Plaintiff, who owned 6.59 acres of real property in the Village of Westhampton Beach (“Village”), applied to the Village Planning Board for site plan approval to develop a 39–unit condominium. The Planning Board adopted a resolution approving the site plan, but conditioned it on Plaintiff paying the Village a recreation or park fee (“Park Fee”) pursuant to Village Law § 7–725–a(6) and Code of the Village of Westhampton Beach § 197–63(Q)(2).  After an appraisal, the Village Board of Trustees passed a resolution setting the Park Fee at $776,307. In 2012, Plaintiff sold the property to a nonparty. In 2014, Plaintiff brought an action for a declaratory judgment that § 197-63(Q)(2) was unconstitutionally vague. The Supreme Court granted the Village’s motion to dismiss for lack of standing, and Plaintiff appealed.

On appeal, the Second Department determined that while Plaintiff had sold the property before it paid any portion of the Park Fee, a rider to the contract of sale indicated that the sale price was reduced by the amount of the Park Fee that the purchaser had to pay. Specifically, the rider provided that if any or all of the Park Fee was waived by the Village or “ceased to be in effect” for any reason, the purchaser would pay that amount to the plaintiff. Thus, the court found Plaintiff demonstrated a sufficient interest to establish standing.

The court next addressed Plaintiff’s claim that it was entitled to judgment as a matter of law that Village Code § 197–63(Q)(2) was unconstitutionally vague. The Village Code provides the formula for the fee “shall be the appraisal amount at the time of the application of the land area on the application as vacant land divided by the total area shown on the plan in square feet times 2,178 square feet of reserved area per dwelling times the number of dwelling units proposed on the plan.” This formula was applied by the Board of Trustees after their receipt of an appraisal for the property.  Accordingly, the court found that the Village defendants were entitled to a declaration that the subject code provision was not unconstitutionally vague.

The case was Westhampton Beach Associates, LLC v Inc. Village of Westhampton, 151 A.D.3d 793 (2 Dep’t 2017).