Opinion 92-49


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


PARKS AND RECREATION - Recreational Trail (as constituting park facility)
REFERENDUM - Permissive (need for when town leases land for recreational trail)

TOWN LAW §§81,220: A proposed lease of real property for use as a town recreational trail is subject to permissive referendum, or the town board, upon its own motion, may submit a proposition therefor to referendum at a special or biennial town election, if the lease payments are to be paid from moneys appropriated from taxes levied for the current fiscal year.

This is in response to your letter in which you state that your town is considering leasing a section of an abandoned right-of-way from a private corporation for use as a recreational trail. You ask whether the proposed recreational trail would constitute a "park" for purposes of the provisions of law relating to the holding of a referendum upon the establishment of a public park in a town and the acquisition of property therefor and whether such provisions require or permit the holding of a referendum. The informational attachment to your letter indicates the trail would be part of a greater trail passing through numerous municipalities, which would be utilized for purposes such as bicycling, walking, jogging, cross-country skiing, bird watching and horseback riding, with the particular use within each municipality to be determined by that municipality.

Town Law, §81 provides that a town board may upon its own motion, and shall upon a petition, cause to be submitted at a special or biennial town election, a proposition to establish a "public park" and acquire the necessary lands therefor. Section 220 of the Town Law provides that, upon the adoption of a resolution subject to permissive referendum, a town may establish a "public park" and acquire the necessary lands therefor. Both sections 81 and 220 provide, in pertinent part, as follows:

Any expenditure approved pursuant to this section shall be paid for by taxes levied for the fiscal year in which such expenditure is to be made .... Any expenditure financed in whole from moneys appropriated from surplus funds shall not be subject to referendum.

Thus, expenditures of current year tax moneys for purposes authorized in sections 81 and 220 are subject to the referendum provisions of those sections, while expenditures of surplus moneys for those purposes are not.

Neither section 81 nor 220 defines the term "public park". The word "park", however, has been generally construed by the courts as: "a piece of ground inclosed for purposes of pleasure, amusement or ornament" (Perrin v New York Central Railroad Co., 36 NY 120, 124); "a strip of land ... set apart either for pleasure ground or for purposes of exercise, amusement or decoration" (id.); land which is "devoted to any use which tends to promote popular enjoyment and recreation" (In Re Central Parkway, City of Schenectady, 140 Misc 727, 729, 251 NYS 577, 579); or land which "facilitate[s] free public means of pleasure recreation and amusement" (Williams v Gallatin, 229 NY 248, 254, 128 NE 121, 122). Applying these judicial constructions, it has been held that the land acquired by a town for a town park and construction therein of bobsled runs, bridle paths, ski trails and other winter sports facilities constituted public parks or playgrounds within the meaning of sections 81 and 220 of the Town Law (see Rivet v Burdick, 255 AD 131, 6 NYS2d 79). Also, we have noted that bicycle paths are commonly found within municipal parks and concluded that such paths constituted a park or recreational purpose (see 1987 Opns St Comp No. 87-22, p 36). Based on the similarity between the proposed recreational trail and those uses of land previously held to be a "park", it is our opinion that the proposed trail would constitute a "public park" within the meaning of Town Law, §§81 and 220.

With respect to the referendum provisions of sections 81 and 220, we have previously concluded that a lease of real property for purposes authorized by sections 81 and 220 is an acquisition of land within the meaning of those sections and is subject to the referendum provisions of those sections (see 1979 Opns St Comp No. 79-347, p 61; 30 Opns St Comp, 1974, p 61). Therefore, a town board resolution to acquire by lease real property for the recreational trail, to be financed by budgetary appropriations of current tax moneys, is subject to permissive referendum pursuant to Town Law, §220. Further, pursuant to section 81, the town board on its own motion may, and upon petition must submit to referendum a proposition on the acquisition by lease of real property for the recreational trail, if the lease is to be financed by budgetary appropriations of current tax moneys.

As noted above, if the expenditure for the acquisition of the property for a purpose authorized by sections 81 and 220 is to be financed by taxes levied for the fiscal year in which such expenditure is to be made, the referendum provisions of sections 81 and 220 are applicable (see 1979 Opns St Comp, No. 79-347, supra; 30 Opns St Comp, 1974, supra; see also 23 Opns St Comp, 1967 pp 908, 910). In the case of a lease extending beyond the current fiscal year, the town board, to the extent it chooses to make payments due under the lease, will be required to appropriate moneys for that purpose in future years. Therefore, since such appropriations will be enacted as part of the town's annual budget and generally financed with the levy of taxes, the referendum provisions would apply (see 30 Opns St Comp, 1974, supra).

December 31, 1992
Dennis R. House, Supervisor
Town of York