When it is Proper to Impose a "Recreation Fee" as a Condition to Site Plan Approval for Residential Development
John P. Christopher, Esq.
Municipalities are often faced with “as of right” applications for site plan approval for residential developments that will cause an increased burden on existing services and facilities located within the village, city or town, as the case may be. Under the municipal statutory scheme, the State Legislature has provided municipalities with certain tools to help minimize the impact of such development on the surrounding area. One of these “tools” is a board’s ability to condition site plan approval on a developer’s donation of land for park or recreational purposes, or the payment of a fee to the municipality in lieu of such a land donation.
In conditioning a site plan approval on the donation of parkland or the payment of a fee, the municipality must satisfy the statutory requirements that provide it with the ability to impose such a condition its approval. For example, in order to condition approval on a donation of land, Town Law § 274-a(6)(b) provides that:
Land for park, playground or other recreational purposes may not
be required until the authorized board has made a finding that a
proper case exists for requiring that a park or parks be
suitably located for playgrounds or other re-creational purposes
within the town. Such findings shall include an evaluation of
the present and anticipated future needs for park and
recreational facilities in the town based on projected
population growth to which the particular site plan will
See also, Village Law § 7-725-a(6)(b); and General City Law § 27-a(6)(b). Further, in order to condition approval on the payment of a fee in lieu of a land donation, a board must find:
that a suitable park or parks of adequate size to meet the requirement cannot be properly located on such site plan . . . [Further,] the board shall assess the size and suitability of lands shown on the site plan which could be possible locations for park or recreational facilities, as well as practical factors including whether there is a need for additional facilities in the immediate neighborhood. Any monies required by the authorized board in lieu of land for park, playground or other recreational purposes, pursuant to the provisions of this section, shall be deposited into a trust fund to be used by the town exclusively for park, playground or other recreational purposes, including the acquisition of property.
Town Law § 274-a(6)(c). See also, Village Law § 7-725-a(6)(c); and General City Law § 27-a(6)(c). Accordingly, any site plan approval that is conditioned on a land donation or the payment of a fee in lieu thereof, must make the requisite statutory findings in order for the condition to withstand judicial scrutiny.
Recently, the issue of whether a recreation fee was properly imposed as a condition to site plan approval was reviewed by the Court in Matter of Pulte Homes of N.Y., LLC v Town of Carmel Planning Bd., 2011 NY Slip Op 03860 (2d Dept. May 3, 2011). In this case, Pulte Homes of New York, LLC (the “Applicant”), applied to the Planning Board of the Town of Carmel (the “Planning Board”) for site plan approval for a senior citizen housing development. Pulte Homes at 1. As a condition to site plan approval for the development, the Planning Board required that the Applicant pay a “recreation fee” to the Town. However, the Planning Board imposed the recreational fee without making any individualized findings as to why a fee was warranted for this application.
Thereafter, the Applicant challenged the imposition of the recreation fee pursuant to an Article 78 Proceeding that it commenced against the Planning Board. The Supreme Court denied the Petition and the Applicant appealed. Id. On appeal, the Appellate Division reversed the lower Court, annulled and reversed the Planning Board’s determination, and remanded the matter to the Planning Board for further proceedings.
The Appellate Court found that although the Planning Board “has the authority to impose a recreation fee as a condition to site plan approval[,] . . . [it may only do so when] certain findings are made prior to the imposition of such a fee (see Town Law § 274-a; Matter of Bayswater Realty & Capital Corp. v Planning Bd. of Town of Lewisboro, 76 NY2d 460; Matter of Dobbs Ferry Dev. Assoc. v Board of Trustees of Vil. of Dobbs Ferry, 81 AD3d 945).” Pulte Homes at 1.
Therefore, because the Planning Board failed to make “‘individualized consideration[s]’ prior to imposing the recreation fee and made no specific findings as to the recreational needs created by the petitioner’s improvements[,] . . . the Supreme Court should have determined that the contested recreation fee was invalid.” Accordingly, the Appellate Court remanded the matter back to “the Planning Board for further consideration as to whether a recreation fee is appropriate, the amount of the fee, if any, and to make the specific findings which support such a fee [citations omitted].”
Pulte Homes at 1-2.
The outcome of Pulte Homes highlights the importance of a municipal board’s preparation of written findings to support of any determination that it may make with regard to a land use or zoning application. Further, any such written findings should clearly set forth the board’s reasoning for its determination in light of any statutory criteria that may be required in order to make such a determination. Specifically, with regard to impact or recreational fees, the findings need to show the “nexus” or direct relationship between the impact of the proposed development and the fee imposed.
We will continue to provide further updates if any changes occur in this area of the law.