Shortly before the Feb. 3 board meeting, Village Counsel Gary Fishberg provided trustees with his long-awaited legal opinion regarding the recent St. Paul's parkland designation. Although trustees still disagree on the designation's benefits, Mayor Barbara Miller again defended her decision, stating she believes it's in the best interest of the village's future.

The board voted in favor of a negative declaration of impact under the State Environmental Quality Review Act (SEQR) after Mayor Miller broke a tie vote. Soon after, Trustee John Watras reintroduced the parkland resolution, which passed after Mayor Miller again broke a tie vote. Trustees voted the same way they did when the mayor first introduced the resolution Dec. 16: Mayor Miller and Trustees Watras, Jon Segerdahl and Peter Negri voted in favor of it while Trustees Robert Rothschild, Peter Bee, John Mauk and Gerard Lundquist cast no votes.

Trustee Watras urged the board to move forward, stating, "POAs and citizens in general deserve decisions and we haven't been making them." Trustee Segerdahl concurred, stating 12 years of inaction is just too long. Trustee Lundquist, who will become mayor this April, however, said counsel's eight-page opinion should have been disseminated to the village's four property owners' associations.

Trustee Bee hoped to thoroughly digest the opinion and discuss it with counsel before rushing to vote. "There is no need for speed," he told fellow trustees. Trustee Mauk agreed and accused the mayor of leaving the board with a "mess" once she officially leaves office.

Tom Lamberti of First Street, who will replace Mayor Miller as a Central representative, requested that village counsel release his opinion. He told trustees: "We have not seen the opinion. Rather, we've heard snippets rendered by Mr. Fishberg and commented on by Trustees Negri, Mauk, Watras, etc. I would like to know, now that you have acted, will you now release the opinion to the public?" Counsel Fishberg opted to prepare a summary for the public.

Lamberti's campaign literature focused greatly on the parkland designation, as did a recent flier Trustees Rothschild and Mauk mailed to Estates residents. Many parents who have children attending the Cathedral Nursery School at the cottages became gravely concerned for the school's future. Does the parkland designation jeopardize the operation of the nursery school at the cottages any more than the public trust designation currently impressed on the property?

At the time in which the Cathedral of the Incarnation requested a temporary leasing agreement from the village to use the vacant cottages for temporary housing of its nursery school, village officials struggled with what would fall within a permissible use under the public trust designation. While Judge Burke's decision in the Kenny/Rafferty case prohibited private use of the entire 48 acres of St. Paul's property, counsel concluded that something temporary in nature and of a minor intrusion, like the nursery school, did not violate the judgment.

Michael Ciaffa, who represented the Kennys and Raffertys in the case against the village, noted, "Under the public trust doctrine, there's a shared responsibility between the village and the State of New York respecting future uses of public trust property."

Even though schools are clearly not considered parkland use, Ciaffa added, "The parkland designation does not change the fact that, under the public trust doctrine, temporary use of the cottages for the Cathedral Nursery School is proper." Further, the New York State Department of Parks, Recreation and Historic Preservation takes the position that a permit for "the temporary use of park facilities not otherwise being used by the public" is lawful if it may be revoked at will.

According to Counsel Fishberg, yes. "Parkland designation is more specific and creates narrower uses. It permits a lesser number of uses than a public trust designation does," he said, admitting he didn't know every use that may or may not be challenged under the narrower definition. He did, however, believe a senior or cultural center would be appropriate, further noting that one case considers a library as an acceptable parkland use. Clearly, the ability to relocate village hall has been lost.

Private use is not permitted under both the public trust and parkland designations. Home rule legislation is required. As far as approaching legislators for home rule, Counsel Fishberg isn't sure how they'll react now. He told trustees: "After you go to them and say, 'not only are we under the Kenny decision, which we'd like you to relieve us of, but we also want you to relieve us of something of our own making as well,' I don't know how the legislators will act."

Although no New York State statute claims that when property is alienated parkland, additional parkland, money, etc. must substitute it, Counsel Fishberg believes some quid pro quo will likely occur. Approximately eight to 10 home rule legislation bills are passed each year. Every bill is sent to the Office of Parks, Recreation and Historic Preservation where a review as to why the park is being alienated takes place before Governor George Pataki signs it. "They will normally try to come up with some quid pro quo," Counsel Fishberg said. The moving of the Kanner house on Tenth Street is a local example.