A change in the use of municipal parking spaces on parkland must be authorized by special legislation.

December 13, 2017

Beth Ann Reilly Informal Opinion Deputy Town Attorney No. 2017-1

Town of Brookhaven One Independence Hill Farmingville, NY 11738

Dear Ms. Reilly:

You have requested an opinion asking whether specific legislative authority is required for a village within the Town to convert certain parking spaces in a parking lot owned by the Town from eight spaces for boat trailers to 30 spaces for passenger vehicles, in accord with an inter-municipal agreement between the village and the Town. You have explained that at present the eastern portion of the parking lot is used for general municipal parking, and the western portion of the lot, closest to the boat ramp of a marina, is used for parking bo th cars and boat trailers for the Town’s marina. The village intends to reconfigure the existing eight boat-trailer spaces in the western portion to make 30 spaces for passenger vehicles. These reconfigured spaces will not be reserved for those using the marina but instead will be available to members of the public for municipal parking generally. Under the terms of the agreement, the village will maintain and co ntrol the parking spaces for at least 50 years, with an option to renew the agreement for up to another 50 years.

You have stated that the eight boat-tra iler spaces are located on parkland.Parkland is imbued with a public trust and cannot be alienated or diverted to nonpark purposes without specific au thority from the Legislature. Friends of Van Cortlandt Park v. City of New York , 95 N.Y.2d 623, 630 (2001). Because the current use of the spaces in question—parking of bo at trailers incidental to the use of the marina—is distinctly different from the pr oposed use—parking for general municipal purposes, including but by no means limit ed to parking for use of the marina—we believe that legislative authority for the proposed change is required.

Your letter suggests that no legislative action is required because there would be no transfer of title to the land in question, and because the land would remain a parking lot, changing only the specific vehi cles that will be permitted to park there

from boat trailers to automob iles. We note that although title will not be transferred, the proposed inter-municipal agreement will transfer control over the parking spaces from the Town to the village, and thus that transfer alon e might well require specialPage 2

legislation. See Miller v. City of New York , 15 N.Y.2d 34, 37 (1964) (park cannot be alienated or subjected to anything beyo nd revocable permit without legislative sanction). Setting aside that question, we are of the opinion that because land currently dedicated to park purposes—p arking for the marina—would be made available for parking for ot her than park purposes, th at is, general municipal parking, the change would constitute a di version of park property that must be authorized by the Legislature before it can o ccur. Specific legislation is required even when the diversion of parkland se rves another public purpose. Friends of Van

Cortlandt Park , 95 N.Y.2d 623, 631-32 (water treatment plant); Williams v. Gallatin

, 229 N.Y.248, 253 (1920) (courts or schools); Matter of Central Parkway , 140 Misc. 727 (Sup. Ct. Sch'dy Co. 1931) (highway).

The Attorney General issues formal opin ions only to officers and departments of state government. Thus, this is an in formal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD

Assistant Solicitor General

in Charge of Opinions