New York law allows local governments to require that an applicant for a residential subdivision or site plan approval set aside land for park and recreation purposes or pay a fee in lieu thereof to be used for park and recreation purposes, as a condition of approval.1 The statutes, however, specifically require that before the requirement for land or fees can be imposed, the municipality first must find that (1) the new development creates the need for additional recreational facilities, and (2) the existing recreational facilities in the municipality are not sufficient to accommodate the additional demand.
Municipalities frequently impose such fees without making the required findings, which have led a number of courts over the years to invalidate their decisions. Moreover, because the fees are a form of an “exaction,” a local government’s failure to make the required findings very well may violate the “takings” rule announced by the U.S. Supreme Court in its Nollan and Dolan cases,2 as amplified by its recent ruling in Koontz v. St. Johns River Water Management District.3
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