Dedicating Land for Public Parks and Recreation Purposes

The MPC requires that a municipality’s SALDO contain “definite standards” for determining the amount and location of land required to be dedicated (section 503(11)(ii)). Moreover, the MPC (as well as the before-mentioned Takings Clause cases and their progeny) requires that these standards “bear a reasonable relationship to the use of the park and recreation facilities by future inhabitants of the development or subdivision” (section 503(11)(v)). Because these phrases and concepts (together with the phrase discussed in the section below, “accessible to the development”) are not defined in the MPC, municipalities have taken a variety of approaches to determine appropriate standards. These approaches are reviewed in "Public Dedication of Land and Fees-in-Lieu for Parks and Recreation: A Guide to Using Section 503(11) of the Pennsylvania Municipalities Planning Code".

Fees-In-Lieu of Dedication Option

With a well-drafted ordinance in place, public dedication of land may be mandated of developers. If a municipality prefers an alternative to land dedication – fees-in-lieu of dedication, constructing recreational facilities, reserving private land, or a combination of these – the municipality may ask the developer for the alternative and the developer may consent.

Uses of fees-in-lieu

A good municipal recreation plan will identify key locations for local parks. Appropriate locations require a combination of particular conditions. For example, community and neighborhood parks are often athletics-oriented, requiring lands that are flat and well-drained. Parks must be located in convenient and physically accessible locations that will not generate adverse impacts on adjacent properties. Where linear parks or natural areas are important components of a park and recreation plan, the municipality often is seeking to protect natural and cultural features that are unique to a particular area. These considerations limit suitable park sites to a narrow set of locations. In most cases a proposed development would not contain one of these locations, and consequently, a developer would be hard pressed to provide the land that would meet the municipality’s requirements. 

The MPC addresses this problem, allowing municipalities to collect fees-in-lieu of parkland dedication. A municipality can save these fees until enough capital has been acquired to purchase the targeted parkland (keeping the 3-year deadline noted below in mind). Alternatively, the fees-in-lieu of parkland can be used to provide infrastructure or buy recreational equipment for new parks, and/or make improvements to existing facilities.   The sites must be accessible to future residents of the new development. Fees cannot be used to simply maintain existing facilities or purchase maintenance equipment. 

How much can be charged as a fee-in-lieu of dedication?

The MPC requires that fees charged “bear a reasonable relationship to the use of the park and recreation facilities by future inhabitants of the development or subdivision” (section 503(11)(v)). Whether the fees-in-lieu are used to help finance a public pool, a community center, or a neighborhood park, the municipality’s recreation plan should spell out how these types of facilities will be accessible to residents of the new development. 

As with land dedication, the MPC requires that the subdivision and land use ordinance contain “definite standards” for determining the amount of fees-in-lieu that may be imposed (section 503(11)(ii)). In short, the fee-in-lieu should bear a direct relationship to the value of the type of land that would otherwise have been dedicated. 

Some municipalities simply state in their ordinances that the fee-in-lieu shall be equal to the average fair market value of the land otherwise required to have been dedicated, as determined at the time of filing of the subdivision application. The burden for determining this value may be placed on the developer, with the municipality able to dispute or verify the value.[i] Other municipalities calculate an average per acre value in the municipality and post this amount in an annually-updated schedule of fees and charges. 

[i] 53 P.S. § 10503(11). The responsibility and power to plan and regulate land use in Pennsylvania lies exclusively with local government, including counties. This is the result of the Pennsylvania General Assembly delegating to municipal and county governments a portion of the state’s “police power” with respect to planning and land use controls to protect public health, safety, and welfare. Responsibility for land use planning and for regulating development is exercised through the authority granted to local officials by the Municipalities Planning Code (except in Philadelphia and Pittsburgh).

[ii] Section 509(a) and (k) stated only that as a prerequisite to final approval, and in lieu of the completion of any improvements, municipalities could require developers to provide enough financial security to cover the costs of any required improvements.

[iii] Letter from Philip E. Robbins, Pennsylvania Department of Community Affairs, to Virginia Rickert, Palmer Township Board of Supervisors (November 19, 1992), at p. 4, citing L.P. Symons, Esq., Local Government Commission report (198_).

[iv] Municipalities may not legally impose offsite exactions unless they are specifically authorized by the MPC:

No municipality shall have the power to require as a condition for approval of a land development or subdivision application the construction, dedication or payment of any offsite improvements or capital expenditures of any nature whatsoever or impose any contribution in lieu thereof, exaction fee, or any connection, tapping or similar fee except as may be specifically authorized under this act. (Section 503-A(b).)

Municipalities may, however, condition subdivision approval on onsite improvements or fees-in-lieu thereof. See Soliday v. Haycock Twp., 785 A.2d 139, at 144-45 (Pa. Cmwlth. 2001).

[v] Passed in 1791.

[vi] 43 U.S. 625 (1987)

[vii] In Nollan, the Court held that the California Coastal Commission violated the “nexus” standard when it required that the Nollans grant a public beachfront easement over their property in exchange for obtaining a building permit.

[viii] 512 U.S. 374 (1994)

[ix] The United States Supreme Court in Dolan applied a new, two-part test for determining whether an exaction imposed upon a developer or landowner is unconstitutional. As enunciated in the Nollan case, an "essential nexus" first must exist between a legitimate government interest and the permit condition imposed by the local government. Second, there must be a "rough proportionality" between the exaction and the impact of the proposed development. Applying this test, the Supreme Court ruled that the city of Tigard, Oregon, had not justified its requirement that the owner of a plumbing and electrical supply store (1) dedicate the portion of her property lying within the 100-year floodplain for an improved storm drainage system, and (2) dedicate an additional 15-foot strip of land adjacent to the floodplain as a pedestrian and bicycle path. The total amount of land the city wanted to be dedicated amounted to about 10% of petitioner's property.