Parkland Alienation

Chapter 1: All About Parkland Alienation

1. What is the legal basis for parkland alienation?

In most instances, the requirement that a municipality obtain legislative authorization in

order to alienate parkland is not found in a statute, which is a law passed by the legislature.

Rather, the basic principle for parkland alienation is founded in case law or .common. law.1

The courts have consistently held that .once land has been dedicated to use as a park, it

cannot be diverted for uses other than recreation, in whole or in part, temporarily or

permanently, even for another public purpose, without legislative approval..2 The

authorization contained in the act must be plainly conferred, specific, direct or explicit.3

In making this determination, the courts have said that parkland held by a municipality are

subject to a public trust for the benefit of the public at large and not just for the benefit of

residents of the local community.4 This concept is often referred to as the .public trust

doctrine. and it applies not only to parks, but to other publicly held lands as well.5 The

courts have been addressing the public trust doctrine as it applies to New York parkland as

early as 1871 when the highest court of the state held that the City of Brooklyn could not

sell parkland without first obtaining Legislative approval.6 Since that time, many courts

have commented regarding the importance of parks to a community.s health and the

happiness of its citizens.7 As recently as 2001, the highest court in New York State declared

that .our courts have time and again reaffirmed the principle that parkland is impressed with

a public trust, requiring legislative approval before it can be alienated or used for an

extended period for non-park purposes..8

In addition to the common law, there are also statutes that deal with parkland alienation. For

example, if a municipality received State funding for the acquisition or improvement of the

park it wishes to alienate, the statute that authorized the funding usually requires alienation

legislation.9 In these cases, the statute often requires that the municipality provide lands of

equal usefulness, environmental value, and fair market value to replace the parkland being

lost.10 In addition, New York State.s General City Law provides that parklands are

.inalienable. and thus require legislative approval to alienate.11

2. To what types of land do the principles of alienation apply?

. Formal dedication of parkland or implied dedication of parkland?

The term .dedicated. is often used in referring to parkland. Common phrases include .lands

dedicated for park purposes. and .dedicated parklands.. The dedication of parkland may be

formal through an official act by the governing body of the municipality, such as the passage

or adoption of a formal resolution. However, dedication can also be implied. This may

occur through municipal actions which demonstrate that the government considers the lands

to be parkland. Examples include: a municipality publicly announcing its intention to

purchase the lands specifically for use as a park, .master planning. for recreational

purposes, budgeting for park purposes, .mapping. lands as parkland, or constructing

recreational facilities.12 Dedication can also occur when the common and accepted use of

the land is as a park.13

Accordingly, in order for the principles of alienation to apply to municipal land, it need not

have been formally dedicated, or even developed with amenities such as a lawns, playing

fields, or picnic benches.

. What about other municipal recreational facilities?

It is likely that the principles of parkland alienation also apply to the alienation of other

types of public recreational facilities. For example, courts have held or implied that the

alienation of golf facilities and marinas are subject to Legislative approval.14 Other

recreation facilities such as ice rinks or bike paths may also be subject to the same approval.

Therefore, it is recommended that a municipality seek legislative approval for the

discontinuance or conveyance of all public recreational facilities. It is also worth noting that

grant contracts with municipalities involving the development of recreational facilities with

State or Federal funds require the municipality to obtain alienation legislation.15

. Does the size of the parcel being alienated make a difference?

Even if the parcel of parkland being alienated is small, the requirements are the same. While

the courts have not been asked specifically to exempt small parcels from the legislative

process, it is clear they have been concerned with the nature and use of the lands rather than

their size. In fact, one early case dealt with a building within a park. The relatively small

size of the lands on which that building rested had no bearing on the court.s decision.16

Indeed, the Legislature regularly passes alienation bills that involve small pieces of

parkland.17

3. What is, what is not, and what may be an alienation.

Because the requirement to obtain legislation to alienate parkland is primarily based in case

law, in order to determine what is and what is not an alienation, we rely on judges.

decisions, or .precedent. established by the courts to answer the question.

. Alienations

The following have been determined by the courts to be alienations:

• The conveyance, sale, or lease of municipal parkland or recreational facilities to

another entity, such as an adjoining property owner, a developer, or a school district,

which results in the facility no longer being used for public park and recreation

purposes.18

• The lease of municipal park or recreational facilities even though the resource may

continue to be used for public park and recreational purposes.19

• The use of parkland by a municipality for a non-park purpose, such as for a water

filtration facility, a landfill, a museum, senior housing, temporary parking of police

or municipal vehicles, or street construction.20

• Restricting to local residents the use of recreational facilities that had previously been open to all persons.21

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