PARKING FACILITIES -- Conveyance of (to U.S. Postal Service); (necessity of special act authorizing)
REAL PROPERTY -- Conveyances Generally (of village parking lot) -- Gifts (of parking lot to U.S. Postal Service)
GENERAL MUNICIPAL LAW, §72-h: The U.S. Postal Service is an agency of the federal government for purposes of this section.
GENERAL MUNICIPAL LAW, §72-h; VILLAGE LAW, §1-102(2): It appears that a village should obtain special legislation prior to conveying a village parking lot to the U.S. Postal Service. Whether a particular parcel of village property is unneeded for village purposes is a question of fact.
This is in reply to your inquiry concerning the proposed conveyance to the U.S. Postal Service of property presently used as a village parking lot. You ask whether the parking lot may be determined to be unneeded for village purposes if the proceeds from the sale of the parcel are used by the village to purchase or lease a parking lot as a substitute for the one conveyed. You also ask whether the village may convey the parking lot to the U.S. Postal Service, whether or not it is determined to be unneeded, for nominal consideration pursuant to General Municipal Law, §72-h.
Village Law, §1-102(1) authorizes villages to "take, purchase, hold lease, sell and convey such real and personal property as the purposes of the corporation may require." Section 1-102 does not expressly state that only property which is no longer needed for village purposes may be conveyed (cf. County Law, §215). However, this Office has consistently expressed the opinion that village property, having been acquired and used for a village purpose, may not be sold or conveyed unless the village board has first determined that the property is no longer needed for village purposes (1982 Opns St Comp No. 82-341, p 432; 1979 Opns St Comp No. 79-29, unreported; 1973 Opns St Comp No. 73-889, unreported; see also 1985 Opns St Comp No. 85-37, p 51; cf. Fisher v Becker, 32 AD2d 786, 302 NYS2d 470, affd 26 NY2d 938, 310 NYS2d 327, concerning a conveyance under Article 15 of the General Municipal Law).
Whether a given parcel of village real property is no longer needed for village purposes is a question of fact to be determined, in the first instance, by the village board. Accordingly, this Office expresses no opinion on whether the parcel in question is needed for village purposes. However, it would appear that a village board could have a rational basis for declaring a parcel to be unneeded if the village were to coincidently acquire an equivalent parcel to replace the parcel conveyed so that thevillage taxpayers would suffer no meaningful discontinuance of the availability of real property for a particular use.
Notwithstanding the general authority in section 1-102 to
convey unneeded real property, municipal lands which are
impressed with a public trust may not be alienated without
specific State legislative authority. It is well-established
that lands dedicated to public park purposes fall within this
category (Ackerman v Steisel, 104 AD2d 940, 480 NYS2d 556, affd
66 NY2d 833, 498 NYS2d 364; Brooklyn Park v Armstrong, 45 NY
234; Gerwitz v City of Long Beach, 69 Misc 2d 763, 330 NYS2d
495, affd 45 AD2d 841, 358 NYS2d 957). Further, dicta in at
least two cases suggests, without detailed analysis, that lands
held for the purpose of public parking are similarly impressed
with a public trust and, therefore, are inalienable without
express authorization from the State Legislature (Ambassador
Management v Village of Hempstead, 186 Misc 74, 58 NYS2d 880,
affd 270 App Div 898, 62 NYS2d 165, app dsmd 296 NY 666;
Delihan v O'Dwyer, 197 Misc 950, 97 NYS2d 326, revd on other
grnds 277 App Div 407, 100 NYS2d 512, affd 302 NY 451). In
view of these cases, we have previously advised that, to
eliminate any question of a village's authority under section
1-102 to convey property used as a parking facility, the safest
course for a village to follow would be to seek a special act
of the State Legislature to authorize a conveyance of land
dedicated to use as a public parking lot (1978 Opns St Comp No.
78-1069, unreported, copy enclosed; cf. 1981 Opns St Comp, No.
81-425, p 477, discussing conveyances pursuant to General
Municipal Law, §§72-j and 507). Accordingly, it is our opinion
that, even if the village board were to determine that the
parking lot is unneeded for village purposes, the village
should obtain special legislation to authorize a conveyance
pursuant to section 1-102. Our reference to special
legislation is not intended to be a recommendation of this
Office with regard to any such legislation.
Accordingly, it is our opinion that the village should obtain a special act of the State Legislature prior to conveying the parking lot whether pursuant to Village Law, §1-102 or General Municipal Law, §72-h. Our conclusion with regard to the necessity of a special act renders it unnecessary to discuss whether a village could convey property still needed for village purposes pursuant to section 72-h.
January 12, 1988