Posted On: February 27, 2011

Planning Board Must Make Individualized Analysis Before Imposing Recreation Fee

The Appellate Division held that a planning erred in imposing a recreation fee without first doing an analysis of the recreation needs created by approving a site plan. In Matter of Dobbs Ferry Development Associates v. Bd. of Trustees of the Village of Dobbs Ferry, the court found that in granting site plan approval for development of a single family home on a vacant lot, the planning board failed to undertake "individualized consideration" by making findings as to the recreational needs created by development of the lot.

However, the court modified the lower court's judgment which directed that the site plan approval be granted without the recreation fee. Instead, the Appellate Division remitted the matter: "for further consideration as to whether a recreation fee is appropriate, the amount, if any, and the specific findings which support such a fee..."

-Steven Silverberg

Posted On: February 19, 2011

Court Upholds Planning Board On Location Of Property Access

The Appellate Division upheld a local planning board on a challenge to the location of access for a retirement community. In Matter of Fairway Manor, Inc. v. Bertinelli, an adjacent retirement community challenged the site plan approval based upon the proximity of the new access for the proposed development to the access for petitioner's property.

Previously, the property at issue, which is near the Sunrise Highway, had been occupied by a multiplex cinema. After ramps from the Sunrise Highway were relocated, the New York State Department of Transportation (DOT) required that any future access to the site had to be located at the western edge of the property (where petitioner's property is located) because of safety concerns relating to the relocated Sunrise Highway ramps. In order to develop the property as a retirement community it was necessary to obtain a rezoning and as part of the zoning approval the Town Board also placed restrictions on the location of any access for the property.

When the proposal for the new development came before the planning board it was determined that the existing access should be relocated to the western edge of the property in order to address the safety issues. The petitioner rejected a suggestion that the new development share access with petitioner's property and brought this challenge to the location approved by the planning board.

In upholding the decision of the planning board and affirming the lower court, the appellate division noted the general rule applicable to judicial review of planing board decisions:

" A local planning board has broad discretion in deciding applications for site-plan approvals, and judicial review is limited to determining whether the board's action was illegal, arbitrary, or an abuse of discretion..."

The court then held:

"In evaluating the proposed site access road, the Planning Board considered the need to mitigate the dangerous traffic condition posed by the nearby highway exit ramp, the limited access point options in light of the covenants and restrictions imposed by the Town Board and the NYSDOT, and the expert opinion of the Town of Brookhaven Director of Planning."

-Steven Silverberg