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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

IMPROVEMENT DISTRICTS -- Establishment (authority to establish overlapping town districts authorized to provide same improvements or services)
PARK DISTRICTS -- Establishment (authority to establish park district within an existing park district)

TOWN LAW, §§81, 198, 202, 202-a, 220: A town may not, pursuant to Article 12 or 12-A of the Town Law, establish overlapping town districts authorized to provide the same improvements or services.

This is in response to your letter concerning the establishment of a park district within the boundaries of an existing park district. You indicate that certain property owners within an existing park district have requested that the town establish another park district including their properties. You ask whether a town, pursuant to article 12, or sections 81 or 220 of the Town Law, may establish a park district within an existing, larger park district and, if so, whether the use of the facilities in the new district may be limited to the owners of property within that district.

With regard to Town Law, §§81 and 220, we note that these statutes authorize the establishment of town parks that are to be financed, operated and maintained as a town-wide function (Incorporated Village of Ardsley v Town of Greenburgh, 79 AD2d 628, 433 NYS2d 626, affd 55 NY2d 915, 449 NYS2d 27). Therefore, these statutes do not authorize the establishment of park districts under any circumstances.

The authority to establish park districts in a town is contained in articles 12 and 12-A of the Town Law. If a town establishes a park district, the facilities must be constructed and maintained wholly at the expense of the district (Town Law, §§190, 202, 202-a). Subject to equal protection guarantees, a town board may exclude non-residents of a park district from the facilities of the district (Town Law, §198[4]; 1988 Opns St Comp No. 88-25, p 45; 1988 Opns St Comp No. 88-22, p 39).

Nothing in article 12 or 12-A of the Town Law expressly or by necessary implication authorizes the establishment of overlapping town districts authorized to provide the same improvements or services. In contrast, we note that the statutory scheme of article 5-A of the County Law clearly contemplates the existence of town districts within county districts authorized to provide the same general improvements or services (1988 Opns St Comp No. 88-72, p 140; see, e.g., County Law, §§255, 266[1]). Therefore, it is our opinion that a town may not, pursuant to articles 12 and 12-A, establish a park district within an existing town park district (see 1980 Opns St Comp No. 80-791, p 217; 13 Opns St Comp, 1957, p 60; 11 Opns St Comp, 1955, p 609).

January 4, 1990
Diana Centrella Prevete, Esq., Acting Town Attorney
Town of North Hempstead