S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                10575--A

                          I N  A S S E M B L Y

                              April 8, 2010
                               ___________

Introduced by M. of A. ENGLEBRIGHT, REILLY, GOTTFRIED, MAISEL, DelMONTE,
  GLICK,  LIFTON,  SKARTADOS,  FIELDS,  COLTON, JAFFEE, MILLMAN, CASTRO,
  DINOWITZ, D. WEPRIN, HOOPER -- Multi-Sponsored by -- M. of A.  BARRON,
  BING,  GIBSON, MARKEY, MAYERSOHN, McENENY -- read once and referred to
  the Committee on  Local  Governments  --  committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

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:

  Section  1.  The  parks,  recreation  and historic preservation law is
amended by adding a new article 16 to read as follows:
                               ARTICLE 16
                      MUNICIPAL PARKLAND ALIENATION
SECTION 16.01 DECLARATION OF POLICY.
        16.03 DEFINITIONS.
        16.05 MUNICIPAL PARKLAND ALIENATION.
        16.07 PARKLAND ALIENATION PROPOSAL REVIEW.
        16.09 PARKLAND ALIENATION REPORTING.
        16.11 PARKLAND ALIENATION ENFORCEMENT.
        16.13 STATE AUDITS.
        16.15 PUBLIC TRUST DOCTRINE NOT AFFECTED.
  S 16.01 DECLARATION OF POLICY. THE LEGISLATURE FINDS AND DECLARES THAT
MUNICIPALLY OWNED PARKLAND ENHANCES THE QUALITY OF LIFE, COMMUNITY CHAR-
ACTER, AND ECONOMIC VITALITY OF LOCAL COMMUNITIES AND  PROVIDES  HEALTHY
AND  AFFORDABLE  RECREATIONAL  AND EDUCATIONAL OPPORTUNITIES TO NEW YORK
STATE RESIDENTS AND VISITORS.  ONCE LOST, MUNICIPAL PARKLAND  IS  DIFFI-
CULT  TO  RECOVER.  ACCORDINGLY,  THE  DISCONTINUATION  OR ALIENATION OF
MUNICIPAL PARKLAND SHOULD BE ACCOMPANIED BY REPLACEMENT WITH  COMPARABLE
PARKLAND TO BE AVAILABLE TO THE COMMUNITY AND RESIDENTS OF THE STATE.
  NEW  YORK  STATE  COURTS  HAVE  LONG  HELD  THAT MUNICIPAL PARKLAND IS
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.
              

                                                           LBD16350-04-0

A. 10575--A                         2

A CENTURY, NEW YORK STATE COURTS HAVE UPHELD THE REQUIREMENT THAT MUNIC-
IPAL PARKLAND MAY NOT BE ALIENATED  WITHOUT  PRIOR  ENACTMENT  OF  STATE
LEGISLATION  AUTHORIZING  SUCH ALIENATION.  THIS BODY OF LAW IS COMMONLY
REFERRED TO AS THE "PUBLIC TRUST DOCTRINE".
  WITHOUT  LIMITING  OR RESTRICTING EXISTING "PUBLIC TRUST DOCTRINE," IT
IS HEREBY DECLARED TO BE THE PUBLIC POLICY AND IN THE PUBLIC INTEREST OF
THIS STATE TO PROVIDE FOR A COMPREHENSIVE PROGRAM  ADMINISTERED  BY  THE
OFFICE  TO  REVIEW  PROPOSALS TO ALIENATE MUNICIPAL PARKLAND IN ORDER TO
PROMOTE THE USE, PROTECTION, AND MAINTENANCE OF MUNICIPAL  PARKLAND  FOR
THE  ENJOYMENT,  WELFARE,  RECREATION, PROSPERITY, AND ENRICHMENT OF THE
PEOPLE OF THE STATE OF NEW YORK.
  S 16.03 DEFINITIONS. WHEN USED IN THIS ARTICLE:
  1. "MUNICIPAL PARKLAND" SHALL MEAN REAL PROPERTY OR INTERESTS  THEREIN
THAT  IS  OWNED BY A MUNICIPALITY THAT PROVIDES PUBLIC PARK, RECREATION,
OR OPEN SPACE PROTECTION PURPOSES. MUNICIPAL  PARKLAND  INCLUDES:  LANDS
THAT HAVE BEEN DEDICATED FOR SUCH PURPOSES BY THE MUNICIPALITY THROUGH A
FORMAL  RESOLUTION  OR SIMILAR ACTION; LANDS THAT HAVE BEEN PURCHASED OR
ACCEPTED FOR SUCH PURPOSES; OR LANDS THAT CURRENTLY OR HISTORICALLY HAVE
BEEN AVAILABLE TO AND USED BY THE PUBLIC FOR SUCH PURPOSES.
  2. "MUNICIPAL PARKLAND ALIENATION" SHALL MEAN ANY ACTION BY A  MUNICI-
PALITY TO SELL, LEASE, DISCONTINUE, OR CHANGE THE USE OF MUNICIPAL PARK-
LAND.
  3.  "MUNICIPALITY"  SHALL  MEAN  A  COUNTY, TOWN, CITY, OR VILLAGE. IT
SHALL ALSO MEAN A SCHOOL DISTRICT  OR  OTHER  POLITICAL  SUBDIVISION  IN
INSTANCES  WHERE SUCH ENTITY HAS OBTAINED STATE OR FEDERAL GRANT FUNDING
FOR THE CREATION OF MUNICIPAL PARKLAND.
  4. "PARKLAND ALIENATION LEGISLATION" SHALL MEAN LEGISLATION INTRODUCED
IN THE STATE LEGISLATURE AUTHORIZING A MUNICIPALITY TO ALIENATE PARKLAND
UNDER ITS JURISDICTION.
  5. "STATE OR FEDERAL GRANT FUNDING" SHALL INCLUDE BUT IS NOT NECESSAR-
ILY LIMITED TO:  GRANTS PROVIDED PURSUANT TO THE STATE PARK  AND  RECRE-
ATION  LAND  ACQUISITION  BOND ACTS OF 1960 AND 1965, THE OUTDOOR RECRE-
ATION DEVELOPMENT BOND ACT OF 1965, THE ENVIRONMENTAL QUALITY  BOND  ACT
OF  1986,  THE  ENVIRONMENTAL  PROTECTION  ACT  OF  1993  AND  THE CLEAN
WATER/CLEAN AIR BOND ACT OF 1996; FUNDS PROVIDED THROUGH STATE APPROPRI-
ATION OR GRANT PROGRAMS FOR PARKLAND PURPOSES; AND THE FEDERAL LAND  AND
WATER  CONSERVATION  FUND  AND  THE  URBAN  PARK AND RECREATION RECOVERY
PROGRAM.
  6. "PUBLIC TRUST DOCTRINE" SHALL MEAN THE BODY OF STATE JUDICIAL COURT
DECISIONS THAT HOLD THAT MUNICIPAL PARKLAND,  AND  SOME  OTHER  PUBLICLY
HELD  LANDS,  ARE HELD IN TRUST FOR THE BENEFIT OF THE PUBLIC AND CANNOT
BE USED FOR ANY OTHER PURPOSE WITHOUT LEGISLATIVE AUTHORIZATION.
  S 16.05 MUNICIPAL PARKLAND ALIENATION. NO MUNICIPALITY SHALL  ALIENATE
MUNICIPAL  PARKLAND  UNLESS  IT HAS RECEIVED PRIOR AUTHORIZATION THROUGH
THE ENACTMENT BY THE LEGISLATURE AND APPROVAL BY THE GOVERNOR  OF  PARK-
LAND  ALIENATION  LEGISLATION.  ALL SUCH LEGISLATION SHALL INCLUDE, AT A
MINIMUM, THE FOLLOWING ELEMENTS:
  1. THE LEGISLATION SHALL INCLUDE A DESCRIPTION OF THE PARCEL OF MUNIC-
IPAL PARKLAND PROPOSED TO BE ALIENATED  INCLUDING  A  FORMAL  METES  AND
BOUNDS DESCRIPTION AND THE TOTAL ACREAGE BEING ALIENATED.
  2. EXCEPT AS PROVIDED FOR IN SUBDIVISION THREE OF THIS SECTION, MUNIC-
IPAL  PARKLAND  ALIENATION  LEGISLATION SHALL INCLUDE A REQUIREMENT THAT
THE MUNICIPALITY ACQUIRE AND DEDICATE REPLACEMENT PARKLAND. THE REPLACE-
MENT PARKLAND MUST BE OF EQUAL OR GREATER ACREAGE, EQUAL OR GREATER FAIR
MARKET VALUE, AND EQUAL OR  GREATER  RECREATIONAL  USEFULNESS  THAN  THE
EXISTING  PARKLAND  THAT  IS AUTHORIZED FOR ALIENATION.  THE LEGISLATION

A. 10575--A                         3

SHALL INCLUDE A GENERAL DESCRIPTION OF THE REPLACEMENT PARKLAND  INCLUD-
ING  A  FORMAL METES AND BOUNDS DESCRIPTION AND THE TOTAL ACREAGE OF THE
REPLACEMENT PARCEL. THE LEGISLATION SHALL  ALSO  INCLUDE  A  REQUIREMENT
THAT THE AUTHORIZATION TO ALIENATE EXISTING MUNICIPAL PARKLAND SHALL NOT
BECOME EFFECTIVE UNTIL THE MUNICIPALITY HAS FIRST ACQUIRED AND DEDICATED
REPLACEMENT PARKLAND.
  3.  ACQUISITION  AND  DEDICATION  OF REPLACEMENT PARKLAND SHALL NOT BE
REQUIRED BY SUCH LEGISLATION IN THE FOLLOWING INSTANCES ONLY:
  (A) IN THE CASE OF MUNICIPAL PARKLAND BEING ALIENATED FOR PURPOSES  OF
AN  EASEMENT  FOR A UTILITY, THE LEGISLATION SHALL INCLUDE A REQUIREMENT
THAT THE MUNICIPALITY DEDICATE THE FAIR MARKET VALUE OF THE EASEMENT FOR
THE ACQUISITION OF ADDITIONAL PARKLAND OR CAPITAL IMPROVEMENTS TO EXIST-
ING PARKLAND FACILITIES. THE LEGISLATION SHALL ALSO REQUIRE THAT SURFACE
DISTURBANCES TO PARKLAND BE RESTORED AND THAT, ONCE RESTORED,  THE  LAND
CONTINUE TO BE USED FOR PARKLAND PURPOSES.
  (B)  IN THE CASE OF MUNICIPAL PARKLAND BEING ALIENATED THROUGH A LEASE
AUTHORIZING A NON-MUNICIPAL ENTITY TO CONSTRUCT OR OPERATE A PARK-RELAT-
ED FACILITY WITHIN MUNICIPAL PARKLAND,  THE  LEGISLATION  SHALL  REQUIRE
THAT  SUCH  FACILITY CONTINUE TO PROVIDE SUFFICIENT PUBLIC BENEFIT TO BE
CONSIDERED A PUBLIC FACILITY; PROVIDED THAT LEGISLATION AUTHORIZING  ANY
LEASE  FOR  A  NON-PARK-RELATED  FACILITY  OR USE, OR FOR A PARK-RELATED
FACILITY WITH INSUFFICIENT PUBLIC BENEFIT  TO  BE  CONSIDERED  A  PUBLIC
FACILITY, SHALL REQUIRE REPLACEMENT PARKLAND.
  4.  ALL SUCH LEGISLATION SHALL INCLUDE THE FOLLOWING LANGUAGE: "IF THE
PARKLAND THAT IS THE SUBJECT OF THIS LEGISLATION  HAS  RECEIVED  FUNDING
PURSUANT TO THE FEDERAL LAND AND WATER CONSERVATION FUND, THE DISCONTIN-
UANCE OF PARKLAND AUTHORIZED BY THE PROVISIONS OF THIS LEGISLATION SHALL
NOT  OCCUR UNTIL THE MUNICIPALITY HAS COMPLIED WITH THE FEDERAL REQUIRE-
MENTS PERTAINING TO THE CONVERSION OF  PARKLANDS,  INCLUDING  SATISFYING
THE  SECRETARY  OF THE INTERIOR THAT THE DISCONTINUANCE WILL INCLUDE ALL
CONDITIONS WHICH THE SECRETARY OF THE INTERIOR DEEMS NECESSARY TO ASSURE
THE SUBSTITUTION OF OTHER LANDS SHALL BE EQUIVALENT IN FAIR MARKET VALUE
AND RECREATIONAL USEFULNESS TO THE LANDS BEING DISCONTINUED."
  S 16.07 PARKLAND ALIENATION PROPOSAL REVIEW. 1. NO PARKLAND ALIENATION
LEGISLATION SHALL BE ENACTED UNLESS A MUNICIPALITY HAS FIRST APPLIED FOR
AND RECEIVED FROM THE OFFICE A CERTIFICATION THAT  THE  PROPOSED  ALIEN-
ATION  SATISFIES  THE REQUIREMENTS OF SECTION 16.05 OF THIS ARTICLE. THE
APPLICATION FOR CERTIFICATION SHALL BE SUBMITTED TO THE  OFFICE  BY  THE
GOVERNING BODY OF A MUNICIPALITY IN A FORM PRESCRIBED BY THE COMMISSION-
ER  AND  SHALL,  AT  A  MINIMUM,  CONTAIN  THE FOLLOWING INFORMATION AND
SUPPORTING DOCUMENTATION:
  (A) A DESCRIPTION OF THE PARKLAND TO BE ALIENATED, INCLUDING A GENERAL
DESCRIPTION OF THE LAND, A FORMAL METES AND BOUNDS  DESCRIPTION  OF  THE
PARCEL,  THE TOTAL ACREAGE BEING ALIENATED, AND THE FAIR MARKET VALUE OF
THE PARCEL.
  (B) A DESCRIPTION OF THE  REPLACEMENT  PARKLAND  INCLUDING  A  GENERAL
DESCRIPTION   OF  THE  REPLACEMENT  LAND,  A  FORMAL  METES  AND  BOUNDS
DESCRIPTION, THE TOTAL ACREAGE OF THE PARCEL, AND THE FAIR MARKET  VALUE
OF  THE  PARCEL.  IT SHALL ALSO CONTAIN A DISCUSSION OF THE RECREATIONAL
USEFULNESS OF THE REPLACEMENT PARCEL AND A DISCUSSION OF  ITS  PROXIMITY
TO THE PARKLAND BEING ALIENATED.
  (C)  IN THE CASE OF MUNICIPAL PARKLAND BEING ALIENATED FOR PURPOSES OF
AN EASEMENT FOR A UTILITY, A DESCRIPTION OF HOW THE PROCEEDS OF  A  SALE
OR LEASE OR THE EASEMENT WOULD BE DEDICATED FOR THE ACQUISITION OF ADDI-
TIONAL  PARKLANDS  AND/OR  FOR CAPITAL IMPROVEMENTS TO EXISTING PARK AND
RECREATIONAL FACILITIES.

A. 10575--A                         4

  (D) IN THE CASE OF A  LEASE  AUTHORIZING  A  NON-MUNICIPAL  ENTITY  TO
CONSTRUCT  OR OPERATE A PARK-RELATED FACILITY WITHIN MUNICIPAL PARKLAND,
AN EXPLANATION OF THE IMPACT OF SUCH LEASE ON PUBLIC ACCESS TO THE PARK-
LAND.
  (E)  A  DESCRIPTION  OF  THE  MUNICIPALITY'S COMPLIANCE WITH THE STATE
ENVIRONMENTAL QUALITY REVIEW ACT AS SET FORTH IN ARTICLE  EIGHT  OF  THE
ENVIRONMENTAL  CONSERVATION  LAW,  INCLUDING  COMPLETED  COPIES  OF  THE
REQUIRED FORMS, STATEMENTS, AND ASSESSMENTS OF THE ENVIRONMENTAL IMPACTS
OF THE PROPOSED MUNICIPAL PARKLAND ALIENATION.
  2. WITHIN NINETY DAYS OF RECEIVING A COMPLETE APPLICATION, THE  OFFICE
SHALL RESPOND IN WRITING AND EITHER:
  (A)  ISSUE A CERTIFICATION THAT THE PROPOSED MUNICIPAL PARKLAND ALIEN-
ATION MEETS THE REQUIREMENTS OF SECTION 16.05 OF THIS ARTICLE; OR
  (B) DENY THE CERTIFICATION, PROVIDING AN EXPLANATION  FOR  THE  DENIAL
AND  WHERE APPROPRIATE SUGGESTING CHANGES OR ADDITIONS THAT WOULD RESULT
IN ISSUANCE OF A  CERTIFICATION.  WITHIN  THIRTY  DAYS  OF  RECEIVING  A
REVISED  APPLICATION,  THE  OFFICE  SHALL RECONSIDER THE APPLICATION AND
NOTIFY THE MUNICIPALITY IN WRITING WHETHER THE  CERTIFICATION  HAS  BEEN
ISSUED OR DENIED.
  3.  THE PROVISIONS OF THIS SECTION DO NOT APPLY TO THE SITING OF MAJOR
UTILITY TRANSMISSION FACILITIES SUBJECT TO ARTICLE SEVEN OF  THE  PUBLIC
SERVICE LAW.
  S  16.09  PARKLAND  ALIENATION  REPORTING.  ANY  MUNICIPALITY THAT HAS
RECEIVED ALIENATION AUTHORIZATION THROUGH ENACTMENT OF  MUNICIPAL  PARK-
LAND ALIENATION LEGISLATION SHALL SUBMIT A REPORT TO THE OFFICE NO LATER
THAN  DECEMBER THIRTY-FIRST OF THE CALENDAR YEAR FOLLOWING THE ENACTMENT
OF THE LEGISLATION. SUCH REPORT SHALL BE SIGNED  BY  THE  MUNICIPALITY'S
CHIEF EXECUTIVE OFFICER AND SHALL INCLUDE:
  1.  A  NARRATIVE  DESCRIPTION OF THE STATUS OF THE PARKLAND ALIENATION
ACTIONS AUTHORIZED AND REQUIRED IN THE LEGISLATION; AND
  2. AN ATTESTATION THAT THE MUNICIPALITY HAS COMPLIED WITH  ALL  CONDI-
TIONS  OF  THE PARKLAND ALIENATION LEGISLATION, INCLUDING THE DEDICATION
OF ANY REQUIRED REPLACEMENT PARKLAND OR, IN THE CASE  OF  UTILITY  EASE-
MENTS, THE DEDICATION OF FUNDING FOR THE ACQUISITION OF ADDITIONAL PARK-
LAND OR CAPITAL IMPROVEMENTS TO EXISTING PARKLAND FACILITIES; OR
  3.  IN  THE EVENT THAT ANY CONDITION OF THE PARKLAND ALIENATION LEGIS-
LATION HAS NOT BEEN FULLY COMPLIED WITH, THE MUNICIPALITY SHALL  PROVIDE
THE  OFFICE  WITH  AN INTERIM REPORT DETAILING THE STATUS OF ITS ACTIONS
AND AN EXPLANATION AS TO WHY CERTAIN CONDITIONS HAVE NOT BEEN MET, ALONG
WITH THE ANTICIPATED DATE BY WHICH SUCH  CONDITIONS  WILL  BE  MET.  THE
MUNICIPALITY  SHALL CONTINUE TO FILE INTERIM REPORTS ANNUALLY UNTIL SUCH
TIME AS THE CONDITIONS HAVE BEEN  MET  AND  A  FINAL  REPORT  IS  FILED.
UNLESS  A LONGER TIME PERIOD IS SPECIFIED IN THE LEGISLATION AUTHORIZING
THE ALIENATION, IF THE CONDITIONS OF THE ALIENATION HAVE NOT BEEN MET BY
DECEMBER THIRTY-FIRST OF THE THIRD CALENDAR YEAR FOLLOWING THE ENACTMENT
OF PARKLAND ALIENATION LEGISLATION, THE MUNICIPALITY SHALL BE SUBJECT TO
ENFORCEMENT PURSUANT TO SECTION 16.11 OF THIS ARTICLE.
  S 16.11 PARKLAND ALIENATION  ENFORCEMENT.  AN  ACTION  FOR  INJUNCTIVE
RELIEF  AS PROVIDED IN THIS SECTION AGAINST A MUNICIPALITY VIOLATING ANY
PROVISION OF THIS ARTICLE MAY BE BROUGHT BY THE  ATTORNEY  GENERAL  UPON
REFERRAL BY THE OFFICE OR UPON HIS OR HER OWN INITIATIVE.
  1.  A  MUNICIPALITY  MAY BE ENJOINED FROM ALIENATING PARKLAND WHERE IT
ACTS OR HAS ACTED IN FURTHERANCE OF PARKLAND ALIENATION:
  (A) WITHOUT THE ENACTMENT OF PARKLAND ALIENATION LEGISLATION;
  (B) WITHOUT OBTAINING CERTIFICATION FROM THE  OFFICE  AS  REQUIRED  BY
THIS ARTICLE; OR

A. 10575--A                         5

  (C)  WITHOUT  COMPLIANCE  WITH THE TERMS OF PARKLAND ALIENATION LEGIS-
LATION; OR
  (D)  WITHOUT COMPLIANCE WITH THE REQUIREMENTS OF THIS ARTICLE, INCLUD-
ING REPORTING REQUIREMENTS.
  WHERE APPROPRIATE, SUCH MUNICIPALITY MAY BE COMPELLED TO RESTORE  SUCH
PARKLAND  TO PARK PURPOSES OR TO REPLACE PARKLAND ALIENATED IN VIOLATION
OF THIS ARTICLE WITH REPLACEMENT  PARKLAND  OF  EQUAL  OR  GREATER  FAIR
MARKET VALUE, ACREAGE, AND RECREATIONAL USEFULNESS.
  2.  A  MUNICIPALITY  THAT  FAILS TO PROVIDE REPLACEMENT PARKLAND WHERE
REQUIRED BY PARKLAND ALIENATION LEGISLATION MAY BE COMPELLED TO  PAY  TO
THE  OFFICE  AN  AMOUNT  EQUAL TO THE FAIR MARKET VALUE OF THE ALIENATED
PARKLAND, WHICH FUNDS SHALL BE USED BY THE OFFICE TO ACQUIRE REPLACEMENT
PARKLAND.
  S 16.13 STATE AUDITS. WITH THE ADVICE AND GUIDANCE OF THE OFFICE,  THE
OFFICE  OF THE STATE COMPTROLLER SHALL BE EMPOWERED TO CONDUCT AUDITS OF
ALL MUNICIPAL PARKLAND ALIENATION LEGISLATION TO ENSURE COMPLIANCE  WITH
THE TERMS THEREIN.
  S  16.15  PUBLIC  TRUST DOCTRINE NOT AFFECTED. NOTHING IN THIS ARTICLE
SHALL BE CONSTRUED TO LIMIT OR RESTRICT PUBLIC TRUST DOCTRINE PRINCIPLES
THAT HAVE BEEN ESTABLISHED THROUGH STATE JUDICIAL COURT DECISIONS OR  TO
PREVENT ENFORCEMENT OF THE PUBLIC TRUST DOCTRINE BY ANY PERSON INCLUDING
INDIVIDUAL CITIZENS OF THE STATE OF NEW YORK.
  S  2. The state commissioner of parks, recreation and historic preser-
vation is authorized to promulgate  such  guidelines  and/or  rules  and
regulations  as he or she deems necessary to implement the provisions of
this act on or before its effective date.
  S 3. This act shall take effect January 1, 2011.