Can a New York town build a public library on town parkland without state legislative approval, and can it put the project to a referendum?

Plain-English summary

The Town of Tonawanda planned to build a public library on land it held as parkland and wanted to know two things: does the project need state alienation legislation, and can the town hold a public referendum on it? The AG answered:

1. Yes, seek alienation legislation. The law on library-in-park is unsettled, and the cautious path avoids a possible court invalidation.
2. For the town’s planned bond financing, a referendum on the bond resolution depends on whether maturity exceeds five years. A tax-funded project might have a separate referendum route under Town Law §§ 81 and 220.

The library-in-park question. New York's public trust doctrine, articulated in Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623 (2001), bars use of parkland for non-park purposes without legislative approval. The Court of Appeals' century-old guide for what counts as a "park purpose" is Williams v. Gallatin, 229 N.Y. 248 (1920): buildings and improvements are park-consistent only if they "facilitate free public means of pleasure, recreation, and amusement and thus provide for the welfare of the community." Strictly utilitarian structures (the Williams court named schools and courthouses; later cases added water treatment plants and sanitation-vehicle storage) need legislative authority.

The AG ran a library through the test:

• A library is more like the museum disallowed in Williams (educational, not recreational) than the restaurant approvingly mentioned (incidental support for park users).
• Library activity is generally unrelated to the surrounding park use, unlike restaurants or refreshment stands that primarily serve park-goers.
• That cuts against library-as-park-purpose.

But the law is not settled:

• Matter of Central Parkway, 140 Misc. 727 (Sup. Ct., Schenectady County 1931), described "free public libraries and other agencies contributing to the aesthetic enjoyment of eye and ear" as not a perversion of park purposes (in dicta).
• Tuck v. Heckscher, 29 N.Y.2d 288 (1971), called museum construction "unquestionably a proper park use" (although in that case the Legislature had expressly authorized the lease).
• Williams itself referenced (without adopting) out-of-state cases approving libraries in parks (Spires v. Los Angeles; Riggs v. Bd. of Education).

Given the conflict between Williams' restrictive holding and later dicta, the AG declined to predict the courts and recommended alienation legislation as the safe path.

The referendum question. A municipality can hold a referendum only when authorized by state law. Mills v. Sweeney, 219 N.Y. 213 (1916); Matter of McCabe v. Voorhis, 243 N.Y. 401 (1926). Two statutory frameworks were in play:

Town Law §§ 81 and 220. These authorize town referenda on certain expenditures, including buildings for town purposes (§ 81(1)(b), (c)) and park-equipment buildings (§ 220(2), (3)). But both sections apply only when expenditures are paid from taxes levied in the year of the expenditure. Tonawanda was planning to use bond financing, so §§ 81 and 220 did not provide referendum authority. Both sections cross-reference Local Finance Law for bond-financed expenditures.

Local Finance Law § 35.00(b). Allows a permissive referendum on a bond resolution if the bonds have a maturity of more than five years. If the maturity is five years or less, no referendum on issuance. So the Town can put bond issuance to a permissive referendum only if the bond maturity exceeds five years.

Local Finance Law § 35.00(c). Expenditure of bond proceeds is never separately subject to permissive or mandatory referendum. This avoids the dual-referendum problem (first on issuance under § 35.00(b), then on spending under Town Law §§ 81/220). Matter of Town Bd. of the Town of Islip, 12 N.Y.2d 321, 327 (1963), explained the design.

Currency note

This opinion was issued in 2009. 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

If the library will get an alienation statute, do we also have to dedicate replacement parkland? The opinion does not discuss replacement parkland or terms of any future authorizing legislation.

What if the library has a children's reading garden and outdoor programming that ties to park use? The AG did not analyze a library with those features. It observed that a library’s recreational use is likely to be unrelated to the surrounding park, noted contrary dicta in other cases, and recommended seeking legislation.

Could the Town use lease-and-leaseback or other structures to avoid the parkland issue? The opinion does not address lease-and-leaseback or another financing or ownership arrangement. It considers constructing a library on town parkland.

What happens if voters approve a bond referendum but the library is later found to violate the public trust doctrine? The opinion treats the parkland and referendum questions separately. It does not discuss the effect of a referendum approval on a later parkland challenge or the handling of bond proceeds.

Are there other state laws to check if state or federal funds were used to acquire the parkland? The opinion does not discuss state or federal acquisition funding. It analyzes the public trust doctrine and the stated referendum options for this project.

Background and statutory framework

Public trust doctrine. Common-law rule that parkland is held in trust for the public and may not be alienated or converted to non-park use without specific legislative approval. Friends of Van Cortlandt Park (2001) is the modern landmark; Williams v. Gallatin (1920) is the foundational rule on what constitutes a park-consistent use.

Town Law referendum authority.

• § 81 (general referendum authority for buildings and other improvements paid from taxes in year of expenditure).
• § 81(1)(b), (c) (specific listing of buildings).
• § 220 (parks specifically); § 220(2), (3) (referendum for park-equipment building).

Both sections expressly defer to Local Finance Law for bond-financed expenditures.

Local Finance Law referendum rules.

• § 35.00(b): permissive referendum on bond resolutions with maturity over five years.
• § 35.00(c): no separate referendum on expenditure of bond proceeds.

Town of Islip (1963) explains the no-dual-referendum policy.

Citations

• Town Law § 81, § 81(1)(b), (c) (referenda on buildings paid by current-year taxes).
• Town Law § 220, § 220(2), (3) (referenda on park improvements paid by current-year taxes).
• Local Finance Law § 35.00(b) (permissive referendum on bond resolution if maturity over 5 years).
• Local Finance Law § 35.00(c) (no referendum on expenditure of bond proceeds).
• Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 631 (2001) (water treatment plant disallowed; public trust doctrine).
• Williams v. Gallatin, 229 N.Y. 248, 253-54 (1920) (museum lease disallowed; park-purpose test).
• Ackerman v. Steisel, 104 A.D.2d 940 (2d Dep't 1984) (sanitation-vehicle storage disallowed).
• Rivet v. Burdick, 255 A.D. 131 (4th Dep't 1938) (winter sports facilities allowed).
• 795 Fifth Ave. Corp. v. New York, 15 N.Y.2d 221, 225 (1965).
• Matter of Central Parkway, 140 Misc. 727, 729 (Sup. Ct., Schenectady County 1931) (libraries as not perversion of park purpose, in dicta).
• Tuck v. Heckscher, 29 N.Y.2d 288, 294 (1971) (museum is proper park use, with legislative authorization).
• Matter of McCabe v. Voorhis, 243 N.Y. 401, 413 (1926) (referendum requires statutory authority).
• Mills v. Sweeney, 219 N.Y. 213, 217-18 (1916) (same).
• Matter of Town Bd. of the Town of Islip, 12 N.Y.2d 321, 327 (1963) (no dual referendum).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2009-1_pw.pdf

Original opinion text

Town Law §§ 81, 81(1)(b), 81(1)(c), 220, 220(2), 220(3); Local Finance Law §§ 35.00(b), 35.00(c)

In light of unsettled case law, a municipality should seek legislative approval before constructing a library in parkland. The municipality may hold a permissive referendum on the issuance of bonds to finance the construction of the library if the bonds have a maturity of more than five years.

June 24, 2009

Informal Opinion
No. 2009-1

Daniel T. Cavarello, Esq.
Town Attorney
Town of Tonawanda
2919 Delaware Avenue
Kenmore, New York 14217

Dear Mr. Cavarello:

You have requested an opinion as to whether the town of Tonawanda may, without legislative approval, construct a public library facility on land held by the Town as parkland. You have further asked whether the Town may hold a public referendum on the construction of the library facility. As explained below, we conclude that the Town should seek alienation legislation and that an answer to the question of whether a referendum is authorized depends on the length to maturity of the bonds used to finance the library construction.

I. Construction of Library Facility on Parkland

Real property held by a municipality as parkland is impressed with a public trust and may not be alienated or used for non-park purposes for an extended period without legislative approval. Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623 (2001). As your letter suggests, the question you have presented is whether construction of a library in the town park would be considered a Apark purpose.@

We are not aware of any case in which a New York court has decided whether construction of a public library on parkland is a use consistent with park purposes. An answer to your question must therefore be found in general principles stated in cases involving analogous facilities. In Williams v. Gallatin, 229 N.Y. 248 (1920), the issue was whether a lease of an existing building located in a park to a not-for-profit organization for the purpose of establishing a museum relating to public safety and sanitation was consistent with park purposes. The Court of Appeals held that it was not, explaining that buildings and other improvements are consistent with park purposes only if they Afacilitate free public means of pleasure, recreation, and amusement and thus provide for the welfare of the community.@ Id. at 254. Strictly utilitarian structures, such as schools and courthouses, though serving worthy purposes, have no connection with park purposes and thus are not permitted absent Alegislative authority plainly conferred.@ Id. at 253. Although the Court acknowledged that the museum in question was a worthy purpose and beneficial to the public, it was not consistent with the park purpose of providing Ameans of innocent recreation and refreshment for the weary mind and body.@ Id. at

254. The Court noted that courts in other jurisdictions had held that a public library
     may be erected in a park without diverting it from park use, citing Spires v. Los Angeles, 150 Cal. 64, 87 P. 1026 (1906) and Riggs v. Bd. of Education, 27 Mich. 262 (1873), but did not say whether it would reach the same result under New York law.

     Courts following the Williams case have held that improvements for strictly
     utilitarian purposes, even when beneficial to the public, are not permitted if they are unrelated to the recreational use of the park. See Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 631 (construction of a water treatment plant not permitted); Ackerman v. Steisel, 104 A.D.2d 940 (2d Dep=t 1984) (storage of sanitation vehicles and equipment not permitted). On the other hand, purely recreational uses such as ski trails and other winter sports facilities are permitted. Rivet v. Burdick, 255 A.D. 131 (4th Dep=t 1938). Additionally, facilities that support recreational use, such as restaurants accessible by park users and other Acommon incidents of a pleasure ground,@ are permitted. Williams v. Gallatin, 229 N.Y. at 254; see also 795 Fifth Ave. Corp. v. New York, 15 N.Y.2d 221, 225 (1965).

     A library is arguably more like the museum prohibited in Williams than like the
     restaurant discussed approvingly in that case, because a library B like a museum B is associated more with educational and business purposes than with recreation, and any recreational use of a library B unlike a restaurant B is likely to be unrelated to the use of surrounding parkland. Therefore, Williams suggests that a library is not consistent with park use.

     It is possible that the significance of Williams may be limited. First, the
     museum at issue in Williams was, by virtue of its subject matter, especially lacking in any recreational character. Second, decisions subsequent to Williams have suggested, without holding, that museums, and perhaps libraries as well, would now be considered permissible uses of parkland. In Matter of Central Parkway, 140 Misc. 727 (Sup. Ct., Schenectady County 1931), the court stated that the occupation of parkland

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     for Aart museums, galleries of painting and sculpture, free public libraries and other agencies contributing to the aesthetic enjoyment of eye and ear is not a perversion of the lands from park purposes.@ 140 Misc. at 729. And in Tuck v. Heckscher, 29 N.Y.2d 288 (1971), the Court of Appeals described construction of a museum as Aunquestionably a proper park use,@ 29 N.Y.2d at 294, although in that case a lease of land to the museum had been expressly authorized by the legislature.

     Nonetheless, in light of the unsettled state of the law described above, we cannot
     confidently conclude that a court today would hold that legislative approval is unnecessary to build a public library on parkland. We therefore recommend that you seek legislation before constructing the library.

II. Authority to Hold Referendum

You have also asked, separately, whether the town board may hold a referendum on the question of whether to proceed with construction of the library. You have informed us that the Town intends to finance the cost of construction of the library through the issuance of bonds.

A municipality may conduct a referendum only if authorized by state law.
Matter of McCabe v. Voorhis, 243 N.Y. 401, 413 (1926); Mills v. Sweeney, 219 N.Y. 213, 217-18 (1916). AEver since the referendum has found recognition in the political system of this state it has been the policy of the legislature to deal with it directly and in express terms, and not delegate the right to adopt it to inferior legislative bodies.@ Mills v. Sweeney, 219 N.Y. at 217.

If the Town were planning to use tax revenues in the year of construction to pay for the construction of the library, a referendum would arguably be authorized by Town Law sections 81 and 220. Under these provisions, a town may, and under some circumstances must, submit to the voters a proposition to construct buildings necessary for town purposes and to equip public parks with suitable buildings. 1 Town Law ' 81(1)(b), (c); id. ' 220(2), (3). Both of these statutes provide that A[a]ny expenditure approved pursuant to [these] section[s] shall be paid for by taxes levied for the fiscal year in which such expenditure is to be made.@ Town Law '' 81, 220.

Because the Town anticipates issuing bonds to pay for the construction of the library, rather than paying for it by taxes levied in the same fiscal year as the expenditure is made, sections 81 and 220 do not apply and thus do not authorize the Town to hold a referendum. These statutes expressly acknowledge, however, that

1This discussion assumes that a library is a suitable building for a park, whether because authorizing legislation has been obtained or otherwise.

3 expenditures may be authorized and financed pursuant to the Local Finance Law, in which case they are governed by its provisions.

Local Finance Law ' 35.00(b) provides that a town may hold a referendum on a bond resolution adopted by a town finance board, with the exception of bonds having a maturity of five years or less and certain other situations not relevant here. Therefore, if the bonds issued by the Town to finance the cost of construction of the library have a maturity of more than five years, the bond resolution will be subject to permissive referendum under Local Finance Law ' 35.00(b). If, however, the bonds have a maturity of five years or less, the bond resolution will not be subject to a permissive referendum.

The expenditure of the bond proceeds to complete the project, as distinguished from the original issuance of the bonds, is not subject to permissive referendum in either case. Local Finance Law ' 35.00(c) (AThe expenditure of money for which it is proposed to issue obligations shall not be subject to a permissive or mandatory referendum in any town.@). The purpose of this limitation was to avoid the possibility of dual referendums on a single project, first on the issuance of bonds pursuant to Local Finance Law ' 35.00(b), and then on the expenditure of their proceeds pursuant to Town Law sections 81 and 220 (authorizing the expenditure of money for specific improvements). Matter of Town Bd. of the Town of Islip, 12 N.Y.2d 321, 327 (1963).

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

By:

PAUL GROENWEGEN
Assistant Solicitor General

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