This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

ZONING AND PLANNING -- Park Lands (authority of newly incorporated village to assess park land fee upon subdivision plat already so assessed by town)

TOWN LAW, §277(1); VILLAGE LAW, §7-730(1): When a town has approved a subdivision plat and collected a park land fee from the developer, and the area then becomes part of a newly incorporated village before development of the plat is completed, the village may not impose an additional park land fee on the same plat under its subdivision regulations when the developer simply changes the configuration of a road and the location of certain lot lines, but does not increase the number of lots or the overall density.

This is in reply to your letter concerning payment by a developer of money in lieu of the set aside of park land pursuant to Village Law §7-730 under the following facts. You state that approximately twenty years ago, a town approved a subdivision plat within the town, at which time the developer paid money in lieu of park lands to the town in accordance with Town Law, §277. Subsequently, the area in which the subdivision is located was included in an area incorporated as a new village. Although many of the subdivided lots were improved by one family homes, a portion of the subdivision remained undeveloped for a variety of reasons. The developer has applied to the village to modify a portion of the filed subdivision map in order to change the configuration of a road and change lot lines of five lots. The proposed new lots, although having different lines, are the same in number as the lots on the original map.

The village's subdivision regulations provide that a resubdivision consists of a change in existing property lines or of property lines shown on an approved and filed plat. The regulations further provide that a resubdivision is subject to the same procedures, rules and regulations as are applicable to subdivisions. You inquire whether the village may require the developer to pay money in lieu of park land as a result of the request for resubdivision, notwithstanding that the developer previously paid such amounts to the town when the original subdivision was approved.

Village Law, §7-730 provides in pertinent part that a village planning board, as a condition to approval of a subdivision plat, may require "in proper cases" that a proposed plat show a park or parks suitable for recreation or, if that is not practical, the planning board may require payment of a sum to be utilized as a trust fund for neighborhood park, playground or recreation purposes. Town Law, §277(1) contains similar provisions with respect to town planning boards.

The constitutionality of a requirement for the payment of cash in lieu of an allotment of park land as a condition of subdivision approval was upheld in Jenad, Inc. v Village of Scarsdale, 18 NY2d 78, 271 NYS2d 955. Although recognizing the constitutional validity of a park land-or-fee requirement, the Court of Appeals has since declared that a planning board does not have unlimited authority to impose such a requirement. The Court has stated "... that there must be a showing of a sufficient nexus between the imposition of such a financial burden on a private party and the public benefit to be achieved therefrom ...." (Bayswater Realty and Capital Corp. v Planning Board of Town of Lewisboro, 76 NY2d 460, 470, 560 NYS2d 623, 629 [1990]; see also Kamhi v Town of Yorktown, 74 NY2d 423, 430-431, 548 NYS2d 144, 147-148 [1989]).

In connection with the question of showing a "sufficient nexus" or relationship between the financial burden and public benefit of a particular park land-fee requirement, the Court of Appeals, in at least two cases, has questioned the imposition of a double toll upon property being developed. In Riegert Apartments Corp. v Planning Board of Town of Clarkstown, 57 NY2d 206, 455 NYS2d 558, the Court held that Town Law, §274-a relating to site plan review did not authorize a town to impose a park land-or-fee requirement as a condition to site plan approval. The court stated that:

Otherwise, a town would be able to exact a toll twice from the same development: once when the developer seeks approval of the plat; the second time when individual lot owners seek approval of the building plans for their homes. There would, of course, be no real justification for a planning board to demand from the individual lot owners land or money for parks when the developer's contribution has already been received. (57 NY2d at 212, 455 NYS2d at 561)

The above language from Riegert Apartments, relating to a double toll, was quoted approvingly in Kamhi v Town of Yorktown, 74 NY2d 423, 431-432, 548 NYS2d 144, 148 [1989]. In Kamhi, however, the Court held that a town had home rule power to adopt a local law requiring park land-or-money exactions in connection with site plan approval for a multifamily condominium development. Although the Court held the particular local law invalid on procedural grounds, it distinguished the Riegert Apartments case, pointing out that no park land double toll was involved because the condominium development was not a subdivision, and, therefore, was not subject to the park land-or-fee requirement in Town Law, §277(1).

In our opinion, based on the foregoing court decisions, the village in this instance may not impose an additional park land fee as a prerequisite to "resubdivision" approval. The "resubdivision" does not increase the number of lots in the subdivision, but only changes the configuration of a road and changes certain lot lines. Since the number of lots remains the same, the revised subdivision does not generate additional village residents with the resulting incremental impact upon village recreational facilities. A key element is missing, therefore, in order to show a "sufficient nexus" between the financial burden imposed upon the developer and the public benefit, as posited in the Bayswater Realty and Kamhi cases, supra. Moreover, the proposed village park land fee would result in a double toll against the same property in contravention of the principles expressed in Riegert Apartments and Kamhi, supra.

We note that our analysis and conclusion in this instance is not affected by the intervening incorporation of the village after the town initially approved the subdivision plat and received the park land fee payment. The answer, in our view, would be the same had the village not been incorporated and town resubdivision regulations were being applied, or had the village itself had jurisdiction over the plat from the beginning. In essence, the village assumed jurisdiction of the parcel of property for purposes of compliance with subdivision regulations (see Village Law, §2-250; Ellington Construction Corp. v Zoning Board of Appeals or Incorp. Village of New Hempstead, 152 AD2d 365, 549 NYS2d 405, affd 77 NY2d 114, _____ NYS2d _____; Ramapo 287 Limited Partnership v Village of Montebello, 146 Misc 2d 497, 550 NYS2d 1021), and a double toll against the same piece of property would be unauthorized for the reasons previously stated. 

In conclusion, therefore, this Office is of the opinion that the village does not have authority to impose an additional park land fee upon the property in question.

May 6, 1991
Reuben Ortenberg, Village Attorney
Village of Pomona