Opinion 2010 - 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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

 

PARKS AND RECREATION -- Moneys in Lieu of Park Land (use of to fund the purchase of a portion of a parcel to be dedicated for park or recreation use)

ZONING AND PLANNING -- Park Lands (use of park trust moneys to fund the purchase of a portion of a parcel to be dedicated for park or recreation use)

VILLAGE LAW § 7-730 (4): If a village purchases a parcel of property, a portion of which is to be used for village offices and a portion of which would (1) be separately appraised, (2) have a separate value ascribed to it, (3) be separately described and deeded, and (4) be dedicated to village park or other recreational uses, the village may use park trust fund monies to pay that part of the purchase price attributable to the discrete portion of the parcel to be dedicated for park or other recreational uses.

You indicate that the village is considering the purchase of real property for use as a village office. Two parcels, one that is two acres and one that is six acres, are under consideration. In the case of the two acre parcel, the village plans to use one acre for the village office, and dedicate the second acre for village park or other recreational purposes. With respect to the six acre parcel, one acre would be used for the village office, and five acres would be dedicated for village park and other recreational purposes. You state that the portion of the parcels to be dedicated for park or recreational purposes, in both cases, would be separately appraised, have separate values ascribed to them and be separately described and deeded. You ask whether monies held in a park land trust fund pursuant to Village Law § 7-730 may be expended to pay that part of the purchase price attributable to the portion of the parcel to be dedicated by the village for park or recreational purposes. The remaining portion of the parcel would be paid for from the village general fund.

Village Law § 7-730 (4) (a) provides that, before a village planning board may approve a subdivision plat containing residential units, the subdivision plat must show, when required by the planning board, a park or parks suitably located for playground or other recreational purposes. Land for park, playground or other recreational purposes may not be required until the planning board has made a finding that a "proper case" exists for requiring that a park or parks be suitably located for playground or other recreational purposes within the village (Village Law §7-730 [4] [b]; see also Twin Lakes Development Corp. v Town of Monroe , 1 NY3d 98, 769 NYS2d 445, cert denied 541 US 974, 158 L Ed 2d 469, 124 S Ct 1883; Bayswater v Planning Board of the Town of Lewisboro, 76 NY2d 460, 560 NYS2d 623). 1 The “proper case” finding must include an evaluation of the present and future needs for park and recreational facilities in the village, based on projected population growth to which the particular subdivision plat will contribute (Village Law § 7-730 [4] [b]).

If the planning board makes a finding that a proposed subdivision plat presents a "proper case" for requiring a park or parks suitably located for playgrounds or other recreational purposes, but that a suitable park or parks of adequate size to meet the requirement cannot be properly located on the plat, the planning board may require a sum of money in lieu of the reservation of park land, "in an amount to be established by the village board" (Village Law § 7-730 [4] [c]; see also Twin Lakes Development v Town of Monroe, supra). 2 In determining suitability, the planning board must assess the size and suitability of land shown on the plat that could be possible locations for park or recreational facilities, as well as practical factors, including whether there is a need for additional facilities in the immediate neighborhood (Village Law § 7-730 [4] [c]; see Bayswater, supra).

Any moneys required by the planning board in lieu of land for park, playground or other recreational purposes must be deposited into a trust fund, "to be used by the village exclusively for park, playground or other recreational purposes, including the acquisition of property" (Village Law § 7-730 [4] [c] [emphasis added]). In view of the statutory restriction that the trust fund monies be used “exclusively” for park, playground and recreational purposes, this Office concluded, in 1988 Ops St Comp No. 88-21, at 37, that such monies may not be used by a village to construct a recreation facility in which the village intends to rent space for general governmental purposes. 3

The situation at hand, however, is distinguishable from that in 1988 Ops St Comp No. 88-21, supra. The village here will use park trust fund monies to pay only for that portion of the parcel to be dedicated for recreational purposes, with general fund monies used to fund the cost of the remaining part of the parcel. Further, the village will take steps to ensure that no trust monies are used to pay for the non-recreational portion of the land by having that portion separately appraised, having a separate value ascribed to it and having it separately described and deeded. Under these circumstances, it is our opinion that park trust fund monies may be used to fund that discrete part of the purchase price attributable to the portion of the parcel to be dedicated to park or other recreational uses.

Accordingly, if a village purchases a parcel of property, a portion of which is to be used for village offices and a portion of which would (1) be separately appraised, (2) have a separate value ascribed to it, (3) be separately described and deeded, and (4) be dedicated to village park or other recreational uses, the village may use park trust fund monies to pay for that that part of the purchase price attributable to the discrete portion of the parcel to be dedicated for park or other recreational uses.

 

June 1, 2010

John Ritter, Jr., Esq., Village Attorney
Incorporated Village of Oyster Bay Cove

1 Village Law § 7-730 contains provisions that parallel those for set forth for towns in Town Law § 277. The Court of Appeals, in Bayswater v Planning Board of the Town of Lewisboro (76 NY2d 460, 560 NYS2d 623), discussing a prior version of Town Law § 277, noted that the statute “represents a legislative reaction to the threatened loss of open land available for park and recreational purposes resulting from the process of development in suburban areas and the continuing demands of the growing populations in such areas for additional park and recreational facilities.” (76 NY2d, at 468, 560 NYS2d, at 627; see also Twin Lakes Development v Town of Monroe, 1 NY3d 98, 769 NYS2d 445, cert denied 541 US 974, 158 L Ed 2d 469, 124 S Ct 1883, [quoting this passage from the Bayswater case]).

2 The fees imposed must meet due process standards (US Const 5 th , 14 th Amends) and not constitute an unconstitutional taking ( see e.g. Twin Lakes Development v Town of Monroe, 1 NY3d 98, 769 NYS2d 445, cert   denied 541 US 974, 158 L Ed 2d 469, 124 S Ct 1883; see also Dolan v City of Tigard, 512 US 374, 129 L Ed 2d 304, 114 S Ct 2309; cf . Joy Builders v Town of Clarkstown, 54 AD3d 761, 864 NYS2d 86, app dismissed 11 NY3d 863, 872 NYS2d 68, cert denied _____ US _____, 173 L Ed 2d 1088, 129 S Ct 2010). For purposes of this opinion, we presume the fees that would be used for the purchase of land were in all respects properly imposed.

3We also cautioned, in 1988 Ops St Comp No. 88-21at 39, that to the extent park trust funds are used for general governmental purposes, it may be a factor indicative that the “fee” in lieu of the dedication of park land constitutes an unauthorized “tax” or an “illegal taking.”