S T A T E O F N E W Y O R K
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9556
I N A S S E M B L Y
January 23, 2018
___________
Introduced by M. of A. ENGLEBRIGHT -- 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:
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.
§ 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
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".
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03359-01-7
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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.
§ 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.
§ 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
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
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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."
§ 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.
(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.
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(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.
§ 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.
§ 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;
(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.
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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.
§ 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.
§ 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.
§ 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.
§ 3. This act shall take effect January 1, 2019.