Opinion 88-1


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

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[4]). 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.

With regard to a conveyance to the U.S. Postal Service for nominal consideration pursuant to General Municipal Law, §72-h, we note that section 72-h authorizes villages, notwithstanding any general, special or local law, to sell, transfer or lease real property, either with or without consideration, to certain other public entities, including "the government of the United States and any agency or department thereof...." Pursuant to the "Postal Reorganization Act of 1970" (39 USC, §§101, et seq.), the U.S. Postal Service, since 1971, has been established as an "independent establishment of the executive branch of the Government of the United States..." (39 USC, §201). Under the Act, the Postal Service has authority, among other things, to sue and be sued in its own name, acquire real property and enter into contracts (39 USC, §401). However, while the Postal Service was granted certain independent powers equivalent to a private business enterprise under the Act (see Beneficial Finance v Dallas, 571 F2d 125; Chait v Active Fire, 101 Misc 2d 533, 421 NYS2d 333), it clearly performs a governmental function as a part of the federal government (see Prefab v U.S.P.S., 600 F Supp 89) and, in many contexts, has been expressly held to be an agency of the federal government (see, e.g., U.S. v Moore, 555 F2d 658, applicability of Federal Rules of Evidence 902[1]; 1980 Opns St Comp No. 80-758, unreported, exemption from town zoning ordinance; cf. Chait, supra, applicability of New York State Lien Law). In view of the nature of the U.S. Postal Service and the broad authorization in General Municipal Law, §72-h to convey with or without consideration to the federal government (see Sponsor's Memorandum in Support, L 1964, ch 502), it is our opinion that the Postal Service is an "agency or department" of the U.S. Government for purposes of that section.

While in our opinion section 72-h provides authority for a village generally to convey unneeded village real property to the U.S. Postal Service with or without consideration, it is also our opinion that section 72-h does not authorize the conveyance of property which is vested with a public trust and is therefore inalienable without special legislative authority. Subdivision b of section 72-h specifically provides that that section shall not apply to any real property made inalienable under the provisions of any general, special or local law. Although the inalienability of public park and parking lot property stems from common law rule and not state or local enactment, we have expressed the opinion that subdivision b is intended as a general statement that section 72-h does not provide the requisite specific statutory authority to convey property vested with a public trust. Therefore, it is our opinion that the principle enunciated in subdivision b with regard to property made inalienable by statute is equally applicable to land made inalienable by common law rule (15 Opns St Comp, 1959, p 199; 21 Opns St Comp, 1965, p 477; Gerwitz, supra, citing 21 Opns St Comp, supra).

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
Bernard I. Kunert, Esq., Village Attorney
Village of Warwick