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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Moneys in Lieu of Park Land (use of for preliminary costs and feasibility studies)
ZONING AND PLANNING -- Park Lands (use of park trust moneys for preliminary costs and feasibility studies)

TOWN LAW §277(4): Moneys, in lieu of land for park, playground and other recreational purposes, may be expended to pay reasonable and necessary preliminary costs, such as engineering and legal expenses, directly related to, and necessary to proceed with, an improvement to park land. Such moneys also may be expended to undertake a study of the feasibility of particular capital improvements to park land.

You ask whether moneys, in lieu of land for park, playground or other recreational purposes, may be expended to pay reasonable and necessary preliminary costs, such as engineering and legal expenses, related to a capital improvement at a town park. You also ask whether such moneys may be expended to undertake a study as to the feasibility of one or more particular projects.

Town Law §277(4) provides that, before a town planning board may approve a subdivision plat containing residential units, the subdivision plat must show, when required by the planning board, a park or parks suitably located for playground or other recreational purposes (Town Law §277[4][a]). Land for park, playground or other recreational purposes may not be required until the town planning board has made a finding that a "proper case" exists for requiring that a park or parks be suitably located for playground or other recreational purposes within the town (Town Law §277[4][b]; see also Bayswater v Planning Board of the Town of Lewisboro, 76 NY2d 460, 560 NYS2d 623). The finding must include an evaluation of the present and future needs for park and recreational facilities in the town, based on projected population growth to which the particular subdivision plat will contribute (id.).

If the planning board makes a finding that a proposed subdivision plat presents a "proper case" for requiring a park or parks suitably located for playgrounds or other recreational purposes, but that a suitable park or parks of adequate size to meet the requirement cannot be properly located on the plat, the planning board may require a sum of money in lieu of the reservation of park land, "in an amount to be established by the town board" (Town Law §277[4][c]; Twin Lakes Development v Town of Monroe, 300 AD2d 573, 752 NYS2d 546; Long Clove v Town of Woodbury, 303 AD2d 383, 755 NYS2d 666). In determining suitability,
the planning board must assess the size and suitability of lands shown on the plat that could be possible locations for park or recreational facilities, as well as practical factors, including whether there is a need for additional facilities in the immediate neighborhood (Town Law §277[4][c]; Bayswater, supra).

Any moneys required by the planning board for park, playground or other recreational purposes must be deposited into a trust fund, "to be used by the town exclusively for park, playground or other recreational purposes, including the acquisition of property" (Town Law §277[4][c]). This Office has expressed the opinion that, in order to further the underlying purpose of the trust, park land trust moneys, as a rule, may be expended only to acquire additional park land or to construct, rehabilitate or expand existing park or recreational facilities to meet the needs generated by new subdivisions (see, e.g., 1991 Opns St Comp No. 91-36, p 107; see also 2003 McKinney's Cumulative Supplementary Pamphlet for Town Law §190 to End, §277, Supplementary Practice Commentaries, "Recreation Land"). Preliminary costs directly related to an improvement of park land, such as engineering and legal costs, are generally expenses necessary to proceed with the improvement (see, e.g. Education Law §7209[3]) and considered to be incidental to the cost of improvement (see, e.g., Local Finance Law §11.00[a]). As such, it is our opinion that park trust moneys may be expended to finance those costs.

We also have expressed the opinion that the park trust moneys may be expended to conduct studies to determine the recreational needs of a town and to determine suitable locations for a park (1982 Opns St Comp No. 82-206, p 260). Expenditures for these and similar planning purposes, including studies as to the feasibility of particular projects, in our view, are necessarily related to the improvement of park and recreational facilities and are consistent with the statutory purposes of the fund.

Accordingly, moneys, in lieu of land for park, playground and other recreational purposes, may be expended to pay reasonable and necessary preliminary costs, such as engineering and legal expenses, directly related to, and necessary to proceed with, an improvement to park land. Such moneys also may be expended to undertake a study of the feasibility of particular capital improvements to park land.

November 3, 2003

Christine K. Wienberg, Esq., Town Attorney
Town of Woodbury