Imposition of a Recreation Fee on New Construction In Lieu of Land for a Park Was Proper Pursuant to Town Law 277

The Fourth Department determined Supreme Court should not have annulled the town’s imposition of a recreation fee upon each apartment and townhouse in a subdivision plat, in lieu of land for a park, pursuant to Town Law 277:

Inasmuch as the Court of Appeals has rejected the notion that section 277 (4) is a “taxing” statute …, we must decide whether respondent’s determination that the Town needs “additional funds to develop parks and recreational facilities,” not additional land, is consistent with the legislative purpose of that statute.  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’ ” … .  In that vein, section 277 (4) (b) provides that a set-aside of land for a park or other recreational purposes may be required if the planning board has made a finding that a proper case for such land exists.  That section further provides that “[s]uch findings shall include an evaluation of the present and anticipated future needs for park and recreational facilities in the town based on projected population growth to which the particular subdivision plat will contribute” (id. [emphasis added]).  Section 277 (4) (c) provides that, in the event the planning board determines that a park may not be suitably located on the subdivision plat, “[a]ny monies required by the planning board in lieu of land for park, playground or other recreational purposes, pursuant to the provisions of this section, shall be deposited into a trust fund to be used by the town exclusively for park, playground or other recreational purposes, including the acquisition of property” (emphasis added).

Here, the court concluded that the assessment of recreation fees was unjustified because respondent found that the Town did not need more recreational land.  As noted, however, Town Law § 277 (4) provides that concern over population demand for additional recreational facilities and the unsuitability of the plat at issue may justify the assessment of recreation fees.  Furthermore, contrary to petitioners’ contention, the application of section 277 involves a town-based review, not a plat-based review.  We thus conclude that the court erred in determining that respondent acted irrationally in imposing the recreation fees at issue… . Matter of Legacy at Fairways LLC… v Planning Board of Town of Victor, 1063, 4th Dept 12-27-13