Development

In affirming, the Appellate Division emphasized that project opponents had not alleged that a quorum met or consulted with counsel outside of a public meeting, or that discussions outside of a public meeting, if any, were part of an effort to thwart public scrutiny of the ZBA's process in violation of the Open Meetings Law.

COMMENT

Section 107 of the Open Meetings Law grants courts the discretion, upon good cause shown, to invalidate board determinations made in violation of the statute. When the public has an opportunity to attend meetings and be heard on the matter, courts will not void a board determination due to an open meetings law violation. For instance, in Matter of Center Sq. Assn., Inc. v City of Albany Bd. of Zoning Appeals, 19 A.D.3d 968, the Third Department refused to void the board's grant of a use variance even though the zoning board of appeals had held an unnoticed informal open meeting on the application, arguably in violation of the statute. When a neighborhood association sought to annul the variance, which permitted a developer to renovate a building into 13 apartments, the court upheld the decision because the board made its ultimate determination at a public meeting. The court noted that the informal meeting had been open to the public and did not include any deliberations or votes.

Even if the violation prevents the public from being heard on the matter, courts will not invalidate the determination when the party challenging the determination had an opportunity to be heard. For instance, in Matter of Ireland v Town of Queensbury Zoning Bd. of Appeals, 169 A.D.2d 73, the Third Department reinstated the board's initial denial of landowner's application to operate a boat launch without a use variance even though the board had denied the public an opportunity to be heard on the application. In upholding that determination, the court emphasized that landowner, the party challenging the determination, had been heard on the application. Matter of Ireland arose in a peculiar procedural posture. After the Town Attorney advised the board that the determination was a nullity because the public was denied the opportunity to be heard, the board reheard the matter and voted 5-2 to grant the application, in violation of a town law requiring a unanimous vote to reverse a prior decision.

When a homeowner and the Lake George Association challenged the grant as violative of the unanimity requirement, the court invalidated the grant, concluding that the initial determination was valid despite the open meetings violation, so that the 5-2 vote was insufficient to reverse the determination.

However, courts exercise discretion to invalidate decisions at the behest of members of the public when the open meetings violation conceals all of the board's deliberations from the public and denies the public an opportunity to be heard. For instance, in Matter of Brander v Town of Warren Town Bd., 18 Misc.3d 477, the Supreme Court of Onondaga County annulled grants of special permits made in improper executive sessions. The boards of two towns discussed the issuance of the special use permits for construction of a turbine wind farm in executive sessions, entirely outside of the public meetings.

Immediately following the executive sessions, the town boards unanimously voted to issue the special use permits. The court found that the town boards had violated the Open Meetings Law by failing to provide a proper basis for entering into the executive sessions. Because the violations deprived the public of the ability to be heard on the matter and to observe the boards' discussions concerning the special use permits, good cause had been shown to annul the determinations.

Parkland Fee Upheld
Westhampton Beach Associates, LLC v. Incorporated Village of Westhampton Beach
NYLJ 6/9/17, p. 31, col. 5
AppDiv, Second Dept.
(memorandum opinion)

In an action by former landowners seeking a declaratory judgment that the village's parkland ordinance was unconstitutionally vague, former landowners appealed from Supreme Court's determination that they lacked standing to bring the action. The Appellate Division reversed the standing determination, but declared, on the merits, that the ordinance was not unconstitutionally vague.

Former landowner had sought site-plan approval for a 39-unit condominium development. The Planning Board approved the site plan, conditioned on payment of a park fee based on the fair market value of a park area of 63,684 square feet, with the amount to be set by the village Board of Trustees. On Feb. 3, 2011, the Board of Trustees adopted a resolution setting the fee at $776,307. The following year, former landowner sold the parcel to another developer, pursuant to a sale contract with a rider that reduced the purchase price by the amount of the fee, and that provided that if for any reason the fee ceased to be in effect, the purchaser would pay the amount of the fee to its seller, former landowner. Then, in 2014, former landowner brought this action for a declaration that the ordinance governing parkland fees was unconstitutionally vague. Supreme Court dismissed former landowner's cause of action for lack of standing, and denied as academic former landowner's motion for summary judgment on its vagueness claim. Former landowner appealed.

In reversing on the standing issue, the Appellate Division concluded that former landowner's sale of the property did not deprive it of standing, because the rider to the sale contract established that former landowner had a significant interest in its claim that the park fee was unconstitutionally vague. On the merits, however, the Appellate Division rejected the claim that two sentences of the ordinance set forth conflicting methods for computing the fee. According to the court, the first sentence required payment of fair market value of the land on the site that would be required for reserved parkland, and the second sentence provided a formula for computing that fair market value. The court then concluded that the Planning Board's resolution was consistent with the ordinance, and the Board of Trustees properly set the fair market value of the areas identified by the Planning Board.

COMMENT

Courts will invalidate a parkland fee when the planning board has failed to make a finding that the projected population growth created by the subdivision has created increased present and anticipated recreational needs. For instance, in Matter of Sepco Ventures v Planning Bd. of Town of Woodbury, 230 A.D.2d 913, the Second Department annulled a parkland fee that the planning board imposed without formally finding either that the development created a recreational need requiring a park or that a suitable park could not be established on the plat.

However, if a board makes a finding of recreational need, courts invariably defer to the finding and uphold the resulting fee. For example, in Matter of Legacy at Fairways, LLC v Planning Bd. of Town of Victor, 112 A.D.3d 1289, the Fourth Department dismissed the petitions of two developers seeking to annul a parkland fee when the Board determined that funding was needed to develop on town land for recreational purposes. The court upheld the board's determination even though the Board had also found that the Town did not need more recreational land. The court held that a planning board may impose a parkland fee, so long as the board determines that the development will create a need for parks and recreational facilities. Id.

Even if the planning board has previously granted preliminary subdivision approval without any parkland requirements, courts are likely to uphold a parkland fee imposed upon final approval of a subdivision if the planning board supports the fee with a finding of recreational need. For instance, in Matter of Davies Farm, LLC v Planning Bd. of Town of Clarkstown, 54 A.D.3d 757, the Second Department denied a landowner's petition to review a parkland fee which had been imposed as a condition of final subdivision approval. The landowner challenged the parkland fee as arbitrary and capricious because the Planning Board had already granted preliminary subdivision approval without making any findings of recreational need. The court found that the landowner was aware that the board's procedure was to make a recreational need finding and recreational fee determination following the preliminary approval, and was also aware that a fee would be imposed. Thus, the planning board properly exercised its authority by imposing the fee as a condition on final approval. Id. On the other hand, courts are likely to annul a parkland fee imposed upon final approval that is unsupported by a finding of recreational need. Cf. Joseph v Planning Bd. of Town of Yorktown, 140 A.D.2d 670.

Town May Not Retain Development Fees
Matter of Harriman Estates at Aquebogue, LLC v. Town of Riverhead
NYLJ 6/15/17, p. 28, col. 3
AppDiv, Second Dept.
(memorandum opinion)

In developer's hybrid action/proceeding to review the town board's denial of its claim for an audit and refund of fees, the town appealed from Supreme Court's denial of its summary judgment motion. The Appellate Division affirmed, holding that the town is not entitled to retain fees beyond those reasonably necessary to cover costs associated with developer's abandoned subdivision project.

In 2004, developers applied to the Planning Board for approval of an 87-lot subdivision. The developers paid a $28,500 fee for preliminary plat approval. In 2006, the Planning Board approved the subdivision, but, as a condition, required developers to pay a $261,000 park and recreation fee, a $271,400 engineering review fee, and a $217,500 water/key money fee. The developers paid all of the fees, but in 2010 they abandoned the project and sold the development rights to the County of Suffolk. Developers then presented an itemized voucher to the town, together with a demand for an audit, and sought recovery of the unexpended portion of the fees. The town denied the refund, provoking the instant hybrid action and article 78 proceeding. Supreme Court denied the town's motion to dismiss, and the town appealed.

In affirming, the Appellate Division held that fees charged by a municipality in exercise of authority delegated by the legislature must be reasonably necessary to accomplish the legislative command. The town may not use fees to generate revenue or to offset the cost of other governmental functions. In this case, the town did not provide evidence to demonstrate that the fees charged were reasonably necessary to cover its costs. As a result, Supreme Court properly denied the summary judgment motion, and providently exercised its discretion in granting the developers' motion to compel the town's compliance with its interrogatories and discovery demands.

Tenant Has Standing to Challenge Ordinance's Constitutionality
Tomasulo v. Village of Freeport
NYLJ 6/30/17, p. 31, col. 5
AppDiv, Second Dept.
(memorandum opinion)

In an action for a judgment declaring sections of the Freeport Village Code unconstitutional, tenant appealed from Supreme Court's dismissal of the complaint. The Appellate Division reversed and reinstated the complaint, holding that tenant had standing to challenge the ordinance's constitutionality.

Tenant lives in a single-family home with the owner and two other unrelated individuals. The village has taken the position that the occupation violates the village code, and has commenced criminal proceedings against the owner in an effort to pressure the owner to evict him. The owner has commenced eviction proceedings. When tenant brought this action contending that the village code's definition of family is unconstitutional, Supreme Court concluded that tenant lacked standing and had not stated a cause of action for declaratory relief. Tenant appealed.

In reversing, the Appellate Division emphasized that tenant had demonstrated a threatened injury to a protected right to a tenancy in owner's house. That was enough to allege an actual rather than threatened controversy, and to confer standing on tenant.