Planning Board’s Imposition of a Recreation Fee Found Invalid

Land Use

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), the Court was asked to determine whether it was proper for the Planning Board to impose a recreation fee as a condition to granting site plan approval to an applicant’s proposed senior citizen housing development.  The Court found that the Planning Board failed to make any “individualized considerations” prior to imposing the fee and did not make specific findings as to the recreational needs created by the proposed development.  Based on the foregoing, the Court reversed and annulled the Planning Board’s determination, and remanded the matter back to the Planning Board for further proceedings.

The facts in this case show that Pulte Homes of New York, LLC (“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.  Id.

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.  Id.

The 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[6]; 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).” 

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 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.

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