Provides for a review process of proposals to alienate municipal parkland; requires replacement lands to be of similar or greater acreage and fair market value than the parcel to be alienated; provides that such replacement lands must be contiguous or within one mile of the parcel that is being alienated; makes related provisions.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2695
SPONSOR: Fahy TITLE OF BILL:
An act to amend the parks, recreation and historic preservation law, in
relation to providing for a review process of proposals to alienate
municipal parkland
PURPOSE OR GENERAL IDEA OF BILL:
Municipally owned parkland is vital to local communities. Once lost,
municipal parkland is difficult to recover. The alienation of municipal
parkland should be limited to instances of compelling public need where
no other alternative is available, and should be accompanied by replace-
ment parkland. This bill will require that replacement parkland must be
of similar or greater acreage and fair market value than the parcel to
be alienated and must be contiguous or within one mile of the parcel
that is being alienated.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill amends the parks, recreation and historic preser-
vation law by adding a new article 16 that includes the following
provisions:
Section 16.01 provides a declaration of policy.
Section 16.03 defines "municipal parkland," "municipal parkland alien-
ation, "municipality," "parkland alienation legislation," "state or
federal grant funding," and "public trust doctrine."
Section 16.05 provides requirements for municipalities seeking to alien-
ate parkland.
Section 16.07 provides for parkland alienation proposal review by the
Office of Parks, Recreation and Historic Preservation.
Section 16.09 provides for parkland alienation reporting by the Office
of Parks, Recreation and Historic Preservation.
Section 16.11 provides for parkland alienation enforcement by the attor-
ney general.
Section 16.13 provides for state audits.
Section 16.15 states that this bill shall not affect the public trust
doctrine.
Section 2 of the bill authorizes the commissioner to promulgate guide-
lines and rules to implement provisions of this act Section 3 of the
bill sets forth an immediate effective date.
JUSTIFICATION:
For more than a century, New York courts have held that municipal park-
land is subject to a "public trust" for the benefit of the public. As a
result, courts have consistently ruled that municipal parkland may not
be alienated without prior enactment of state legislation authorizing
such alienation and such decisions have come to be referred to as the
"public trust doctrine". This legislation seeks to codify the public
trust doctrine and establish a comprehensive program administered by the
Office of Parks, Recreation and Historic Preservation for the alienation
of municipal parkland.
Municipally owned parkland greatly enhances the quality of life, commu-
nity character, and economic vitality of communities throughout New York
State by providing healthy, affordable, and educational opportunities to
New Yorkers and tourists. Unfortunately, once lost municipal parkland is
difficult, if not impossible, to recover. Therefore, the alienation of
parkland should be limited to instances of compelling public need where
no other alternative is available.
Furthermore, the bill requires that replacement parkland must be of
similar or greater acreage and fair market value than the parcel to be
alienated and must be contiguous or within one mile of the parcel that
is being alienated. In addition, at least one of the three replacement
parcels must be comprised of one lot that is equal in size to that being
alienated.
PRIOR LEGISLATIVE HISTORY:
2015/16: A1070/S1038-A
FISCAL IMPLICATIONS:
None by the State.
EFFECTIVE DATE:
This act shall take effect immediately
STATE OF NEW YORK
________________________________________________________________________
2695
2017-2018 Regular Sessions
IN ASSEMBLY
January 20, 2017
___________
Introduced by M. of A. FAHY -- read once and referred to the Committee
on Local Governments
AN ACT to amend the parks, recreation and historic preservation law, in
relation to providing for a review process of proposals to alienate
municipal parkland
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The parks, recreation and historic preservation law is
2 amended by adding a new article 16 to read as follows:
3 ARTICLE 16
4 MUNICIPAL PARKLAND ALIENATION
5 Section 16.01 Declaration of policy.
6 16.03 Definitions.
7 16.05 Municipal parkland alienation.
8 16.07 Parkland alienation proposal review.
9 16.09 Parkland alienation reporting.
10 16.11 Parkland alienation enforcement.
11 16.13 State audits.
12 16.15 Public trust doctrine not affected.
13 § 16.01 Declaration of policy. The legislature finds and declares that
14 municipally owned parkland enhances the quality of life, community char-
15 acter, and economic vitality of local communities and provides healthy
16 and affordable recreational and educational opportunities to New York
17 state residents and visitors. Once lost, municipal parkland is diffi-
18 cult to recover. Accordingly, the discontinuation or alienation of
19 municipal parkland should be accompanied by replacement with comparable
20 parkland to be available to the community and residents of the state.
21 New York state courts have long held that municipal parkland is
22 subject to a "public trust" for the benefit of the public. For more than
23 a century, New York state courts have upheld the requirement that munic-
24 ipal parkland may not be alienated without prior enactment of state
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00755-01-7
A. 2695 2
1 legislation authorizing such alienation. This body of law is commonly
2 referred to as the "public trust doctrine".
3 Without limiting or restricting the existing "public trust doctrine,"
4 it is hereby declared to be the public policy and in the public interest
5 of this state to provide for a comprehensive program administered by the
6 office to review proposals to alienate municipal parkland in order to
7 promote the use, protection, and maintenance of municipal parkland for
8 the enjoyment, welfare, recreation, prosperity, and enrichment of the
9 people of the state of New York.
10 § 16.03 Definitions. When used in this article:
11 1. "Municipal parkland" shall mean real property or interests therein
12 that is owned by a municipality that provides public park, recreation,
13 or open space protection purposes. Municipal parkland includes: lands
14 that have been dedicated for such purposes by the municipality through a
15 formal resolution or similar action; lands that have been purchased or
16 accepted for such purposes; or lands that currently or historically have
17 been available to and used by the public for such purposes.
18 2. "Municipal parkland alienation" shall mean any action by a munici-
19 pality to sell, lease, discontinue, or change the use of municipal park-
20 land.
21 3. "Municipality" shall mean a county, town, city, or village. It
22 shall also mean a school district or other political subdivision in
23 instances where such entity has obtained state or federal grant funding
24 for the creation of municipal parkland.
25 4. "Parkland alienation legislation" shall mean legislation introduced
26 in the state legislature authorizing a municipality to alienate parkland
27 under its jurisdiction.
28 5. "State or federal grant funding" shall include but is not necessar-
29 ily limited to: grants provided pursuant to the state park and recre-
30 ation land acquisition bond acts of 1960 and 1965, the outdoor recre-
31 ation development bond act of 1965, the environmental quality bond act
32 of 1986, the environmental protection act of 1993 and the clean
33 water/clean air bond act of 1996; funds provided through state appropri-
34 ation or grant programs for parkland purposes; and the federal land and
35 water conservation fund and the urban park and recreation recovery
36 program.
37 6. "Public trust doctrine" shall mean the body of state judicial court
38 decisions that hold that municipal parkland, and some other publicly
39 held lands, are held in trust for the benefit of the public and cannot
40 be used for any other purpose without legislative authorization.
41 § 16.05 Municipal parkland alienation. No municipality shall alienate
42 municipal parkland unless it has received prior authorization through
43 the enactment by the legislature and approval by the governor of park-
44 land alienation legislation. All such legislation shall include, at a
45 minimum, the following elements:
46 1. The legislation shall include a description of the parcel of munic-
47 ipal parkland proposed to be alienated including a formal metes and
48 bounds description and the total acreage being alienated.
49 2. Except as provided for in subdivision three of this section, munic-
50 ipal parkland alienation legislation shall include a requirement that
51 the municipality acquire and dedicate replacement parkland. The replace-
52 ment parkland must be of similar or greater acreage and fair market
53 value than the parcel to be alienated. The legislation shall include a
54 general description of the replacement parkland including a formal metes
55 and bounds description and the total acreage of the replacement parcel.
56 The legislation shall also include a requirement that the authorization
A. 2695 3
1 to alienate existing municipal parkland shall not become effective until
2 the municipality has first acquired and dedicated replacement parkland.
3 3. Acquisition and dedication of replacement parkland shall not be
4 required by such legislation in the following instances only:
5 (a) In the case of municipal parkland being alienated for purposes of
6 an easement for a utility, the legislation shall include a requirement
7 that the municipality dedicate the fair market value of the easement for
8 the acquisition of additional parkland or capital improvements to exist-
9 ing parkland facilities. The legislation shall also require that surface
10 disturbances to parkland be restored and that, once restored, the land
11 continue to be used for parkland purposes.
12 (b) In the case of municipal parkland being alienated through a lease
13 authorizing a non-municipal entity to construct or operate a park-relat-
14 ed facility within municipal parkland, the legislation shall require
15 that such facility continue to provide sufficient public benefit to be
16 considered a public facility; provided that legislation authorizing any
17 lease for a non-park-related facility or use, or for a park-related
18 facility with insufficient public benefit to be considered a public
19 facility, shall require replacement parkland.
20 (c) In the case of municipal to municipal (or other government unit)
21 transfer where the parkland will continue to be operated as a parkland.
22 4. All such legislation shall include the following language: "If the
23 parkland that is the subject of this legislation has received funding
24 pursuant to the federal land and water conservation fund, the discontin-
25 uance of parkland authorized by the provisions of this legislation shall
26 not occur until the municipality has complied with the federal require-
27 ments pertaining to the conversion of parklands, including satisfying
28 the secretary of the interior that the discontinuance will include all
29 conditions which the secretary of the interior deems necessary to assure
30 the substitution of other lands shall be equivalent in fair market value
31 and recreational usefulness to the lands being discontinued."
32 § 16.07 Parkland alienation proposal review. 1. No parkland alienation
33 legislation shall be enacted unless a municipality has first applied for
34 and received from the office a certification that the proposed alien-
35 ation satisfies the requirements of section 16.05 of this article. The
36 application for certification shall be submitted to the office by the
37 governing body of a municipality in a form prescribed by the commission-
38 er and shall, at a minimum, contain the following information and
39 supporting documentation:
40 (a) A description of the parkland to be alienated, including a general
41 description of the land, a formal metes and bounds description of the
42 parcel, the total acreage being alienated, and the fair market value of
43 the parcel.
44 (b) A description of the replacement parkland including a general
45 description of the replacement land, a formal metes and bounds
46 description, the total acreage of the parcel, and the fair market value
47 of the parcel. It shall also contain a discussion of its proximity to
48 the parkland being alienated.
49 (c) In the case of municipal parkland being alienated for purposes of
50 an easement for a utility, a description of how the proceeds of a sale
51 or lease or the easement would be dedicated for the acquisition of addi-
52 tional parklands and/or for capital improvements to existing park and
53 recreational facilities.
54 (d) In the case of a lease authorizing a non-municipal entity to
55 construct or operate a park-related facility within municipal parkland,
A. 2695 4
1 an explanation of the impact of such lease on public access to the park-
2 land.
3 (e) A description of the municipality's compliance with the state
4 environmental quality review act as set forth in article eight of the
5 environmental conservation law, including completed copies of the
6 required forms, statements, and assessments of the environmental impacts
7 of the proposed municipal parkland alienation.
8 2. Within ninety days of receiving a complete application, the office
9 shall respond in writing and either:
10 (a) Issue a certification that the proposed municipal parkland alien-
11 ation meets the requirements of section 16.05 of this article; or
12 (b) Deny the certification, providing an explanation for the denial
13 and where appropriate suggesting changes or additions that would result
14 in issuance of a certification. Within thirty days of receiving a
15 revised application, the office shall reconsider the application and
16 notify the municipality in writing whether the certification has been
17 issued or denied.
18 3. The provisions of this section do not apply to the siting of major
19 utility transmission facilities subject to article seven of the public
20 service law.
21 § 16.09 Parkland alienation reporting. Any municipality that has
22 received alienation authorization through enactment of municipal park-
23 land alienation legislation shall submit a report to the office no later
24 than December thirty-first of the calendar year following the enactment
25 of the legislation. Such report shall be signed by the municipality's
26 chief executive officer and shall include:
27 1. A narrative description of the status of the parkland alienation
28 actions authorized and required in the legislation; and
29 2. An attestation that the municipality has complied with all condi-
30 tions of the parkland alienation legislation, including the dedication
31 of any required replacement parkland or, in the case of utility ease-
32 ments, the dedication of funding for the acquisition of additional park-
33 land or capital improvements to existing parkland facilities; or
34 3. In the event that any condition of the parkland alienation legis-
35 lation has not been fully complied with, the municipality shall provide
36 the office with an interim report detailing the status of its actions
37 and an explanation as to why certain conditions have not been met, along
38 with the anticipated date by which such conditions will be met. The
39 municipality shall continue to file interim reports annually until such
40 time as the conditions have been met and a final report is filed.
41 Unless a longer time period is specified in the legislation authorizing
42 the alienation, if the conditions of the alienation have not been met by
43 December thirty-first of the third calendar year following the enactment
44 of parkland alienation legislation, the municipality shall be subject to
45 enforcement pursuant to section 16.11 of this article.
46 § 16.11 Parkland alienation enforcement. An action for injunctive
47 relief as provided in this section against a municipality violating any
48 provision of this article may be brought by the attorney general upon
49 referral by the office or upon his or her own initiative.
50 1. A municipality may be enjoined from alienating parkland where it
51 acts or has acted in furtherance of parkland alienation:
52 (a) without the enactment of parkland alienation legislation;
53 (b) without obtaining certification from the office as required by
54 this article;
55 (c) without compliance with the terms of parkland alienation legis-
56 lation; or
A. 2695 5
1 (d) without compliance with the requirements of this article, includ-
2 ing reporting requirements.
3 Where appropriate, such municipality may be compelled to restore such
4 parkland to park purposes or to replace parkland alienated in violation
5 of this article.
6 2. A municipality that fails to provide replacement parkland where
7 required by parkland alienation legislation may be compelled to pay to
8 the office an amount equal to the fair market value of the alienated
9 parkland, which funds shall be used by the office to acquire replacement
10 parkland.
11 § 16.13 State audits. With the advice and guidance of the office, the
12 office of the state comptroller shall be empowered to conduct audits of
13 all municipal parkland alienation legislation to ensure compliance with
14 the terms therein.
15 § 16.15 Public trust doctrine not affected. Nothing in this article
16 shall be construed to limit or restrict public trust doctrine principles
17 that have been established through state judicial court decisions or to
18 prevent enforcement of the public trust doctrine by any person including
19 individual citizens of the state of New York.
20 § 2. The state commissioner of parks, recreation and historic preser-
21 vation is authorized to promulgate such guidelines and/or rules and
22 regulations as he or she deems necessary to implement the provisions of
23 this act on or before its effective date.
24 § 3. This act shall take effect immediately.
