Opinion 88-22


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


SEWER DISTRICTS -- Construction (inclusion of park facilities as district expenses)

PARK DISTRICTS -- Use (restrictions on nonresidents)

PARKS AND RECREATION -- Facilities (exclusion of nonresidents); (imposition of fees)

TOWN LAW, §§198, 202: The cost of construction of park facilities undertaken solely for the purpose of increasing the possibility of obtaining state and federal aid for a sewer district project may not be included as part of the cost of the district.

TOWN LAW, §§81, 220: Under certain limited circumstances, a town may exclude nonresidents from a town park.

TOWN LAW, §198(4): The town board may restrict the use of the facilities of a park district to district residents.

You state that the town is constructing sewage treatment plants in two sewer districts and has applied for State and Federal aid in connection with the projects. In its applications for aid the town has included plans for two small parks with boat launching ramps for the purpose of increasing the likelihood that the districts would receive State and Federal funding under the Federal Clean Water Act (33 USC §§1251, et seq.). The construction grants program established under the act and administered by the New York State Department of Environmental Conservation confers a higher priority on a project which provides for the use of sewage treatment plant lands for certain other purposes than a project which does not (see 40 CFR 35.2030). You ask if, under these circumstances, the construction costs of the park facilities may be included as a part of the expense of sewer district improvements. You also ask if the town may restrict the use of such parks to town residents.

Town Law, §198(1)(a) provides that a town board may "lay out, open, design, construct, alter and maintain sanitary sewers, sewage disposal plants or any necessary work appurtenant thereto...." [Emphasis added]. Similarly, Town Law, §202(1) defines the expense of an improvement as including "expenses incurred or occasioned by reason of the improvement or project."

Reading both of the above sections together, it is our opinion that the expenses of a sewer district project must be limited to those costs necessarily incurred or occasioned by the project. In the instant matter, we understand that the parks were included in the districts' construction plans submitted in its aid applications solely to increase the possibility of an award of State and Federal funds, but that the parks are not requiredunder the State or Federal programs as a component of the sewer improvement construction. In our view, under these circumstances, the parks are neither "necessary" to the sewer district construction nor "incurred or occasioned by reason of the improvement or project" within the meaning of Town Law, §§198(1)(a) and 202(1). It is our opinion, accordingly, that the costs of the subject park facilities may not be included as a part of the expenses of the sewer district improvements.

As an alternative, the town may wish to consider establishing the parks under the provisions of sections 81 and 220 of the Town Law or, if appropriate, establishing park districts coterminous with the boundaries of the sewer districts under the provisions of Article 12-A of the Town Law. If the town establishes a town park, the expenses incurred in financing, operating, and maintaining the park would be town-wide charges (Town Law, §§232, 245; Incorporated Village of Ardsley v Town of Greenburgh, 79 AD2d 628, 433 NYS2d 626, affd 55 NY2d 915, 449 NYS2d 27). If, however, the town establishes a park district, the facilities must be constructed and maintained wholly at the expense of the district (Town Law, §§190, 202, 202-a).

With regard to residency restrictions, we note that, as a general rule, under equal protection principles, classifications are permissible so long as all persons similarly situated are included within the classification and all such persons are similarly treated. Differentiation in classification or treatment will be upheld if it has some rational basis, is not arbitrary, and bears some substantial and rational relation to the accomplishment of a legitimate governmental purpose (see, e.g., Scime v County Legislature, 90 Misc 2d 769, 395 NYS2d 952; Cooper v Morin, 91 Misc 2d 302, 398 NYS2d 36, mod on other grounds 64 AD2d 130, 409 NYS2d 30, mod on other grounds 49 NY2d 69, 424 NYS2d 168).

In applying the above principles to the use of municipal parks, it would appear that if a town park, from its inception, is designed and established to serve only the residents of the town, is not used by the public at large, is operated and maintained with town funds only, and has a limited capacity insufficient to accommodate both town residents and non-residents, the town may limit use of the park to residents of the town (see Schreiber v City of Rye, 53 Misc 2d 259, 278 NYS2d 527; Gewirtz v City of Long Beach, 69 Misc 2d 763, 330 NYS2d 495, affd 45 AD2d 841, 358 NYS2d 957; 1980 Opns St Comp No. 80-272, unreported; 33 Opns St Comp, 1977, p 130). It has been held, however, that when park property is held in trust for the public at large, a municipality may not exclude nonresidents from the park (Gewirtz, supra; Opn No. 80-272, supra; 33 Opns St Comp, 1977, p 130, supra; see also Hempstead Democratic Club v Inc. Village of Hempstead, 112 AD2d 428, 492 NYS2d 89). In circumstances where a park is held for the public at large, although non-residents may not be excluded, the town is permitted to charge a reasonable fee to nonresidents who use the park (Gewirtz, supra; Opn No. 80-272, supra). Whether a particular park is held for the public at large is, of course, a question of fact.

If the town establishes park districts, the town board has statutory authority to restrict the use of the facilities of the districts. Section 198(4) of the Town Law defines the powers of the town board with respect to park districts. Under section 198(4) the town board may:

" ... employ such persons and expend such amount of money as may be necessary for the proper maintenance of such park for the use, convenience and enjoyment of the inhabitants of such park district, and, may in its discretion, grant licenses and privileges for any use of such park and park property which contributes thereto. The town board may fix a reasonable charge for the use of such park by all persons other than inhabitants and taxpayers of such park district ...." [Emphasis added]

This Office has interpreted this provision to mean that a town board may exclude nonresidents of the district entirely, may permit unrestricted use by nonresidents, either without a fee or at a reasonable fee, or may regulate the use by nonresidents in any manner which is consistent with constitutional principles of equal protection (1988 Opn St Comp No. 88-25, p ; 1979 Opns St Comp No. 79-728, unreported; 33 Opns St Comp, 1977, p 130, supra; 29 Opns St Comp, 1973, p 124; 24 Opns St Comp, 1968, p 887).

May 25, 1988
Gloria M. Schovel, Supervisor
Town of Saugerties