|Legal Opinion: |
Text of Document: March 4, 1993
You have asked whether the City can accept a grant of property to be used as a park with the condition that it be exclusively a park for senior citizens. It is questionable that the city could legally accept such a restrictive grant. Even if it could, as a practical matter, I cannot envision how the city could enforce this restriction. I would suggest the city not accept such a conditional grant.
When property is dedicated by a private party to the public with the provision that it only be used for a park, any other use or the property inconsistent with such a condition will cause the city to lose the property. See McQuillen, Municipal Corporations, 3d Ed., Vol.10, §28.52.05. "The use and control of public parks...are subject to the restrictions in the dedication or donation, if so acquired...". McQuillen, §28.52.
Some conditions have not been upheld because they violate the constitution and federal and state statutes, such as restrictions that certain public facilities by used by "white's only." See McQuillen, §28.54 and cases cited therein. Also, limiting property dedicated for a park to a segment of the population, and not the public at large, have been struck as being outside the authority of a municipality. In Atlantic Beach Property Owners' Ass'n. Inc. v. Town of Hempstead, 3 NY2d 434, 165 NYS2d 737, 144 N.E.2d 409 (1957), the New York Appellate Court struck a grant by a homeowner's association to the Town which limited use of the property to residents of the association.
The Court held that:
Land may be limited in dedication deeds for use for streets, parks, [etc,]...but the use must be public...
Several Courts have upheld time limitations or temporary restrictions on use of public property, such as limiting the hours women can play on a municipal golf course, Allen v. Manchester, 99 NH 388, 111 A.2d 817 (N.H. 1955), or limiting use of a public beach to residents of the municipality Van Ness v. Borough of Deal, 145 N.J. Super 368, 367 A.2d 1191 (Sup.Ct. 1976), but I can find no case that upheld limiting use of a public park to a certain portion of the public.
Even if such a dedication were to be upheld, how is the City going to enforce such a restriction on use. If you define a senior citizen to be a person over a certain age, say 55, are you really going to arrest someone for entering the park if the are 50? I surely wouldn't want to defend such a policy. I think the better approach would be to assure the grantor that the City will enact the necessary ordinances to restrict noise in and around the park or restrict the use of skateboards, etc., that will deter or keep disturbances to a minimum.
I would tell this property owner that the City would love to have the property but cannot accept such a restrictive grant. If you need additional help on this or any other matter, please feel free to call.