Kamhi v. Town of Yorktown

• Decision Date: 26 October 1989
• Citation: 74 N.Y.2d 423,547 N.E.2d 346,548 N.Y.S.2d 144
• Parties: , 547 N.E.2d 346 Carl KAMHI, Respondent, v. TOWN OF YORKTOWN, Appellant
• Court: New York Court of Appeals Court of Appeals

Page 144

548 N.Y.S.2d 144

74 N.Y.2d 423, 547 N.E.2d 346

Carl KAMHI, Respondent, v. TOWN OF YORKTOWN, Appellant.

Court of Appeals of New York

Oct. 26, 1989.

[547 N.E.2d 347] Michael J. Grace, Town Atty., Crompond, for appellant

Charles A. Bradley, Harrison, for respondent.

[74 N.Y.2d 426] James T. Potter, Albany, for the New York State Builders Ass'n, Inc., amicus curiae.

OPINION OF THE COURT

KAYE, Judge.

At issue on this appeal is the validity of a local law of the Town of Yorktown conditioning site plan approval for a multifamily residential development on the provision of parkland or its money equivalent. We conclude that while in substance the Town may exercise its supersession authority to adopt such a law, in form the enactment before us was properly declared invalid.

The subject property is a 43-acre parcel in Yorktown's zone R-3, which permits multifamily residential use of up to 12 units per acre. Plaintiff, the property owner, planned a condominium development, "Villas on the Lake," and to this end sought site plan approval from the Town Board.

Following submission of revised plans, environmental impact statements, reports of various Town agencies and public hearings, the Town Board approved plaintiff's plan on condition that he pay a "recreation fee" of $47,550. That condition was imposed pursuant to Local Laws, 1982, No. 6 of Town of Yorktown, which pertains to site plan approval for R-3 developments. In relevant part Local Law No. 6 reads:

"The developer shall provide a suitably improved playground/play area. Each such playground/play area shall have a minimum area of 1,200 square feet and a maximum distance of 1,000 feet from the units to be served.

"In addition to the above, the developer shall also set aside ten percent (10%) of the site for the provision of park and/or recreational facilities. If the provision of such facilities is impractical because of the particular layout of the development or for other reasons, a recreation fee of $350.00 per unit shall be submitted prior to approval of the application."

Plaintiff paid the fee under protest and commenced this action for money had and received. He then sought summary judgment, contending that the Town was not authorized under Town Law § 274-a to impose a recreation fee as a condition of site plan approval, citing Riegert Apts. Corp. v. Planning Bd., 57 N.Y.2d 206, 455 N.Y.S.2d 558, 441 N.E.2d 1076. In response, the Town cross-moved for summary judgment dismissing the complaint. The Town's position was that, notwithstanding section 274-a, the recreation fee was validly imposed pursuant to Local Law No. 6 which it was empowered to enact under section 10 of the Municipal Home Rule Law.

Supreme Court granted the Town's motion and dismissed the complaint, holding that an action for money had and received was an inappropriate vehicle for review of the Town's determination, and that the challenge to the Board's action should have been by way of an article 78 proceeding, which was time-barred. The Appellate Division reversed. 141 A.D.2d 607, 529 N.Y.S.2d 528. Converting the action into one for a declaratory judgment, the Appellate Division concluded that Local Law No. 6 was invalid under Riegert. We granted the Town's motion for leave to appeal and now affirm the Appellate Division order, but on a different ground.

In general, towns have only the lawmaking powers the Legislature confers on them. In particular, they have no inherent power to impose conditions on site plan approval. Without legislative grant, an attempt to exercise such authority is ultra vires and void (see, Matter of Kamhi v. Planning Bd., 59 N.Y.2d 385, 465 N.Y.S.2d 865, 452 N.E.2d 1193; Matter of Golden v. Planning Bd., 30 N.Y.2d 359, 369-370, 334 N.Y.S.2d 138, 285 N.E.2d 291, appeal dismissed 409 U.S. 1003, 93 S.Ct. 436, 34 L.Ed.2d 294). Thus, our task is to determine whether the Legislature empowered the Town to enact a local law conditioning site plan approval on the delivery of parkland or its money equivalent.

That authority is not found in the provisions of Town Law article 16, the enabling legislation in the Town Law for local lawmaking in the area of zoning and planning. As we held in Riegert Apts. Corp. v. Planning Bd., 57 N.Y.2d 206, 455 N.Y.S.2d 558, 441 N.E.2d 1076, supra, Town Law § 274-a ("Planning board approval of site plans and certain uses") sets forth the elements a town planning board may require for site plan approval, and significantly does not authorize a demand of parkland or its money equivalent. The Town urges, nevertheless, that its grant of authority lies in Municipal Home Rule Law § 10. This contention, which was not before us in Riegert, puts in issue the scope of authority municipalities have under their home rule powers.

Municipal Home Rule Law Authority

Municipal home rule in this State has been a matter of constitutional principle for nearly a century. Article IX of the State Constitution declares that effective local self-government and intergovernmental cooperation are purposes of the people of this State, and it directs the Legislature to provide for the creation and organization of local governments so as to secure the rights, powers, privileges and immunities granted by the Constitution (see, N.Y. Const., art. IX, § 1). As several commentators have noted, ¹ the path of home rule over the century has been unsettled and tortuous, which reflects the "difficult problem of furthering strong local governments but leaving the State just as strong to meet the problems that transcend local boundaries, interests and motivations." (Wambat Realty Corp. v. State of New York, 41 N.Y.2d 490, 498, 393 N.Y.S.2d 949, 362 N.E.2d 581; Matter of Town of Islip v. Cuomo, 64 N.Y.2d 50, 54-56, 484 N.Y.S.2d 528, 473 N.E.2d 756.)

In 1964, a home rule package was adopted, comprising article IX of the State Constitution (with a "Bill of rights for local governments") and various implementing statutes, including the Municipal Home Rule Law and the Statute of Local Governments, both of which must be "liberally construed." (Municipal Home Rule Law § 51; Statute of Local Governments § 20[5].) In structure, these reforms continued the earlier two-part model for home rule: limitations on State intrusion into matters of local concern and affirmative grants of power to local governments (Rozler v. Franger, 46 N.Y.2d 760, 413 N.Y.S.2d 654, 386 N.E.2d 262, affg. on opn. at 61 A.D.2d 46, 55, 401 N.Y.S.2d 623 [Hancock, Jr., J.]. This case involves the Legislature's affirmative grant of power to towns, and not any limitation on State lawmaking powers.

The Municipal Home Rule Law affirmatively grants authority to towns--"[i]n addition to powers granted in the constitution, the statute of local governments or in any other law"--to adopt local laws relating to their "property, affairs or government," provided that such legislation is not inconsistent with the Constitution or any general law (N.Y.Const., art. IX, § 2[c][i]; Municipal Home Rule Law § 10[1][i]. The statute further authorizes towns to adopt local laws in 14 enumerated instances, so long as those enactments are not inconsistent with general law or prohibited by State law (N.Y.Const., art. IX, § 2[c][ii][1]; Municipal Home Rule Law § 10[1][ii]; Matter of Marcus v. Baron, 57 N.Y.2d 862, 456 N.Y.S.2d 39, 442 N.E.2d 437, revg on dissent of Hopkins, J., 84 A.D.2d 118, 134-139, 445 N.Y.S.2d 587).

Neither of these grants of power encompass Local Law No. 6, however, because[547 N.E.2d 349] --as the Appellate Division correctly held--the local law is inconsistent with Town Law § 274-a, which defines planning board powers in connection with site plan approval. As we concluded in Riegert, there is no express authority in the Town Law for planning boards to impose parkland-or-money conditions for site plan approval, as there is for subdivision plat approval under Town Law § 277. Moreover, because of the Legislature's evident choice in omitting that authority for site plan approval while including it for subdivision plat approval, the power cannot be implied in Town Law § 274-a (Riegert Apts. Corp. v. Planning Bd., supra).

Thus, in view of the inconsistency between Local Law No. 6 and Town Law § 274-a, authority cannot be found for the local law in Municipal Home Rule Law § 10(1)(i) or (ii).

Supersession Authority

Although local laws that are inconsistent with State laws are generally invalid, a limited exception exists for local laws that fall within Municipal Home Rule Law § 10(1)(ii)(d)(3)--the supersession authority. The section provides that a town may amend or supersede, in its local application, "any provision of the town law relating to the property, affairs or government of the town or to other matters in relation to which and to the extent to which it is authorized to adopt local laws by this section, notwithstanding that such provision is a general law, unless the legislature expressly shall have prohibited the adoption of such a local law." ² The statute goes on to specify matters as to which supersession is not authorized by the section--for example, with respect to a special or improvement district or an improvement area--but those restrictions are not in issue in this case.

When municipalities act within their supersession authority, even local laws that are inconsistent with the Town Law may be valid. Indeed, inconsistency is a premise of the supersession authority, for there is otherwise little need of the power to amend or supersede State law (Rozler v. Franger, 61 A.D.2d 46, 52-53, 401 N.Y.S.2d 623, supra ). Local lawmaking power under the supersession authority is of course in all instances subject to the State's transcendent interest where the Legislature has manifested such interest by expressly prohibiting a local law (Municipal Home Rule Law § 10[1][ii][d][3], or where a local law is otherwise preempted by State law (Albany Area Bldrs. Assn. v. Town of Guilderland, 74 N.Y.2d 372,...