| Matter of Davies Farm, LLC, v Planning Bd. of Town ofClarkstown |
| 2008 NY Slip Op 06830 [54 AD3d 757] |
| September 9, 2008 |
| Appellate Division, Second Department |
| In the Matter of Davies Farm, LLC, Appellant, v PlanningBoard of Town of Clarkstown, Respondent. |
—[*1] Amy Mele, Town Attorney, New City, N.Y. (Harold Y. MacCartney, Jr., of counsel), forrespondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Planning Boardof the Town of Clarkstown dated September 27, 2006, which, inter alia, required the petitioner topay a fee in lieu of parkland dedication as a condition of subdivision approval of a residentialdevelopment, the petitioner appeals from a judgment of the Supreme Court, Rockland County(Sherwood, J.), entered July 16, 2007, which, in effect, denied the petition and dismissed theproceeding.
Ordered that the judgment is affirmed, with costs.
Contrary to the petitioner's contentions, the Supreme Court properly rejected its claim thatthe determination of the Planning Board of the Town of Clarkstown (hereafter the PlanningBoard) to impose a fee in lieu of parkland dedication was arbitrary and capricious because it wasmade at the time of final subdivision plat approval, when the Planning Board had already grantedpreliminary subdivision plat approval without making any findings of recreational need. Nothingin either Town Law §§ 276 or 277 circumscribed the Planning Board's authority toimpose the fee as a condition of final subdivision approval where it had already grantedpreliminary subdivision approval without a finding of recreational need. Further, under thecircumstances of this case, the petitioner was aware of the Planning Board's procedure to make arecreational need finding and recreational fee determination where, as here, the petitioner wastold, in November 2005, prior to receiving preliminary subdivision plat approval, that the feewould be imposed on their 23-[*2]lot subdivision, and where thesame procedure was followed by the Planning Board in connection with the petitioner'sdevelopment on a neighboring parcel. Therefore, the Planning Board's determination was neitherarbitrary nor capricious, nor affected by error of law. Accordingly, the Supreme Court, properly,in effect, denied the petition and dismissed the proceeding (see generally Matter of BayswaterRealty & Capital Corp. v Planning Bd. of Town of Lewisboro, 76 NY2d 460 [1990];Matter of Joy Builders, Inc. v Town of Clarkstown, 54 AD3d 761 [2008] [decidedherewith]; Matter of InternationalInnovative Tech. Group Corp. v Planning Bd. of Town of Woodbury, N.Y., 20 AD3d531 [2005]). The case of Joseph v Planning Bd. of Town of Yorktown (140 AD2d670 [1988]), cited by the petitioner, is not controlling.
The petitioner's remaining contentions are without merit. Rivera, J.P., Fisher, Lifson andDillon, JJ., concur.