Can a New York city sell off land that has been used as a park, without first getting permission from the state Legislature?

Plain-English summary

The City of Dunkirk had a parcel that originated in a 1940 tax foreclosure. Rather than reselling those lots, the city consolidated them with other lots, dedicated the assembled property as a park through a common council action, and built and operated it as a park. The city attorney asked whether the city could now sell the parcel for residential use without going to the state Legislature.

The AG said no. General City Law § 20(2) declares a city's rights in parks and other public improvements inalienable, with an exception in § 20(7). Section 20(7) lets a city establish and maintain parks and other public places, and upon "discontinuance of that use" sell and convey the land. That looks like a self-help exit ramp, but it is not. The Court of Appeals and lower courts have read § 20(7) to leave intact the inalienability rule in § 20(2). Park land held by a city is impressed with a public trust, and the public trust comes off only by act of the state Legislature.

The opinion cited Aldrich v City of New York, Matter of Ackerman v Steisel (affirmed by the Court of Appeals in 1985), Matter of Central Parkway, and the AG's own 1979 opinion. Together they hold that direct and specific approval of the Legislature, plainly conferred, is required to use dedicated park land for non-park purposes. The city had no such authorization for the Dunkirk parcel, so it could not sell or repurpose it.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the "public trust doctrine" as applied to parks?

The doctrine treats certain government-held property, particularly dedicated public parks, as held in trust for the public. The municipality is the trustee. As trustee, the city cannot dispose of the property for non-trust purposes on its own. The state Legislature, representing all of the people of the state, is the only body that can release the property from the trust.

What counts as "dedication" for park purposes?

The opinion describes Dunkirk's process: the common council combined lots and acted to dedicate them as parkland, and the city then built and operated it as a park. Dedication can come through legislative action, deed restriction, long-standing use, or other means. New York courts have applied the doctrine to a wide range of fact patterns, including land used as a park even where formal dedication is informal.

What does "express approval of the State Legislature" actually look like in practice?

It typically requires a statute, signed into law, naming the parcel and authorizing the change of use or sale. Many such "park alienation" bills go through the New York Legislature each year. Courts have required the legislative approval to be "direct and specific" and "plainly conferred."

Could the city simply discontinue its use of the park to invoke § 20(7)?

The AG explained that § 20(7) does not actually permit a city's unilateral discontinuance of a dedicated park. The inalienability provision in § 20(2) controls. Whatever § 20(7) means for incidental matters, it has not been read to override the public trust on dedicated parkland.

What if the property was originally acquired through tax foreclosure?

The provenance does not change the doctrine. Once the city took title and then formally dedicated the property as a park, the public trust attached. The original mode of acquisition does not provide a back door out of the trust.

Background and statutory framework

General City Law § 20(2) declares a city's rights in public improvements (including parks) to be inalienable, except as provided in § 20(7). General City Law § 20(7) authorizes a city to establish, construct, maintain, and operate markets, parks, playgrounds, and public places, and upon discontinuance of that use to sell and convey the land.

New York courts have construed these provisions together. Matter of Central Parkway, 140 Misc 727 (Sup Ct Schenectady Co 1931), held that § 20(7) does not displace the inalienability rule in § 20(2). Aldrich v City of New York, 208 Misc 930 (NY Sup Ct 1955), affd 2 AD2d 760 (2d Dept 1956), held that park land held by a city is impressed with a public trust and may not be sold without authorization from the state Legislature. Matter of Ackerman v Steisel, 104 AD2d 940 (2d Dept 1984), affd 66 NY2d 833 (1985), confirmed that direct and specific approval of the state Legislature, plainly conferred, is required.

The AG's 1979 informal opinion (1979 Op Atty Gen (Inf) 184) summarized the same rule and reasoning.

Citations

• General City Law § 20(2) (cities' rights in public improvements inalienable except as provided in subdivision 7); § 20(7) (authority to establish, maintain, and on discontinuance sell parks and similar public places).
• Matter of Central Parkway, 140 Misc 727 (Sup Ct Schenectady Co 1931); Aldrich v City of New York, 208 Misc 930 (NY Sup Ct 1955), affd 2 AD2d 760 (2d Dept 1956); Matter of Ackerman v Steisel, 104 AD2d 940 (2d Dept 1984), affd 66 NY2d 833 (1985): public trust on parkland and need for legislative authorization.
• 1979 Op Atty Gen (Inf) 184 (AG's prior summary of the rule).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-10_pw.pdf

Original opinion text

GENERAL CITY LAW § 20(2), (7).
Land acquired by a city, dedicated for park purposes and
improved and utilized for park purposes, is impressed with a
public trust and may not be used for other than park purposes
without the express approval of the State Legislature.

March 10, 1997

Sheila Meck Hyde, Esq.
City Attorney
City of Dunkirk
City Hall
Dunkirk, NY 14048

Informal Opinion
No. 97-10

Dear Ms. Hyde:
You have asked whether your city is authorized to sell a
parcel of land, which the common council has dedicated as a park,
to a private individual for residence purposes without an act of
the State Legislature. If it can do so, you request guidance as
to the required procedure for sale.
You informed us that in 1940 the city received title to a
number of real property lots through tax foreclosure proceedings.
The lots were never sold but instead were combined with other
lots and, through action of the city council, the combined lots
were dedicated for park purposes. The land is used as a park and
has various park improvements.
Under General City Law § 20(2), the rights of a city in
various public improvements, including parks, are declared to be
inalienable, except as provided by subdivision 7 of section 20.
Subdivision 7 authorizes a city to establish, construct, maintain
and operate markets, parks, playgrounds and public places, and
upon the discontinuance of that use, to sell and convey the land.
The courts have held, however, that subdivision 7 does not affect
the inalienability of parks as provided in subdivision 2 of the
General City Law. Matter of Central Parkway, 140 Misc 727
(Sup Ct Schenectady Co 1931); see also, 1979 Op Atty Gen (Inf)

184. The State retains complete authority over the city as to
     the alienation of park lands. Id. Park land held by a city is
     impressed with a public trust and may not be sold without
     authorization by the State Legislature. Id.; see also, Aldrich
     v City of New York, 208 Misc 930 (NY Sup Ct 1955), affd, 2 AD2d
     760 (2d Dept 1956). As a general matter, the direct and specific

approval of the State Legislature, plainly conferred, would be
required to use dedicated park areas for other than park
purposes. Matter of Ackerman v Steisel, 104 AD2d 940, 941
(2d Dept 1984), affd, 66 NY2d 833 (1985).
We conclude that land acquired by a city, dedicated for park
purposes and improved and utilized as a park, is impressed with a
public trust and may not be used for other than park purposes or
alienated without the express approval of the State Legislature.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions