Impact Fees in New York City? Legal Authority, Constraints, and Potential Options

The Guarini Center is currently soliciting comments from the public on a new draft article that examines questions surrounding the legality of local impact fees in New York City.

Comments, suggestions, or other feedback can be submitted to Adalene Minelli at am8898@nyu.edu.

Broadly defined, impact fees are one-time charges imposed on new development as a condition of approval to offset its impact on local infrastructure, services, and the environment. Employed widely in other major U.S. cities, New York City is a notable outlier in that it does not have an official impact fee policy. However, unlike many other cities, the law is unclear as to whether local governments have the requisite authority to adopt one.

This article examines the question of whether New York City has the legal authority to impose impact fees on new development. It argues that should the City wish to adopt impact fees, it could do so through either its constitutional home rule authority or through its mitigation authority under state environmental review laws. This article also identifies a number of constitutional and statutory constraints that would likely restrict the design and scope of a local fee program, including limitations under the state’s doctrines on preemption and local taxation, and under the federal exactions jurisprudence.

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This work was made possible by the generous support of the New York Community Trust.