Posted by: Patricia Salkin | August 7, 2017

NY Appellate Court Holds Owner Had Standing to Challenge Imposition of Site Plan Recreation Fee Sue Despite Selling its Land

Plaintiff, owner of a 6.59–acre tract of real property in the Village of Westhampton Beach, submitted an application to the Village Planning Board seeking site plan approval for the construction of a 39–unit condominium development. The Planning Board adopted a resolution approving the site plan on the condition that the plaintiff pay to the Village a recreation or park fee pursuant to Village Law § 7–725–a(6) and Code of the Village of Westhampton Beach § 197–63(Q)(2). After an appraisal of the plaintiff’s property, the defendant Village of Westhampton Beach Board of Trustees adopted a resolution establishing the amount of the Park Fee to be $776,307. In 2012, the plaintiff sold the property to a nonparty. When the plaintiff brought suit, the Supreme Court granted the Village defendants’ motion to dismiss for lack of standing.

On appeal, the court determined that although the plaintiff subsequently sold the property before it paid any portion of the Park Fee, a rider to the contract of sale indicated that the sale price was reduced by the amount of the Park Fee that the purchaser was required to pay. Specifically, the rider provided that if any or all of the Park Fee was waived by the Village or “ceased to be in effect” for any reason, the purchaser would pay that amount to the plaintiff. Thus, the court found that the plaintiff demonstrated a sufficient interest in the claim at issue to establish standing.

The court next addressed plaintiff’s claim that it was entitled to judgment as a matter of law that Village Code § 197–63(Q)(2) was unconstitutionally vague. Here, the Village Code set forth that the formula for the fee “shall be the appraisal amount at the time of the application of the land area on the application as vacant land divided by the total area shown on the plan in square feet times 2,178 square feet of reserved area per dwelling times the number of dwelling units proposed on the plan.” This formula was applied by the Board of Trustees after their receipt of an appraisal for plaintiff’s former property. Accordingly, the court found that the Village defendants were entitled to a declaration that the subject code provision was not unconstitutionally vague.

Westhampton Beach Associates, LLC v Incorp. Village of Westhampton, 151 A.D.3d 793 (2 Dept. 6/7/2017)


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