Did Ulster County dedicate flood-buyout properties as public parkland just by signing the deed assurances required by the Greater Catskills Flood Remediation Program?
Plain-English summary
Ulster County had used the 2008 Greater Catskills Flood Remediation Program to buy out nine flood-damaged homes, demolish them, and (eventually) sell or otherwise dispose of the empty parcels. To get the program funds, the county had to sign deed assurances that the land "shall be restricted to, dedicated to, and maintained in perpetuity for use that is compatible with open space, recreation, flood mitigation and/or wetlands management preservation." The county worried that the word "dedicated" had locked the parcels into public-parkland status under New York's public-trust doctrine, which would have meant the county could not sell the parcels without specific authorization from the Legislature.
The AG read the assurance and the underlying program statute and concluded that no parkland dedication had occurred. The phrase "compatible with open space, recreation, flood mitigation or wetlands management practices" did not specifically commit the land to use as a park or for park purposes. New York courts have applied the public-trust doctrine when the dedication language is express, for example, "shall dedicate replacement lands for use as parkland for public park purposes." This program's language was broader and could be satisfied by uses that did not require public ownership at all, such as private agricultural land kept in open space, or private wetlands held under a Department of Environmental Conservation cooperative agreement.
The opinion also pointed to companion statutes where the Legislature did intend an alienation prohibition. Environmental Conservation Law § 51-0713 (wetlands acquired with bond money cannot be sold) and Parks, Recreation & Historic Preservation Law § 15.09 (lands bought with park bond proceeds cannot be disposed of without Legislative authority) both included express anti-alienation provisions. The flood program statute did not. That silence was itself evidence that the Legislature did not mean to lock the buyout parcels in.
Currency note
This opinion was issued in 2011. 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
Q: What is the public-trust doctrine in New York?
A: A long-standing common-law rule (Williams v. Gallatin, Brooklyn Park Com'rs v. Armstrong) that property dedicated to public-trust uses such as parks may not be alienated or repurposed without express legislative authority. Once land is parkland, only the Legislature can free it.
Q: How does land become dedicated to a public-trust use?
A: According to a prior informal opinion the AG cited, dedication can happen through a specific provision in the deed, trust, will, or instrument transferring the land; an offer by the owner accepted by the public; formal dedication by a municipality; or long use as a public park. The 2011 opinion focused on the first method, since the county's concern was the deed language itself.
Q: Why was the program language insufficient to count as a dedication?
A: Because "dedicated to" was modified by "use that is compatible with open space, recreation, flood mitigation and/or wetlands management." Multiple permissible uses, none of which required public ownership, sat behind that compatibility test. By contrast, when the Legislature wants parkland status, it says so directly: an example the opinion cited was "the county of Putnam, acting through its county legislature, shall dedicate replacement lands for use as parkland for public park purposes."
Q: Did the AG find any positive evidence of legislative intent against alienation here?
A: No. The opinion reasoned the other way: when the Legislature has wanted to lock acquired land into a use, it has said so expressly in the funding statute (cf. ECL § 51-0713 and PRHPL § 15.09). The flood program statute had no such anti-alienation clause. The absence supported reading "dedicated" as a synonym for "devoted" or "restricted to" a compatible use, not as a parkland dedication.
Q: Can a county still sell buyout parcels with no strings attached?
A: Not exactly. The opinion only addressed whether parkland dedication blocked the sale. The deed assurances themselves still required that the property be used in a way compatible with open space, recreation, flood mitigation, or wetlands management. Any future use, including by a buyer, would have to fit that restriction.
Background and statutory framework
In 2008, the Legislature created the Greater Catskills Flood Remediation Program in the budget bill, authorizing the New York State Housing Trust Fund Corporation to fund counties to buy and demolish flood-damaged homes (Act of Apr. 23, 2008, ch. 57, Part NN, § 3, 2008 N.Y. Laws 2704, 2773). The program's purpose was to remove repeat-flood homes from the floodplain. To draw funds, a county had to assure that the property would be dedicated and maintained in perpetuity for a use compatible with open space, recreational, flood mitigation, or wetlands management practices.
Ulster County participated, bought nine properties, and demolished the houses. Its deed assurance tracked the program statute, with one stylistic addition ("restricted to" was added at the front of the list). The county wanted to dispose of the cleared parcels and faced the question of whether parkland-dedication doctrine stood in the way.
The AG's analysis sat at the intersection of statutory construction and the public-trust doctrine. The opinion read the program statute as imposing a use-restriction (which the parcels would carry as private property), not a dedication of parkland (which would have required legislative consent before sale). The Legislature's willingness elsewhere to use unambiguous "for public park purposes" language showed that the choice of softer "compatible with" language here was deliberate.
Citations and references
Statutes:
- Agriculture & Markets Law § 300 (legislative intent for agricultural districts)
- Environmental Conservation Law § 24-0901 (freshwater wetlands)
- Environmental Conservation Law § 51-0713 (wetlands acquired with bond money)
- Parks, Recreation & Historic Preservation Law § 15.09
Cases:
- Williams v. Gallatin, 229 N.Y. 248 (1920) (public-trust doctrine)
- Brooklyn Park Com'rs v. Armstrong, 45 N.Y. 234 (1871) (parkland alienation requires legislative authorization)
- Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623 (2001) (legislative consent required to change parkland use)
Source
- Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
- Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2011-7_pw.pdf
Original opinion text
Agriculture & Markets Law §§ 300, 327; Environmental Conservation Law §§ 24-0901(2), 51-0713; Parks, Recreation & Historic Preservation Law § 15.09
Property purchased by the County pursuant to the Greater Catskills Flood
Remediation Program was not dedicated as public parkland by virtue of the
required assurance in the deed conveying the property from its owner to the
County. The common law prohibition against alienating public parkland without
express authority from the Legislature does not prevent the County from selling
such property.
June 30, 2011
Beatrice Havranek
County Attorney
County of Ulster
240 Fair Street
P.O. Box 1800
Kingston, New York 12402
Informal Opinion
No. 2011-7
Dear Ms. Havranek:
You have requested an opinion regarding whether the County can sell
property that it acquired pursuant to state legislation that enables certain counties
to purchase homes that have been subject to one or more incidents of flooding since
April 1, 2004. More specifically, you have asked whether by filing certain
documents in connection with participating in the program the County has
dedicated the property as public parkland, with the result that the Legislature must
specifically authorize its alienation. As explained below, we are of the opinion that
the property has not been dedicated as public parkland, and thus that the common
law prohibition against alienating public parkland without express authority from
the Legislature does not prevent the County from selling such property.
In the 2008 budget, the Legislature created the "Greater Catskills Flood
Remediation Program," ("Program"), pursuant to which the New York State
Housing Trust Fund Corporation (HTFC) was authorized to provide funds to certain
counties in which residents had suffered from flooding that caused substantial
damage to their homes. Act of Apr. 23, 2008, ch. 57, Part NN, § 3, 2008 N.Y. Laws
2704, 2773. The purpose of the Program was to allow the counties to purchase
qualified homes from the owners and demolish the homes. Id. In order to receive
funds from the HTFC for such a purchase, a county was required to provide
assurances that the house would be condemned and "the property will be dedicated
and maintained in perpetuity for a use that is compatible with open space,
recreational, flood mitigation or wetlands management practices." Id.
You have advised that the County participated in the Program, and through
the program the County purchased nine properties. The County received funds
from the Program and demolished the existing structures on the properties. You
have advised that the County's intent always has been to dispose of the properties.
Your concern, however, is that the language of the assurances required for
participation in the program may have had the effect of dedicating the purchased
property to public park use. To meet the County's obligation to provide assurances
that the properties would perpetually remain limited in use, the deeds by which the
properties were conveyed from the original owners to the County provided that each
property "shall be restricted to, dedicated to, and maintained in perpetuity for use
that is compatible with open space, recreation, flood mitigation and/or wetlands
management preservation." This language tracks the language of the statute
establishing the Program.
Property dedicated to certain types of public use, including public parkland,
is subject to New York's longstanding common law public trust doctrine. Under this
doctrine, such property, held by the government in trust for the public, may be
alienated or its use changed only if legislatively authorized. Williams v. Gallatin,
229 N.Y.248 (1920); Brooklyn Park Com'rs v. Armstrong, 45 N.Y. 234 (1871). Thus,
if the statutory language establishing the Program had the effect of dedicating the
land to public park use, specific approval by the State Legislature would be
necessary for the County to sell it. Friends of Van Cortlandt Park v. City of New
York, 95 N.Y.2d 623, 630 (2001). We previously have explained that "[l]and can
become dedicated to park or recreational purposes through specific provision in the
deed, trust, will or other instrument transferring the land to a municipality." Op.
Att'y Gen. (Inf.) No. 84-42. Land may also be dedicated to public park purposes by
an offer from an owner to appropriate land to such purposes and an acceptance of
such offer by the public, by formal dedication by a municipality, or by long use as a
public park, id., but whether dedication by these means occurred is not in question
in the instant circumstances.
We are of the opinion that the quoted language in the deeds did not have the
effect of dedicating the purchased land to public parkland or other public use.
Because the language came from the statute establishing the Program, we must
interpret the statute itself. First and most important, the uses described by the
language of the statute and of the assurance do not specifically require use as
"parkland" or for park purposes. The Legislature has used such explicit language
when dedication as public parkland is the only permissible use for acquired
property. See, e.g., Act of May 18, 2010, ch. 86, § 4, 2010 McKinney's N.Y. Laws
580, 581 ("the county of Putnam, acting through its county legislature, shall
dedicate replacement lands for use as parkland for public park purposes").
Instead, the statute and the assurance limit the use of the property to those
compatible with "open space, recreation, flood mitigation, or wetlands management
practices." While use as public parkland can be consistent with some or all of these
uses, private ownership and control of real property also can be consistent with
them. For example, the Legislature has recognized that one advantage to
restricting development of privately-owned farm land is preservation of open space.
See, e.g., Agriculture & Markets Law § 300 (legislative intent for establishing
agricultural districts); id. § 327 (legislative intent for establishing farmland viability
program). As another example, the Department of Environmental Conservation is
authorized to enter into cooperative agreements with private landowners for the
purpose of preserving and maintaining freshwater wetlands. Environmental
Conservation Law § 24-0901(2). Thus, we believe that the Legislature did not
intend to require dedication to a public use simply by requiring that land purchased
with Program funds be used in a manner consistent with practices in one of these
areas.
Additionally, when the Legislature has intended to prohibit or restrict the
alienation of property acquired with particular funds, it has included an express
prohibition in the statute establishing the funding program. See, e.g.,
Environmental Conservation Law § 51-0713 (wetlands acquired or restored with
state moneys pursuant to the Environmental Quality Bond Act of 1972 "shall not be
sold, leased or otherwise disposed of or used for any purpose inconsistent with the
character or value of such wetlands"); Parks, Recreation & Historic Preservation
Law § 15.09 (lands acquired with moneys from sale of bonds authorized by Park and
Recreation Acquisition Bond Acts cannot be disposed of or used for other than
public park purposes without express authority of act of Legislature). No such
prohibition is contained in the statute creating the program at issue here,
providing further support for the view that statutory language was not intended to
create a dedication to public parkland and the resulting restriction on alienation.
The use of "dedicated" in the mandated assurance does connote commitment
of real property to a public purpose, see American Heritage Dictionary of the
English Language 474 (4th ed. 2000) ("dedicate" can mean to open to public use). In
light of the remainder of the language in the statute establishing the Program,
however, we believe that its use in the assurance is more sensibly read as
synonymous with "devoted", id. ("dedicated" can mean "wholly committed to a
particular course of thought or action; devoted"), or, as the County provided in the
deeds from the owners to the County, "restricted to" uses compatible with the
statutorily-stated practices.
We therefore are of the opinion that the County did not dedicate the
purchased property such that it is rendered inalienable simply by making the
assurance required to participate in the Program.
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