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«Parks and Recreation Statutory Authority See generally, Statute of Local Governments, § 10(3); Municipal Home Rule Law, § 10(1)(ii)(a)(14) ...»

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New York State Assembly, Sheldon Silver, Speaker

Legislative Commission on State-Local Relations

Assemblymember Tim Gordon, Chair

Parks and Recreation

Statutory Authority______________________________________________________

See generally, Statute of Local Governments, § 10(3); Municipal Home Rule Law, § 10(1)(ii)(a)(14)

Counties, Cities, Towns and Villages – Municipalities, except cities of the first class and any county inside

the city of New York, may [General Municipal Law article 13]:

• designate, acquire and lease lands for playgrounds or neighborhood recreation centers [General Municipal Law § 241];

• jointly acquire property for and operate and maintain playgrounds or neighborhood recreation centers [General Municipal Law § 244-b];

• establish a park board to establish and maintain playgrounds and neighborhood recreation centers.

May provide public baths and swimming pools [General Municipal Law § 242];

• establish a recreation commission to equip, operate and maintain recreation centers. [General Municipal Law § 243] Municipalities which have established a recreation commission may join for purpose of establishing a joint recreation commission. [General Municipal Law § 244-d];

• may, and upon petition by qualified electors, shall submit to the electors a proposition to establish and/or maintain a recreation system and specify the minimum amount to be levied for the system [General Municipal Law §244-c];

• acquire land within the municipality for open space [General Municipal Law § 247].

Authorized to furnish recreational programs for the elderly. [General Municipal Law article 13-D, § 95-a] May acquire docks, piers and wharves. [General Municipal Law article 14-C, §§ 401(a), 403] Authorized to establish, maintain, and operate agencies and programs for youth. [Executive Law § 422(1);

General Municipal Law § 95] May designate any public highway under its jurisdiction as open for travel by ATVs when it is otherwise impossible for ATVs to gain access to areas adjacent to the highway. May, by ordinance or local law, designate any appropriate public property, other than highways, under its jurisdiction as a place open for travel by ATVs upon written request by any person, and may impose restrictions and conditions for the regulation and safe operation of ATVs on the property. [Vehicle and Traffic Law § 2405] Legislative Commission on State-Local Relations 1 Last Modified 04/2010 May, by ordinance or local law, permit the operation of snowmobiles on lands, waters and property other than highways owned by the municipality. [Parks, Recreation and Historic Preservation Law § 25.07] Parkland Alienation Parkland can not be sold, leased, exchanged or used for non-park purposes without authorization from the New York State Legislature. For further information on parkland alienation, see the Handbook on the Alienation and Conversion of Municipal Parkland available in print or electronic form from the New York

State Office of Parks, Recreation and Historic Preservation:

http://nysparks.state.ny.us/news/public/archive/2005_AlienationHandbook.pdf When a municipality accepts State funding for the acquisition or improvement of parkland or recreational

facilities, certain restrictions on parkland alienation are created as follows:

• Park and Recreation Land Acquisition Bond Acts of 1960 and 1965: Provides for a restriction on alienation. [Parks, Recreation and Historic Preservation Law § 15.09]

• Outdoor Recreation Development Bond Act of 1965: Provides for a restriction on alienation. [Parks, Recreation and Historic Preservation Law § 17.09]

• Environmental Quality Bond Act of 1986: Provides for a restriction on Alienation and a requirement to provide substitute lands. [Environmental Conservation Law § 52-0901(4)]

• Environmental Protection Act of 1993: Provides for a restriction on alienation and a requirement to provide substitute lands. [Environmental Conservation Law §§ 52-0903(4)(a), 54-0909(1)]

• Clean Water/Clean Air Bond Act of 1996: Provides for a restriction on alienation and a requirement to provide substitute lands. [Environmental Conservation Law § 56-0309(12)] Property acquired or developed with assistance from the federal Land and Water Conservation Fund program or the Urban Park and Recreation Recovery Program may not be converted to other than public outdoor recreation uses without the approval of the Secretary of the Interior. [16 U.S.C. § 4601-8(f)(3) and 16 U.S.C.

§ 2509] Cities, Towns and Villages – May require, under certain circumstances, for the reservation of parks for playground or other recreational purposes on site plans containing residential units and on subdivision plats containing residential units. If suitable parkland cannot be properly located, may require a sum of money in lieu of parkland which must be deposited into a trust fund to be used exclusively for park, playground or other recreational purposes. [General City Law §§ 27-a, 33; Town Law §§ 274-a, 277; Village Law §§ 7a, 7-730] Counties – May create a county park commission. [County Law § 221] Authorized to establish a county zoo or to fund an existing zoo in the county owned by a municipal corporation. [County Law § 225(1)(l)] Cities – Authorized to acquire real and personal property for any public or municipal purpose, but the rights of a city to its waterfront, land under water, wharves, docks, parks and all other public places are inalienable.

[General City Law § 20(2)]

–  –  –

May control and administer for any business, commercial, maritime or public purpose the waterfront and waterways of the city and provide docks, piers, and wharves. [General City Law § 20(8)] Authorized to establish and maintain institutions and instrumentalities for the recreation of its inhabitants.

[General City Law § 20(16)] Towns and Villages – Authorized to enter into an agreement for the joint acquisition, construction and operation of a public dock. [General Municipal Law § 120-x] Towns – A town board may upon its own motion or shall upon a petition, establish public parks or playgrounds. [Town Law § 81(1)(c)] May, upon adoption of a resolution subject to permissive referendum, establish public parks or playgrounds, acquire necessary lands therefor and equip with buildings, structures and apparatus. [Town Law § 220(3)] Villages - The board of trustees may acquire land for public park, square, athletic field or playground purposes by gift, purchase or condemnation under certain circumstances. [Village Law § 6-624] May acquire or improve public docks. [Village Law § 4-412(3)(8)]

–  –  –

Towns – Authorized to establish park districts. [Town Law Article 12, § 198(4) and Article 12-A] Towns with navigable waters – Authorized to establish public dock districts. [Town Law Article 12 § 198(10) and Article 12-A] School Districts – May join with municipalities in equipping, operating and maintaining playgrounds and neighborhood recreation centers. [General Municipal Law § 244-b] May furnish programs devoted to the welfare of the aging. [General Municipal Law § 95-a] A municipality and the board of education, board of trustees or the trustee of a school district may make and perform agreements providing for the operation by a school district of a youth service, recreation or other project of the municipality. [Executive Law § 422(6)] Selected Court Cases_______________________________________________________

State v. Town of Horicon (3rd Dept. 2007) 46 A.D.3d 1287, 848 N.Y.S.2d 770. Local law attempting to open eight routes over state forest lands for all terrain vehicles void when town failed to comply with State Environmental Quality Review Act (SEQRA). Adoption of local law was “action” within meaning of SEQRA and State Department of Environmental Conservation, as land manager for affected state forest land, qualified as “involved agency” whose comments should have been solicited. Record shows town performed only “perfunctory” review of possible environmental impacts and could not support ultimate negative declaration. Town similar failed to support determination under Vehicle and Traffic Law §2405.

–  –  –

Friends of Van Cortlandt Park v. City of New York (2001) 95 N.Y.2d 623, 750 N.E.2d 1050. Parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes, even by leasehold.

Huntington Yacht Club v. Incorporated Village of Huntington Bay (2d Dept. 2000), 272 A.D.2d 327, 708 N.Y.S.2d 120. Village and its zoning board of appeals lacked jurisdiction over the applicants proposed dock expansion involving tidewaters and underwater lands since the project was located in the town outside the village, and thus, the positive declaration of environmental significance issued by the board was null and void.

Sierra Club v. Board of Education of City of Buffalo (4th Dept. 1987) 127 A.D.2d 1007, 512 N.Y.S.2d 954, appeal denied 70 N.Y.S.2d 612, 523 N.Y.S.2d 496, 518 N.E.2d 7 (1987). In selecting and approving park as site for school, city, previously empowered by state legislature to discontinue park land, fully complied with mandates of Park, Recreation and Historic Preservation Law, where all feasible and prudent alternatives were explored, and proposals for avoiding or mitigating adverse impacts upon historic site were considered.

Ackerman v. Steisel (2d Dept. 1984) 104 A.D.2d 940, 480 N.Y.S.2d 556, affirmed 66 N.Y.S.2d 833, 498 N.Y.S.2d 364, 489 N.E.2d 251 (1985). Dedicated park areas in New York are impressed with public trust, and their uses for other than park purposes, either for a period of years or permanently, requires the State Legislature’s plainly conferred, direct and specific approval.

Aldrich v. City of New York, 208 Misc 930 (NY Sup Ct Queens County 1955), affirmed. 2 AD2d 760 (2d Dept. 1956). Title taken for public use as park and entire tract held in trust for that special purpose; city could not dispose of property without specific sanction of Legislature.

Matter of Central Parkway 140 Misc 727 (Sup Ct Schenectady Co 1931). City holds land acquired and held strictly for park property in trust for use of public and in absence of legislative authority it may not appropriate any part thereof to laying out streets.

Van Dyke v. City of Utica (4th Dept. 1922) 203 A.D.26, 196 N.Y.S. 277. In an action brought against the city of Utica to recover damages for the death of a child resulting from injuries received owing to the defective condition of a “slide” on a playground maintained by the city by virtue of this article [GML art. 13], it was error to dismiss the complaint upon the theory that the city in maintaining the playground was acting in a governmental capacity, since the city having voluntarily undertaken the enterprise of furnishing playgrounds, it was its duty to protect the children using them, at least from its own negligence.

Brooklyn Park Commissioners v. Armstrong (1871) 45 N.Y. 234. The City of Brooklyn may not sell parkland without first obtaining Legislative approval.

–  –  –

Attorney General Opinion 2009-1, Town Law §§ 81, 81(1)(b), 81(1)(c), 220, 220(2), 220(3); Local Finance Law §§ 35.00(b), 35.00(c). In light of unsettled case law, a municipality should seek legislative approval before constructing a library in parkland. The municipality may hold a permissive referendum on the issuance of bonds to finance the construction of the library if the bonds have a maturity of more than five years.

Comptroller Opinion 2008-4, Municipal Home Rule Law § 10(1)(ii)(d)(3); Town Law §§ 198(4), 202(3), 202-b. The costs of construction of additional facilities or reconstruction or replacement of obsolete, inadequate, damaged, destroyed or worn out facilities, undertaken in an existing town park district pursuant to the authority in Town Law § 202-b, are charged against the properties within the park district on an ad valorem basis, and are not general town expenses payable out of the town's general fund.

Attorney General Opinion 2008 - 11, General City Law § 20(2); General Municipal Law §§ 72-h, 72-h(2).

Alienation legislation should be sought before parkland is transferred from a county to a town.

Attorney General Opinion 2005 - 11. Where the Town of Huntington owns underwater lands based upon colonial patents, it may require its consent to the use of these underwater lands for dock construction and the anchoring and mooring of vessels, even where such activities are subject to a village’s regulatory control.

Attorney General Opinion 2005 - 21, Environmental Conservation Law, Art. 8; State Finance Law § 92-o;

Vehicle and Traffic Law, Art. 48-C, §§ 2280, 2281, 2282, 2291, 2400, 2402, 2403, 2405; 6 N.Y.C.R.R. 617;

15 N.Y.C.R.R. 103.7; L. 2005, Ch. 59, Part D; L. 1990, Ch. 190, §§ 323, 324; L. 1988, Ch. 61; L. 1986, Ch.

402; L. 1985, Ch. 671. Municipal highways may be designated for use by ATVs only when necessary to provide access to adjacent trails. Highways previously designated for use by ATVs do not qualify as "adjacent trails" for this purpose. Trails on private land that are open to the public for recreational ATV use may qualify as "adjacent trails."

Attorney General Opinion 2004-5, Municipal Home Rule Law §§ 10(1)(ii)(a)(12)(a), 11(3); Navigation Law §§ 2(4), 30, 45-b, 46-a(1); Town Law §§ 17(1)(a), 130, 132; Village Law § 89; L. 1989, Ch. 508; L. 1960, Ch. 796; L. 1957, Ch. 158; L 1935, Ch. 346. A town may regulate the water activities enumerated in the Town Law and Navigation Law in waters within an incorporated village but more than 1500 feet from a village's shore. A village may consent to the town regulation of these activities in waters closer than 1500.

Regulation of other water activities by a town in Suffolk County pursuant to its general police powers is not effective in waters within the geographic boundaries of a village.

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