Does New York's public trust doctrine require special state legislation when a county transfers parkland to a town if the land will keep being used as a park and all county residents will keep their access?

Plain-English summary

Nassau County wanted to transfer about 250 acres of parkland to the Town of North Hempstead. The transfer agreement promised the property would stay parkland forever, would continue to host the same kinds of public uses (with parking and ancillary structures permitted), and would remain accessible to all Nassau County residents on the same terms as Town residents. The Town's attorney asked the AG whether the State Legislature had to bless the transfer with special alienation legislation, given that nothing about the park's use or accessibility was changing.

The bottom line. The AG recommended seeking alienation legislation. Not because the answer was clearly yes (no court has squarely held that an intermunicipal transfer preserving full park use requires legislation), but because the public-trust doctrine and the prior AG and Comptroller opinions all point that way, and proceeding without legislation creates real risk that the transfer could later be challenged and invalidated.

The public trust doctrine. New York's longstanding common-law rule: parkland is held by a municipality in trust for the public, and only the Legislature can authorize its alienation or change in use. Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 630 (2001). For city parkland, the rule is codified at General City Law § 20(2). For county, town, and village parkland, the rule comes from common law.

Classic application: change of use. Most parkland cases involve a municipality trying to put parkland to a non-park use, and the courts hold alienation legislation is required:

• Kenny v. Bd. of Trustees of Inc. Vill. of Garden City, 289 A.D.2d 534 (2d Dep't 2001) (private assisted-living facility).
• Johnson v. Town of Brookhaven, 230 A.D.2d 774 (2d Dep't 1996) (private summer cottages).
• Ackerman v. Steisel, 104 A.D.2d 940 (2d Dep't 1984), aff'd 66 N.Y.2d 833 (1985) (storage of city vehicles).
• Stephenson v. County of Monroe, 43 A.D.2d 897 (4th Dep't 1974) (landfill).

Application to access restrictions. Gewirtz v. City of Long Beach applied the doctrine when a town tried to restrict beach access to town residents only, although the beach had previously been open to all.

Intermunicipal transfers preserving park use. No appellate case in New York holds that this scenario requires alienation legislation, but the AG read prior authority as suggesting that it does:

• Potter v. Collis, 156 N.Y. 16 (1898) (control over uses of public places "is vested solely in the [L]egislature"; municipal corporation cannot divest itself of that control).
• Lake George Steamboat Co. v. Blais, 30 N.Y.2d 48 (1972) (ultimate control of public places is in the Legislature; municipality has only derivative powers).
• 1967 Op. Att'y Gen. (Inf.) 132 (village-to-village-plus-town transfer required legislation).
• 1954 Op. Att'y Gen. (Inf.) 74 (village-to-State transfer required legislation).
• Op. St. Comptr. No. 59-426 (village-to-town transfer for swimming pool required legislation).

Plus, alienation legislation has historically been sought in similar transfers: e.g., ch. 413 of L. 2007 (Nassau County to Village of Flower Hill); ch. 301 of L. 2006 (Niagara County to Town of Lockport); ch. 387 of L. 2000 (Village of Lancaster to Town of Lancaster).

Why General Municipal Law § 72-h doesn't help. GML § 72-h authorizes intermunicipal transfers of real property generally, but § 72-h(2) expressly carves out property made inalienable by general, special, or local law or charter. Comptroller opinions confirm § 72-h is not the specific legislative approval needed to dispose of parkland (Op. St. Comptr. Nos. 88-1, 65-623).

State Parks Office position. The State Office of Parks, Recreation and Historical Preservation has indicated that legislation might not be needed for an intermunicipal park-to-park transfer, but acknowledges that a definitive answer requires a court ruling (OPRHP, Handbook on the Alienation and Conversion of Municipal Parkland at 13 (Apr. 1, 2005)).

Downstream risk. Even with deed covenants requiring park use and continued county-resident access, a future Town board could try to modify the use or access, and any challenge would have to argue the public trust doctrine against the Town's police-power authority. Alienation legislation locks in the use restriction at the state level.

A wrinkle the AG noted but did not develop. The analysis might come out differently if the transfer were from a smaller to a larger unit of government (where access concerns might fade) rather than larger-to-smaller, which is the Nassau-to-North-Hempstead direction. The AG did not push this distinction.

Currency note

This opinion was issued in 2008. 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's the consequence of transferring without legislation?
The transfer could be voided by a court if a resident or interest group challenges it under the public-trust doctrine. The legislative-approval rule is a substantive limit on the municipality's authority, not a procedural one.

Could the deed covenants make legislation unnecessary?
The AG was not persuaded. Deed restrictions are private-law tools and may be released or amended by the parties. The public-trust doctrine puts the use restriction beyond municipal-level control, which is a deeper protection than a covenant.

What is "alienation legislation"?
A special law passed by the State Legislature authorizing the specific transfer or change in use of identified parkland. In recent years, such laws often require the municipality to dedicate replacement parkland of equal or greater value, but the form varies.

Does this rule apply to undeveloped parkland that has never been built out?
Yes. The public-trust doctrine attaches to land dedicated to park use, whether developed or not. The 250 acres in this case were a mix of developed and undeveloped.

What if the parkland was originally acquired with state or federal funds?
The opinion notes in a footnote that state and federal funding sources bring additional statutory constraints. OPRHP's Handbook (pages 13-16 for state funding; 25-28 for federal funding) catalogs the specific rules. The Nassau-to-North-Hempstead transfer at issue did not involve such funding.

Background and statutory framework

Public trust doctrine. Common-law rule holding that property dedicated to public park use is held in trust and may not be alienated or repurposed without specific legislative authorization. The Court of Appeals' Friends of Van Cortlandt Park opinion is the modern landmark.

General City Law § 20(2). Codifies the rule for city parkland: cities cannot alienate parkland.

General Municipal Law § 72-h. Authorizes intermunicipal real-property transfers generally. § 72-h(2) excludes property "which by general, special or local law or by charter shall be inalienable." Comptroller and AG opinions read § 72-h as not curing the parkland inalienability problem.

OPRHP Handbook. The state Office of Parks, Recreation and Historical Preservation issues a Handbook on the Alienation and Conversion of Municipal Parkland that catalogs current practice and statutory funding constraints. Useful drafting reference for municipalities considering park-related transactions.

Citations

• General City Law § 20(2) (city parkland inalienable).
• General Municipal Law § 72-h (intermunicipal real-property transfers); § 72-h(2) (carve-out for property made inalienable by other law).
• Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 630 (2001) (public trust doctrine).
• Matter of Central Parkway, 140 Misc. 727 (Sup. Ct. Schenectady County 1931).
• Kenny v. Bd. of Trustees of Inc. Vill. of Garden City, 289 A.D.2d 534 (2d Dep't 2001).
• Johnson v. Town of Brookhaven, 230 A.D.2d 774 (2d Dep't 1996).
• Ackerman v. Steisel, 104 A.D.2d 940 (2d Dep't 1984), aff'd 66 N.Y.2d 833 (1985).
• Stephenson v. County of Monroe, 43 A.D.2d 897 (4th Dep't 1974).
• Gewirtz v. City of Long Beach, 69 Misc. 2d 763, 777-78 (Sup. Ct. Nassau County 1972), aff'd 45 A.D.2d 841 (2d Dep't 1974).
• Potter v. Collis, 156 N.Y. 16, 30 (1898) (Legislature alone has ultimate control).
• Lake George Steamboat Co. v. Blais, 30 N.Y.2d 48, 51-52 (1972).
• 1967 Op. Att'y Gen. (Inf.) 132 (intermunicipal park transfer requires legislation).
• 1954 Op. Att'y Gen. (Inf.) 74 (village-to-State park transfer requires legislation).
• Op. St. Comptr. No. 59-426; Op. St. Comptr. No. 88-1; Op. St. Comptr. No. 65-623 (§ 72-h not sufficient legislative approval for parkland transfer).
• Special alienation laws referenced as practice precedent: L. 2007, ch. 413 (Nassau County to Flower Hill); L. 2006, ch. 301 (Niagara County to Lockport); L. 2000, ch. 387 (Village of Lancaster to Town of Lancaster).
• NYS OPRHP, Handbook on the Alienation and Conversion of Municipal Parkland (rev. Apr. 1, 2005).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2008-11_pw.pdf

Original opinion text

General City Law § 20(2); General Municipal Law §§ 72-h, 72-h(2)

Alienation legislation should be sought before parkland is transferred from a county to a town.

November 5, 2008

Richard S. Finkel
Town Attorney
Town of North Hempstead
Town Hall
220 Plandome Road
Manhasset, New York 11030

Informal Opinion
No. 2008-11

Dear Mr. Finkel:

You have requested an opinion regarding whether a proposed transfer of parkland from the county of Nassau to the Town requires special state legislation. You have explained that the County proposes to transfer approximately 250 acres of developed and undeveloped parkland to the Town. The agreement between the Town and the County provides that the deed for each park being transferred will provide that the transferred land will be "forever used and maintained as and for public park and public recreational purposes and for those purposes only," except for parking and ancillary structures necessary for operations consistent with public park and recreational purposes. The agreement further provides that "all Nassau County residents shall be allowed to use and enjoy the said premises at the same times and on the same terms and conditions as shall residents" of the Town. You have advised that county residents will retain the same rights of access to the park after the transfer that they currently have to the county park. You have asked whether under these specific circumstances alienation legislation must be enacted by the State Legislature in order for the transfer to occur.

Analysis

New York's longstanding common law public trust doctrine requires legislative approval for the alienation of or change in the use of parkland. Friends of Van Cortlandt Park v. City of New York, 95 N.Y. 2d 623, 630 (2001). Indeed, the doctrine has been codified for the special situation of city-owned parkland. See General City Law § 20(2) (city-owned parkland cannot be alienated); see also Matter of Central Parkway, 140 Misc. 727 (Sup. Ct. Sch'dy County 1931) (General City Law § 20(2) provides that a city's rights in a park are inalienable). Thus it is indisputable that legislative approval would be required for alienation of city-owned parkland, which is not at issue here.

There is a reasonable argument that the public trust doctrine should not apply here because, under the proposed agreement between the County and the Town, park purposes would be preserved, and access by all county residents also would be preserved. The rule is typically applied when parkland is diverted to non-park use. See, e.g., Kenny v. Bd. of Trustees of Inc. Vill. of Garden City, 289 A.D.2d 534 (2d Dep't 2001) (use of park property for privately-operated assisted living facility required legislation); Johnson v. Town of Brookhaven, 230 A.D.2d 774 (2d Dep't 1996) (use of park property for private summer cottages required legislation); Ackerman v. Steisel, 104 A.D.2d 940 (2d Dep't 1984) (storage of city sanitation and highway department vehicles on city parkland required alienation legislation); aff'd, 66 N.Y.2d 833 (1985); Stephenson v. County of Monroe, 43 A.D.2d 897 (4th Dep't 1974) (use of parkland for landfill is non-park purpose that requires alienation legislation). The public trust doctrine has also been applied when members of the public who previously were able to use the park are restricted from using it. See Gewirtz v. City of Long Beach, 69 Misc. 2d 763, 777-78 (Sup. Ct. Nassau County 1972) (town could not limit access to beach to town residents without express legislative authority when beach had previously been open to public at large); aff'd, 45 A.D.2d 841 (2d Dep't 1974).

Because public parkland is held by a municipality in trust for the public, however, the power to regulate the use of that park property is "vested solely in the [L]egislature" and the local government alone cannot "divest the municipal corporation of that control." Potter v. Collis, 156 N.Y. 16, 30 (1898) (common council could not authorize laying of railroad tracks in city streets absent delegation of that power by Legislature because said streets were held in trust for public); cf. Lake George Steamboat Co. v. Blais, 30 N.Y.2d 48, 51-52 (1972) ("The ultimate control over the uses of public places is in the Legislature, and the only powers in this respect possessed by a municipality are derivative."). This lends support to the argument that even an intermunicipal transfer where parkland continues to be used for park purposes for the same members of the public requires legislative approval.

Moreover, a transfer of parkland from one municipality to another creates some risk that the use will change or access by previous users to the parkland will be restricted. An important safeguard against this risk is to subject the proposed transfer to legislative review and approval.

General Municipal Law § 72-h, authorizing local legislative bodies to transfer land to other governmental bodies, does not shed any light on this question. It expressly does not apply to real property that is made inalienable by general, special, or local law or charter. Id. § 72-h(2). Furthermore, it has been construed not to constitute the necessary specific legislative approval to alienate or divert parkland that is inalienable under the public trust doctrine. See Op. St. Comptr. No. 88-1; Op. St. Comptr. No. 65-623.

We have been unable to locate any judicial decisions involving intergovernmental transfers where full parkland use and access was to be preserved, so we cannot be confident how the courts will resolve this. Previous opinions of both this Office and the Office of the State Comptroller concluded that legislative approval was required in such circumstances. See 1967 Op. Att'y Gen. (Inf.) 132 (proposed transfer of parkland from village as single owner to same village and town as co-owners); 1954 Op. Att'y Gen. (Inf.) 74 (proposed transfer from village to State, with State continuing to maintain property as park); see also Op. St. Comptr. No. 59-426 (proposed transfer of parkland from village to town for use as town swimming pool).

Moreover, municipalities have sought and received legislative approval for such transfers. See, e.g., Act of Aug. 1, 2007, ch. 413, § 1, 2007 McKinney's N.Y. Laws 1011 (authorizing transfer of parkland from Nassau County to village of Flower Hill); Act of July 26, 2006, ch. 301, § 1, 2006 N.Y. Laws 3111 (authorizing transfer of parkland from Niagara County to town of Lockport); Act of Aug. 30, 2000, ch. 387, § 1, 2000 N.Y. Laws 3035 (authorizing transfer of parkland from village of Lancaster to town of Lancaster).

The State Office of Parks, Recreation and Historical Preservation has indicated that alienation legislation might not be needed for a transfer from one municipality to another, but recognizes that a definitive answer must come from a court. New York State Office of Parks, Recreation and Historical Preservation, Handbook on the Alienation and Conversion of Municipal Parkland 13 (rev. April 1, 2005).

Given this state of the law, we cannot confidently conclude that legislative approval is unnecessary. We therefore recommend that you seek such legislation before the transfer of parkland occurs, to avoid the risk that the transfer will be invalidated.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions