Posted by: Patricia Salkin | January 13, 2014

NY Appellate Court Upholds Town’s Determination to Impose Recreation Fees in Lieu of Parkland Dedication

Legacy at Fairways, LLC brought an appeal challenging the determination to impose a recreation fee of $600 per family unit upon property consisting of 144 apartments owned and developed by them, and also challenging the determination to impose a recreation fee of $1,000 per unit upon property consisting of 45 townhouse units owned and developed by them.

The lower court concluded that the assessment of recreation fees was unjustified because respondent found that the Town did not need more recreational land. However, as set forth in Town Law § 277(4), concern over population demand for additional recreational facilities and the unsuitability of the plat at issue may justify the assessment of recreation fees. The Court of Appeals has recognized that section 277(4) “ ‘represents a legislative reaction to the threatened loss of open land available for park and recreational purposes resulting from the process of development in suburban areas and the continuing demands of the growing populations in such areas for additional park and recreational facilities’” (Twin Lakes Dev. Corp., 1 NY3d at 102, quoting Matter of Bayswater Realty & Capital Corp. v. Planning Bd. of Town of Lewisboro, 76 N.Y.2d 460, 468 ). Moreover, the court found that contrary to Legacy’s contention, the application of section 277 involves a town-based review, rather than a plat-based review. The appellate court concluded that the trial court erred in determining that respondent acted irrationally in imposing the recreation fees at issue.

Legacy at Fairwinds, LLC v Planning Board of the Town of Victor, 2013 WL 6823274 (NYAD 4 Dept. 12/27/2013)

The opinion can be accessed at:

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