Legacy At Fairways, LLC v. Planning Bd. of Town of Victor

• Decision Date: 27 December 2013
• Parties: In the Matter of LEGACY AT FAIRWAYS, LLC and Boughton Properties, LLC, Petitioners–Respondents, v. PLANNING BOARD OF TOWN OF VICTOR, Respondent–Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1289
978 N.Y.S.2d 490
2013 N.Y. Slip Op. 08679

In the Matter of LEGACY AT FAIRWAYS, LLC and Boughton Properties, LLC, Petitioners–Respondents,
v.
PLANNING BOARD OF TOWN OF VICTOR, Respondent–Appellant. (Appeal No. 1.)

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 27, 2013.

[978 N.Y.S.2d 491]

The Wolford Law Firm LLP, Rochester (Michael R. Wolford of Counsel), for Respondent–Appellant.

[978 N.Y.S.2d 492]

Adams Bell Adams, P.C., Rochester (Anthony J. Adams, Jr., of Counsel), for Petitioners–Respondents.

PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, and VALENTINO, JJ.

MEMORANDUM:

Petitioners commenced these CPLR article 78 proceedings seeking, inter alia, to annul the respective determinations of respondent to impose a per unit recreation fee on property owned and developed by them in the Town of Victor (Town). The petitioners in appeal No. 1 challenge the determination imposing a recreation fee of $600 per family unit upon property consisting of 144 apartments owned and developed by them, and the petitioners in appeal No. 2 challenge the determination imposing a recreation fee of $1,000 per unit upon property consisting of 45 townhouse units owned and developed by them.

We note at the outset that petitioners Legacy at Fairways, LLC, U.S. Homes Co., Inc., and Mark IV Construction, Inc., along with Christopher A. DiMarzo, previously commenced a CPLR article 78 proceeding challenging the determination imposing a per unit recreation fee upon property consisting of the apartment units at issue in appeal No. 1. On an initial appeal in that matter, we concluded, inter alia, that Supreme Court properly denied the pre-answer motion to dismiss made by the respondents-defendants in that matter. In doing so, we noted that there were “triable issues of fact with respect to, inter alia, whether the Town Planning Board[, i.e., the respondent herein,] imposed [a] recreation fee” ( Matter of Legacy at Fairways, LLC v. McAdoo, 67 A.D.3d 1460, 1462, 888 N.Y.S.2d 450). On a subsequent appeal in that matter, we concluded, inter alia, that the respondent herein imposed a recreation fee in 2000, i.e., the year in which the petitioners in that appeal applied for approval of a minor subdivision plan in relation to that property ( Matter of Legacy at Fairways, LLC v. McAdoo, 76 A.D.3d 786, 788, 906 N.Y.S.2d 668, lv. denied16 N.Y.3d 706, 2011 WL 652548 [ Legacy II ] ). We also concluded that “the manner in which the [respondent herein] imposed the fee was improper inasmuch as it failed to make findings ‘that a proper case exist[ed] for requiring that’ parkland be set aside or that a fee be imposed in lieu thereof (Town Law § 277[4][b]; see § 277–a [6][b] )” (id. at 788, 906 N.Y.S.2d 668). We therefore remitted the matter to the respondent herein for further consideration and, if appropriate, for required findings ( id.).

Upon remittal, respondent reduced the recreation fee of $1,000 per family unit that had been previously paid for the apartments at issue in appeal No. 1 to $600 per family unit. Approximately one month later, respondent reduced the recreation fee of $1,500 that had been assessed by respondent in 2007 and that had been paid relative to the townhouse units at issue in appeal No. 2 to $1,000 per family unit. As noted, petitioners in each of these appeals subsequently commenced these CPLR article 78 proceedings seeking to...