Opinion 88-11

This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PARKS AND RECREATION -- Park Land (conveyance of lands subject to reversionary interest)

VILLAGE LAW, §1-102(1): When land is conveyed to a village for use as a park, subject to a private reversionary right, the land, upon its discontinuance as a park, may be re-conveyed to the original grantor or his successors in interest, without special legislation. However, a special act and extinguishment of the private right are necessary for such land to be conveyed to a party other than the grantor or his successor in interest. Prior opinions, including 20 Opns St Comp, 1964, p 479, superseded.

This is in reply to your inquiry regarding a proposed sale of real property which was conveyed to a village by a deed containing a provision that "the land herein conveyed shall, at all times, be used for a Public Park for the Village ... " You state that the surviving grantor is willing to release the restrictive covenant in respect to the use of the property as a public park. You also indicate that the property has never been utilized as a park, with the exception of a frustrated attempt to construct a swimming pool and that the property is not now being used for any municipal purpose and has been determined to be "unneeded". You ask whether the proposed sale of this property to a local incorporated volunteer fire company must be authorized by the State Legislature. A village is generally authorized to sell real property which is no longer needed for village purposes (Village Law, §1-102[1]). Furthermore, there is no statutory mandate that such property be sold at public sale or that such a sale be subject to referendum. Accordingly, we have said that a village may authorize the sale of unneeded village property by resolution and that such property may be sold at private sale (1979 Opns St Comp No. 79-129, unreported; 1980 Opns St Comp No. 80-479, unreported; 23 Opns St Comp, 1967, p 804). Although the method of sale of such property is within the discretion of the village board of trustees, the method of sale adopted should be the one which, in the judgment of the appropriate village officials, will result in the best price or the most beneficial terms for the village (Merritt v Gallagher, 96 AD2d 933, 466 NYS2d 381; 1986 Opns St Comp No. 86-78, p 124).

Notwithstanding the general authority in section 1-102 to convey unneeded real property, it is well-established that "dedicated park areas in New York are impressed with a public trust and their use for other than park purposes * * * requires the direct and specific approval of the State Legislature, plainly conferred" (Ackerman v Steisel, 104 AD2d 940, 941, 480 NYS2d 556, affd 66 NY2d 833, 498 NYS2d 364; Brooklyn Park Comr's v Armstrong, 45 NY 234; Gewirtz v City of Long Beach, 69 Misc 2d 763, 330 NYS 2d 495, affd 45 AD2d 841, 358 NYS2d 957; see also Parks, Recreation and Historic Preservations Law, §15.09). The courts have also held that the authorization of the State Legislature is required in order to use property dedicated as a park for another municipal purpose, such as the use of park property to store snow removal and other equipment of the municipality's sanitation and highway department (Ackerman v Steisel, supra). Similarly, as a general rule, special legislation is required to alienate municipal property if the land is in fact dedicated for park use, even where it was never actually used as a park (1980 Opns St Comp No. 80-772, p 211). Accordingly, it is clear that if a municipality holds land dedicated for park purposes in fee simple absolute, the property may not be alienated without express authorization of the State Legislature.

However, if park land is held by a municipality subject to a reversionary interest, it appears that a special act is not needed to re-convey the property to the grantors or their successors in interest. In Grant v Koenig, 67 Misc 2d 1028, 325 NYS2d 428, affd 39 AD2d 1000, 333 NYS2d 591, land was acquired by a city for park purposes under a 1946 deed containing a condition subsequent which provided that "in the event of the discontinuance *** of the use of such lands for park purposes *** all of the same shall immediately revert to the parties of the first part or their heirs". The court held that it was not necessary for the city to obtain a special act of the Legislature to convey the property to a third party to which the grantors' heirs had transferred their right of reacquisition after the park use had been abandoned by the city (see also Matter of Central Parkway, 140 Misc 727, 251 NYS 577; cf. Stillwell v Morley, 50 Misc 2d 1012, 272 NYS2d 187, 190, revd on other grounds 26 AD2d 740, 272 NYS2d 193, where the court held that the provisions of section 59 of the Real Property Law [now covered by EPTL 6-5.1], which was amended in 1962 to abrogate the common law rule that powers of termination were not alienable, devisable, or descendible, do not apply to rights or interests existing prior to September 1, 1962). On the other hand, if, instead of transferring their interests to a third party, the heirs' right of reacquisition had been extinguished, such as by a release to the city, the city would have had a fee simple absolute interest in the park property and the city could not have validly conveyed the property without a special act of the State Legislature (see Grant v Koenig, 67 Misc 2d 1028, supra, p 1030).

As is suggested by the foregoing, if municipal park property is subject to a private reversionary right, then, prior to the conveyance of the property to other than the grantor or his successors in interest, or its utilization for other than park purposes, the private right should be extinguished by consent of the grantors or their heirs or pursuant to statute (1977 Opns St Comp, No. 77-827, unreported; see Real Property Law, §345; Real Property Actions and Proceedings Law, §§ 612, 1951, 1953, 1954, 1955). Although in 20 Opns St Comp, 1964, p 479, we expressed the opinion that such private reversionary rights could be extinguished in the same special legislation which releases the public trust, our present view is that the legislative power to extinguish such rights retroactively is questionable in light of the holding in Board of Education of Central School Dist. No. 1 v Miles, 15 NY2d 364, 259 NYS2d 129 (see 1A Warren's Weed, New York Real Property, §16.06). In that case, section 345 of the Real Property Law, which was enacted in 1958 and provides that certain restrictions on the use of land are unenforceable unless a declaration of intention to preserve them is recorded and periodically renewed, was found to be unconstitutional as impairing the obligation of contract and denying due process with respect to rights created under a 1931 conveyance. Accordingly, if a municipality seeks to convey park land subject to a reversionary interest to a party other than the grantor or his successors in interest, it is our opinion that the municipality, in addition to obtaining state legislation authorizing the conveyance, must also take the necessary steps to extinguish the reversionary interest.

Although your letter makes reference to a restrictive covenant, we are unable to determine whether the language restricting the use of the property vested an absolute fee in the municipality, subject only to a restriction on its use (Matter of Rieger, 60 AD2d 299,301, 400 NYS2d 881; DeKay v Board of Education of Central School Dist., 20 Misc 2d 881, 189 NYS2d 105), or whether it created a reversionary interest in the grantors or their heirs (EPTL 6-1.1, 6-4.5, 6-4.6; City of New York v Coney Island Fire Dept., 259 App Div 286, 18 NYS2d 923, affd 285 NY 535). However, since you state that it is your understanding that the grantor's heir is willing to release his interest in the property, if any, to the village, we note that, even if he has a reversionary interest, his release to the village would extinguish that interest and vest the fee in the village. Therefore, we conclude that, in order to alienate the park property in question, the village should obtain a release of any private reversionary interest and a special act to terminate the public trust (6 Opns St Comp, 1950, p 120).

Finally, although you do not indicate whether the property conveyed was a gift to the village, we note that if that were the case, the conveyance may also constitute a charitable disposition which would be subject to the provisions of Article 8 of the Estates, Powers and Trusts Law (EPTL). In that event, the donated property would be required to be used for the purposes for which it was given unless a court applying the doctrine of cy pres permits the gift to be used for another charitable purpose (see 1985 Opns St Comp No. 85-26, p 37).

Under the doctrine of cy pres, where conditions relating to a charitable trust have changed, rendering exact compliance with its terms impossible or impracticable, a court may authorize the gift to be used for another charitable purpose which will serve the donor's intent (St. Joseph's Hosp. v Bennett, 281 NY 115, 123; see also Matter of Neher, 279 NY 370). Thus, where a gift of real and personal property was made to a trust to furnish a park or playground for the public, but the trust income was insufficient to operate and maintain the park, the court permitted the transfer of the trust property to the town in which the park was located under an agreement committing the town to carrying out the purposes of the gift (Matter of Heckscher, 131 NYS2d 191).

Article 8 of the EPTL confers upon the Attorney General the duty to represent the beneficiaries of charitable dispositions and to ensure that the purposes of the dispositions are effectuated (EPTL 8-1.1[f], 8-1.4 [e][1]; see Lefkowitz v Lebensfeld, 68 AD2d 488, 417 NYS2d 715, affd 51 NY2d 442, 434 NYS2d 929). Accordingly, if the property which is the subject of your inquiry was a gift to the village, the village may wish to consult the Attorney General to ascertain whether an application to the Supreme Court is necessary to authorize an alternate use of the property or an appropriate disposition of the proceeds of a sale of the property.

Prior opinions, including 20 Opns St Comp, 1964, p 479, are hereby superseded to the extent inconsistent.

February 29, 1988
Edgar S.K. Merrell, 3rd, Esq., Village Attorney
Village of Constableville