Can a NY town that bought parkland with 1960 bond-act money sell timber, lease to the Chamber of Commerce, grant easements, or build a town hall on it?

Subject

Land bought with 1960 Park and Recreation Bond Act funds may not be used for non-park purposes without express legislative action

Plain-English summary

The Town of Chester bought land in 1962 as a recreation area, expecting 75% reimbursement from the state under the Park and Recreation Bond Program. The town attorney asked four questions about what the town could do with that land: harvest timber for cash, lease a portion to the Chamber of Commerce (which wanted to put up a building and parking lot), validate an easement previously granted to a neighbor without legislative authorization, and build a town hall, library, or health center on the property.

The Office of Parks, Recreation and Historic Preservation confirmed that the property had been purchased under § 15.01(e), the seventy-five-percent state-aid subsection. That triggered Parks, Recreation and Historic Preservation Law § 15.09:

Lands acquired by a municipality with the aid of funds made available pursuant to this article shall be retained by the municipality and shall not be disposed of or, except as provided in Section 15.11, used for other than public park and related purposes without the express authority of an act of the legislature.

The § 15.11 exception covers use by prior owners and is not relevant here.

The AG worked through the four proposals.

Building a town hall, library, or health center: blocked. The AG cited a 1965 opinion that had reached the same conclusion for a public library on similarly funded land, because a library does not provide outdoor recreation consistent with the bond-act purpose. The same logic forecloses town hall and health center construction.

Leasing to the Chamber of Commerce, with Chamber building and parking lot on the land: blocked. The land cannot be turned over to private groups, including a chamber of commerce, even partially. The use is not a public park purpose.

Easement to an adjoining landowner: not validated. The easement was granted without legislative authorization, and the statute requires express legislative authority for any use other than park and related purposes.

Commercial timber harvesting where the basis for selecting trees is solely for economic yield: blocked. The AG framed this as using the property to produce a cash crop, which is not allowed. The opinion distinguished a 1962 informal opinion that had permitted one-time hay or crop harvesting to avoid waste when a county acquired property already in agricultural use. Continued cultivation as a cash crop would not have been permitted then either. So commercial timber operations are out.

The AG noted a separate, additional restriction: dedicated park land in New York is impressed with a public trust under common law, and its diversion to non-park use requires direct and specific legislative approval (citing Matter of Ackerman v Steisel, 104 AD2d 940 [2d Dept 1984], aff'd on memorandum below, 66 NY2d 833 [1985]). So even if the bond-act restriction did not apply, the common-law public trust doctrine would block all four proposals. Whether property has been dedicated as park land (absent a formal dedication) is a factual question turning on the original purpose of acquisition and the extent of public use.

For the Town of Chester, the practical result was clear. All four proposed uses required an act of the State Legislature. Either the town gives up on the proposals or finds a sponsor in Albany willing to seek legislative authorization for the specific use.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What counts as a "park and related purpose"?

Outdoor recreation is the core. Picnic areas, hiking trails, playgrounds, athletic fields, boat launches, camping, fishing, hunting, winter sports. Bond Act § 15.01(b) explicitly mentions camping, fishing, hunting, boating, and winter sports as additional outdoor recreation purposes. Buildings related to outdoor recreation (a restroom facility, a small concession, a maintenance shed) tend to be allowed. Buildings unrelated to outdoor recreation (a library, a town hall) are not.

What about selective forestry for park health, like removing dead trees or fire risk?

The opinion distinguished commercial harvesting (driven by economic yield) from one-time waste-avoidance harvesting. A management cut focused on park health (forest stewardship, fire safety, invasive species control) is closer to legitimate park management than to commercial cash-crop production. The opinion does not draw a precise line, but the test seems to be: is the harvesting decision driven by the park's needs or by the timber's value?

Why did the AG mention the easement separately?

Because the easement had already been granted without legislative authorization, and the town wanted to know if it was valid. The AG's answer (implicitly, via § 15.09) is no: easements granting non-park use are subject to the same restriction. The grant requires express legislative authority.

Does dedication require a formal act, or can it happen by use?

Both, depending on the facts. A formal dedication (a resolution declaring the land as park) creates a clear public trust. Absent a formal dedication, dedication can be inferred from the original purpose of acquisition and the extent of public use as a park (Informal Opinion 84-15). For 1960 Bond Act land, the question is largely moot because the bond-act restriction in § 15.09 operates independently of common-law dedication.

How does the town get the legislature to authorize a specific use?

Find a sponsor in the Senate and Assembly, draft a bill specifically authorizing the desired use on the specific parcel, work it through committee, and get it signed by the Governor. These "park alienation" bills are common in New York; the Office of Parks, Recreation and Historic Preservation regularly publishes guidance for municipalities pursuing one.

Statutory framework

Parks, Recreation and Historic Preservation Law § 15.01 authorizes the 1960 Park and Recreation Bond Act. Subsection (e) provides state aid of 75% of acquisition cost for park land bought by counties, towns, villages, or improvement districts.

Section 15.09 prohibits disposition or non-park use of bond-act-funded land without an express act of the legislature.

Section 15.11 carves out a narrow exception for use by prior owners, not relevant to most use questions.

The common-law public trust doctrine, articulated in Matter of Ackerman v Steisel, 104 AD2d 940 (2d Dept 1984), aff'd on memorandum below, 66 NY2d 833 (1985), independently restricts diversion of dedicated park land.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-52_pw.pdf

Original opinion text

PARKS, RECREATION AND HISTORIC PRESERVATION LAW §§ 15.01, 15.09, 15.11.

The proposed uses of land, acquired under the Park and Recreation Land Acquisition Program of 1960 as a municipal park, are prohibited by Parks, Recreation and Historic Preservation Law § 15.09 in the absence of express authorization by the State Legislature.

November 21, 1995

Daniel T. Smith, Esq.
Town Attorney
Town of Chester
Art Tennyson Road
Chestertown, NY 12817

Informal Opinion
No. 95-52

Dear Mr. Smith:

You have asked several questions about the permissible uses of land that you believe the town acquired under the Park and Recreation Land Acquisition Program of 1960. You have forwarded a copy of Resolution #40 of 1962, which indicates that the town purchased the property for use as a recreation area in the expectation that the State would reimburse it for seventy-five percent of the purchase price under the Park and Recreation Bond Program. You inquire whether (1) the town may harvest timber from the land and, if it may, whether there are restrictions on the town's use of the proceeds; (2) the town may lease a small portion of the land to the local Chamber of Commerce and whether the Chamber may place a building and parking lot on the property; (3) an easement across a portion of the property, which was granted to an adjoining landowner without legislative authorization, is valid; and (4) the town may construct a town hall, library and/or health center on the property without the express authorization of an act of the Legislature.

The Parks, Recreation and Historic Preservation Law prescribes the allocation of money received by the State from the sale of bonds under the land acquisition program. § 15.01. The statute lists five categories of land purchases that may be financed with the bond proceeds. Among those are

(b) For the acquisition of real property for other than state park or municipal park purposes, to provide additional opportunities for outdoor recreation, including public camping, fishing, hunting, boating, winter sports, and, wherever possible, to also serve multiple purposes involving the conservation and development of natural resources, including the preservation of scenic areas, watershed protection, forestry and reforestation, twenty million dollars ($20,000,000.00);

. . .

(e) For state aid in the amount of seventy-five percent of the cost of acquisition of land for parks by counties, towns and villages, or by improvement districts therein, twenty-one million dollars ($21,000,000.00).

The other provisions, not applicable here, authorize the purchase of land for State and city parks. Id., § 15.01(a), (c), (d). The Office of Parks, Recreation and Historic Preservation has reviewed its records and determined that the park land at issue here was purchased under the provisions of section 15.01(e). Accordingly, the property is subject to the restriction on alienation set forth in Parks, Recreation and Historic Preservation Law § 15.09, which provides:

Lands acquired by a municipality with the aid of funds made available pursuant to this article shall be retained by the municipality and shall not be disposed of or, except as provided in Section 15.11, used for other than public park and related purposes without the express authority of an act of the legislature.

The exception set forth in section 15.11 relates to use of land by prior owners and is not relevant to any of the questions you raise.

The plain language of section 15.09 appears to preclude all of the proposed uses discussed in your request unless express authority for the particular use is granted by an act of the Legislature. The broad proscription would bar use of the property even for town purposes that are different from the park use for which the property was purchased with a State subsidy. See, for example, 1965 Op Atty Gen 30, in which we concluded that construction of a public library on lands acquired pursuant to the Parks and Recreation Land Acquisition Act was not a proper use of such lands because a library would not provide outdoor recreation consistent with the purpose of the legislation. Nor can the town permit use of the property by the Chamber of Commerce, other private groups, or the adjoining property owners.

Commercial harvesting of timber, where the basis for selecting trees is solely for economic yield, in our view amounts to using the property for the production of a cash crop, which is not permitted by the statute. We believe commercial timber harvesting is easily distinguishable from the one-time harvest of hay that we concluded would be appropriate in our earlier opinion. 1962 Op Atty Gen (Inf) 250. In that opinion, we concluded that when a county purchased property for park purposes it could sell standing hay or other crops easily removed from the property to avoid waste, but could not continue to cultivate crops there.

Moreover, even if the statutory restrictions on use of property acquired with bond act funding did not apply, there are common law restrictions on the use of public park land. Dedicated park areas in New York are impressed with a public trust and their use for other than park purposes requires the direct and specific approval of the State legislature, plainly conferred. Matter of Ackerman v Steisel, 104 AD2d 940, 941 (2d Dept 1984), affd on memorandum below, 66 NY2d 833 (1985). Whether, without a formal dedication, public property has been dedicated to park use is a factual question dependent upon all the circumstances. The purpose for which the property originally was acquired and the extent of public use are relevant. See, Informal Opinion No. 84-15.

We conclude that the proposed uses of land, acquired under the Park and Recreation Land Acquisition Program of 1960 as a municipal park, are prohibited by Parks, Recreation and Historic Preservation Law § 15.09 in the absence of express authorization by the State Legislature.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,

SIOBHAN S. CRARY
Assistant Attorney General