Opinion
2011-05-3
In the Matter of PULTE HOMES OF NEW YORK, LLC, appellant, v. TOWN OF CARMEL PLANNING BOARD, et al., respondents.
William A. Shilling, Jr., P.C., Carmel, N.Y., for appellant. Costello & Folchetti, LLP, Carmel, N.Y. (Gregory L. Folchetti of counsel), for respondents.
William A. Shilling, Jr., P.C., Carmel, N.Y., for appellant. Costello & Folchetti, LLP, Carmel, N.Y. (Gregory L. Folchetti of counsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review so much of three determinations of the Planning Board for the Town of Carmel dated November 12, 2008, as, in effect, directed the petitioner to pay a recreation fee as a condition of site plan approvals for a senior citizen housing development, the petitioner appeals from a judgment of the Supreme Court, Putnam County (Nicolai, J.), dated March 15, 2010, which denied the petition and dismissed the proceeding.
ORDERED that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, so much of the determinations as, in effect, directed the petitioner to pay a recreation fee as a condition of site plan approvals for a senior citizen housing development are annulled, and the matter is remitted to the Planning Board for the Town of Carmel for further proceedings in accordance herewith.
The Planning Board for the Town of Carmel (hereinafter the Planning Board) has the authority to impose a recreation fee as a condition to site plan approval as long as certain findings are made prior to the imposition of such a fee ( see Town Law § 274–a[6]; Matter of Bayswater Realty & Capital Corp. v. Planning Bd. of Town of Lewisboro, 76 N.Y.2d 460, 560 N.Y.S.2d 623, 560 N.E.2d 1300;Matter of Dobbs Ferry Dev. Assoc. v. Board of Trustees of Vil. of Dobbs Ferry, 81 A.D.3d 945, 916 N.Y.S.2d 840). Here, however, the Planning Board made no “individualized consideration” prior to imposing the recreation fee and made no specific findings as to the recreational needs created by the petitioner's improvements ( see Dolan v. City of Tigard, 512 U.S. 374, 389, 114 S.Ct. 2309, 129 L.Ed.2d 304;Matter of Dobbs Ferry Dev. Assoc. v. Board of Trustees of Vil. of Dobbs Ferry, 81 A.D.3d 945, 916 N.Y.S.2d 840;cf. Twin Lakes Dev. Corp. v. Town of Monroe, 1 N.Y.3d 98, 769 N.Y.S.2d 445, 801 N.E.2d 821, cert. denied 541 U.S. 974, 124 S.Ct. 1883, 158 L.Ed.2d 469;Matter of Joy Bldrs., Inc. v. Town of Clarkstown, 54 A.D.3d 761, 864 N.Y.S.2d 86,cert. denied, ––– U.S. ––––, 129 S.Ct. 2010, 173 L.Ed.2d 1088). Accordingly, the Supreme Court should have determined that the contested recreation fee was invalid. The proper remedy, under such circumstances, is to remit the matter to the Planning Board for further consideration as to whether a recreation fee is appropriate, the amount of the fee, if any, and to make the specific findings which support such a fee ( see Matter of Bayswater Realty & Capital Corp. v. Planning Bd. of Town of Lewisboro, 76 N.Y.2d at 463, 560 N.Y.S.2d 623, 560 N.E.2d 1300;Matter of Dobbs Ferry Dev. Assoc. v. Board of Trustees of Vil. of Dobbs Ferry, 81 A.D.3d 945, 916 N.Y.S.2d 840;Matter of Legacy at Fairways, LLC v. McAdoo, 67 A.D.3d 1460, 888 N.Y.S.2d 450; Matter of Sepco Ventures v. Planning Bd. of Town of Woodbury, 230 A.D.2d 913, 646 N.Y.S.2d 862).