then makes an affirmative finding that the new development creates a need for additional facilities, it should be able to establish a sufficient nexus for the payment.' o comply with the rough proportionality requirement, the board need only seek a payment that is commensurate with the demand that the new development will create for additional park and recreational facilities.

Conclusion

Since the requirements under New York law mandating specific findings essentially have become federalized by the U.S. Supreme Court's takings decisions, local governments that merely impose statutory park and recreation fees as a matter of course are cautioned to review their laws and their practices, because those municipalities that simply impose these fees, without making the necessary findings, may now find their decisions challenged in federal court.

Anthony S. Guardino, a partner with the law firm of Farrell Fritz, P.C., practices in the areas of land use, zoning, and environmental law. Resident in the firm's office in Hauppauge, Long Island, he can be reached at [email protected]. A version of this article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

Town Law section 277(4) and Village Law section 7-730(4) law allow local governments to require that an applicant for a residential subdivision set aside land for park and recreation purposes or pay a fee in lieu thereof to be used for park and recreation purposes, as a condition of approval. Town Law section 274-a(6) and Village Law section 7-725-a(6) authorize local governments to impose similar conditions for site plan approval. The statutes, however, specifically require that before the requirement for land or fees can be imposed, the municipality first must find that: 1) the new development creates the need for additional recreational facilities; and 2) the existing recreational facilities in the municipality are not sufficient to accommodate the additional demand.

Municipalities frequently impose these fees without making the required findings, which have led a number of courts over the years to invalidate their decisions. Moreover, because the fees are a form of an “exaction,” a local government's failure to make the required findings very well may violate the “takings” rule announced by the U.S. Supreme Court in Nollan v. California Coastal Comm'n , 483 U.S. 825 (1987) and Dolan v. City of Tigard , 512 U.S. 374 (1994), as amplified by its recent ruling in Koontz v. St. Johns River Water Management District , 133 S.Ct. 2586 (2013).

Court Decisions

Courts in New York take the “findings” requirement seriously. For example, in Matter of Sunken Pond Estates, Inc. v. O'Dea,11 A.D.3d 471 (2d Dept. 2004), the planning board in the Long Island town of Riverhead conditioned approval of a condominium map on the payment of $228,000 to the town for park, playground, and other recreational purposes, and the applicant challenged it in court.

The Second Department ruled that the town was not entitled to have the petition dismissed because the record was insufficient to determine whether it had made the specific findings required by the Town Law prior to conditioning approval of the condominium map on the payment of the money.

More recently, in Matter of Pulte Homes of New York, LLC v. Town of Carmel Planning Board , 84 A.D.3d 819 (2d Dept. 2011), the planning board for the town of Carmel directed an applicant to pay a recreation fee as a condition of site plan approval for a senior citizen housing development. The Second Department reversed Supreme Court's denial of the petition and annulled the planning board's imposition of the recreation fee. In its decision, it explained that the planning board had the authority to impose a recreation fee as a condition to site plan approval, but only as long as certain findings had been made prior to the imposition of the fee. It then found that the planning board had made no “individualized consideration” prior to imposing the recreation fee and had made no specific findings as to the recreational needs created by the applicant's proposed improvements.

Even the New York Court of Appeals has opined on this.

In Matter of Bayswater Realty & Capital Corp. v. Planning Board of the Town of Lewisboro , 76 N.Y.2d 460 (1990), the owner of a 227-acre parcel in the upstate town of Lewisboro sought approval from the town planning board of a proposed conventional subdivision. The planning board conditioned its approval on the owner providing for the perpetual reservation of 60.2 acres of open space and paying a “recreation fee” in accordance with the town's land development regulations. The Court of Appeals ruled that the condition imposing the recreation fee had to be annulled because the planning board had not made the findings necessary to trigger its authority to require a payment in lieu of setting aside park or recreation lands under the Town Law.

In declaring the obligation to make findings “mandatory,” the court specifically rejected the argument that the planning board's action imposing the payment requirement signified “its intent to so find,” thereby making such findings unnecessary. In remanding to the planning board, the court then explained that before a planning board may exercise its authority to impose a payment requirement in lieu of setting aside lands under the Town Law, it must first determine whether there was a “proper case” for requiring the developer to show parklands “suitably located for playground or other recreational purposes” within the boundaries of the subdivision. The court noted that this determination required an evaluation of the present and anticipated future needs for park and recreational facilities in the town based on projected population growth.

Once a planning board determined that the town needed additional park and recreation space, it had to decide whether to make the developer provide such space within the proposed development (thus reducing the number of permitted lots in the subdivision) or pay money as a substitute. This determination, the court pointed out, entailed an assessment of the size and suitability of any areas within the subdivision that could be possible locations for park and recreation facilities as well as the consideration of practical factors including whether there was a need for additional facilities in the immediate neighborhood.

The Fifth Amendment

Now, in addition to the “findings” requirement under New York statutory law, and, indeed, under New York case law (see, e.g. Kamhi v. Town of Yorktown , 74 N.Y.2d 423 (1989)), these kinds of conditions or fees are subject to analysis under the federal constitution's takings clause.

The U.S. Supreme Court has developed a standard for evaluating takings claims arising in the context of “exactions,” or land use decisions conditioning approval of development on the dedication of property to public use. Under what has become known as the Nollan-Dolan test, a reviewing court must assess whether an “essential nexus” exists between the governmental interest advanced as the justification for the restriction and the condition imposed on the property owner. Where a sufficient nexus is present, the degree of the exactions demanded must have a “rough proportionality” to the projected impact of the applicant's proposed development. The Koontz decision makes clear that “monetary exactions” must satisfy the requirements of Nollan-Dolan.

Fortunately, local governments that seek to shift the costs of providing park and recreational facilities from taxpayers to residential developers by conditioning subdivision and site plan approvals on payments in lieu of parkland should be able to steer clear of a judicial challenge.If a board evaluates the municipality's present and future needs for park and recreational facilities and then makes an affirmative finding that the new development creates a need for additional facilities, it should be able to establish a sufficient nexus for the payment.' o comply with the rough proportionality requirement, the board need only seek a payment that is commensurate with the demand that the new development will create for additional park and recreational facilities.

Conclusion

Since the requirements under New York law mandating specific findings essentially have become federalized by the U.S. Supreme Court's takings decisions, local governments that merely impose statutory park and recreation fees as a matter of course are cautioned to review their laws and their practices, because those municipalities that simply impose these fees, without making the necessary findings, may now find their decisions challenged in federal court.

Anthony S. Guardino, a partner with the law firm of Farrell Fritz, P.C., practices in the areas of land use, zoning, and environmental law. Resident in the firm's office in Hauppauge, Long Island, he can be reached at [email protected]. A version of this article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.