Plans for an indoor NHL-sized hockey rink at Veterans Memorial Park in Calverton have hit a snag over whether the proposed agreement between Riverhead Town and the nonprofit Peconic Hockey Foundation runs afoul of state law.
Once municipally owned land is dedicated as parkland, it can’t be used for any non-park purpose, sold or leased without state legislation authorizing it.
A municipality can enter into a license agreement — which is different from a lease — to allow the use of parkland by a private entity without creating an alienation of parkland, according to a handbook on parkland alienation published by the State Office of Parks, Recreation and Historic Preservation.
Town officials sent a proposed agreement with Peconic Hockey to the Office of State Attorney General seeking an opinion on whether it would be considered alienation of parkland. The Town Board authorized the agreement on Oct. 4.
Assistant Solicitor General in Charge of Opinions Kathryn Sheingold warned Town Attorney Erik Howard that the agreement, as drafted, would be considered a lease, not a license. A lease is subject to closer scrutiny and is more likely to be considered an alienation.
After speaking with Sheingold, the town attorney and attorneys for Peconic Hockey made revisions to the agreement and Howard sent it back to Sheingold.
“I expect that, if we were to issue an opinion, we still would conclude that the proposed agreement constitutes a lease rather than a license, due to the rights and control retained by the not-for-profit,” Sheingold wrote in an Oct. 26 email to Howard obtained by RiverheadLOCAL through a Freedom of Information Law request.
But the attorney general’s office does not advise on drafting agreements between municipalities and nonprofits, Sheingold wrote. She suggested the town contact the State Office of Parks, Recreation and Historic Preservation for advice.
Howard and attorneys for Peconic Hockey are now working on further revising the agreement, Howard said this week.
Howard said that changes being discussed with Peconic Hockey include provisions that would “underscore” the town’s control of the facility, give more ice time to town programs, and further involve Parks and Recreation Superintendent Ray Coyne in the operation of the facility.
The parkland alienation handbook says New York courts look at whether the municipality retains significant oversight of things like fees charged, hours of operation, operating procedure, and marketing and hiring, as well as the non-exclusivity of rights granted to the private entity and whether the agreement may be terminated by the municipality at will.
In its current form, the agreement gives Peconic Hockey the authority to hire and supervise staff, power to set fees for the facility’s use and control of the facility’s finances. Under the current agreement, residents with town recreation department passes will get discounted fees for use of the rink at certain times and/or for certain programs. Some programs will be offered free to town residents.
Howard said that Sheingold also advised the town to decrease the length of the agreement with Peconic Hockey, since license agreements are typically shorter, he said. The town’s agreement with Peconic Hockey is for an initial term of 15 years.
But Howard said that a longer agreement with Peconic Hockey makes more sense from the nonprofit’s standpoint. The organization wants to grow in Riverhead, and Howard said he “understand[s] Peconic Hockey’s hesitancy to go for less than” 15 years.
“They’re giving us relatively high-value assets that they have,” Howard said. “And so they’re looking for a little bit of assurance that, you know, after whatever short-term license would be — if it was two years or three years — that we wouldn’t kick them out.”
However, the license agreement does not assure Peconic Hockey they will not be “kicked out” like Howard said. The agreement gives the town the right to terminate the agreement at will for several reasons, or no reason at all, and still keep the ice rink facility.
Peconic Hockey Foundation President Troy Albert did not return a call requesting comment for this story.
Howard withdrew his request for an opinion in an email to Sheingold, stating that he will look to negotiate different terms for the agreement.
“I don’t like their conclusion, but I understand why they got there,” Howard said.
“I don’t think ultimately that it is parkland alienation,” Howard said. “I think that it’s a proper purpose. I think it achieves a vision that our recreation director has had for the location. I think it puts town parkland to good use and offers something to the community that we don’t have. And so I think that in the event there was some kind of litigation I feel like we would be on solid footing in defending that.”
“That being said, my opinion doesn’t change what the AG says,” Howard added.
The revision to the Peconic Hockey agreement likely means the facility won’t open at the nonprofit’s target date of early 2023, Howard said.
The addition of an ice rink at Veterans Memorial Park, one of the town’s flagship parks, would further Coyne’s vision of the park as a “Mecca” for sports tourism in the region. The Peconic Hockey project was the first project proposed as a part of that vision. Town Board members are in full support of the project.
The current agreement with Peconic Hockey stipulates that the nonprofit will build the domed ice rink facility, approximately 120 feet by 225 feet in size, on an approximately 1.5-acre portion of undeveloped park roughly opposite the dog park on the east side of the park’s recreation trail. After the facility is built, it would be donated to the town in exchange for the right to occupy, operate and manage the facility. The value of the facility is estimated to be $1.5 million.
A deck hockey rink was also donated to the town by the organization and will sit next to the dome.
The town will obtain all necessary state, county and town permits for the construction of the rink facility and pay any fees associated with applications, inspections, surveys, environmental review and stormwater management. The town is also responsible for bringing water and electric lines to the facility, and to also provide a bathroom to the facility, something it does not currently have at the park. The town also agreed to pay up to $150,000 a year of utility costs for the facility.
The Town Board resolution authorizing the agreement states that the agreement will be contingent upon an opinion from the office of the Attorney General or office of Parks, Recreation and Historic Preservation. Once both sides agree on a revised draft Howard said the town will pursue another opinion, either from the Attorney General’s office or the State Office of Parks, Recreation and Historic Preservation.
Howard remains skeptical that either office will give a concrete answer to the question he asked in the first place: whether the town is committing an alienation of parkland. The parkland alienation handbook itself says the same, due to the “absence of an on-point legal precedent” on the subject.
“Maybe all we get is an opinion and not like ‘this is the green light,’” said Council Member Ken Rothwell, who has been working on the ice rink project. “We wanted a letter that said: ‘This looks like great work, change A, B and C and you’re good to go’ — and we’re just not getting that.”
Supervisor Yvette Aguiar said in an interview that the town should send the next draft of the agreement to the State Office of Parks, Recreation and Historic Preservation for the opinion — and that the town should have been advised by the office from the start.
“From the onset, it appeared that there was an alienation [issue],” said Aguiar, who brought up parkland alienation as an issue before the agreement was negotiated. “And this could have been easily addressed with the entity who makes the decision, which is the New York State Parks and Historic Preservation, not the attorney general.”
Rothwell said Peconic Hockey has not signaled any intention to bow out of the partnership with the town due to the complications related to the agreement.
“The town is committed to it. I mean, everybody is excited. All my fellow councilmen are on board with this project and want to see it to fruition — and so is Peconic Hockey,” Rothwell said. “So I think we are going to keep plugging away to get this project going.”
The survival of local journalism depends on your support.
We are a small family-owned operation. You rely on us to stay informed, and we depend on you to make our work possible. Just a few dollars can help us continue to bring this important service to our community.
Support RiverheadLOCAL today.