S T A T E   O F   N E W   Y O R K
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                                  5539

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 23, 2011
                               ___________

Introduced  by  M.  of A. ENGLEBRIGHT, REILLY, GOTTFRIED, MAISEL, GLICK,
  LIFTON, COLTON, JAFFEE, MILLMAN, CASTRO, DINOWITZ, WEPRIN,  HOOPER  --
  Multi-Sponsored  by  -- M. of A.  BARRON, BING, GIBSON, MARKEY, MAYER-
  SOHN, McENENY -- read once and referred to the Committee  on  Environ-
  mental Conservation

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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00293-01-1

              

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  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".
  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

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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
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-

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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.
  (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;

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  (B) WITHOUT OBTAINING CERTIFICATION FROM THE  OFFICE  AS  REQUIRED  BY
THIS ARTICLE; OR
  (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, 2012.