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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.
WORDS AND PHRASES -- "In the same manner and at the same time as town taxes" (as meaning ad valorem levies)
TOWNS -- Powers and Duties (tort liability in connection with park district)
PARK DISTRICTS -- Establishment (pursuant to Laws of 1924, ch 574) -- Powers and Duties (pursuant to Laws of 1924, ch 574)
LAWS of 1924, CHAPTER 574 (MCKINNEY'S UNCONSOLIDATED LAWS, §§1471-1493): A park district established pursuant to the provisions of chapter 574 of the Laws of 1924 is an administrative unit of the town rather than an independent corporate entity. The board of park commissioners of such a district may hold real property in its own name. The board, however, is not subject to the provisions of Article 13 of the Town Law. Judgments against the board of commissioners would be properly assessed and levied on the properties within the district. Properties within the district are assessed on an ad valorem basis.
This is in reply to your inquiry concerning the powers and duties of the town board in relation to a park district established pursuant to provisions of chapter 574 of the Laws of 1924 (McKinney's Unconsolidated Laws of NY, §§1471-1493) which authorizes the establishment of park districts and the appointment of park district commissioners in certain towns in Westchester County. You ask generally about the nature of the district in relation to the town and about the town board's role in administration of the district. You also specifically ask: (a) whether, once a park district is established under chapter 574, the board of park commissioners constitutes a separate corporate body with the power to hold title to property; (b) whether the provisions of Article 13 of the Town Law, and in particular section 215(6) of the Town Law relating to the payment of judgments against the board of commissioners, apply to the board of commissioners in this type of district; (c) what residency restrictions can be placed on the use of a park within the district; (d) whether properties within the district are subject to town general taxes for park purposes; (e) whether the board of park commissioners has the authority to dispose of park district property without replacing it with other property for park purposes; and (f) whether the town could be exposed to tort liability in connection with operation of the district.
Under section 1-b of chapter 574, the town board, after receipt of a sufficient petition and after a public hearing, may determine that it is in the public interest to establish a park district (McKinney's Unconsolidated Laws of NY, §1473). Section 5 of chapter 574 provides that the board of park commissioners of a park district established pursuant to chapter 574 is created as a body corporate (McKinney's Unconsolidated Laws of NY,§1482). The members of the board of commissioners are appointed by the town supervisor, with the approval of the town board (L 1924, ch 574, §3; McKinney's Unconsolidated Laws of NY, §1480). The commissioners are given the entire charge, control and management of the establishment, maintenance, operation and improvement of parks within the district, but any rules and regulations established by the commissioners for the government and protection of the park are subject to the approval of the town board (L 1924, ch 574, §§9, 14; McKinney's Unconsolidated Laws of NY, §§1486, 1491).
The park district has no authority to contract indebtedness in its own name (L 1924, ch 574, §§6, 7; McKinney's Unconsolidated Laws of NY, §§1483, 1484). Rather, the town board, upon application of the board of commissioners, may issue indebtedness for district purposes pursuant to the Local Finance Law. The district is required, however, annually to prepare an itemized estimate of the necessary expenses of maintaining, operating and improving the park district for the next fiscal year, including the amount to be paid for debt service on obligations issued by the town for park purposes (L 1924, ch 574, §11; McKinney's Unconsolidated Laws of NY, §1488). The estimate is prepared in accordance with the requirements of the town board, and the town board may reduce or strike any item in the board of commissioners' annual estimate of expenses other than items for the payment of principal and interest on obligations (id.).
The amount specified in the estimate, less any reductions made by the town board, is levied and collected upon taxable real property within the park district "in the same manner" and "at the same time" as town taxes, and is paid over to the board of commissioners to be applied for the purposes stated in the estimate (id.). The phrase "in the same manner and at the same time" as town taxes, as used in connection with levies of assessments for district purposes (see Town Law, §§202, 202-a), means ad valorem assessments (see Sperry Rand v Town of North Hempstead, 53 Misc 2d 970, 280 NYS2d 600, affd 29 AD2d 968, 290 NYS2d 864, affd 23 NY2d 666, 295 NYS2d 490; 11 Opns St Comp, 1955, p 744; Real Property Tax Law, §102). Therefore, the properties within the district are assessed on an ad valorem basis.
The provisions of the chapter 574 appear to have been modeled after Article 17-b of the Town Law of 1909, which authorized the establishment of park districts in towns in certain counties. The board of commissioners of a park district established under Article 17-b was created as a body corporate, granted the powers of a municipal corporation, and authorized to take title to park property (Town Law of 1909, §349-c). In interpreting the provisions of Article 17-b, the Court of Appeals characterized the commissioners of a park district established under that Article as "officers of an agency of the town, for a particular town purpose ...." (Village of Kensington v Town of North Hempstead, 262 NY 260, 265). Based on the foregoing, it is our opinion that a park district established pursuant to the provisions of chapter 574, despite having a separate board of commissioners with a certain degree of autonomy, is an administrative unit of the town rather than an independent corporate entity (see Kenwell v Lee, 261 NY 113; Tom Sawyer Motor Inns v Chemung County Sewer District No. 1, 33 AD2d 720, 305 NYS2d 408, affd 32 NY2d 775, 344 NYS2d 958; Belinson v Sewer District No. 16 of Town of Amherst, 65 AD2d 912, 410 NYS2d 469; see also NY Const, Art VIII, §3 and General Construction Law, §66 in relation to the limitations on the establishment of district corporations; 1986 Opns St Comp No. 86-43, p 71; 1979 Opns St Comp No. 79-621, p 118).
With respect to your specific questions, as noted, the board of commissioners is created as a body corporate. Sections 6 and 7 of chapter 574 (McKinney's Unconsolidated Laws of NY, §§1483 and 1484) indicate that the board of park commissioners take title to property acquired for park purposes in its own name.
In relation to the applicability of the provisions of Article 13 of the present Town Law (§210 et seq.) to a park district established pursuant to chapter 574, we note that article 13 contains provisions relative to separately elected boards of commissioners in certain improvement districts. The provisions of section 210 and 341(10) of the Town Law, however, limit the applicability of article 13 to special improvement districts established prior to April 8, 1932, and in which a proposition to be governed by separate commissioners was adopted prior to August 1, 1933 (see 8 Opns St Comp, 1952, p 186). Consequently, it is our opinion that, in the absence of a specific provision in chapter 574 making article 13 applicable (cf. McKinney's Unconsolidated Laws of NY, §1475, relating to certain "procedure(s) specified in any district statute...."), the provisions of article 13 of the Town Law do not apply to the board of commissioners of a park district established pursuant to chapter 574.
As to the payment of judgments rendered against the district, we note that although the provisions of section 215(6) of the Town Law would not apply to this district, it appears that the payment of any judgment against the board of commissioners of the district would be made in a similar manner as provided in that section. Section 215(6) provides, in effect, that the town shall satisfy any judgment against the board of commissioners and the amount paid, or the amount of debt service on obligations issued by the town to finance the judgment, shall be a charge against the improvement district and levied against the taxable property therein.
Under section 11 of chapter 574 (McKinney's Unconsolidated Laws of NY, §1488), as previously noted, the expenses of "maintaining, operating, and improving" the park, including the amount to be paid for debt service on obligations issued by the town for park purposes, are to be levied and assessed upon the taxable property in the park district. In interpreting analogous provisions of the Town Law (Town Law, §§202, 202-a), the courts have indicated that the cost of any judgment arising out of the establishment or operation of the district is properly levied and assessed on the property within the district as a cost of operating and maintaining the district (see Berean v Town of Lloyd, 3 AD2d 585, 162 NYS2d 534; Anderson v Port Washington Public Parking District, 1 AD2d 826, 148 NYS2d 489; Grishaber v Town of Callicoon, 263 App Div 471, 33 NYS2d 508; see also Opn No. 86-43, supra; 1980 Opns St Comp No. 80-144, unreported). Accordingly, it is our opinion that, in the event a judgment is obtained against the board of commissioners of the park district, the cost of the judgment would be properly levied and assessed on the property in the district. Of course, if the town issues debt to finance the judgment, the town as a whole would be ultimately liable if the full amount of the debt service is not paid by district assessments since the town's full faith and credit is pledged for payment of the debt (see NY Const, art VIII, §§2, 3; Local Finance Law, §100.00; McKinney's Unconsolidated Laws of NY, §1483).
With regard to residency restrictions, we note that section 13 of chapter 574 (McKinney's Unconsolidated Laws of NY, §1490) provides that:
[t]he free use of such park may be limited by the board of park commissioners, in its discretion, to the inhabitants of such park district, and with the approval and consent of the town board.
In addition, section 9 provides that the board of park commissioners shall undertake those activities "... as may be necessary for or contribute to the... use, convenience and enjoyment of such park by the inhabitants...." (McKinney's Unconsolidated Laws of NY, §1486). Similar provisions are found in the Town Law relating to park districts established pursuant to Article 12 or 12-A of the Town Law. Section 198(4) of the Town Law provides that, in a park district established under the Town Law, the town board shall maintain the park "...for the use, convenience and enjoyment of the inhabitants of such park district..." and "...may fix a reasonable charge for the use of such park district by all persons other than inhabitants and taxpayers of such park district...." 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 Opns St Comp No. 88-25, p 45; see, however, Environmental Conservation Law, Art. 52 and Parks, Recreation and Historic Preservation Law, Arts. 15 and 17, which provide that certain restrictions on the use of parks acquired or developed with State moneys must be approved by the Commissioner of Environmental Conservation and Commissioner of Parks, Recreation and Historic Preservation, respectively). Although it could be argued that the language of section 13 of chapter 574, as distinguished from that found in section 198(4) of the Town Law, would permit the "free use" of district parks to be limited to residents of the district, but not the total exclusion of nonresidents from district parks, at least one court has cited section 13 for the proposition that use of a park may be restricted to inhabitants of the park district (see People v Dahlman, 87 Misc 2d 261, 383 NYS2d 946). Therefore, while not free from doubt, it would appear that nonresidents may be excluded from the facilities of a park district established pursuant to chapter 574.
As to whether properties within a park district established pursuant to chapter 574 are subject to town general taxes for park purposes, section 15 of chapter 574 (McKinney's Unconsolidated Laws of NY, §1492) provides that:
[n]either the inhabitants of, nor any part of the property of any park district or of any incorporated village, shall be subjected to any tax for park purposes, for or in connection with more than one park district. (Emphasis added)
It would appear that the intent of this provision was to prevent property from being included in two park districts, rather than to exempt properties within park districts from a portion of town general taxes.
With respect to the authority of the board of park commissioners to sell park property and to the use of the proceeds of any such sale, it is a well-established principle of municipal law that real property dedicated to park purposes is impressed with a public trust and may not be divested or alienated without express State legislative authority (see, e.g., Sierra Club v Board of Education of the City of Buffalo, 127 AD2d 1007, 512 NYS2d 954, lv den 70 NY2d 612, 523 NYS2d 496, in which the court discusses the alienation of parklands pursuant to an amendment of the city charter by the State Legislature; see also Ackerman v Steisel, 104 AD2d 940, 480 NYS2d 556, affd 66 NY2d 833, 498 NYS2d 364; Brooklyn Park v Armstrong, 45 NY 234; Village Green Realty v Glen Cove Com. Dev., 95 AD2d 259, 466 NYS2d 26; Gewirtz v City of Long Beach, 69 Misc 2d 763, 330 NYS2d 495, affd 45 AD2d 841, 358 NYS2d 957). We believe section 6 of chapter 574 (McKinney's Unconsolidated Laws of NY, §1483) provides such authority. That section states, in part, that:
[t]he... board of park commissioners may, with the consent and approval of the town board, exchange, sell, convey and transfer any property acquired for park purposes, and with the proceeds thereof may, with the like consent and approval of the town board, purchase other property, real estate, rights-of-way and easements, and erect or cause to be erected thereon such buildings and structures as may be proper for the use thereof as a park.
This language is similar to that found in section 198(4) of the Town Law, which sets forth the powers of the town board with respect to a park district established pursuant to Article 12 or 12-A of the Town Law. Significantly, however, section 198(4) requires that the proceeds of a sale, conveyance or transfer be applied to the purchase and improvement of other park property (see 1980 Opns St Comp No. 80-44, unreported; 1970 Opns St Comp No. 70-57, unreported). Under section 6 of chapter 574, the application of the proceeds to the acquisition and improvement of other park property appears to be discretionary.
Finally, with respect to your question concerning potential tort liability, we note that because the district is an administrative unit of the town, the town would be exposed to tort liability in connection with the activities of the district. Further, as discussed above, while judgments arising out of the operation of the district would ordinarily be charged against property in the district, we cannot speculate whether certain facts and circumstances might give rise to liability on the part of the entire town. This is especially so since the town board has certain responsibilities vis-a-vis the district, such as reviewing the commissioners' annual budget estimate. In addition, as noted, if town indebtedness is issued to finance a judgment against the board of commissioners, the town's full faith and credit would be pledged for payment on the obligations and the town as a whole would be ultimately liable on the debt if the debt service is not paid by district assessments.
April 15, 1991
Fred Koelsch, Esq., Town Attorney
Town of Yorktown