Posted by: Patricia Salkin | January 28, 2012

NY Trial Court Holds that Hookup Fees for Offsite Improvements may be Valid Preconditions to Approval

New York statutes confer no express authority on planning boards to require offsite improvements or fees in lieu thereof as a condition for approval. As such, New York courts have consistently invalidated offsite improvement requirements and such fees. The holding from the Middletown court (below), however, suggests that a “hookup fee” for offsite improvements to municipal systems may be a valid precondition to approval where it relates only to costs directly necessitated by the proposed project. 

In Middletown, the Enlarged City School District of Middletown applied for a permit to connect the District’s proposed new elementary school to the City’s sewer line. The City, which was obligated by an Order on Consent with DEC to rehabilitate portions of its sewer system, required, as a precondition to its consideration of the application, that the District pay to reconstruct, repair, or replace 3,300 feet of sewer pipeline extending well beyond the school property and servicing both private individuals and developments. 

Granting relief to the District in a hybrid Article 78 proceeding / declaratory judgment action, the Supreme Court concluded that although a city may impose certain conditions before granting approval of a development project, it may not require an applicant to make off-site improvements to public infrastructure. In the same breath, the court clarified that a city may, however, impose a “hookup fee” for certain costs of construction of a replacement sewer line, if one is necessitated by the proposed building (not by future growth of the city generally), but only to the extent proportionate to the applicant’s usage of that sewer line relative to its total capacity. 

 Enlarged City School Dist. of Middletown v. City of Middletown, 30 Misc.3d 1233(A) (1/26/2011) 

Thanks to Jennie Nolon, Esq. of the Land Use Law Center at Pace University School of Law for sending in this abstract.


  1. Offsite improvements or fees such as this seem analogous to offsite mitigation that is permitted under SEQRA or recreational fees commonly assessed by Planning Boards in this state. Not persuaded there’s a material difference between making off-site improvements to public infrastructure or paying a fee.

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