Opinion 91-36


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 village park trust fund moneys to develop facilities in town park)
PARKS AND RECREATION -- Joint Parks (use of village park trust fund moneys to develop facilities in town park)

GENERAL MUNICIPAL LAW, §§119-o, 244-b; TOWN LAW, §277(1); VILLAGE LAW, §7-730(1): A newly incorporated village which has no parks of its own may enter into a cooperation agreement with the town in which it is located, whereby the village would use park trust fund moneys to pay for additional recreational facilities in an existing town park located in the neighborhood of or readily accessible to the subdivisions from which the park land fees were received. The agreement must include safeguards to protect the village's investment for the useful life of the improvements, and to ensure compliance with Village Law, §7-730(1). Prior opinions, including Opn Nos. 81-275, 79-240 and 76-345, are superseded to the extent they are inconsistent therewith.

We have been asked whether park land fees imposed upon subdividers by a newly incorporated village, under village subdivision regulations adopted pursuant to Article 7 of the Village Law, may be used to finance additional facilities in an existing town park located in the village. The town in question has developed an extensive park system and at least one of its parks is located in the village. The village has not developed any parks of its own. Since the town parks are financed by town-wide taxes, they are open to all town residents, including residents of the village (see Incorporated Village of Ardsley v Town of Greenburgh, 79 AD2d 628, 433 NYS2d 626, affd 55 NY2d 915, 449 NYS2d 27). We note also the well-established rule that municipal park lands are impressed with a public trust and may not be alienated or used for any other purpose without specific authorization by the State Legislature (Brooklyn Park Commissioners v Armstrong, 45 NY 234; Village of Croton-on-Hudson v County of Westchester, 38 AD2d 979, 332 NYS2d 859, affd 30 NY2d 959, 335 NYS2d 825; Gewirtz v City of Long Beach, 69 Misc 2d 763, 330 NYS2d 495, affd 45 AD2d 841, 358 NYS2d 957).

Village Law, §7-730(1) authorizes villages to collect moneys from subdividers, in lieu of requiring the setting aside of park land in the subdivision itself. Section 7-730(1) provides that the moneys collected "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". A village, however, does not have unlimited authority to impose a park land fee upon a developer of a subdivision; that is, a village may not routinely impose such a fee. In analyzing the park-land-or-fee enabling provision in Town Law, §277(1), which is analogous to the provision in Village Law, §7-730(1), the Court of Appeals has said:

Before the Planning Board may exercise its authority to impose a payment requirement in lieu of setting aside lands under section 277(1), it must make two determinations with respect to the proposed plat: (1) that a "proper case" exists for requiring the developer to show on the plat "a park or parks suitably located for playground or other recreational purposes", and (2) "that a suitable park or parks of adequate size [to meet the requirement] can not be properly located in any such plat or is otherwise not practical" (§277[1]). Bayswater Realty & Capital Corp. v Planning Board of Town of Lewisboro, 76 NY2d 460, 470-471, 560 NYS2d 623, 629.

For the purpose of addressing the present inquiry, we will assume that the village is able to justify the park land fees already collected based on the two-pronged test set forth in Bayswater, supra.

This Office has consistently expressed the opinion that park land trust fund moneys may be expended only to acquire additional park land or to construct, rehabilitate or expand existing park or recreational facilities to meet the needs generated by new subdivisions and may not be used to pay for the operation and maintenance expenses of existing parks (see, e.g., 1988 Opns St Comp No. 88-21, p 37; 1980 Opns St Comp No. 80-566, p 159; 1978 Opns St Comp No. 78-858, unreported). Any recreation facility constructed or improved with park trust funds should be in or sufficiently near the developments which generated the fees so that the facilities are readily accessible to the new residents (Opn No. 88-21, supra; 1982 Opns St Comp No. 82-206, p 260).

We have also expressed the view that, in general, trust fund moneys may be used only to develop park facilities on land owned by the municipality itself in order to carry out the legislative intent that the trust fund is "to be used ... exclusively for neighborhood park, playground or recreation purposes including the acquisition of land" (Village Law, §7-730[1]; see also Town Law, §277[1]; see 1981 Opns St Comp No. 81-275, p 294; 1979 Opns St Comp No. 79-240, unreported; 1976 Opns St Comp No. 76-345, unreported). In those same opinions, however, we recognized the authority of a municipality, in certain circumstances, to enter into a cooperation agreement (see General Municipal Law, §§119-o, 244-b) to use trust fund moneys to develop park or recreational facilities on land owned by another local government (see also 1983 Opns St Comp No. 83-207, p 268). We concluded that such joint agreements must satisfy the following conditions:

(1) no feasible alternative parcel of land, public or private, is available to the municipality holding the trust funds for recreational development in the geographic area of the subdivisions in question, or readily accessible thereto;

(2) the property owned by the other governmental unit must be surplus land; and

(3) the agreement with the other governmental unit must include safeguards protecting the investment of the municipality holding the trust funds in the event that its license to use the property is revoked prior to the expiration of the useful life of improvements constructed with trust fund moneys (Opn Nos. 81-275, 79-240 and 76-345, supra).

Upon reconsideration, we now believe that the first of the three conditions, i.e., that there is no feasible alternative parcel of land available for acquisition within the municipality, need not be a rigid, mandatory prerequisite in order to achieve the purposes of Village Law, §7-730. Generally, it would seem preferable that a village use its park land trust fund moneys to acquire land or facilities under its ownership and control to ensure proper use of the funds to meet the needs resulting from the new developments which generated the moneys. A village board should have discretion, however, to determine that, consonant with statutory requirements, trust fund moneys are best used pursuant to a cooperation agreement with a town to develop facilities in an existing town park as long as the park is sufficiently near the developments which generated the moneys so as to be readily accessible by the residents.

As to the condition that the property owned by the other governmental unit must be surplus land, clearly a town park which is being used is not "surplus land" as such. Nonetheless, if there is unused or "surplus" space within the park where additional facilities paid for by village park trust funds might be located, the second condition would be satisfied.

The third condition is important to ensure that village park land trust fund moneys will be expended for purposes in accord with the statutory guidelines previously discussed. Thus, when a village agrees to pay for additional facilities in an existing town park, the agreement between the town and village should include safeguards to protect the village's investment. Thus, in addition to requiring the town to install the agreed upon facilities in the park, the agreement should require the town to operate and maintain the facilities during their useful life. The agreement should also ensure that the park remains readily accessible to residents of the new subdivisions. Within these guidelines, a village board of trustees should have flexibility in exercising its legislative prerogative to expend park land trust fund moneys to provide additional park facilities for residents of new subdivisions.

In conclusion, therefore, it is our opinion that a newly incorporated village which has no parks of its own may enter into a cooperation agreement with the town in which it is located pursuant to General Municipal Law, §244-b or article 5-G of the General Municipal Law (§119-m et seq.), whereby the village would use park trust fund moneys received pursuant to Village Law, §7-730(1) to pay for additional recreational facilities to be located in existing town parks in the neighborhood of, or readily accessible to, the subdivisions from which the park land fees were received. Joint ownership of the additional recreational facilities by the town and village would be preferable but not required. The agreement between the town and village must include safeguards to protect the village's investment for the useful life of the improvements and to ensure compliance with the stated purposes of Village Law, §7-730(1).

Prior opinions, including Opn No. 81-275, supra, Opn No. 79-240, supra, Opn No. 76-345, supra, are superseded to the extent that they are inconsistent herewith.

September 17, 1991
Doris F. Ulman, Esq., Village Attorney
Village of New Hempstead