Opinion
16263/03.
Decided May 14, 2004.
JEFFREY BRAVERMAN, Lake Success, NY, Plaintiff, pro se.
PETER MINEO, Lake Success, NY, Attorney for Defendant.
This is a hybrid proceeding pursuant to Article 78 of the CPLR and CPLR 3001, petitioner seeks mandamus, declaratory and injunctive relief. No formal complaint has ever been served or filed.
Petitioner is a resident, taxpayer and property owner in the Village of Lake Success. The petition seeks, inter alia, a judgment declaring that the property situated within the Village of Lake Success known as the Village of Lake Success Golf Course ("the Village Golf Course") be operated as a public park and directing the Board of Trustees of the Village of Lake Success to rescind and revoke the Rules and Regulations of the Village Golf Course based upon discriminatory enforcement of the current membership categories.
In addition, paragraph 17 of the petition seeks a judgment declaring that the golf course is a self-supporting improvement pursuant to Article 13 of the Village Law. As a preliminary matter, this relief is denied. No local law has been enacted by the Village pursuant to Village Law § 13-1302 establishing the Village Golf Course as a self supporting improvement.
Respondents have moved for summary judgment dismissing the petition on several grounds including: 1) The park land acquired by the Village in 1956 was always intended to be utilized by Village residents and not the public at large; 2) petitioner lacks standing as he failed to allege the existence of an "injury in fact"; 3) petitioner's claims which seek revocation of the Rules and Regulations of the Village's Golf Course as well as a certain bond resolution are time-barred; 4) petitioner's argument as to the constitutionality of the establishment of categories of membership, i.e., that the residents are being denied equal protection of the laws is without merit as such classification rests on a reasonable rational basis; and 5) petitioner has failed to exhaust his administrative remedies.
In response thereto, petitioner has served a cross-motion seeking to change or eliminate the following policies of the Village Golf Course:
i. the advance reservation system;
ii. the fee structure for access thereto;
iii. the method of financing capital improvements;
iv. the volunteer effort regarding host tournaments;
v. the method of handling Village surplus funds; and
vi. the rules and regulations.
In sum, petitioner is basically asking this court to manage the day to day operations of the Village Golf Course because the Village Trustees supposedly do not have the authority or power to regulate access thereof.
The pertinent undisputed facts of this proceeding consist of the following: In 1956, the Village of Lake Success purchased the golf course. The golf course was formerly a portion of a larger golf course known and operated as the Deepdale Golf Club. In 1955, approximately 120 acres of the golf course became available for acquisition when it was officially announced that the roadway of the soon to be constructed Long Island Expressway would cut through the Deepdale Golf Club property and bisect the existing golf course. The Village approved resolutions authorizing the acquisition and public financing in order to proceed with the acquisition. The purchase price in the amount of $1,065,000.00 was obtained by the issuance of Serial Bonds and Capital Notes pursuant to the Local Finance Law of the State of New York. The Village records indicate that no County, State or Federal funds were used for the acquisition. Village records confirm that the Serial Bonds and Capital Notes were repaid with Village revenues raised from Village real property taxes and revenues from the operation of the golf course.
According to certain Village records, the golf course operated as a nine hole course for the years 1956 and 1957. Shortly thereafter, the Village expanded the course to its current 18 hole design. The expansion was financed by Village funds generated by golf course revenues. Again, no improvements were financed by funds obtained from the County, State or Federal governments.
The Village Board of Trustees, by resolution, established a Golf Commission to supervise and direct activities at the golf course consisting of the grounds and buildings. From time to time, the Golf Commission makes recommendations to the Board of Trustees concerning the rules and regulations for the golf course as well as the fees to be charged for playing privileges.
The Village Golf Course is basically a municipal recreational facility. The Village Board of Trustees approves all fees, rules and regulations, and expenditures for the use and operation of the golf course. The revenues and expenses attributed to the operation and maintenance of the golf course are accounted for in the annual Village budget. By resolution, i.e., legislative enactment, all of the above are approved by the Village Board of Trustees in their discretion as a legislative body.
By way of factual background, the Village has recorded all transactions related to the golf course in a separate golf course fund (the Fund)." Up until 2000, the Fund has been self-supporting and capital improvements to the golf course have been borne by the Fund, and through it, the golf members. Around this same time, The Golf Commission considered significant expenditures for rehabilitating the golf course including redesigning and replacing an antiquated drainage system, reconstructing tees and various other potential upgrades for the course. (See memo from Trustee Ron Cooper). As a consequence, the Board of Trustees determined that capital improvements to the golf course should be borne by the General Fund as opposed to the Fund, and such costs should be included in the Village tax rate. In this regard, the Board claimed that it could not tax resident golfers for capital improvements to the golf course since "the golf course inures to the benefit of and "[i]mprovements to the golf course are no different than improvements to other portion all residents through increased property values" (Id). The Board intended to reaffirm its position that the golf course would be self-supporting with respect to normal operation and maintenance and hence, paid by the golfers.
On or about September 18, 2003, the Board of Trustees adopted a bond resolution subject to a permissive referendum "[a]uthorizing the construction of drainage improvements for the golf course, including incidental costs and expenses in connection therewith, in and for the Village of Lake Success, Nassau County, New York, and authorizing the issuance of $2,000,000 bonds of said Village to pay the cost thereof." Section 7, paragraph 2 states that this resolution is subject to a permissive referendum and provides for a twenty (20) day statute of limitations or legal proceeding intended to contest the validity of said resolution. No request for a permissive referendum has been received by the Village nor was any legal proceeding commenced within twenty days.
One of the primary issues to be determined by this court is whether or not the Village Golf Course may be restricted to Village residents.
Petitioner asserts that the phrase "public park" set forth in the acquisition and bond resolutions in 1956 automatically infers that the golf course was open to the public at large, i.e., residents and non-residents of the Village. Petitioner further argues that any regulation that excludes the public from access to the golf course is a prohibited alienation of park property. Respondents, on the other hand, argue that the use of the term "public" contained in the various resolutions was always intended to mean Village residents.
Contrary to petitioner's contention, respondent's limitation and restriction of the use of the Village Golf Course to residents of the Village is lawful and does not violate the equal protection clauses of the Fourteenth Amendment to the Constitution of this United States and of Section 11 of Article I of the Constitution of the State of New York. It is true that the golf course and other facilities are devoted to the public use of the Village residents, and must be maintained by the Village for the benefit and use of all Village residents. However, this does not necessarily mean that the Village is "required to maintain its facilities for the benefit of all the people of the State and may not restrict them for use by that portion of the public represented by its own residents (citations omitted)" ( Schreiber v. City of Rye, 53 Misc2d 259, 261).
In Gewirtz v. City of Long Beach, ( 69 Misc2d 763, affirmed 45 AD2d 841) the court outlined the various methods of dedication of a public facility to recreational uses. The court held that the dedication of land to recreational use could be shown by an express act of the municipality, implied by the conduct and practices of the municipality; or from actual use by the public for the purposes for which the property was dedicated. In order to establish use by the general public at large, said use must be actual, continued, and long standing (See Gewirtz, supra at 771). Here, the use of both the eighteen hole golf course and the temporary nine hole golf course by the public at large (non-residents) was neither continued nor long standing.
Under the facts at bar, the equal protection clauses which petitioner invokes, do not prevent the exercise by the Village of Lake Success "of a wide discretion in the classification of persons who may benefit from public facilities maintained through the taxation of its residents. Concededly, such classification must rest on some reasonable basis, but when it is called into question, if any state of facts, reasonably can be conceived that would sustain it, the existence of that state of facts must be assumed ( cf. Morey v. Doud, 354 U.S. 457, 464 ) ( Schreiber v. City of New York, supra at 261). In the instant case, adequate justifications have been asserted by the Village for the membership classifications. Furthermore, no showing of intentional or purposeful discrimination has been demonstrated here ( Id, Yick Wo v. Hopkins, 118 US 356; People v. Utica Daw's Drug Co., 16 AD2d 12, 15).
There are important explanations for respondents' classification system. First, all Village residents have equal opportunities to choose the type of membership that meets the budget and golfing preferences. No resident is excluded from the ability to fully participate along with all other residents. Second, the golf course is a recreational facility with limited capacity. The tiered membership system, open to all Village residents has created a safe, adequate and orderly use of the Village Golf Course. Hence, the rules and regulations enacted by the municipality restricting access has a reasonable non-discriminatory basis.
With this background in mind, petitioner's request to rescind and revoke the rules and regulation of the golf course is denied.
The Village is allowed by statute to control and regulate parks and recreational facilities (see Municipal Home Rule Law § 10(1)(ii)(a)(6), (11) and (9-a) Statute of Local Government § 10(3), Village Law § 4-412(1) and General Municipal Law § 242). This statutory authority is broad enough to regulate use and access to its facilities.
As noted above, immediately after the acquisition of the golf course, the Village Board of Trustees established a Golf Commission for the purpose of making recommendations to the Village Board with respect to the operation and maintenance of the golf course. The Commission is presently comprised of eleven members, consisting of 10 volunteer residents and one Village Trustee. All members are appointed by the Village Board of Trustees. The Commission meets on a monthly basis and makes recommendations to the Board of Trustees on each and every issue which requires Village Board approval. Generally, these issues address the rules and regulations, the operation of the golf course and its revenue, expenses, and fee structure. The Village Board of Trustees, by resolution approved at a public meeting after discussion, will implement the rules and regulations and fee structure recommended by the Commission or with modifications deemed appropriate by the Board of Trustees.
Under the circumstances, the Village has sufficient authority and power to manage the Golf Course and this court declines to substitute its judgment.
Furthermore, this court finds that petitioner lacks standing to challenge the constitutionality of the enforcement of the membership categories as he is within the category of individuals permitted to use the golf course ( see People of the State of New York v. Dahlman, 87 Misc2d 261).
The burden of establishing standing rests on the petitioner (Society of the Plastics Industry, Inc. v. County of Suffolk, 77 NY2d 761, 769). Here, petitioner lacks standing to maintain the proceeding on the ground that he has failed to allege "any threat of cognizable injury [he] would suffer, different in kind or degree from the public at large" ( Id. at 778).
As the Court of Appeals stated in Society of Plastics v. Suffolk, supra at 772, 773:
"Whether derived from the Federal Constitution or the common law, the core requirement that a court can act only when the rights of the party requesting relief are affected, has been variously refashioned over the years. . . . The existence of an injury in fact-an actual legal stake in the matter being adjudicated-ensures that the party seeking review has some concrete interest in prosecuting the action which casts the dispute 'in a form traditionally capable of judicial resolution' ( Schlesinger v. Reservists to Stop the War 418 US 208, 220-221).
Injury in fact, thus, serves to define the proper role of the judiciary, and is based on 'sound reasons, grounded not only in theory but in the judicial experience of centuries, here and elsewhere, for believing that the hard, confining, and yet enlarging context of a real controversy leads to sounder and more enduring judgments' ( Bickel, The Least Dangerous Branch, at 115 [1962]).
To this essential principle of standing, the courts have added rules of self-restraint, or prudential limitations: a general prohibition on one litigant raising the legal rights of another; a ban on adjudication of generalized grievances more appropriately addressed by the representative branches; and the requirement that the interest or injury asserted fall within the zone of interests protected by the statute invoked ( see, Allen v. Wright, 468 US, at 751, supra). It is the last of these limitations, adopted at both State and Federal levels, that has evolved into the crucial test for standing in the administrative context (citations omitted)."
Applying this test to the within proceeding, petitioner has not demonstrated that the in-fact injury at issue falls within the "zone of interests" sought to be promoted or protected by the statutory provisions under which the golf course has acted ( see Id at 779).
Overall, the record substantiates that the Village has the right to limit the use of its golf course to residents. Equally unavailing is petitioner's contention that the golf course was dedicated to use of the public at large ( see Matter of Schreiber v. City of Rye, supra). Rather, it appears that it was designed and created for Village residents. Furthermore, petitioner has not demonstrated that the Village has engaged in discriminatory practices or violated any constitutional provisions.
Finally, petitioner's request to rescind and revoke the Rules Regulations of the golf course is denied.
In view of this determination, it is unnecessary to reach the other bases cited by respondents for dismissal of the petition.
Accordingly, the petition is dismissed. Settle judgment on notice.