Opinion 88-21


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

ZONING AND PLANNING - Park Lands (use of park trust fund moneys to construct indoor recreational facility); (use of park trust fund moneys to construct recreational building in which room(s) used for public meetings)

VILLAGE LAW, §7-730(1): Park trust funds collected from subdividers in lieu of the setting aside of park lands within a subdivision may be used by a village to construct an indoor recreational facility. But a village may not rent or use rooms in such a facility to hold public meetings.

You have inquired concerning the use of park trust funds received by a village from subdividers pursuant to Village Law, §7-730(1). Specifically, you ask:

(1) May park trust funds be used to construct a building for public recreation purposes?

(2) May a village rent one of the rooms in the recreation building for holding public meetings, provided that the rental money is deposited in the park trust fund established under Village Law, §7-730(1)?

(3) May various village boards, such as the board of trustees and planning board, be permitted to hold public meetings in the recreation building, again provided that funds appropriated for the boards' activities be transferred to the trust fund as rental of the space?

Section 7-730 of the Village Law relates to the approval of subdivision plats by a village planning board and authorizes a village to collect moneys from subdividers to establish a trust fund for park purposes (L 1967, ch 348; see also General City Law, §33 and Town Law, §277[1]). The pertinent provision of subdivision one of section 7-730 provides:

"If the planning board determines that a suitable park or parks of adequate size can not be properly located in any such plat or is otherwise not practical, the board may require as a condition to approval of any such plat a payment to the village of a sum to be determined by the board of trustees, which sum shall constitute a trust fund to be used by the board of trustees exclusively for neighborhood park, playground or recreation purposes including the acquisition of land." (emphasis added)

The intent of this provision, which was drafted by our Office in 1967, is that money in the trust fund be used only to acquire additional park land or to construct, rehabilitate or expand existing park or recreation facilities to meet the needs generated by new subdivisions (1982 Opns St Comp No. 82-206, p 260; 1980 Opns St Comp No. 80-566, p 159).

As to whether moneys paid to a village pursuant to Village Law, §7-730 may be used to construct a building for public recreation purposes, we are of the opinion that the term "recreation purposes" as used in that statute is broad enough to include construction of a building as well as the acquisition of park land. Although we were unable to locate a court decision specifically addressing the issue of construction of an indoor recreation building, several prior opinions of this Office have dealt with the construction of outdoor recreational facilities and we have uniformly concluded that such construction is proper (see, e.g., 1970 Opns St Comp No. 70-759, unreported, construction of swimming pools and tennis courts). Similarly, we believe an indoor recreation facility would fall within the meaning and intent of the term "recreation purposes".

We would caution, however, that any recreation facility constructed with park trust funds should be sufficiently near the developments which generated the recreation fees so that the facilities are readily accessible to the new residents. This Office, in commenting on the analogous provisions of the Town Law, stated:

"This objective [of ensuring the availability of park facilities for residents of new developments] may be achieved by the creation of a single, centrally located park benefiting all town residents equally (see, Opns St Comp, 1979, No. 79-215, unreported). It may be achieved in some other way. The decision is one best made by the town board after consideration of various factors which would include, but not be limited to, the size of the town, sites available for acquisition or improvement, the existing facilities, its accessibility to all town residents and the desires of all town residents, including those of each subdivision." (1982 Opns St Comp No. 82-206, p 260).

Thus, while park improvements acquired with trust fund moneys need not be located in the subdivisions for which the moneys were collected, special attention should be given to the needs of the residents residing in these subdivisions when planning the location of the park improvement.

With regard to the proposed uses of the public recreation building, it is our opinion that the building may not be used for meetings of the village board of trustees, village planning board, or other boards, or for other public meetings, even if rent for use of the space is paid into the park trust fund. Village Law, §7-730, quoted above, expressly provides that park trust fund moneys are to be used "exclusively for neighborhood park, playground or recreation purposes" (emphasis added). The plain language of the statute, therefore, precludes the use of trust fund moneys for governmental purposes other than park or recreation purposes (see 1974 Opns St Comp No. 74-1260, unreported).

In the landmark case of Jenad, Inc. v Village of Scarsdale, 18 NY2d 78, 271 NYS2d 955, 218 NE2d 673 (1966), decided one year prior to enactment of Village Law, §7-730, the Court of Appeals upheld the constitutionality of a charge or fee imposed by a village upon subdividers in lieu of the setting aside of park land within the subdivision. In Jenad, supra, it was argued that the charge or fee was an unconstitutional and unauthorized "tax" against subdivision developers since the payments were for general governmental purposes. The court, however, stated:

"We think that this labeling distorts the purpose and meaning of the requirements. This is not a tax at all but a reasonable form of village planning for the general community good." (18 NY2d at 84, 271 NYS2d at 958)

The court further noted that the required setting aside of park land in subdivisions "was merely a kind of zoning, like set-back and side-yard regulations, minimum size of lots, etc., and akin also to other reasonable requirements for necessary sewers, water mains, lights, sidewalks, etc." (18 NY2d at 84, 271 NYS2d at 958). The court stated that the imposition of a charge or fee in lieu of setting aside park land is no more of a "tax" or "illegal taking" than the required setting aside of park land itself.

In our view, the statutory restriction that trust fund moneys be used "exclusively for neighborhood park, playground or recreation purposes" is consistent with the Jenad decision. To the extent that trust fund moneys are used for general governmental purposes, such as public meeting rooms, the imposition of the charges upon subdivision developers begins to resemble an unconstitutional "tax" or an "illegal taking" (cf. Nollan v California Coastal Commission, 483 US _____, 107 S Ct 3141, 97 L Ed 2d 677 [1987], in which United States Supreme Court held that required grant of public easement across beachfront portion of property as condition to issuance of permit to rebuild house on property did not relate to the purpose of the land use restriction and constituted a taking of property without just compensation in violation of Fifth Amendment of U.S. Constitution). We believe, therefore, that the word "exclusively" was carefully and deliberately chosen, and that park trust fund moneys may not be used by a village to construct a public recreation building in which the village plans to rent space for general governmental purposes such as public meeting rooms.

May 5, 1988
Cornelius F. Healy
Deputy State Comptroller