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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.
PARK DISTRICTS -- Use of (exclusion of nonresidents); (imposition of fees and regulations)
TOWN LAW, §198(4); STATE CONSTITUTION, ART I, §11: Subject to equal protection guarantees, a town board may exclude nonresidents of a park district from the facilities of the district. However, the town board may also permit nonresidents to use park district facilities, with or without a fee. If the town board permits use of park district facilities by nonresidents, it may impose reasonable regulations on that use, subject to constitutional equal protection guarantees.
This is in reply to your inquiry concerning the town board's authority to restrict the use of the facilities in a park district. You indicate that a park district in the town maintains a dam, a public boat launch facility and a beach. You also indicate that the use of the facilities in the district has increased over the years. Because of this increased usage, it has been suggested that the facilities should be limited to only certain groups of individuals.
You ask whether the town board may limit the use of the facilities in the district to property owners and inhabitants of the district, or to district property owners and residents of the town, and whether the town board may impose fees for use of the district by other than inhabitants. In addition, you ask whether the term "inhabitant" as used in section 198(4) of the Town Law refers solely to property owners. Finally, you ask whether the town board may appoint a board of commissioners to govern the district.
Under the provisions of articles 12 and 12-A of the Town Law (§§190, et seq.), the facilities in a park district are constructed and maintained wholly at the expense of the district and are exclusively for the benefit of the people within the district (Incorporated Village of Lloyd Harbor v Town of Huntington, 4 NY2d 190, 173 NYS2d 553; Town Law, §§190, 194, 202, 202-a, 209-e). In particular, section 198(4) defines the powers of a town board with respect to a park district and provides that the 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 district...." [Emphasis added]
This provision has been interpreted to authorize the exclusion of nonresidents from the facilities of a park district (Incorporated Village of Ardsley v Town of Greenburgh, 55 NY2d 915, 449 NYS2d 27; 29 Opns St Comp, 1973, p 124; 24 Opns St Comp, 1968, p 887; cf. Parks, Recreation and Historic Preservation Law, Art. 17, which provides that use of municipal parks acquired or developed with moneys made available under that Article may not be limited to residents unless the Commissioner of Parks, Recreation and Historic Preservation approves). In this regard, we note that the court in Ardsley, id., apparently interpreted the word "inhabitants", as used in section 198(4), to mean "residents" of the district without any reference to property ownership (see also 1979 Opns St Comp No. 79-728, unreported).
With regard to whether a park district must treat non-resident property owners of the district in the same manner as inhabitants of the district, we note that section 198(4), by prohibiting the imposition of fees on both "inhabitants and district taxpayers", seems to anticipate that both inhabitants and district taxpayers, whether or not such taxpayers are residents, must be permitted to use district facilities on the same basis. Further, we note that, under the equal protection principles discussed below, it may be difficult to justify a distinction between resident and non-resident taxpayers since such distinction would establish two classes of taxpayers, even though both provide financial support for the municipal facility (see, e.g., People ex rel. Lawrence v Kraushaar, 195 Misc 480, 89 NYS2d 695; 1985 Opn St Comp No. 85-63, p 91; 30 Opns St Comp, 1974, p 27).
If the town board, in exercising the discretion granted by section 198(4), decides to permit the use of the facilities by nonresidents, it may impose some restrictions on their use. Thus, although section 198(4) prohibits the imposition of a fee on inhabitants and taxpayers of the district, the town board has the authority to charge nonresidents a reasonable fee for use of district facilities (Opn No. 79-728, supra; 29 Opns St Comp, 1973, p 124; 24 Opns St Comp, 1968, p 887). However, since there is no statutory requirement that a fee be charged to non-resident users, it is our opinion that the town board may also permit nonresident use without a charge (24 Opns St Comp, 1968, supra). The town board also may impose reasonable regulations, such as limiting the total number of nonresidents permitted to use the park, in order to assure the availability of the facilities to district residents (33 Opns St Comp, 1977, p 130; 29 Opns St Comp, 1973, supra).
Any exclusion of, or restrictions imposed on, nonresidents of the district must not contravene constitutional equal protection guarantees (NY Const art. I, §11; 29 Opns St Comp, 1973, supra; 24 Opns St Comp, 1968, supra). 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 generally 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). We are not in a position to determine whether a distinction between those non-residents of the district who are town residents and those who live outside the town could be justified under the equal protection standards enunciated by the courts. Similarly, although Town Law, §198(4) authorizes a town to limit or restrict the use of facilities of a park district to inhabitants of the district, there may be some circumstances when a court might find that restrictions on non-residents do not have a rational basis, such as where the facilities have previously been open to the public-at-large and capacity limitation is not a factor.
Finally, with regard to whether the town board may appoint a board of commissioners to govern the district, we direct your attention to 1987 Opns St Comp, No. 87-69, p 104 (copy enclosed) which discusses the governance of improvement districts by boards of commissioners. As you will note from that opinion, all town improvement districts, except certain districts established prior to April 8, 1932 and those governed by a board of commissioners pursuant to the provisions of a special act of the state legislature, are governed solely by the town board (Town Law, §61; cf. McKinney's Unconsolidated Law, §§1471-1493, which authorize establishment of a park district governed by a board of commissioners in certain towns). In addition, there is no authority for the town to establish, by local law, a separate board of commissioners to govern an improvement district (see Municipal Home Rule Law, §10[ii][d]). As noted in Opn No. 87-69, supra, however, it is possible for the town to establish advisory committees for district matters, but it is clear that such committees cannot be empowered to exercise any powers on behalf of the town board or to bind the town board in any way.
May 25, 1988
Frederick H. Monroe, Esq.
Town of Chester