South Avenue: What Do I Really Think?

I have offered suggestions from time to time both on my blog and in private. My goal was to be helpful. I see little evidence that my suggestions have had any influence. So I spent some time this evening reviewing my past posts.

As early as last January 28, I addressed the puzzle of the announcement that the town was "exploring the possibilities of sale or exchange of property in the vicinity of the west end terminus of South Avenue and Avenue A..."

I pointed out that the town owns no property in that vicinity. And that the town can't sell public rights of way. That hasn't changed.

Since January 28th, I have encountered on the internet many legal references reinforcing the principle that a town may not sell or barter a public right of way:

"A City has no power to sell or barter the streets and alleys which it holds in trust for the benefit of the public and cannot vacate a street for the benefit of a purely private interest." - Roney Inv. Co. v. City of Miami Beach (a Florida case).

See also AT&T v. Village of Arlington Heights, 620 N.E.2d 1040, 1044 (Ill. 1993)(“Municipalities do not possess proprietary powers over the public streets [which are] ... held in trust for the use of the public.”). 

The same principle is spelled out by Eugene McQuillin in Law of Municipal Corporations, (3d rev. ed. 1990) at § 30.40 (“[T]he estate of the city in its streets … is essentially public and not private property, and the city in holding it is considered the agent and trustee of the public and not a private owner for profit or emolument. The power to maintain and regulate the use of  the streets is a trust for the benefit of the general public, of which the city cannot divest itself…”);

The contract which the town board approved on May 17 by a 4-1 vote sets forth a barter transaction, in violation of fundamental principles of the law of public streets.

This is not an obscure principle or an arcane technicality. It is fundamental. "...Whatever rights the city may have over its streets, its powers are those of a trustee for the benefit of the cestui que trust (the public), liberally construed for its benefit, strictly construed to its detriment." McQuillen.

One of the most powerful protections of the public interest in rights of way is precisely the prohibition against selling or bartering them. That removes the temptation for the governing body to exchange rights of way held in the public trust for short term fiscal benefit.

To barter our town's most irreplaceable  long-term asset, namely public access to the public trust waters of our harbor, for waterfront real estate held in fee simple, will inevitably tempt future town boards to sell the property to meet short term fiscal needs.

Indeed, one of the present commissioners has expressed the view at a public meeting that the town SHOULD sell some of its rights of way. In response to the concern I have expressed about the current transaction, that there should be some restrictions, preferably a dedication to the public with restrictions that would preclude such a conversion to revenue by a future governing body, this same commissioner asked, "why would we want to tie our hands that way?"

Why? Because our rights of way are held in trust.

Future town boards may not always keep the town's future in mind. We need to help them do so.

There may have been a way to structure an acceptance of Mr. Fulcher's donation of property so that it was not a sale or barter and so that the public's interests were protected by conditions of the gift. There may still be a way.

The contract approved by the town board on May 17 isn't it.