Opinion 88-17


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

ZONING AND PLANNING -- Park Lands (whether municipality may compel subdivider to dedicate park land)

GENERAL CITY LAW, §§33,34; TOWN LAW, §§277(1), 278; VILLAGE LAW, §§7-730(1), 7-732: Under these statutes, no city, town or village has authority, as a condition for approval of a subdivision plat, to compel dedication of park land in the subdivision without compensation. 34 Opns St Comp, 1978, p 154 is superseded to the extent it is inconsistent herewith.

An inquiry has been received which raises the following questions:

(1)  Does the opinion expressed in 34 Opns St Comp, 1978, p 154, with regard to the dedication of park land in a subdivision, still represent the position of the State Comptroller in view of the Court of Appeal's decision in Kamhi v Planning Board of Town of Yorktown, 59 NY2d 385, 465 NYS2d 865, 452 NE2d 1193 (1983)?

(2)  Is a village, as part of the subdivision plat approval process, authorized by the Village Law to require a developer to dedicate a portion of land in the plat for public parks?

In 34 Opns St Comp, 1978, p 154, this Office expressed the opinion that a town planning board may require a subdivider to set aside park land for public use, or to make a payment in lieu thereof, even though the subdivider has reserved other park land for the private use of lot owners within the subdivision. The Court of Appeals, however, in Kamhi, supra, held that the subdivision statutes in the Town Law do not authorize a town to compel dedication of park land in a subdivision without compensation.

In Kamhi, supra, the Court of Appeals stated as follows:

"Neither section [§277 or §278], as the Appellate Division recognized, authorizes the town to compel uncompensated grants from the developer ...."(59 NY2d at 391, 465 NYS2d at 868)

The court also stated that:

"Sections 277 and 278 which provide for the dedication or condemnation of land do not contain language from which may be implied a legislative grant of power to compel conveyance of land for streets or park purposes without compensation...."  (59 NY2d at 392, 465 NYS2d at 868)

Therefore, in view of the decision in Kamhi, supra, the opinion expressed by this Office in 34 Opns St Comp, 1978, p 154 regarding the compulsory dedication of park land by a subdivider no longer represents the position of the State Comptroller (see also 2 Anderson, New York Zoning Law and Practice, 3rd ed., 1984, §21.18).

In answer to the second question, it is our opinion that nothing in the planning statutes of the Village Law authorizes a village, as part of the subdivision plat approval process, to require a developer to dedicate a portion of land in the plat for public parks. We note that these planning statutes, as they relate to the setting aside of park land, payments in lieu of park land, and the dedication of park land (§§7-730[1], 7-732) are essentially the same as those in the Town Law (§§277, 278) which were construed in Kamhi, supra (see also General City Law, §§33,34). Therefore, we conclude that, under the existing provisions of the Village Law, a village may not compel a developer to dedicate a portion of a subdivision plat to the village for public park purposes without compensation.

34 Opns St Comp, 1978, p 154, to the extent it is inconsistent herewith, is hereby superseded.

April 13, 1988
Kevin J. Plunkett, Esq., Village Attorney
Village of Irvington-on-Hudson