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S00709 Summary:

Add Art 16 SS16.01 - 16.15, Pks & Rec L
Provides for a review process of proposals to alienate municipal parkland.
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S00709 Text:

                STATE OF NEW YORK
                               2015-2016 Regular Sessions
                    IN SENATE
                                     January 7, 2015
        Introduced  by Sens. SERRANO, HOYLMAN, KRUEGER, PARKER -- read twice and
          ordered printed, and when printed to be committed to the Committee  on
          Cultural Affairs, Tourism, Parks and Recreation
        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
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 709                              2
     1  a century, New York state courts have upheld the requirement that munic-
     2  ipal  parkland  may  not  be  alienated without prior enactment of state
     3  legislation authorizing such alienation.  This body of law  is  commonly
     4  referred to as the "public trust doctrine".
     5    Without  limiting  or restricting existing "public trust doctrine," it
     6  is hereby declared to be the public policy and in the public interest of
     7  this state to provide for a comprehensive program  administered  by  the
     8  office  to  review  proposals to alienate municipal parkland in order to
     9  promote the use, protection, and maintenance of municipal  parkland  for
    10  the  enjoyment,  welfare,  recreation, prosperity, and enrichment of the
    11  people of the state of New York.
    12    § 16.03 Definitions. When used in this article:
    13    1. "Municipal parkland" shall mean real property or interests  therein
    14  that  is  owned by a municipality that provides public park, recreation,
    15  or open space protection purposes. Municipal  parkland  includes:  lands
    16  that have been dedicated for such purposes by the municipality through a
    17  formal  resolution  or similar action; lands that have been purchased or
    18  accepted for such purposes; or lands that currently or historically have
    19  been available to and used by the public for such purposes.
    20    2. "Municipal parkland alienation" shall mean any action by a  munici-
    21  pality to sell, lease, discontinue, or change the use of municipal park-
    22  land.
    23    3.  "Municipality"  shall  mean  a  county, town, city, or village. It
    24  shall also mean a school district  or  other  political  subdivision  in
    25  instances  where such entity has obtained state or federal grant funding
    26  for the creation of municipal parkland.
    27    4. "Parkland alienation legislation" shall mean legislation introduced
    28  in the state legislature authorizing a municipality to alienate parkland
    29  under its jurisdiction.
    30    5. "State or federal grant funding" shall include but is not necessar-
    31  ily limited to:  grants provided pursuant to the state park  and  recre-
    32  ation  land  acquisition  bond acts of 1960 and 1965, the outdoor recre-
    33  ation development bond act of 1965, the environmental quality  bond  act
    34  of  1986,  the  environmental  protection  act  of  1993  and  the clean
    35  water/clean air bond act of 1996; funds provided through state appropri-
    36  ation or grant programs for parkland purposes; and the federal land  and
    37  water  conservation  fund  and  the  urban  park and recreation recovery
    38  program.
    39    6. "Public trust doctrine" shall mean the body of state judicial court
    40  decisions that hold that municipal parkland,  and  some  other  publicly
    41  held  lands,  are held in trust for the benefit of the public and cannot
    42  be used for any other purpose without legislative authorization.
    43    § 16.05 Municipal parkland alienation. No municipality shall  alienate
    44  municipal  parkland  unless  it has received prior authorization through
    45  the enactment by the legislature and approval by the governor  of  park-
    46  land  alienation  legislation.  All such legislation shall include, at a
    47  minimum, the following elements:
    48    1. The legislation shall include a description of the parcel of munic-
    49  ipal parkland proposed to be alienated  including  a  formal  metes  and
    50  bounds description and the total acreage being alienated.
    51    2. Except as provided for in subdivision three of this section, munic-
    52  ipal  parkland  alienation  legislation shall include a requirement that
    53  the municipality acquire and dedicate replacement parkland. The replace-
    54  ment parkland must be of equal or greater acreage, equal or greater fair
    55  market value, and equal or  greater  recreational  usefulness  than  the
    56  existing  parkland  that  is authorized for alienation.  The legislation

        S. 709                              3
     1  shall include a general description of the replacement parkland  includ-
     2  ing  a  formal metes and bounds description and the total acreage of the
     3  replacement parcel. The legislation shall  also  include  a  requirement
     4  that the authorization to alienate existing municipal parkland shall not
     5  become effective until the municipality has first acquired and dedicated
     6  replacement parkland.
     7    3.  Acquisition  and  dedication  of replacement parkland shall not be
     8  required by such legislation in the following instances only:
     9    (a) In the case of municipal parkland being alienated for purposes  of
    10  an  easement  for a utility, the legislation shall include a requirement
    11  that the municipality dedicate the fair market value of the easement for
    12  the acquisition of additional parkland or capital improvements to exist-
    13  ing parkland facilities. The legislation shall also require that surface
    14  disturbances to parkland be restored and that, once restored,  the  land
    15  continue to be used for parkland purposes.
    16    (b)  In the case of municipal parkland being alienated through a lease
    17  authorizing a non-municipal entity to construct or operate a park-relat-
    18  ed facility within municipal parkland,  the  legislation  shall  require
    19  that  such  facility continue to provide sufficient public benefit to be
    20  considered a public facility; provided that legislation authorizing  any
    21  lease  for  a  non-park-related  facility  or use, or for a park-related
    22  facility with insufficient public benefit  to  be  considered  a  public
    23  facility, shall require replacement parkland.
    24    4.  All such legislation shall include the following language: "If the
    25  parkland that is the subject of this legislation  has  received  funding
    26  pursuant to the federal land and water conservation fund, the discontin-
    27  uance of parkland authorized by the provisions of this legislation shall
    28  not  occur until the municipality has complied with the federal require-
    29  ments pertaining to the conversion of  parklands,  including  satisfying
    30  the  secretary  of the interior that the discontinuance will include all
    31  conditions which the secretary of the interior deems necessary to assure
    32  the substitution of other lands shall be equivalent in fair market value
    33  and recreational usefulness to the lands being discontinued."
    34    § 16.07 Parkland alienation proposal review. 1. No parkland alienation
    35  legislation shall be enacted unless a municipality has first applied for
    36  and received from the office a certification that  the  proposed  alien-
    37  ation  satisfies  the requirements of section 16.05 of this article. The
    38  application for certification shall be submitted to the  office  by  the
    39  governing body of a municipality in a form prescribed by the commission-
    40  er  and  shall,  at  a  minimum,  contain  the following information and
    41  supporting documentation:
    42    (a) A description of the parkland to be alienated, including a general
    43  description of the land, a formal metes and bounds  description  of  the
    44  parcel,  the total acreage being alienated, and the fair market value of
    45  the parcel.
    46    (b) A description of the  replacement  parkland  including  a  general
    47  description   of  the  replacement  land,  a  formal  metes  and  bounds
    48  description, the total acreage of the parcel, and the fair market  value
    49  of  the  parcel.  It shall also contain a discussion of the recreational
    50  usefulness of the replacement parcel and a discussion of  its  proximity
    51  to the parkland being alienated.
    52    (c)  In the case of municipal parkland being alienated for purposes of
    53  an easement for a utility, a description of how the proceeds of  a  sale
    54  or lease or the easement would be dedicated for the acquisition of addi-
    55  tional  parklands  and/or  for capital improvements to existing park and
    56  recreational facilities.

        S. 709                              4
     1    (d) In the case of a  lease  authorizing  a  non-municipal  entity  to
     2  construct  or operate a park-related facility within municipal parkland,
     3  an explanation of the impact of such lease on public access to the park-
     4  land.
     5    (e)  A  description  of  the  municipality's compliance with the state
     6  environmental quality review act as set forth in article  eight  of  the
     7  environmental  conservation  law,  including  completed  copies  of  the
     8  required forms, statements, and assessments of the environmental impacts
     9  of the proposed municipal parkland alienation.
    10    2. Within ninety days of receiving a complete application, the  office
    11  shall respond in writing and either:
    12    (a)  Issue a certification that the proposed municipal parkland alien-
    13  ation meets the requirements of section 16.05 of this article; or
    14    (b) Deny the certification, providing an explanation  for  the  denial
    15  and  where appropriate suggesting changes or additions that would result
    16  in issuance of a  certification.  Within  thirty  days  of  receiving  a
    17  revised  application,  the  office  shall reconsider the application and
    18  notify the municipality in writing whether the  certification  has  been
    19  issued or denied.
    20    3.  The provisions of this section do not apply to the siting of major
    21  utility transmission facilities subject to article seven of  the  public
    22  service law.
    23    §  16.09  Parkland  alienation  reporting.  Any  municipality that has
    24  received alienation authorization through enactment of  municipal  park-
    25  land alienation legislation shall submit a report to the office no later
    26  than  December thirty-first of the calendar year following the enactment
    27  of the legislation. Such report shall be signed  by  the  municipality's
    28  chief executive officer and shall include:
    29    1.  A  narrative  description of the status of the parkland alienation
    30  actions authorized and required in the legislation; and
    31    2. An attestation that the municipality has complied with  all  condi-
    32  tions  of  the parkland alienation legislation, including the dedication
    33  of any required replacement parkland or, in the case  of  utility  ease-
    34  ments, the dedication of funding for the acquisition of additional park-
    35  land or capital improvements to existing parkland facilities; or
    36    3.  In  the event that any condition of the parkland alienation legis-
    37  lation has not been fully complied with, the municipality shall  provide
    38  the  office  with  an interim report detailing the status of its actions
    39  and an explanation as to why certain conditions have not been met, along
    40  with the anticipated date by which such  conditions  will  be  met.  The
    41  municipality  shall continue to file interim reports annually until such
    42  time as the conditions have been  met  and  a  final  report  is  filed.
    43  Unless  a longer time period is specified in the legislation authorizing
    44  the alienation, if the conditions of the alienation have not been met by
    45  December thirty-first of the third calendar year following the enactment
    46  of parkland alienation legislation, the municipality shall be subject to
    47  enforcement pursuant to section 16.11 of this article.
    48    § 16.11 Parkland alienation  enforcement.  An  action  for  injunctive
    49  relief  as provided in this section against a municipality violating any
    50  provision of this article may be brought by the  attorney  general  upon
    51  referral by the office or upon his or her own initiative.
    52    1.  A  municipality  may be enjoined from alienating parkland where it
    53  acts or has acted in furtherance of parkland alienation:
    54    (a) without the enactment of parkland alienation legislation;
    55    (b) without obtaining certification from the  office  as  required  by
    56  this article;

        S. 709                              5
     1    (c)  without  compliance  with the terms of parkland alienation legis-
     2  lation; or
     3    (d)  without compliance with the requirements of this article, includ-
     4  ing reporting requirements.
     5    Where appropriate, such municipality may be compelled to restore  such
     6  parkland  to park purposes or to replace parkland alienated in violation
     7  of this article with replacement  parkland  of  equal  or  greater  fair
     8  market value, acreage, and recreational usefulness.
     9    2.  A  municipality  that  fails to provide replacement parkland where
    10  required by parkland alienation legislation may be compelled to  pay  to
    11  the  office  an  amount  equal to the fair market value of the alienated
    12  parkland, which funds shall be used by the office to acquire replacement
    13  parkland.
    14    § 16.13 State audits. With the advice and guidance of the office,  the
    15  office  of the state comptroller shall be empowered to conduct audits of
    16  all municipal parkland alienation legislation to ensure compliance  with
    17  the terms therein.
    18    §  16.15  Public  trust doctrine not affected. Nothing in this article
    19  shall be construed to limit or restrict public trust doctrine principles
    20  that have been established through state judicial court decisions or  to
    21  prevent enforcement of the public trust doctrine by any person including
    22  individual citizens of the state of New York.
    23    §  2. The state commissioner of parks, recreation and historic preser-
    24  vation is authorized to promulgate  such  guidelines  and/or  rules  and
    25  regulations  as he or she deems necessary to implement the provisions of
    26  this act on or before its effective date.
    27    § 3. This act shall take effect January 1, 2017.
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