Transferring municipal parkland or converting it to nonpark use can be legally complex.
Like access to water and certain other very important property interests, parkland is generally considered subject to the public trust doctrine, which means that the land is held “in trust” by the government for all citizens to use and enjoy. The public trust doctrine is a common law concept that is applied differently among a variety of resources and jurisdictions.
Parkland alienation requirements stemming from the public trust doctrine first appeared in New York caselaw in 1871, when the court in Brooklyn Park Commissioners v. Armstrong held that the then-city of Brooklyn could not sell parkland without obtaining prior legislative approval. This holding has been reaffirmed many times since, including in Friends of Van Cortlandt Park v. City of New York (2001) and Union Square Park Community Coalition, Inc. v. New York City Dept. of Parks and Recreation (2014). The court in Williams v. Gallatin (1920) described the logic for such holding: “A park is a pleasure ground set apart for the recreation of the public, to promote its health and enjoyment… no objects, however worthy, such as courthouses and schoolhouses, which have no connection with park purposes, should be permitted to encroach upon it without legislative authority plainly conferred.”
Pursuant to the above, municipalities generally cannot transfer parkland or change the use of parkland to non-outdoor recreation without first obtaining passage of authorizing legislation from the NYS legislature, called “alienation legislation.” Depending on the programs by which the park was established and whether state or federal funds were used for the park, the alienation process may require replacement of parkland with “equal” land. The alienation requirements apply not only in the obvious case of a municipality seeking to transfer public parkland to a private entity for development, but also in cases where the land is transferred to a private entity but continues to be used for recreational purposes and cases where the land is to be used for public purposes other than outdoor recreation (think museums or public works facilities). State parks are not subject to alienation requirements in New York; however, they may be subject to other similar requirements pursuant to their enabling legislation or if they received federal funds.
The alienation approval process can be lengthy -- as much as a year or more, and significantly longer the if park’s transfer or change in use must also go through the federal parkland conversion process (for parks that have received federal funds). Prior to passage of the alienation legislation, the transfer or change in use in parkland must go through the New York State Environmental Quality Review (“SEQRA”) or City Environmental Quality Review (“CEQR”) review processes; if the federal conversion process applies, the transfer or change must also go through National Environmental Policy Act (“NEPA”) review. Once the applicable environmental review is completed, the municipality may request a Municipal Home Rule resolution, a necessary precursor to the alienation legislation, from the state legislature. Only after these two items have been completed may the alienation legislation be enacted. Throughout the process, the municipality must rally the support of state legislators from both the state assembly and the senate.
It is recommended that beginning work with NYS Dept of Parks (and counsel, if desired) as soon as the transfer or change in use is being considered. A qualified attorney may guide the municipality through the alienation process as well as through the technical and potentially onerous environmental review process.
Parkland alienation is understandably controversial in many instances, as advocates and community members, as well as elected officials, are often loath to lose public space. Parks advocates may also wish to work with counsel who can advise on whether municipal officials have complied with the alienation, conversion and environmental review requirements, as these can be important advocacy points.
Note: I used as a reference the Handbook on the Alienation and Conversion of Municipal Parkland in New York published by the New York State Office of Parks, Recreation and Historic Preservation (2012), which expands upon many of the concepts and requirements described above.