Posted by: Patricia Salkin | October 3, 2010

NY Appeals Court Finds that Fees in Lieu of Parkland Cannot be Collected for an Assisted Living Facility, and that Board Must Make Findings to Support Subdivision Fee

Petitioners, the owners of a parcel of property on which an assisted living center is located, sought to terminate the “per unit recreation fee” that had been imposed on their property. The Town Code authorized such a fee to be established by the Town board “in lieu of parkland.” The trial court granted the Petitioners’ motion for summary judgment and the appellate court reversed, holding that the Planning Board had not made the necessary findings in order to impose the per unit recreation fee and that an assisted living facility did not qualify as a “‘proper case’ for such a fee.” 

The Planning Board approved the subdivision of the petitioners’ site in 2000, pending compliance with the Town’s Construction Standards, which required that the recreation fee be paid before a permit could be issued. In 2006, the petitioners’ project plan was approved on the same condition. Therefore, the Court concluded that this issue should be remitted to the Planning Board in order to determine if “‘a proper case exist[ed] for requiring that’ the parkland be set aside or that a fee be imposed in lieu thereof.”  The Court held that if the Planning Board found that there were requisite findings for the recreation fee to be imposed upon petitioners’ property, then the fees were limited to the 2000 rate (the time at which they were imposed). 

Lastly, the Court held that the Supreme Court erred in granting the petitioner’s motion for summary judgment on the claim the recreation fees had not been placed into a trust exclusive for Town park and recreational purposes as required by Town Law. The Court maintained that the petitioners lacked standing to assert this claim and that, to do so, there must be an “administrative action will in fact have a harmful effect on the petitioner and that the interest asserted is arguably within the zone of interest to be protected by the statute.” However, the petitioners do not fall within the zone of interest as intended by the statute. 

Matter of Legacy at Fairways, LLC v. Zoning Board of Appeals of Town of Victor, 2010 WL 3282667 (N.Y.A.D. 4 Dept. 8/20/2010) 

The opinion can be accessed here

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