Hon. John J. Fox Town Attorney, Orangeburg
This is in response to a letter from your office wherein our opinion is requested as to whether or not a town may grant a concession for a reasonable fee to a private entity to operate a restaurant in a town-owned building in the town park. You have stated in reply to our inquiry that the park herein is not a park district pursuant to Town Law, § 198 (4).
A town may grant a license or concession for the operation of a service which might properly be operated in a park (Miller v City of New York,15 N.Y.2d 34 [1964]). It has been held that the operation of a restaurant is a proper use of park property (795 Fifth Avenue Corporation v City ofNew York, 15 N.Y.2d 221 [1965]); however, the license or concession should be terminable at will by the granting municipality and should not be a lease for a set period of time (Miller v City of New York, supra, which distinguishes a lease from a concession).
Town Law, § 64, subdivisions 2 and 3, grant to the town board the powers to manage and control town property for town purposes. The granting of a concession herein, terminable at will by the town, would not result in loss of control by the town of the property. It is also noted that the private entity herein must pay a reasonable fee for the concession. The structure herein is presently being used for a restaurant, so that it is assumed that the property is not needed for other town purposes. The restaurant will also be open to the general public for their convenience.
Accordingly, we conclude that a town board may grant a concession for a reasonable fee, terminable at will by the town, to a private entity to operate a restaurant in a town-owned building in the town park.