The Petitioners-Plaintiffs, Legacy at Fairways, LLC; US Homes Co., Inc.; Mark IV Construction [*2]Co., Inc.; and Christopher A. DiMarzo, submit this Petition-motion seeking an order and judgment pursuant to CPLR §7806 annulling certain actions and determinations of Respondents-Defendants, Sean McAdoo; Allan Benedict; The Zoning Board of Appeals; and The Town of Victor, in assessing and enforcing a "recreation fee" against Petitioners-Plaintiffs, as more particularly set forth in the complaint and petition, on the grounds that those actions and determinations were arbitrary and capricious, without rational basis, made in violation of lawful procedure and affected by errors of law; declaring that the Respondents-Defendants are without authority to assess any recreation fees in connection with the development known as "Legacy at the Fairways"; and directing the return to Petitioner-Plaintiffs of such fees as they were paid under protest, with interest.

The Respondents-Defendants submit a motion for an order pursuant to CPLR §7804[f] and CPLR §3211[a][7] dismissing the Petition-Complaint in its entirety, or in the alternative, remanding this proceeding to the Planning Board for the Town of Victor for further proceedings.

The relief sought in the Petition cannot be addressed until the objections in point of law raised by the Respondents are determined. Pursuant to this decision, the Respondents objections in point of law seeking dismissal of the Petition pursuant to CPLR §7804[f] are DENIED. In accordance with CPLR §7804[f] the Court permits Respondents to answer the Petition within twenty (20) days of service of the order with notice of entry. At a conference in chambers on July 9, 2008 at 10:00 a.m. the Hearing date of the Petition shall be set by the Court.

The Defendants motion to dismiss the Complaint based upon §3211[a][7] for failure to state a cause of action is DENIED.

The alternative relief requested by Respondents-Defendants for an order remanding this proceeding and action to the Planning Board for the Town of Victor, a non-party, for further proceedings is DENIED.

I.FACTS

The Petitioners-Plaintiffs commenced this hybrid action as a complaint and as an Article 78 petition. The complaint and petition seek a judgment vacating determinations of Respondents-Defendants; a declaration that Respondents-Defendants may not charge any "recreation fees" in connection with the project at issue or any associated land development project, or that such fees, if assessable, are limited to $1,000 per lot; and directing Respondents-Defendants to refund to Petitioners-Plaintiffs all "recreation fees" paid under protest, with interest.

At oral argument counsel for the Petitioners-Plaintiffs withdrew all issues related to the stop work order issued by the Town of Victor and all issues related to the issuance of appearance tickets. The Court has been advised that these matters were resolved.

This proceeding concerns a parcel of land located in the Town of Victor, owned and being developed by the Petitioners-Plaintiffs. The parcel is known as Legacy at the Fairways. In the [*3]normal course of developing a parcel of property, there were a number of applications to the Town for approvals. Here is a time line of the applications, approvals and events involving the Legacy development.

Time Line

March 13, 2000 - Victor Town Board rezoned a portion of the property to permit a development named Legacy at the Fairways. The development was comprised of three residential buildings with a total of 144 units and a fourth core building. The rezoning was subject to conditions, including "Planning Board site plan review."

August 22, 2000 - The Town of Victor Planning Board granted a "minor" subdivision application to separate a single 10 acre lot from a larger parcel of property ("minor" is less complex projects requiring one step process for approval). Conditions were imposed. The relevant conditions to the issues herein, are "That the minor subdivision comply with Town of Victor Design and Construction Standards for Land Development, including Section 5" and "That this conditional approval shall expire in 180 days." Further it was resolved "that the Planning Board Secretary distribute the appropriate standard conditions with the Planning Board's approval letter."

February 26, 2006 - Planning Board referred a variance application to the Zoning Board of Appeals.

May 23, 2006 - Planning Board referred the site plan application to the Zoning Board of Appeals for area variances requested.

June 19, 2006 - Zoning Board of Appeals granted the area variances requested.

June 27, 2006 - Planning Board approved the Site Plan entitled Legacy @ The Fairways, with stated conditions, including "that a trail connection to The Fairways project be provided"; "that the site plan comply with Town of Victor Design and Construction Standards for Land Development, including Section 5." Further it was resolved "that the Planning board Secretary distribute the appropriate standard conditions with the Planning Board's approval letter."

November 14, 2006 - Planning Board approved the site plan entitled The Fairways Fill Permit, upon the same standard conditions to comply with Standards.

November 30, 2006 - Town of Victor Application for Building Permit submitted for foundation on North Wing only.

December 19, 2006 -Planning Board approved the preliminary subdivision application, Major Subdivision entitled The Fairways, with stated conditions "that Section 5.2 and 5.2 Standard Approval Conditions for all subdivisions major/minor applying for construction standard and conditions that are on going standard conditions must be adhered to" and "that the [*4]major subdivision comply with Town of Victor Design and Construction Standards for Land Developments, including Section 5." And the standard resolution of appropriate standard conditions in the approval letter.

December 20, 2006 - Town of Victor letter of Code Enforcement Officer authorizing the installation of the footer and foundation for this building.

April 26, 2007 - Applications for Building Permit for Commercial Uses submitted to Town of Victor Building Department. The requests were for building the North Wing, East Wing, South Wing of the development and the Building Core.

May 8, 2007 - Planning Board informal discussion for an application for a final subdivision approval of "The Fairways Subdivision."

May 17, 2007 - E-mail from Sean McAdoo, Town of Victor Building Inspector advising of fee calculations pertaining to the Legacy project. States that there is a recreation fee of $1,000 per family unit. Fees include Recreation Fee for North Building of $42,000 and East Building of $54,000.

June 12, 2007 - Stop Work Orders issued by Sean McAdoo, Senior Building Inspector, to stop all aspects of work at Legacy Project and Legacy and the Fairways. One Stop Work Order was for dust control measures and the other for work without a building permit.

June 13, 2007 - Stop Work Order based on working without a building permit handed out to workers at the project site.

June 13, 2007 - Letter of Sean McAdoo, Senior Building Inspector stating the entire building permit fees, including the recreation fees of $1,000 per family unit are due before the permit may be issued.

June 14, 2007 - Alan J. Benedict, Town of Victor Code Enforcement Officer, issued appearance tickets to Mark IV Enterprises, Chris DiMarzo, and Sam Benigni for commencement of earthwork without a building permit. Appearance schedule for Town of Victor Court on June 21, 2007.

June 15, 2007 - Letters of Steven DiMarzo indicating the dust control measures were and are in place; and that on June 13, 2007 attempted to pay the building permit fees which were rejected by the Town of Victor offices.

June 20, 2007 - Petitioners- Plaintiffs sent a letter paying $42,000 under protest for the recreation fee for the North Building.

June 28, 2007 - Petitioners paid $54,000 under protest to the Building Department for the [*5]East Building.

July 20, 2007 - Letter from Victor Town Court adjourning the appearance date to August 21, 2007.

July 26, 2007 - Petitioners paid $53,000 under protest to the Building Department for the South Building.

August 13, 2007 - Counsel for Petitioners- Plaintiffs appealed to the Zoning Board of Appeals from the determinations of the Code Enforcement Officer, Sean McAdoo and Allan J. Benedict's appearance ticket.

August 21, 2007 - Letter from counsel for the Town of Victor requesting that the charges filed be withdrawn without prejudice.

September 11, 2007 - Letter for Counsel for the Town of Victor Zoning Board of Appeals indicating that the appeals submitted will not be scheduled for a hearing because the appeals are "outside the jurisdiction of the Zoning Board of Appeals."

October 8, 2007 - Letter of Counsel for the Town of Victor advising that the Town Planning Board will hold a new hearing on the issue of fees in lieu of parkland and the scheduled hearing date.

October 11, 2007 - Petitioner-Plaintiffs commenced this action/petition.

II.PROCEDURAL ISSUES

This proceeding is a hybrid action in the form of a Complaint and Petition.

The "Notice of Petition Pursuant to CPLR Article 78" seeking an order and judgment pursuant to CPLR §7806 annulling certain actions and determinations of Respondents is pending before this Court. A special proceeding under Article 78 has an expedited procedure whereby a hearing would be set on the Petition. However, the Respondents, rather than answering the Petition, have invoked their statutory right to raise objections in point of law by a motion to dismiss the petition (CPLR §7804[f]). Thus, this motion to dismiss must be determined.

The claims set forth in the Complaint are also pending. The complaint has not yet been answered. Instead, the Defendants have brought a motion pursuant to CPLR §3211[a][7] to dismiss the Complaint in its entirety for failure to state a cause of action.

The Respondents-Defendants also seek relief, in the alternative, to remand this proceeding to the [*6]Planning Board for the Town of Victor for further proceedings.

Though the arguments and issues in the Complaint and the motion to dismiss the Complaint, and the Petition and the objections in point of law to dismiss the Petition, are similar, if not identical, this Court is compelled to treat the matters separately.

III.COMPLAINT - MOTION TO DISMISS

The Defendants seek to dismiss the Plaintiffs' complaint on the ground that the pleading fails to state a cause of action (see CPLR §3211[a][7]). The Plaintiffs' Complaint alleges claims seeking a declaratory judgment that declares that Defendants may not charge any "recreation fees" in connection with the Legacy project or any associated land development project, or that such fees, if assessable, are limited to $1,000.00 per lot; and seeking an order directing Defendants to refund to Plaintiffs all "recreation fees" paid under protest, with interest.

A.Action Ripe for Determination

The Defendants assert that Plaintiffs' declaratory judgment action challenging the authority of the Town of Victor to assess recreation fees related to development in the Town is not ripe for determination because it is challenging a non-final determination. Defendants argue that the matter of recreation fees for the Legacy project is still open and subject to review by the Planning Board. This argument is based on an October 8, 2007 letter to the Petitioners-Plaintiffs which purported to scheduling a hearing on recreation fees. However, as of October 2007 the building permits had been issued. This necessarily meant that the required approvals of all subdivision plans and site plans were complete.^[FN1] The Plaintiffs did not attend this " recreation fees" hearing of the Planning Board scheduled after the site plan was approved on the Legacy project and the building permits were issued.

The Defendants argument that the Planning Board proceedings on the Legacy project remain open and, thus Plaintiffs challenge is to a non-final determination, is not supported by the facts or the law. There is no other approval presented requiring reservation of parkland or imposition of a fee in lieu of parkland. The facts show that the Legacy subdivision plat was approved by the Town of Victor Planning Board in 2000 with conditions. This conditional approval of the subdivision plat in 2000 did not require the reservation of any parkland. The Legacy subdivision site plan was approved by the Planning Board in June 2006, with stated conditions for a "trail connection". There were no other determinations requiring reservation of any parkland or land for recreational purposes; and no determination imposing a "recreation fee in lieu of parkland." The Planning Board determinations were final. [*7]

Notwithstanding the Planning Board's determinations, the Town, through its Building Department and building inspectors, required Plaintiffs to pay a "recreation fee" in order to obtain building permits for the Legacy project. After this "recreation fee" was paid by Plaintiffs, building permits were issued for the Legacy project.

Law

Under Town Law parkland or land suitable for recreational purposes may be required by the Town Planning Board at the time of approval of a subdivision plat or approval of a site plan of a development (Town Law §§274-a[6] and 277[4]).

Under Town Law §274-a the Town Board or Planning Board was authorized to approve the Legacy site plan without the reservation of parkland. Town Law specifically states for site plans containing residential units

[b]efore such authorized board may approve a site plan containing residential units, such site plan shall also show, when required by such board, a park or parks suitably located for playground or other recreational purposes. (Emphasis added)

(Town Law §274-a[6]). The Planning Board of the Town of Victor was the board considering approval of the site plan for the Legacy project.

Under Town Law §277 the Planning Board was authorized to approve the Legacy subdivision plat without the reservation of parkland. Town Law specifically states

[b]efore the planning board may approve a subdivision plat containing residential units, such subdivision plat shall also show, when required by such board, a park or parks suitably located for playground or other recreational purposes. (Emphasis added)

(Town Law §277[4][a]).

Under Town Law the Planning Board of the Town of Victor had the right, before the planning board approved the site plan or the subdivision plat, to require a park or parks suitably located for playground or other recreational purposes on the subdivision plat or site plan proposed by the Plaintiffs. In order for the planning board to require such land for park, playground or other recreational purposes, the board must make a finding that a proper case exists for such requirement (Town Law §§274-a[6] and 277[4][b]). Throughout the time of the development of the Legacy project, from the 2000 approval of the subdivision to the 2007 issuance of the building permits, the Victor Planning Board did not require parkland to be located on any of the plats or plans submitted for approvals. The site plan in 2006 only required a "trail connection". There was no requirement for parkland to be shown on the subdivision plats or the [*8]site plan, and there were no findings for reservation of parkland on the Legacy project as required by the statute.(see Town Law §§274-a[6][c] and 277[a][c] discussed later)

Recreation Fee

In May 2007 the Legacy project reached the point of requesting building permits. The Building Department of the Town, through its building inspectors, refused to issue building permits until "recreation fees" of $1,000 per residential unit were paid by the Plaintiffs. The Plaintiffs paid these fees under protest and the Town issued the necessary building permits. At this time all necessary approvals existed and the building permits on the Legacy project were issued.

Subsequently the Town of Victor attorney advised Petitioners that the Planning Board had scheduled a hearing to address the issue of the recreation fees imposed by the Town on the Legacy project. The authority to impose "recreation fees" on a development is created by Town Law. Defendants argue that the issue of recreation fees is outstanding due to the Town's notice of a hearing before the Planning Board; and thus, because the Town Attorney notified Plaintiffs of a new hearing on the recreation fees for the Legacy project, there is no final determination.

The law, however, does not support this reasoning and conclusion. Town Law authorizes a "recreation fee" only after there are findings that the Legacy project subdivision plat or site plan present a proper case for requiring parkland (Town Law §§274-a[6] and 277[4]). Without a finding by the board that the proposed Legacy subdivision plat or site plan present a proper case for requiring parkland, a recreation fee in lieu of parkland cannot be imposed (Town Law §§274-a[6] and 277[4][c]).

In the event the planning board makes a finding pursuant to paragraph (b) of this subdivision that the proposed subdivision plat presents a proper case for requiring a park or parks suitably located for playgrounds or other recreational purposes, but that a suitable park or parks of adequate size to meet the requirement cannot be properly located on such subdivision plat, the planning board may require a sum of money in lieu thereof, in an amount to be established by the town board.

(Town Law §277[4][c]; 274-a[6][c] [virtually same language for site plans]). In addition, there are specific factors the planning board must consider in making a determination on suitability for parkland on the proposed subdivision plat (see Town Law §§274-a[6][c] and 277[a][c]). In these and other sections of the Town Law, the statute is very specific as to the steps necessary for the planning board to require, at the time of the subdivision plat approval or site plan approval, the establishment of a reservation of parkland or to impose a recreation fee in lieu of parkland.

Here the Town of Victor Planning Board, before approval of the plat and before approval of the site plan, never required any parkland to be located on the Legacy project as allowed under [*9]Town Law §§274-a[6] and 277[4].^[FN2] Therefore there was no basis to assess a recreation fee in lieu of parkland (Id.). The planning board did not require parkland on the subdivision plat nor on the site plan; thus, the planning board cannot assess a recreation fee in lieu of parkland.

After the Plaintiffs' payment, under protest, of the recreation fees required by the Town of Victor in order to obtain the building permits for the Legacy project, the Town of Victor then unilaterally attempted to re-open the Planning Boards approvals of the subdivision plat and the site plan to make findings regarding the payment of "recreation fees" . By letter of October 8, 2007 Counsel to the Town of Victor advised the Plaintiffs the following:

[i]n order to address your protest directly, the Town Planning Board will hold a new hearing on the issue of fees in lieu [sic] parkland. Further, the Town Board will be bound by the determination of the Planning Board. This hearing is presently scheduled to be heard on November 13, 2007 . . .

Defendants assert that the Planning Board advised Plaintiffs of the scheduled hearing with respect to findings for recreation fees on the Legacy project and that Plaintiffs refused to attend or participate in the hearing. The Defendants conclude that the Planning Board proceedings now remain open, have not been concluded, and that Plaintiffs have to proceed through the process of having the Planning Board make findings regarding imposition of a recreation fee.

Under Town Law §§ 274-a and 277 the Legacy project was given initial subdivision plat approval in 2000 without any requirement by the Planning Board for parkland; its site plan was approved in June 2006 without any findings requiring parkland; and the building permits were issued indicating final approval of the development in June 2007. The Town of Victor cannot unilaterally reopen this determination of the Planning Board; nor can the Planning Board itself reopen a matter that has been finally determined. The Town and the Plaintiffs proceeded with the Legacy project based upon the applications and approvals of the Town.^[FN3] In accordance with Town Law, there was no requirement for reservation of parkland by the Planning Board. Thus there can be no assessment of recreation fees.

The approvals were final determinations by the Planning Board. The Defendants argument that the issue of recreation fees is still open subject to review before the Planning Board for the Town [*10]of Victor has no merit. The issues presented by the Plaintiffs for a declaratory judgment are a justiciable controversy. There is no basis to dismiss the Plaintiff's Complaint for a declaratory judgment on the grounds that the complaint fails to state a cause of action due to the challenge not being ripe. The matter of recreation fees on the Legacy project is not still open and pending before the Planning Board.

The Defendants motion to dismiss based upon there not being a final determination is DENIED.

B.States a Cause of Action

The Defendants assert that even if a justiciable controversy is presented, the action still must be dismissed because the claims of the Plaintiffs fail to state a cause of action. Defendants argue that Plaintiffs challenge to the Town's authority to impose recreation fees lacks merit. The Town relies upon Town Law §§274-a and 277 for the explicit grant of authority to impose the recreation fees.

The Defendants interpret the relief requested by the Plaintiffs as a broad challenge to their authority to assess recreation fees related to development. However, the actual relief Plaintiff seeks in the Complaint is that Defendants may not charge any "recreation fees" in connection with the Legacy project or any associated land development project. The relief requested by Plaintiffs is specifically related to the applications, approvals and permits issued by the Defendants on the Legacy project. The Plaintiffs seek relief from the manner in which the Town of Victor assessed recreation fees on this particular development project.

As noted above, the Town of Victor is bound by the explicit provisions and requirements of the Town Law to impose recreation fees. The Town Law provides authority for a Town, through the proper procedures and Board approvals, to require parkland and to impose recreation fees in lieu of parkland. However, the statutory provisions are drafted so as to require specific findings to protect the developers and the Towns. Only after such findings are made, can a Town impose recreation fees. The statute does not provide general authority for the Town to otherwise impose recreation fees.

The Plaintiffs have stated claims. The Defendants motion to dismiss the Complaint for failure to state a cause of action is DENIED.

C.No Remand to Planning Board

In the alternative, Defendants seek to have the proceeding remanded to the Planning Board for the Town of Victor for further proceedings.

Defendants rely upon various cases to claim that the issues presented by Plaintiffs must be remanded to the Planning Board for findings under the Town Law regarding the reservation of [*11]parkland on subdivision plats or on site plans. However, these cases involve actions challenging the Planning Board's determinations to require parkland be reserved or the assessment of a recreation fee in lieu of parkland. When a planning board requires parkland be reserved or imposes a fee but has failed to make findings required by Town Law §§274-a or 277, the Courts have remanded for further proceedings before the Planning Board (Matter of Bayswater Realty & Capital Corp. v Planning Board of the Town of Lewisboro, 76 NY2d 460 [1990]; Matter of Sunken Pond Estates, Inc. v O'Dea, Town of Riverhead Planning Board, 11 AD3d 471 [2d Dept. 2004]; Matter of Graham v Town of Tully, 237 AD2d 923 [4th Dept. 1997]; Matter of Sepco Ventures, Ltd. v Planning Board of the Town of Woodbury, 230 AD2d 913 [2d Dept. 1996]).

Unlike the cited cases, this is an action against the Town of Victor and the Building Inspectors for the Town challenging the imposition of payment of a recreation fee by the Town of Victor and its Building Department before a building permit is obtained. Plaintiffs claim these acts of the Defendants have no basis in law. Plaintiffs do not challenge or object to any actions of the Planning Board and this proceeding is not against the Planning Board. Plaintiffs challenge the actions of the Town and its building inspectors to impose recreation fees to obtain building permits. The imposition of the recreation fees in this case is a final determination by the Town and its Building Department.

This declaratory judgment action challenges the actions of the Town of Victor and the Building Department imposing a recreation fee for building permits on the Legacy project. The Planning Board made its final determinations that did not include requiring the reservation of parkland or assessment of a recreation fees for the Legacy project. There is no challenge to the actions of the Planning Board. Under the procedural posture of this case, there is no basis to remand the allegations of the Plaintiffs to the Planning Board of the Town of Victor.

D.Conclusion - Motion to Dismiss

The motion of the Defendants to dismiss the Plaintiffs complaint pursuant to CPLR §3211 [a][7] is DENIED. The alternative relief that the matters set forth in the Plaintiffs' Complaint be remanded to the Town of Victor Planning Board, a non party, is DENIED.

IV.PETITION - OBJECTIONS IN POINT OF LAW

The Respondents raise objections in point of law pursuant to CPLR §7804[f] seeking to dismiss the allegations in the Petition related to the Article 78 claims. In accordance with Article 78, the issues raised in the Notice of Petition and Petition cannot be addressed and determined until after the objections in point of law seeking to dismiss the Petition are decided (CPLR §7804[f]).

The Petitioners demand judgment pursuant to Article 78 vacating the determinations of Sean McAdoo, Allan J. Benedict, the Zoning Board of Appeals of the Town of Victor, and the Town of Victor concerning the imposition of recreation fees on a "per unit" basis as a condition for [*12]granting the building permits to Petitioners.^[FN4]

Petitioners challenge the Building Department of the Town of Victor's, and the named individuals', authority to assess recreation fees on the Legacy development project outside the procedures authorized by Town Law §§274-a and 277. The Petitioners assert that the determinations of Respondents are arbitrary and capricious, lack a rational basis, were made without jurisdiction and are contrary to law.

The Respondents objections in point of law are that the calculation of the recreation fee on a "per unit" basis was not irrational because Victor Town Code §27-4(J) requires the $1,000 recreation fee on a "per family unit" basis. Respondents also assert that all other allegations in the Petition must be dismissed because they are challenges to non-final determinations. Respondents state that the Planning Board for the Town of Victor advised Petitioners that they could be heard with respect to the findings necessary for a recreation fee to be assessed and Petitioners have refused to participate in the hearing. Respondents argue that the proceedings remain open, have not been concluded, and that Petitioners have to proceed through the process of having the Planning Board make findings regarding the recreation fee.

A.Recreation Fee

The Petitioners were required by the Town of Victor Building Department to pay a recreation fee in order to obtain building permits. Sean McAdoo, Senior Building Inspector for the Town of Victor, states that he informed the Petitioners that a recreation fee of $1,000 per unit was required before obtaining a building permit. He states this determination was based on Victor Town Code §27-4(J) [Note-§27-4 is Definitions and does not include any reference to recreation fees].

The Town of Victor Code in Chapter 27, Section 27-8, addresses fees. Article I sets forth provisions for "Reimbursement of Fees" and Article II sets forth "Fees Schedule." The provisions relevant to the issues presented are as follows:

Chapter 27: FEES . . .

Article II Fees Schedule

§27-8. Fees enumerated. Fees for the Town of Victor shall be as follows: . . .

J. Chapter 116, Fire Prevention, Building Construction and Public Safety. As provided for in Chapter 116, Fire Prevention, Building Construction and Public Safety, the following fees shall apply. Review and permit fees are based on the occupancy or use of the structure and type of work to be performed as described in the New York State Uniform Fire Prevention and Building Code and number of units or the gross square feel of floor area and all usable interior [*13]and exterior floor areas. A final certificate of occupancy or a certificate of compliance are included in all permit fees.

[Chart of Fees]

One and Two-Family Dwellings . . .

Recreation fee. For new constructionper unit$1,000

in a subdivision when required

[Amended 6-10-2002 by L.L. No. 3-2002]

Multiple Dwelling . . .

Recreation fee (new apartment only)per family unit$1,000

[Amended 6-10-2002 by L.L. No. 3-2002]

This is the Code section submitted by the Respondents in support of their position to require Petitioners to pay a recreation fee of $1,000 "per family unit" in order to obtain building permits.

The authority of a Town to impose fees related to zoning is derived from legislative grant.

Towns and other municipal authorities have no inherent power to enact or enforce zoning or land use regulations. They exercise such authority solely by legislative grant and in the absence of legislative delegation or power their actions are ultra vires and void [citations omitted].

(Kamhi v Planning Board of the Town of Yorktown, 59 NY2d 385 [1983]; Riegert Apartments Corp. v Planning Board of the Town of Clarkstown, 57 NY2d 206 [1982]). Article 16 of the Town Law provides the authorization for Towns to exercise zoning and planning powers, and grants a wide variety of powers (Town Law §§ 261-284). As previously discussed, Town Law authorizes at the time of subdivision plat approval or site plan approval that the developer be required to reserve parkland or suffer the imposition of a recreation fee in lieu of parkland (see Town Law §§274-a[6] and 277[4]).

The Planning Board or entity approving the applications may require parkland to be shown on the subdivision plat or site plan, but does not mandate parkland be reserved in the development (Id.; Riegert at 210). There was no requirement by the Town of Victor Planning Board for Petitioners to reserve parkland for the Legacy project on the subdivision plat approval and there must first be such a requirement in order for the Planning Board to determine that there should be a recreation fee in lieu of parkland. If the planning board determines that parkland is required but there is not a proper location on the subdivision plat, then "the planning board may require a sum of money in lieu thereof, in an amount to be established by the town board" (Town Law §277[4][c]). The Planning Board of the Town of Victor made no determinations pursuant to Town Law §277[4] requiring parkland be reserved and no determinations for a recreation fee in lieu of parkland. [*14]

At the time of site plan approval of the Legacy project, the Planning Board approved the site plan with the condition, among others, that a "trail connection" to The Fairways project be provided. The Petitioners are not challenging this condition by the Planning Board. There were no other conditions, findings or determinations by the Planning Board for site plan approval regarding reservation of parkland or the imposition of recreation fees in lieu of parkland for the Legacy project. (Town Law §274-a[6]; Bayswater Realty & Capital Corp. v Planning Board of the Town of Lewisboro, 76 NY2d 460 [1990]). The Town of Victor Planning Board did not impose on the Legacy project subdivision plat or site plan a recreation fee in lieu of parkland.^[FN5]

There is no basis under Town Law §274-a[6] or §277[4] for the Respondents to impose a "money in lieu of parkland" fee upon the Petitioners before building permits can be issued. There is no other statutory basis presented to support the Town of Victor imposing a "recreation fee" upon Petitioners prior to obtaining a building permit. Town Law §§274-a[6] and 277[4][c] indicate that the "money in lieu of parkland" amount is to be established by the Town Board, however, this amount only pertains to instances when the Planning Board has made the necessary finding to impose "money in lieu of parkland" as authorized by Town Law. There is no statutory authority presented for a Town to impose a recreation fee on development through its Town Code. In fact the Town Code language for a recreation fee states "For new construction in a subdivision when required." The Town of Victor Code cannot independently require a "recreation fee" to be paid by Petitioners under the guise of Town Law §277 or §274-a, when the Planning Board has not imposed a recreation fee in lieu of parkland pursuant to statute.

The Town of Victor Planning Board is not named as a Respondent or Defendant in this action/proceeding. The Petitioners do not challenge any actions of the Town of Victor Planning Board. The evidence presented shows that the Planning Board performed its authorized duties concerning the subdivision plat and the site plan for the Legacy project. The Planning Board made its final determination and did not require parkland or a fee in lieu of parkland.

Subsequently the Town of Victor, through its Building Department and building inspectors, imposed a "recreation fee" on Petitioners in order to obtain a building permit. The recreation fees, consisting of payment of $42,000 for the North Building; $54,000 for the East Building; and $53,000 for the South Building, were paid by Petitioners under protest. The Respondents have failed to present any authority under the New York State Town Law to impose these recreation fees in order to obtain a building permit. The actions of the Town of Victor, through [*15]Sean McAdoo as Senior Building Inspector, to require payment of a recreation fee before building permits can be issued has no legislative authority.

The Respondents objections in point of law that the calculation of the recreation fee on a "per unit" basis was not irrational because Victor Town Code §27-4(J) requires the $1,000 recreation fee on a "per family unit" basis has no support under New York State Town Law. The objections in point of law of the Respondents to dismiss the Article 78 Petition of Petitioners based upon the Victor Town Code is DENIED.

B.Planning Board Proceedings Closed

Respondents assert as objections in point of law that allegations in the Petition must be dismissed because they are challenges to non-final determinations and that these proceedings must be remanded to the Town of Victor Planning Board. As previously analyzed, the determinations of the Planning Board on the Legacy project subdivision plat and site plan were final determinations. The challenges of the Petitioners to the actions of the Building Inspectors and the Town for imposing the "recreation fees" to obtain a building permit are final determinations.

There is no basis to remand these proceedings to the Planning Board for additional finding and determinations regarding recreation fees. There was no determination by the Planning Board to reserve parkland in the Legacy project and thus, no determination can be made to impose recreation fees in lieu of parkland. The Planning Board complied with the statutory provisions and in the review of the Legacy project did not require the reservation of parkland. Further this action does not challenge any actions of the Planning Board.^[FN6]

The Respondents objections in point law that allegations in the Petition must be dismissed because they are challenges to non-final determinations and that the proceeding should be remanded to the Planning Board are DENIED.

C.Conclusion on Article 78 Petition

The motion to dismiss by the Respondents based on objections in point of law is DENIED. Pursuant to CPLR §7804[f] the Respondents are permitted to answer the Petition; such answer shall be served and filed within twenty days after service of the order with notice of entry; and the matter is re-noticed for hearing, the date of such hearing to be set at a conference in Chambers on July 9, 2008 at 10 am. [*16]

ORDERED that the motion of the Defendants for an order pursuant to CPLR §3211[a][7] dismissing the Complaint in its entirety is DENIED; it is further

ORDERED that the motion of the Defendants for alternative relief of remanding this action to the Planning Board for the Town of Victor for further proceedings is DENIED; it is further

ORDERED that the Defendants shall serve an answer to the Complaint within twenty (20) daysafter service of the order with notice of entry; and the matter is set for a scheduling conference in Chambers on July 9, 2008 at 10 am, it is further

ORDERED that the motion of the Respondents based upon the objections in point of law for an order pursuant to CPLR §7804[f] dismissing the Petition in its entirety is DENIED; it is further

ORDERED that the motion of the Respondents for alternative relief of remanding this proceeding to the Planning Board for the Town of Victor for further proceedings is DENIED; it is further

ORDERED that based upon the objections in point of law being denied, pursuant to CPLR §7804[f] the Respondents are permitted to answer the Petition; such answer shall be served and filed within twenty daysafter service of the order with notice of entry; and the matter is re-noticed for hearing . The date of such hearing shall be set at a conference in Chambers on July 9, 2008 at 10 am.

Dated:June 6, 2008

Rochester, New York

________________________________________

Thomas A. Stander

Supreme Court Justice C:\htformat\f5173080.txt