Posted by: Patricia Salkin | October 26, 2008

Planning Board’s Imposition of Fee in Lieu of Parkland Dedication for Cluster Subdivision Upheld

Following approval of a preliminary plat for a cluster development of 113 acres, including 40 acres of open space, the petitioners received final plat approval subject to the payment of $558,250 as a fee in lieu of dedication of parkland pursuant to New York Town Law sec. 277(4).


The appellate court upheld the fee, rejecting the petitioners’ argument that the recreational fee was arbitrary and capricious because it was made at the time of final plat approval without making any findings of recreational need. The Court found nothing in state statute that prevents a board from imposing a fee as a condition of final plat approval where it had already granted preliminary plat approval. Further, the Court noted that the petitioners were aware of the Board’s process for findings of need and determining fees since the petitioners sought a waiver of the fee after receiving their preliminary approval.


The court also found that the Board made an individualized consideration of the project’s impact on the Town’s recreational needs, and that the Board established the required “essential nexus” between the fee imposed and the Town’s recreational needs. The Court determined that the Town Board acted rationally when it assessed its needs for recreational lands using an independent report that only included the recreational facilities owned by the Town, since the Town has no control over the future use of non-Town facilities.


Lastly, the court rejected the petitioners’ argument that they were entitled to actual individualized notice of the fee increase since this fee is not an assessment or a tax which would have required such notice.


Joy Builders, Inc. v. Town of Clarkstown, 54 A.D.3d 761, 864 N.Y.S.2d 86 (2nd Dept. 9/9/2008).


The opinion can be accessed at:

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: